IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930 M.A.C.A.No. 383 of 2006(B) ---------------------- O.P(MV)NO.1422/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA. .................... APPELLANT/2ND RESPONDENT: -------------------------- K.S. JOY, KAVUMGUMPILLIL HOUSE, CHELADU P.O., KOTHAMANGALAM. BY ADV. SRI.BRIJESH MOHAN RESPONDENTS/1ST RESPONDENT,PETITIONER AND 3RD RESPONDENT: -------------------------------------------------------- 1. A.P. GEORGE S/O. PAILY, EARATHADOM HOUSE, CHEMBIKODU NADUKANI P.O., KOTHAMANGALAM. 2. K.M. JOY, S/O. MATHAI, KALARICKAL HOUSE, RAMALLOOR, KOTHAMANGALAM. 3. THE ORIENTAL INSURANCE CO. LTD., ELENGICAL PLAZA, KOTHAMANGALAM. BY ADV. SRI.P.V.JYOTHI PRASAD - R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: scm M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 383 OF 2006 = = = = = = = = = = = = = = = Dated this the 28th day of July, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV) 1422/02. The appeal is preferred by the owner of the vehicle challenging the finding of the Tribunal so far as it relates to the right to recovery granted in favour of the insurance company. The contention is that the vehicle involved in the road accident is the auto rickshaw and the driver of the auto rickshaw did not have a valid badge to drive the auto rickshaw. The Tribunal accepted that contention and directed the insurance company to pay the amount and ordered to get it reimbursed from the owner. The Tribunal, relying upon the decision reported in Swaran Singh's case, National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) held that the third party is bound to be paid by the insurance company. The said case has elaborately considered the question and while summarizing the findings M.A.C.A. 383 OF 2006 -:2:- in paragraph 102 (vi) held that 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 available to the insurer under Section 149(2) of the Act.” It is also so held by this Court in the decision reported in Ramachandran v. Unnikrishnan (2006 (2) KLT SN page 20 page 15) that mere absence of a badge to drive a commercial vehicle is not sufficient but it must be proved that it is the reason for the accident. The matter has not been considered in this angle and therefore it requires reconsideration. Therefore the finding so far as it relates to the interse liability between the M.A.C.A. 383 OF 2006 -:3:- owner and the insurance company is set aside and the Tribunal is directed to consider that matter afresh after affording equal opportunity to both sides to produce documentary as well as oral evidence and then decide the matter in accordance with law. Parties are directed to appear before the Tribunal on 3.9.08. M.N. KRISHNAN, JUDGE. ul/-