IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 MACA.No. 1335 of 2005() ----------------------- OPMV.378/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR .................... APPELLANT/ ORIGINAL 2ND RESPONDENT ------------------------------------------------------------- A.M. NIZAR, S/O. MAKKAR, ZHIVELIKKAKTHU HOUSE, EDAVANAKKAD P.O., KOCHI TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.MATHEWS V.JACOB (PARAVUR) SRI.N.T.NANDAKUMAR (PARAVUR) RESPONDENTS/ ORIGINAL PETITIONER/ORIGINAL 1ST RESPONDENT/ ORIGINAL 3RD RESPONDENT: --------------------------------------------------------- 1. ELIAS, S/O. PHILIP, ADUVAKUZHI HOUSE, CHERAI, PALLIPPURAM KARA, KOCHI TALUK, ERNAKULAM DISTRICT. 2. ANTONY @ PRADEEP, S/O. DEVASSY THATTARUPARAMBIL HOUSE, PALLIPPURA, KOCHIT TALUK, ERNAKULAM DISTRICT. 3. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, MUNICIPAL BUILDINGS, MAIN ROAD, N. PARAVUR P.O. BY ADV. SRI.C.V.BIMAL ROY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 1335 OF 2005 --------------------- Dated this the 15th day of July, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, North Paravur, in OP(MV) 378/01. The appellant herein is the owner, who is the 2nd respondent before the Tribunal. The Tribunal on a consideration of the entire materials awarded a compensation of Rs.13,200/- with 7% interest and directed the Insurance Company to pay the amount and then get it reimbursed from respondents 1 and 2. It is against that decision, the present appeal is preferred. 2. Heard the counsel for both sides. The Tribunal had found that the vehicle which is involved in the accident is a tempo van and it was used as a goods vehicle and the driver did not possess a valid badge to drive the said vehicle and therefore directed the Insurance Company to deposit the amount and get it reimbursed from the owner and driver of the vehicle. 3. At the outset, I may like to state that a mere non-possession of a badge may not absolutely absolve the insurer from the liability of indemnifying the insured and this court had held that mere absence of a badge will not absolve the liability unless, it is proved that it has been a reason which is so fundamental to the accident. It is on the basis of the decision of the Apex court in National Insurance Co. Ltd. v. Swaran MACA No.1335/05 2 Singh [2004 (1) KLT 781 (SC)] and the decision of this court in Ramachandran v. Unnikrishnan [2006 (2) KLT SN Case No.20 Page 15]. So, without considering that the Tribunal had jumped to a conclusion which is not sustainable. 4. But the exact point which is in dispute in this case had come up for consideration before the Apex court in the decision reported in National Insurance Co. Ltd v. Annappa Irappa Nesaria [2008 ACJ 721]. It was a case where the vehicle involved in the accident was a Metadoor Van which had a goods carriage permit and the driver had a driving licence to drive light motor vehicle. A light motor vehicle has been defined under the Motor Vehicle Act as follows: “Under Sec.2(21) “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or roadroller the unladen weight of any of which, does not exceed 7500 kilograms.” 5. The medium vehicle means any carriage other than a light motor vehicle or a heavy goods vehicle. Formerly an application for granting licence was applied in a particular form wherein the vehicle were characterised as a light motor vehicle, medium goods vehicle, heavy goods vehicle etc. But subsequent to the amendment by GSR 221 E with effect from 28.3.01 it has been stated as light motor vehicle and transport vehicle. In this case the accident had taken place prior to the coming into force of the amendment i.e. on 28.1.01, two months prior to the same. The MACA No.1335/05 3 Apex court in para 16 of the judgment reported in National Insurance Co. Ltd v. Annappa Irappa Nesaria [2008 ACJ 721] held that “From what has been notice herein before, it is evident that transport vehicle has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. The light moor vehicle continued, at the relevant point of time, to cover both, light passenger carriage vehicle and light goods carriage vehicle. A driver who had a valid licence to drive a light motor vehicle therefore, was authorised to drive a light goods vehicle as well. “ So in the light of this decision of the Apex court, it has to be held that thought the tempo van is used for the purpose of carrying goods still as its unladen weight comes below 7500 Kgs, it is a light motor vehicle. As held by the Apex court that when there is a licence to drive a light motor vehicle the person can drive a light goods vehicle as well and there is no violation of the statutory provisions of the Motor Vehicles Act. So there cannot be any breach of policy conditions as well. So in the light of these discussions and on two grounds, I set aside the order of the Tribunal whereby it has ordered the reimbursement. (i) As stated in Swaran Singh's case the Insurance Company has failed to prove that the absence of a badge had been of such a fundamental character so as to cause the accident. (ii) Even as the law stood then a light motor vehicle takes in a light goods motor vehicle as well and in the light of the Apex court decision MACA No.1335/05 4 there is no violation. Therefore, the finding of the Tribunal so far as it relates to the right to reimbursement of the Insurance Company is set aside. On all other counts, the award will stand as such. The Insurance Company is liable to deposit the amount before the Tribunal and the Tribunal is bound to reimburse the amount deposited by the owner as a condition precedent for filing the appeal. The appeal is disposed of accordingly. M.N.KRISHNAN, JUDGE vps MACA No.1335/05 5