IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 MACA.No. 164 of 2004(G) ------------------------------------ O.P.(MV).NO.1391/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/1ST RESPONDENT IN O.P(M.V): --------------------------------------------------------------- SHIJI PAUL, AGED 30 YEARS, THOTTUNGAL HOUSE (MOLEKUDIYIL HOUSE), VELIYACHAL KARA, KEERAMPARA VILLAGE, KOTHAMANGALAM VIA. BY ADV. SRI.C.V.JOHNY, ADV. SRI.SUNIL V.MOHAMMED. RESPONDENTS/PETITIONER/ 2ND RESPONDENT: ------------------------------------------------------------------------ 1. KRISHNAN S/O. KUTTAN, PARAMBIL HOUSE, KOTTAPPADY KARA, KOTTAPADY VILLAGE. 2. THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO.LTD., CHURCH VIEW JUN., KOTHAMANGALAM. BY ADV. SRI.P.V.JYOTHI PRASAD - R2, DR.ELIZABETH VARKEY - R2. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 164 OF 2004 --------------------- Dated this the 27th day of May, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Muvattupuzha, in OP(MV) 1391/98, whereby the Tribunal has awarded a compensation of Rs. 16,550/- and directed the Insurance company to pay the amount and empowered it to recover the same from the appellant. It is this finding that is challenged by the owner in this appeal. 2. The Insurance company was exonerated on account of the factum of non production of the driving licence by the owner of the vehicle. A reference is made to the decision of the Apex court in National Insurance Co. Ltd. v. Swaran Singh [2004 (1) KLT 781 (SC). The summary of findings (iii) and (v) are as follows: “(iii) The breach of policy conditions e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-s.(2)(a)(ii) of S.149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. 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 the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.” “(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would MACA 164/04 2 depend upon the facts and circumstances of each case.” 3. The decision of the Apex court reported in National Insurance Co. Ltd. v. Kusum Rai [2006 (2) KLT 300 (SC)] would show the principles to be applied in such matters. The Apex court has held that the mere absence of a driving licence is not sufficient to exonerate the Insurance company from the liability but the insured has to prove the fundamental cause for the accident was the absence of the licence and further the owner of the vehicle had with full knowledge authorised a person, who is not having a driving licence, to drive the vehicle. When these two conditions are satisfied the Insurance company is certainly entitled to be exonerated from the liability. As far as this case is concerned, there is no such pleadings and no evidence. In the absence of the same, applying the factum referred to above, the Insurance company cannot be exonerated from the liability. Therefore the finding of the court below that the Insurance company is entitled to recover the amount from the owner cum driver is to be vacated. Therefore the MFA is allowed and the direction of the Tribunal authorising the Insurance company to recover the amount from the owner cum driver namely, the appellant, shall stand vacated. M.N.KRISHNAN, JUDGE vps