IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 MACA.No. 2624 of 2008(D) ----------------------- OPMV.71/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT(S)/3RD RESPONDENT : ----------------------------------------- THE NATIONAL INSURANCE CO. LTD., MANJERI, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, OMANA BLDG. M.G. ROAD, ERNAKULAM, KOCHI-35. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S)/ RESPONDENTS : -------------------------------------- 1. PADINHARETHALA NAJMUDDIN, S/O CHEKKAMAJI, PADINHARETHALA HOUSE, THENCHEERI, POOVATHIKKAL (PO) MALAPPURAM DISTRICT. 2. ABDUL LATHEEF, S/O CHEKKAMU HAJI, PUTHUKULAM HOUSE, POOVATHIKKAL PO. AREACODE VIA MALAPPURAM DISTRICT. ADV. SRI.BABU S. NAIR FOR R1 & R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2624 OF 2008 = = = = = = = = = = = = = = = Dated this the 19th day of October, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Manjeri in O.P.(MV)71/04. The claimant sustained injuries in a road accident and he has been awarded a compensation of Rs.29,950/- with 7% interest. The insurance company has challenged the decision on the ground that even a right to recovery is not granted though the driver admittedly was not having any driving licence. The Tribunal has relied upon the decision of the Division Bench of this court reported in Oriental Insurance Co. Ltd, v. Nirarudeen (2008 (2) KLT 291). The Division Bench held that, “Insurance company filed the appeal challenging the award of the Tribunal on the ground that the driver had no valid driving licence at the time of the accident. The Court held that the Insurance Company, apart from proving that driver had no valid M.A.C.A. 2624 OF 2008 -:2:- driving licence at the time of accident, has to prove that absence of driving licence was the cause of accident.” Therefore no right to recovery was granted. Absence of driving licence when cannot be treated as a fundamental breach has been considered by the Apex Court in paragraph 82 of the Swaran Singh's case- National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) . It was a case where the Tribunal found that there was one type of licence for the person and he was driving another type of vehicle. The Hon'ble Supreme Court held in paragraph 82 of the above said decision that, “If on facts it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.” M.A.C.A. 2624 OF 2008 -:3:- So the Apex Court held that if an accident had taken place on account of some other circumstances not connected with the driving licence of the driver such as mechanical failures or other unforeseen circumstances then just because the driver did not have a valid driving licence it was held that it cannot be treated as a fundamental breach. But so far as the present case is concerned there was no mechanical defect, there was no other unforeseen circumstances and the driver did not have any licence at all. In such cases there cannot be any hesitation to hold that there is fundamental breach of the policy conditions which would entitle the insurance company to get reimbursement from the owner. Therefore the appeal is partly allowed and the award passed by the Tribunal as against the absolute liability of the insurance company is set aside. The insurance company is directed to pay the amount to the claimant and on satisfaction of the award claim it from the owner by execution of the very same award. I direct the insurance company not to initiate such an action for a period of 6 months so as to enable the owner M.A.C.A. 2624 OF 2008 -:4:- to pay the amount directly to the insurance company. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-