IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 M.A.C.A.No. 198 of 2008(D) ---------------------- OP(MV).857/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT/IST RESPONDENT IN THE OP ----------------------------------------------------------- GOPAKUMAR, S/O.GOPALAKRISHNAN, LEELA NIVAS, THEVALLY P.O., KOLLAM. BY ADV. SRI.B.MOHANLAL RESPONDENTS/PETITIONER & RESPONDENT 3 IN THE OP ---------------------------------------------------------------------------------- 1. ALBY JOHN, S/O.ALEXANDER JOHN, MULLUVILA VEEDU, ANCHAMKUTTY, CHEMMAKKADU P.O., PERINAD, KOLLAM. 2. THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, HOSPITAL ROAD, KOLLAM. BY ADV. SRI.M.A.GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No. 198/2008 ORDER ON I.A.NO. 280/2008 IN M.A.C.A.NO. 198/2008 DISMISSED. SD/- M.N. KRISHNAN, JUDGE. 19.8.2008. /TRUE COPY/ P.A. TO JUDGE. vkm M.N. KRISHNAN, J -------------------------- M.A.C.A.No. 198 OF 2008 ------------------------------------------ Dated this the 19th day of August, 2008 J U D G M E N T This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, Kollam in O.P(MV) No. 857/2000. The Tribunal awarded a sum of Rs. 30,900/- and directed the Insurance Company to pay and get it reimbursed from the owner. It is against that decision the owner has come up in appeal. It is submitted by the learned counsel that the said finding is incorrect in the light of the decision of the Apex Court reported in National Insurance Co. Ltd. v. Swaran Singh in 2004 (1) KLT 781 (SC) in para 102 (iv) the Apex Court held that: “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 M.A.C.A.No. 198/2008 -2- licence is/are so fundamental as are 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 S. 149(2) of the Act.” So from this it is very clear that if the Insurance Company is to be exonerated from the liability it has to prove that the 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. In para 102 (iv), the liability to prove the breach is on the Insurance Company. But unfortunately these aspects had not been considered and no evidence is tendered by the Insurance Company regarding the same. So the matter requires reconsideration so far as it relates to the interse liability between the insurer and the insured. Therefore the M.A.C.A is partly allowed and the finding so far as it relates to the order of reimbursement by the owner to the Insurance Company is set aside and the matter is remitted back to the Tribunal for fresh consideration in the light of Swaran Singh's case. Both parties are permitted to adduce both documentary as M.A.C.A.No. 198/2008 -3- well as oral evidence in support of their respective contention and thereafter the Tribunal shall dispose of the matter in accordance with law. Parties are directed to appear before the Tribunal on 26.9.2008. Till that time Revenue Recovery proceedings shall not be proceeded with. It is made clear that even if the dictum laid down in Swaran Singh's case is applied the primary liability is on the Insurance Company and its right is only to get it reimbursed from the owner, if it is able to substantiate its contentions. M.N. KRISHNAN, JUDGE. vkm