IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 MACA.No. 1661 of 2008() ----------------------- OPMV.213/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/2ND RESPONDENT: ------------------------------------------------- NATIONAL INSURANCE COMPANY LTD., REPRESENTED BY ITS BRANCH MANAGER, THODUPUZHA. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): PETITIONER AND R1: ------------------------------------------------------------ 1. MADHAVAN NAIR, S/O.KRISHNAN NAIR, AGED 56 YEARS, MURIKKOLIL HOUSE, KUMARAKAM KARA, KUMARAKAM VILLAGE. 2. K.S.RAMAN PILLA, KANNIYAVIL HOUSE, HOUSE NO.325/VIII, KODIKUTTY BHAGOM, PURAPPUZHA VILLAGE. ADV. SRI.MATHEW SKARIA FOR R1 SRI.SAJAN MANNALI FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.1961/2008 IN M.A.C.A.NO.1661/2008 DISMISSED 7/11/2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE KSS M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 1661 OF 2008 --------------------------------- Dated this the 7th day of November, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Thodupuzha in O.P.(MV) No.213/2004. The claimant sustained injuries in a road accident. The Tribunal awarded a compensation of Rs. 48,100/- and directed the Insurance Company to pay the compensation. It is against that decision the Insurance Company has come up in appeal contending for the position that it is entitled to recovery right for the reason that there is breach of policy conditions because of the absence of valid driving licence for the Autorickshaw driver. 2. The following facts are not in dispute. The driver was having a valid driving licence to drive a light motor vehicle from 1.10.96 to 30.9.99 and till 11.10.2003. He had a badge to drive an Autorickshaw only from 1.10.96 to 30.9.99 and it was renewed only on 29.7.2003 for a period of three years i.e till 29.7.2006. Admittedly the accident took place on 22.7.2003. So the facts make it clear that the Autorickshaw driver who have a valid driving licence to drive light motor vehicle on the date of accident did not have a badge to drive the same. Then it is contended by the M.A.C.A.No. 1661 OF 2008 -2- learned counsel for the owner, since it has been subsequently renewed it will amount to validity and further it is contended that the licence to drive light motor vehicle is sufficient to drive an Autorickshaw as well. So far as the subsequent renewal is concerned, the matter has been decided by so many decisions of this court including the decision in Malla Prakasha Rao vs. Malla Janaki and others [2006 ACC 300 (SC)] which has been referred to in the National Insurance Co. Ltd. v. Swaran Singh [2004 (1) KLT 781 (SC)], at para 95. There the Apex Court had taken a view that the driver of the vehicle did not have a driving licence when the accident took place. So a subsequent renewal of the badge is not sufficient to hold regarding the validity of a licence to drive a public passenger vehicle. 3. The next question is regarding the availability of licence to drive a light motor vehicle. It is submitted that when a person is having a valid driving licence to drive a vehicle whose unladen weight is less than 7500 kgs, and when such a person drives an Autorickshaw it is a duly licensed one and therefore he is duly licenced and so there is no breach of conditions of policy. The light motor vehicle as well as the transport vehicle has been defined M.A.C.A.No. 1661 OF 2008 -3- under Section 2(47) of the Motor Vehicles Act. A transport vehicle is one which means a public service vehicle. An Autorickshaw plied on a hire basis is a public service vehicle. So in order to drive that vehicle one should have the licence to drive transport vehicle. The licence to drive an Autorickshaw as transport vehicle is vouchsafed by issuance of a badge to drive that vehicle or in other words there must be authorisation to do so. This question came up for consideration before the Apex Court in the decision reported in New India Assurance Co. Ltd. vs. Roshanben Rahemansha Fakir and another [2008(3) T.A.C 20 (S.C)]. There the Apex Court held that what is a transport vehicle and also referred to the various amendments and notification issued by the Central Government with respect to the specification of the type of the motor vehicles. As per the said notification three wheeler vehicles transport of passenger/goods come with in the ambit of a transport vehicle. The Apex Court held that in the light of the mandatory provisions under Sections 147, 3 and 10 of the Motor Vehicles Act, so far as that case is concerned held that there is no licence to drive a transport vehicle. In this case also it has to be held that the driver did not have a valid driving licence to drive an Autorickshaw M.A.C.A.No. 1661 OF 2008 -4- on the date of the accident. Under the terms and conditions of the policy there must be a valid licence to drive. Otherwise it amounts to breach of policy conditions. When there is a breach of conditions of the policy as enumerated in the decision of National Insurance Co. Ltd. v. Swaran Singh [2004 (1) KLT 781 (SC)], the Insurance Company is liable to pay compensation to third party and is liable to get it reimbursed from the owner. Therefore it is a case where the Insurance Company is entitled to the right of recovery from the owner of the vehicle. In the result the appeal is allowed and the finding of the Tribunal that the Insurance Company is not entitled to right of recovery is set aside and it is given the right to recover the amount from the owner of the vehicle on satisfaction of the award by execution of the same award. Considering the facts and the amount involved, the Insurance Company is directed not to take any coercive steps for realisation of the amount for a period of three months. The M.A.C.A is disposed of accordingly. M.N. KRISHNAN, JUDGE vkm