IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930 MACA.No. 1686 of 2007(D) ---------------------------------- AGAINST THE ORDER DATED 17/05/2007 IN OPMV. 1031 /2004 IN OPMV.1030/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/3RD RESPONDENT --------------------------------------- THE ORIENTAL INSURANCE CO.LTD., CHANGANACHERRY, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS: RESPONDENTS 1 & 2 ------------------------------------------ 1. XAVIER VARGHESE, KOCHERI HOUSE, MADAPPALLY VILLAGE, DO KARA, CHANGANACHERRY. 2. RAJAPPAN, PACHILAAMKAL HOUSE, KARUKACHAL P.O., NEAR N.S.S. HOSPITAL. BY ADV. SRI.S.PRASANTH FOR R.2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/09/2008, ALONG WITH MACA NO. 1687 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NOs. 1686 OF 2007 and 1687 of 2007 = = = = = = = = = = = = = = = Dated this the 2nd day of September, 2008. J U D G M E N T These appeals are preferred by the insurance company against the awards passed by the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV)Nos.1030/04 and 1031/04. The challenge is that the driver of the auto rickshaw did not have a valid driving licence to drive an auto rickshaw carrying passengers. The Tribunal held that the auto rickshaw driver had a valid driving licence from 25.7.97 to 22.1.2010 for non transport vehicle and that badge validity for transport vehicle is for the period from 25.7.00 to 24.7.03. The Tribunal arrived at a decision that as on the date of accident R2, the driver had no valid badge. The Tribunal held that want of badge was not the reason for the accident. It is challenging that finding the insurance company has come up in appeal. Learned counsel for the owner would contend that the auto rickshaw is a light motor M.A.C.A. NOs. 1686 OF 2007 and 1687 of 2007 -:2:- vehicle and when a person possess a licence to drive a light motor vehicle he can drive auto rickshaw carrying passengers which is used for public service and therefore it is not proper to hold that there was no valid driving licence for the auto rickshaw driver to drive the auto on the date of accident. In support of his argument he had cited the decision of this Court rendered in Prabhakaran P.P. v. James (2008 (3) KHC 690(DB). It was a case relating to driving of a tractor which was having unladen weight of 7500 kgs. coming within the definition of light motor vehicle u/s 2 (21) of the M.V. Act. The Division Bench held that since there was a valid driving licence to drive light motor vehicle he can very well drive a tractor and therefore insurance company cannot be exonerated from the liability. The question of validity of a licence so as to drive a transport vehicle has been considered by the Apex Court in the recent decision reported in New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir (2008 (3) TAC 20(SC). It was a case where a delivery van used for commercial M.A.C.A. NOs. 1686 OF 2007 and 1687 of 2007 -:3:- purpose was driven by a person who did not have a valid effective licence to drive a transport vehicle. The Apex Court considered Ss.147(3) and 10 of the Central Motor Vehicles Act and also the Rules. The Apex Court also extracted the table and held that as per clause (v) three-wheeled vehicles for transport of passengers or goods. Then again in paragraph 10 the Apex Court held that, “S.10 of the Act provides for classes of the driving licence. Different classes of vehicle have been defined in different provisions of the M.V. Act. The 'transport vehicle' is defined in S.2(47) of the Act to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. We have noticed hereinbefore the provisions of sub-section (4) of Section 41. We have also noticed the notification issued by the Central Government in this behalf. The said notification clearly postulates that a three wheeled vehicle for transport of passengers or goods comes within the purview of Class 5 of the table appended thereto.” M.A.C.A. NOs. 1686 OF 2007 and 1687 of 2007 -:4:- 2. Therefore, the Apex Court also taken into consideration the facts of the case and held that there was no effective driving licence so far as this case is concerned. Therefore from the finding rendered by the Tribunal it can be seen that though he had a licence to drive non-transport vehicle for the period from 25.7.97 to 22.1.10, he did have a badge to drive transport vehicle only for the period from 25.7.00 to 24.7.03. The accident had taken place on 21.12.03 which definitely would show that he did not have an effective licence to drive the transport vehicle on that date. So in the light of the mandatory requirements under the provisions of the M.V. Act and in the light of the decision referred to above rendered by the Hon'ble Supreme Court it has to be held that there was no effective valid driving licence for the driver to ride the passenger carrying auto rickshaw on the date of accident. The claimants in the claim petitions are the rider and pillion rider of a motor bike who are third parties so far as the offending vehicle is concerned. Therefore the insurance company is bound to pay the M.A.C.A. NOs. 1686 OF 2007 and 1687 of 2007 -:5:- compensation to them and only will have the right of recovery from the owner of the auto rickshaw. In the result both the appeals are disposed of as follows. 3. It is held that the insurance company is bound to pay the amount to the claimants in the case and thereafter on satisfying the award proceed against the owner of the vehicle namely first respondent in the claim petition who is the owner of the auto rickshaw. The MACAs are disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-