IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 MACA.No. 615 of 2009(F) ---------------------- AWARD DT.29.07.08 IN O.P(MV) NO.761/2007 OF M.A.C.T, KOTTAYAM APPELLANT: 2ND RESPONDENT -------------- THE ORIENTAL INSURANCE COMPANY LIMITED, KOTTAYAM, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI -18. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE JACOB MATHEW RESPONDENTS: PETITIONERS AND 1ST RESPONDENT --------------- 1. AJITHA, W/O. LATE BAIJU M.S, KARIMALIL HOUSE, KUDUVECHOOR P.O., VAIKOM. 2. SUKUMARAN , DO..DO... 3. SUKUMARAN DO..DO.... 4. KUNJAMMA,W/O. SUKUMARAN DO...DO... 5. PRAMOD V.S., KOTTAVILA PUTHEN VEEDU, ARUPALATHUMBHAGOM, PORUVAZHY P.O., KOTTARAKKARA. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A No.615 of 2009 ------------------------------------- Dated this the 24th day of March, 2009 JUDGMENT BASANT, J. Insurer/respondent before the Tribunal is the appellant. Respondents 1 to 4 are the claimants. Respondent No.5 is the owner/rider of a motorcycle which was insured with the appellant. That vehicle/motor cycle was involved in a motor accident. The vehicle insured with the appellant was allegedly driven by the 5th respondent in a rash and negligent manner and the same resulted in an accident. The predecessor of the claimants was travelling in a motor cycle. He suffered injuries in the accident and succumbed to the injuries. The Tribunal came to the conclusion that the accident occurred on account of the rashness and negligence of the 5th respondent. The Tribunal did not further find that the claimants, ie. respondent Nos.1 to 4 are entitled to be compensated. The appellant herein and the 5th respondent insured/rider were directed to pay compensation. The appellant/insurer was permitted under Section 149(4) of the Motor Vehicles Act as explained in the decision in National M.A.C.A No.615 of 2009 2 Insurance Co. Ltd. v. Swaran Singh [2004(1) KLT 781 (SC)] to recover the amount from the 5th respondent. 2. The appellant claims to be aggrieved by the impugned award. Called upon to explain the nature of the challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant does not dispute the fact of coverage under the policy of insurance. The only contention is that the 5th respondent has violated the conditions of policy in having driven the two wheeler without a valid driving licence. How can that justify the plea for exoneration by the insurance company ? How can it be said that the Tribunal erred in directing the insurer to pay the amount with option to the insurer to recover the amount from the insured ? 3. The learned counsel for the appellant is unable to support the contention/plea with the help of any specific legal principle or precedent. The law declared by the Supreme Court in National Insurance Co. Ltd. v. Swaran Singh (supra) makes it very clear that in such a situation where the vehicle was driven by a person who did not hold a valid driving licence the insurer has the liability to satisfy the award and pay the amounts to the claimants with the right to recover the same from the M.A.C.A No.615 of 2009 3 insured. The learned counsel for the appellant submits that in some cases the Supreme Court had taken the view that the insurer has no liability at all. The course followed by the Supreme Court on the facts of a given case cannot be reckoned as a declaration of law. The Supreme Court has sweeping powers under Article 142 of the Constitution of India to pass appropriate orders to ensure justice in the facts of each case. The question is whether the Supreme Court has declared the law and laid down the law to the effect that the absence of a valid driving licence for the driver would justify the claim for exoneration of the insurance company. The learned senior counsel Sri.Mathews Jacob was requested to research and explain to the Court how the appellant can claim absolution from liability and not a mere direction to recover the amount from the insured. The learned counsel for the appellant only points out that in the decision in Prem Kumari v. Prahlad Dev [2008 ACJ 776] and Sardari v. Sushil Kumar [2008 ACJ 1307], the Supreme Court had exonerated the insurer from liability. We are not persuaded to agree that the appellant/insurer is entitled in the facts and circumstances of this case to such a direction exonerating it from liability. As stated earlier, no principle of M.A.C.A No.615 of 2009 4 law or precedent has been cited before us in support of the contention that the absence of a driving licence for the rider/driver of the insured vehicle would entitle the insurance company to claim absolution from liability to compensate the third party victim or legal heirs of such victim. This appeal is thus found to be without any merit. 4. This appeal is, in these circumstances, dismissed. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-