IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 MACA.No. 396 of 2007(B) ------------------------------- OPMV.1085/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANTS/RESPONDENTS 1 AND 2 : ----------------------------------------------- 1. SAJU SEBASTIAN, THOTTUNGAL HOUSE, PALA P.O., KOTTAYAM-686 575. 2. JOY, S/O. CHANDY, KARINGAN HOUSE, MANJAPRA P.O., NADUVATTAM. BY ADV. SRI.P.C.HARIDAS RESPONDENTS/CLAIMANTS - RESPONDENTS : -------------------------------------------------------- 1. JOSE, S/O. ITTEERA, PULLAN HOUSE, NEELESWARAM P.O., NADUVATTAM. 2. THE NEW INDIA ASSURANCE CO. LTD., S.M.SHOPPING COMPLEX, ALUVA ROAD, ANGAMALY. BY ADV. SRI.VPK.PANICKER - R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/08/2008 ALONG WITH M.A.C.A.NO.397 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.NO.396/2007 ORDER ON I.A.NO.542/2007 IN M.A.C.A.NO.396/2007 DISMISSED 13.08.2008 SD/-, M.N.KRISHNAN, JUDGE -TRUE COPY- P.A. TO JUDGE pac M.N. KRISHNAN, J. ------------------------------ M.A.C.A.No. 396 of 2007 and M.A.C.A.No. 397 of 2007 ------------------------------ Dated this the 13th day of August, 2008 JUDGMENT These appeals are preferred against the award of Motor Accidents Claims Tribunal, Perumbavoor in O.P(MV) Nos. 1085 of 2002 and 1086 of 2002 . The tribunal awarded a compensation of Rs. 12,800/- in O.P(M.V) No. 1085 of 2002 and Rs. 22,500 in the other case. The Tribunal also found that the driver did not have effective and valid driving licence on the date of the accident and therefore, directed the Insurance Company to pay the amount and get it reimbursed from the owner and the driver. It is aggrieved by that decision the owner and the driver has come up in appeal. Heard both sides. The short point that arises for determination is the inter se liability between the insurer and insured. It is held that since there was no effective and valid driving licence on the date of the accident, there is a breach of policy conditions and so the Insurance Company is entitled to get reimbursement from the insured namely the owner of the vehicle. The M.A.C.A.Nos. 396 & 397 of 2007 Page numbers Tribunal in the light of the decision of this court reported in [2006(2) K.L.T 08] held that when the licence is renewed after the period of 30 days, there will not be a valid and effective driving licence. The learned counsel for the appellant argues before me that the tribunal has lost sight of the dictum laid down by the Apex court in National Insurance Company Ltd. Vs. Swaran Sing [2004(1) K.L.T 781]. In para 102(vi) the appex court held “ 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.” In (iii) of the same paragraph, the apex court held that, there has been negligence on the part of the owner in exercising reasonable care in the matter of fulfilling conditions of the policy. In para (iv), it was held in such a case burden to prove is on the Insurance Company. The learned counsel cited other decisions of the Apex Court reported in [2007(3) M.A.C.A.Nos. 396 & 397 of 2007 Page numbers SCC 700] and also [2006(7) SCC 318]. Whatever it may be, the Insurance Company in order to get it exonerated from the liability has to prove that there has been a breach of policy conditions and that it has been so fundamental as to the cause of the accident. In that direction the Tribunal has not considered the matter and the parties have not adduced the evidence. Therefore, an opportunity could be given to the owner and driver as well as Insurance Company to adduce evidence on that behalf and Tribunal shall decide the question of liability on the basis of the same. Therefore, the appeals are partly allowed and the finding with respect to inter se liability between the Insurance Company and the owner and driver are set aside and the matter remanded back to the tribunal for fresh consideration, whether in the light of the decisions in Swaran sigh's case and other cases, the Insurance Company has succeeded in proving the breach of policy conditions which has been so fundamental as to the cause of the accident. For the said purpose, the parties are permitted to adduce both oral as well as the documentary evidence in support of their respective contentions. Presence of the claimant can be dispensed with. The M.A.C.A.Nos. 396 & 397 of 2007 Page numbers presence of claimant need not be insisted for the reason that the claimant is entitled to get the compensation paid by the Insurance Company. Parties are directed to appear before the Tribunal on 2/09/2008. M. N. KRISHNAN, JUDGE scm