IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 MACA.No. 1953 of 2007() ----------------------- OPMV.1806/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT: 3RD RESPONDENT: ------------------------------------------- THE ORIENTAL INSURANCE COMPANY LTD., KOTTAYAM NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENTS: RESPONDENTS 1 & 2: ------------------------------- 1. N. SURESH KUMAR, KAROTTUKUNNEL, AREEPARAMBU P.O., KOTTAYAM. 2. RAHUL S.MENON, KAMBATHIL, KANGAZHA P.O., CHANGANACHERRY. (NO RELIEFS ARE CLAIMED AGAINST THE PETITIONERS IN THE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL). BY ADV. SRI.M.P.MADHAVANKUTTY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.T.SANKARAN, JJ. -------------------------------------- M.A.C.A.No.1953 OF 2007 ------------------------------------- Dated 18th March, 2008 JUDGMENT Koshy,J . A man aged 53 years sustained fatal injuries in an accident on 29.11.03 and died on the same day. While he was standing on the road side, he was knocked down by the autorickshaw driven by the second respondent, owned by the first respondent and insured by the appellant insurance company. His wife and two children including a minor daughter filed an application for compensation of Rs.8,16,000/=. Tribunal awarded a compensation of Rs.3,00,000/= with interest and also held that the accident occurred due to the rash and negligent driving of the second respondent. It is submitted that the autorickshaw was covered by a valid policy issued by the appellant insurance company. Therefore, appellant was directed to deposit the amount ordered. The only contention by the appellant in this case is that second respondent driver was not having a badge at the time of accident. Ext.B2 driving licence was produced to show that second respondent had a licence to drive a three wheeler. Therefore, he has got a valid driving licence to drive a vehicle like autorickshaw which he was driving. According to the appellant, second respondent was charge sheeted for not having badge, but, there is no case that second respondent was convicted for that MACA.1953/2007 2 offence. It is true that respondents 1 and 2, owner and driver, were absent before the Tribunal and appellant was allowed to take all defences available under section 170 of the Motor Vehicles Act. But, Tribunal found that no evidence was adduced to show that the accident occurred due to the absence of badge. It is also found as follows: “..... there is no case for R3 that the accident resulted due to want of badge.” In this connection, we refer to the decision of the Supreme Court in National Insurance Co. Ltd. v. Swaran Singh and others (AIR 2004 SC 1531). At paragraph 105(iii), (vi) and (vii) of the above decision the Supreme Court held as follows: “105.(iii) The breach of policy condition e.g.disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable MACA.1953/2007 3 care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. xx xx xx (vi) 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 on 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 insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver. (a fake one or otherwise), does not fulfill the requirements of law or not will have to be determined in each case.” Tribunal applied his mind and found that there was no evidence to show that the alleged absence of badge was the cause of accident. In these circumstances, we are of the view that no evidence was adduced to show that owner of the vehicle was negligent in engaging the second respondent as the driver and it cannot be stated that MACA.1953/2007 4 there is proof regarding the violation of policy conditions by the insured. We see no ground to interfere in the award. The appeal is dismissed. J.B.KOSHY JUDGE K.T.SANKARAN JUDGE tks