IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 MACA.No. 939 of 2008() ---------------------- OPMV.1451/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT/1ST RESPONDENT --------------------------------- SAMUEL JOSE, JOSE BHAVAN SOORANAD, ANAYADI, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR SRI.K.P.SUJESH KUMAR RESPONDENTS/PETITIONERS AND RESPONDENTS 2 AND 3 ----------------------------------------------------------------- 1. ANNAMMA MARIAMMA,ALINTEKIZHAKKATHIL, SOORANAD, ANAYADI, KOLLAM. 2. DANIEL ABRAHAM, ALINTEKIZHAKKATHIL, SOORANAD, ANAYADI, KOLLAM. *3. DANIEL THANKACHAN,ALINTEKIZHAKKATHIL, SOORANAD, ANAYADI, KOLLAM. (DELETED) (THE NAME OF 3rd RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DT. 30.9.08 IN I.A. 2558/08) 4. DANIEL RAJAN, ALINTEKIZHAKKATHIL, SOORANAD, ANAYADI, KOLLAM. 5. REGHUVARAN, PUTHENPURAYIL VEEDU PALLICKAL, PATHANAMTHITTA. 6. NATIONAL INSURANCE COMPANY, KOLLAM. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No. 939/08 ORDER ON IA No. 1164/08 IN MACA No.939/08 DISMISSED 16.10.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- M.A.C.A No. 939 OF 2008 --------------------- Dated this the 16th day of October, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, Kollam, in OP(MV) 1451/96. The 1st respondent, namely the owner of the vehicle involved in the accident, is the appellant before this court. The driver has chosen to remain ex parte before the court below and therefore notice to him is dispensed with here also. The question that arises for determination in the appeal is regarding the liability of the owner of the vehicle to reimburse the amount to the Insurance Company for breach of policy conditions. The breach of policy condition set up is that the driver did not have an effective valid driving licence to drive the mini lorry at the time of accident. The name of the driver is shown as 'Reghuvaran' and the licence stands in his name. But in the badge his name is shown as 'Reghunathan'. Therefore the Tribunal came to the conclusion that there was no valid badge to drive the vehicle. 2. Admittedly, the vehicle involved in the accident is a mini lorry which comes under the definition of a transport vehicle as MACA No. 939/08 2 contemplated under section 2(47) of the Motor Vehicles Act. There was a view taken earlier that when there is a licence to drive a light motor vehicle, which is having a laden weight of less than 7500 Kgms, it can be presumed to be a valid licence for the reason that there was no such column in the licence forum with reference to a transport vehicle. Recently the Apex Court in the decision reported in New India Assurance Co.Ltd. v. Roshanben Rahemanshal Fakir [2008 (3) T.A.C. 20 (SC)] had exhaustively dealt with the subject matter including the amendment and modification that has come into effect in 1991-92 and also impressed the need of having the necessity of a due licence to drive the transport vehicle. In that case, the Apex court held that it is a must to have a valid driving licence to drive a transport vehicle. But it has also to be stated that the Apex court in National Insurance Co. Ltd. v. Swaran Singh [2004 (1) KLT 781 (SC)] has held that the mere absence of a licence does not absolve the insurer from indemnifying the insured and it has to be proved that the owner has consciously entrusted the vehicle negligently to a person who does not possess a valid licence and that the cause of accident had a real nexus and fundamental link with the MACA No. 939/08 3 absence of licence. Unfortunately, that has not been considered by the Tribunal. Therefore the matter requires reconsideration at the hands of the Tribunal. Therefore, the award under challenge is partly set aside so far as it relates to the inter se dispute regarding the liability between the owner and the Insurance Company is concerned. The appellant, who is the owner of the vehicle, is permitted to adduce both documentary as well as oral evidence in support of his contention and the Tribunal is directed to decide the matter afresh on the materials available and in accordance with law. Needless to say that the Insurance Company can also raise their contentions in the matter. The presence of claimants need not be insisted for the reason that it is an inter se dispute between the owner and the Insurance Company. Parties are directed to appear before the Tribunal on 1.12.08. M.N.KRISHNAN, JUDGE vps MACA No. 939/08 4