IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 MFA.No. 460 of 2003(F) ---------------------- OPMV.1803/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT: 1ST RESPONDENT: -------------------------------------------------- P.BALAKRISHNAN, S/O. KRISHNAN, PALAPPIRAVAN HOUSE, PANNIYOOR, THALIPARAMBA, KANNUR DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENTS: PETITIONERS/RESPONDENTS 2 & 3: ------------------------------------------------------------------------------- 1. P.S. KUNJUMON (DEAD). 2. PONNARATTA NALINI, W/O.LATE P.S.KUNJUMON VAYAKKARA AMSOM, PULINGOME DESOM, THALIPARAMBA TALUK. 3. PONNARATTA ARUN,S/O.LATE P.S.KUNJUMON (MINOR)REPRESENTED BY HIS MOTHER PONNARATTA NALINI, VAYAKKARA AMSOM, PULINGOME DESOM, THALIPARAMBA TALUK. 4. P.S.SETHUBAI, MOTHER OF LATE P.S.KUNJUMON, VAYAKKARA AMSOM, PULINGOME DESOM, THALIPARAMBA TALUK. 5. PALANGODAN SREEDHARAN, S/O.RAMAN NAIR, P.O. PARAPOIL, CHERUPUZHA. 6. THE ORIENTAL INSURANCE CO. LTD., REPRESENTED BY ITS MANAGER, THALIPARAMBA. ADV. SRI.K.S.MADHUSOODANAN FOR R5 SRI.C.P.PEETHAMBARAN FOR R5 SMT.PRAJANI RAJAN FOR R3 SRI.V.P.K.PANICKER FOR R6 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.2189/2003 IN M.F.A.NO.460/2003 DISMISSED 10/07/2008 SD/-M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = M.F.A.NO. 460 OF 2003 = = = = = = = = = = = = = = = Dated this the 10th day of July, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thalassery in OP(MV) 1803/95. The claimant sustained injuries in a road accident and he was awarded a compensation of Rs.69,500/-. The Tribunal found that the accident had taken place on 16.7.95 and that the driving licence had expired on 4.5.95 and it was renewed only on 28.7.95. So the Tribunal arrived at a decision that there was no valid driving licence and therefore directed the insurance company to pay and take reimbursement from the owner of the vehicle. It is against that decision the owner has come up in appeal. 2. Learned counsel for the appellant had submitted before me that the very absence of a driving licence on the date of the accident is not by itself sufficient to order reimbursement in the light of the Apex Court decision reported MFA 460 of 2003 -2- in Swaran Singh's case National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781). The Apex Court while summarizing the principles at paragraph 102 had laid down the propositions to be followed by the Tribunal. It has been held in paragraphs (iii) and (vi) as follows. (iii) “The breach of policy conditions, i.e., disqualification of driver or invalid driving licence etc. to avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of policy regarding the use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.” (vi) Even where the insurer is able to prove breach on the part of the insured concerning the 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 are so fundamental as are MFA 460 of 2003 -3- found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insurer under Section 149(2) of the Act.” So from the extraction of paragraph (iii) and (vi) it can be seen that the Tribunal was entrusted with the duty to see that whether the owner of the vehicle was conscious of the fact there was no licence and it must be established that it was the fundamental cause for the accident. Unfortunately this decision was not available for the Tribunal when it disposed of the matter in May 2001. Therefore, the matter requires reconsideration at the hands of the Tribunal and therefore the award under challenge is set aside so far as it relates to the right of reimbursement and the Tribunal is directed to consider that question afresh after affording equal opportunities to both sides. The insurance company is permitted to produce documentary as well as oral evidence in support of their respective contentions and the Tribunal shall dispose of the MFA 460 of 2003 -4- matter in accordance with law. The junction of the claimants are not necessary for a disposal in this case and the insurance company and owner are directed to appear before the Tribunal on 20.8.08. Till a final decision is taken, any recovery proceedings initiated by the insurance company shall remain stayed. M.N. KRISHNAN, JUDGE. ul/- MFA 460 of 2003 -5- M.N. KRISHNAN, J. = = = = = = = = = = M.F.A. No. 460 OF 2003 = = = = = = = = = = = J U D G M E N T 10th July, 2008.