IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 M.A.C.A.No. 917 of 2004(D) ------------------------------ (MVOP.2323/1998 of SPL.COURT FOR EC ACT CASES &MACT,TSR) ................... APPELLANT/FIRST RESPONDENT: --------------------------------------- T.J.BABU,S/O.JOSEPH, THEKKEKKARA HOUSE, CHERUVANNUR P.O. KUNNAMKULAM, THRISSUR DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENTS/ ORIGINAL PETITIONER & RESPONDENTS 2 & 3:. -------------------------------------------------------------------------- 1. SANKARAN, AGED 60,S/O.SANKAPU, MANGAD HOUSE, PAZHANJIVAZHI, KUNNAMKULAM. THRISSUR DISTRICT. 2. EYYAKUTTY, S/O.JOSEPH, MANDUPALVEETIL, IYYAPPARAMBU, PORKULAM, KUNNAMKULAM, THRISSUR DISTRICT. 3. NEW INDIA ASSURANCE COMPANY LIMITED, BRANCH ANUGRAHA BUILDING, WADAKKANCHERRY ROAD, KUNNAMKULAM. BY ADV. SRI.DILIP J. AKKARA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ------------------------- M.A.C.A.No. 917 OF 2004 ------------------------------------------ Dated this the 30th day of June, 2008 J U D G M E N T This appeal is preferred by the owner of the vehicle involved in the accident against the direction of the Tribunal to reimburse the amount to the Insurance Company. As the claimant was a 3rd party, the Tribunal was justified in holding that the Insurance Company has to pay the amount. The next question is whether the Insurance Company is entitled to get reimbursement from the owner. The learned counsel had relied on the decision of this Court in 2006(2) KLT short note 15, case No. 20 Ramachandran Vs. Unnikrishnan in which this Court held that “mere absence of a badge to drive a commercial vehicle is not sufficient but it must be proved that it is the reason for the accident and they only, if it is, covered by the policy condition the Insurance Company can get exonerated from the liability”. This decision was rendered on the basis of the decision of the Apex Court 2004 (1) KLT 781 in para 102 Clause VI, the apex court held that “Even where the insurer is able to prove breach on the part of the insured concerning the M.A.C.A.No. 917/2004 2 policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident.” This matter has not been considered by the Tribunal for the reason that these decisions were not available at the time of disposal of the case. Therefore the matter requires reconsideration. Therefore the MACA is partly allowed and the finding regarding the question of reimbursement is set aside and the matter remanded back to the Tribunal for fresh consideration whether the Insurance Company is entitled to get reimbursement. The parties are directed to appear before the Tribunal on 5.8.2008 and in case of non appearance of the Insurance Company the appellant herein is directed to take fresh notice for further proceedings of the matter. MACA is accordingly disposed of. M.N. KRISHNAN, JUDGE vkm