IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 MACA.No. 2858 of 2009() ----------------------- OPMV.1015/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): 2ND RESPONDENT ---------------------------- INDIRA MANOHARAN, W/O. MANOHARAN, SREERANG HOUSE, NEENDOOR.P.O, KOTTAYAM. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): PETITIONERS AND RESPONDENTS 1 AND 3 -------------------------------------------------- 1. JOHNY MATHAI, S/O. MATHAI, NENCHIRAYIL HOUSE, MATTAKKARA KARA, AKALAKUNNAM VILLAGE, NOW RESIDING AT PARACKATTU HOUSE, VALLICHIRA.P.O. 2. GRACY JOHN, W/O. JOHNY MATHAI, NENCHIRAYIL HOUSE, MATTAKKARA KARA, AKALAKUNNAM VILLAGE, NOW RESIDING AT PARACKATTU HOUSE, VALLICHIRA.P.O. 3. JOICE JOHN, S/O. JOHN MATHAI, NENCHIRAYIL HOUSE, MATTAKKARA KARA, AKALAKUNNAM VILLAGE, NOW RESIDING AT PARACKATTU HOUSE, VALLICHIRA.P.O. 4. JOSHY SEBASTIAN, S/O. MATHEW DEVASIA, NEDUMANGATTU HOUSE, SREEKANDAMANGALAM.P.O. RESPONDENTS 1 TO 4 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDERS DT. 19.3.2010 IN IA 780/2010. 5. THE MANAGER, NEW INDIA ASSURANCE CO. LTD., KOTTAYAM. ADV. SRI.P.G.GANAPPAN FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 2858 of 2009 ------------------------------------------------------ Dated: JULY 5, 2010 JUDGMENT Basheer, J. Appellant is the owner of a stage carriage bearing registration No.KL-5/T-5744. The said vehicle was involved in an accident that occurred on October 8, 2006 when it hit against an electric post. One Jobin John, who was working in the said vehicle as a Cleaner, sustained fatal injuries in the accident. His legal representatives claimed compensation from the appellant, his driver and also the insurer. 2. The Tribunal after considering the contentions of the parties, passed an award in favour of the claimants for a sum of Rs.3,41,250/- with 12% interest thereon. The Insurance Company was directed to pay the compensation to the claimants with liberty to recover the same from the appellant/owner and the driver. The said award is under challenge in this appeal. 3. It is vehemently contended by the learned counsel for the appellant that the Tribunal has proceeded as though the driving licence of the driver had expired long prior to the accident. Learned counsel points out that from Ext.B1, photocopy of the driving licence produced M.A.C.A. 2858 of 2009 2 by the driver, it could not have been discerned that the driver did not possess a valid and effective licence on the date of the accident. 4. In this context it may be noticed that the accident occurred on October 8, 2006. A perusal of Ext.B1 will show that the driving licence was renewed by the driver with effect from October 19, 2006. It is true that Ext.B1 does not show the date on which the licence had expired. 5. But learned counsel for the Insurance Company invites our attention to the photocopy of the relevant page of the driving licence which was produced by the driver before the investigating officer in the course of investigation of the crime registered against him. The photocopy shows that the licence had expired on July 15, 2006 i.e. about seven weeks prior to the accident. It is contended by learned counsel that the failure on the part of the owner and driver to discharge their primary burden cannot be taken as a circumstance to put a heavier burden on the Insurer. In fact, Ext.B1 was produced by the driver pursuant to a specific direction sought for by the Insurance Company in this regard. It is thus contended by the learned counsel that the appellant cannot now turn around and say that the entire burden to establish that the driver did not possess a valid licence at the time of the accident remained on the Insurance Company. In M.A.C.A. 2858 of 2009 3 National Insurance Company Ltd. V. Swaran Singh {2004 (1) KLT 781 (SC)}, a three Judge Bench of the Apex Court had elaborately considered the provisions contained in Sec.149 of the Motor Vehicles Act and the ramifications of the expiry/absence of driving licence. Their Lordships had summed up the findings on various issues in the judgment and issued certain directions/guidelines as to how the provisions contained in Chapter XI of the Motor Vehicles Act, 1988 have to be understood and interpreted. Clauses (iii) to (viii) of the conclusions in the judgment which are relevant in this case, are extracted hereunder: “(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 M.A.C.A. 2858 of 2009 4 condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle, the burden of proof wherefor would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case. (vi) 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 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 M.A.C.A. 2858 of 2009 5 available to the insurer under S.149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfill the requirements of law or not will have to be determined in each case. (viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.” 6. Learned counsel for the appellant, while placing heavy emphasis on clauses (iii) to (vii) above, submits that in the absence of any evidence adduced by the Insurance Company to establish that the appellant had been guilty of negligence and had failed to exercise reasonable care in the matter of fulfilling the conditions of policies regarding the use of vehicle by a duly licensed driver, the Tribunal was not justified in mulcting the appellant with liability to reimburse the compensation amount to the Insurance Company. It is also contended by the learned counsel that admittedly the driver employed by the appellant has been holding a licence to drive Heavy Passenger Vehicles since 1988. Even assuming without admitting that his licence M.A.C.A. 2858 of 2009 6 had expired on July 16, 2006 as contended by the Insurance Company, he had got it renewed within a short span of about seven weeks of its expiry. The oversight or failure of the driver to renew his licence at the appropriate time cannot be taken as a ground to fasten the entire burden on the owner/appellant, especially in the absence of any evidence to show that the appellant had failed to get the licence renewed by his employee/driver even after it had been brought to his notice or that the appellant had entrusted his vehicle to the driver even after knowing that the latter did not possess a valid and effective licence as on the date of the accident. Learned counsel contends that these are all matters which ought to have been specifically pleaded and proved by the Insurance Company, particularly in view of the dictum laid down by the Apex Court in Swaran Singh's case (supra). It is further contended by the learned counsel that there is absolutely no pleading or proof that the accident occurred only because the driver was not experienced enough. 7. We refrain from making any comment on the above contentions raised by the appellant or the Insurance Company at this stage. In our view the entire issue relating to liability to pay compensation has to be reconsidered by the Tribunal. Therefore, without disturbing the finding entered by the Tribunal on the issue M.A.C.A. 2858 of 2009 7 relating to quantum, the case is remanded to the Tribunal. 8. The Tribunal shall afford sufficient opportunity to the appellant and the Insurance Company apart from the driver to adduce further evidence, if so advised, and take a decision in the matter as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The parties shall appear before the Tribunal on August 19, 2010. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-