IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 MFA.No. 520 of 2002(A) ---------------------- OPMV.468/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT: 3RD RESPONDENT ------------- NATIONAL INSURANCE COMPANY LTD., REP.BY ITS ASST.ADMINISTRATIVE OFFICER, REGIONAL OFFICE - T.P. CELL, M.G.ROAD,ERNAKULAM. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENTS: CLAIMANTS AND RESPONDENTS 1 & 2 RESPECTIVELY ----------------- 1. ABDULLA AZEEZ, S/O. HUSSAIN, M.S.HOUSE, BANDIYOD, P.O.MANGALPADY. 2. B.A.KHADER, S/O.ANDUNHI,SUHANA MANZIL, BERIKA, MANGALPADY. 3. SALVADORE LOBO S/O. MARSHAL LOBO, MARDEMBAIL,CHENGALA, KASARAGOD DISTRICT. R1 BY ADV. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.PADMANABHAN NAIR, J. ------------------------------- M.F.A.No.520 of 2002 ------------------------------- Dated this the 4th February, 2008. J U D G M E N T The 3rd respondent, Insurer, in O.P.(M.V.) No.468/1998, on the file of the Motor Accidents Claims Tribunal, Kasargod, is the appellant. The appeal is filed against an award passed by the Tribunal, authorising first respondent to recover an amount of Rs.57,744/= from the respondents with a direction to the appellant to deposit the entire amount. 2. The short facts necessary for the disposal of the appeal are as follows. The first respondent filed the Original Petition claiming compensation. It was alleged that, on 11.8.1997, at about 9 p.m., while the appellant was walking along the side of a public road, an auto rickshaw bearing Registration No.KL-14A-2123, driven by the second respondent in a rash or negligent manner, came and hit against the first respondent. He sustained injuries. He filed the original petition claiming an amount of Rupees One Lakh as compensation. The owner and driver did not appear and contest the matter. Appellant alone contested the matter. It was contended that the M.F.A.No.520 of 2002 2 vehicle was covered with a valid policy of insurance, but further contended that there was violation of policy conditions. The second respondent, driver, was not having a driving licence and badge, at the time of accident, and hence, the company is not liable to indemnify the injured. The quantum of compensation claimed is also disputed. The Tribunal found that the accident occurred due to the negligence of the second respondent, driver of the auto rickshaw. The Tribunal found that the first respondent is entitled to get a compensation of Rs.57,744/=, and the appellant was directed to pay the amount on the ground that the vehicle was covered with a valid policy of insurance. Challenging the award by which the Tribunal directed the appellant to indemnify the insured, this appeal is filed. 3. The learned counsel appearing for the appellant has argued that in Govindan Kutty Nair v. Gopalakrishnan (2000 (1) KLT 224), a Division Bench of this Court had found that the possession of a badge is also an essential condition and if the driver is not in possession of the badge, the Insurance Company is not liable to indemnify the injured. In V.V.Ramachandran v. Unnikrishnan (2006 (2) KLT SN.15, page 20), another Division Bench of this Court held that mere absence of a badge with a commercial vehicle is not M.F.A.No.520 of 2002 3 sufficient, but it must be proved that it was the reason for the accident, and then only the Insurance Company can get exonerated from the liability. 4. When the matter came up for consideration in Moidu P.T. v. Oriental Insurance Co. Ltd. (ILR 2007 (4) Kerala 791), a Division Bench of this Court, after considering the principles laid down in the above stated decision, held that if the Insurance Company want to avoid the liability, it is not sufficient for the Insurer to show that person driving at the time of accident was not duly licenced, but it must further be established that there was a breach on the part of the Insured and alleged breach has contributed to the accident. This Court has held as follows:- “Even though insurance company can raise the contention regarding violation of policy conditions by the insured, it is settled law that the burden to prove the above defence is on the insurer. With a view to avoid its liabilities, it is not sufficient for the insurer to show that the person driving at the time of accident was not duly licensed but it must further be established that there was a breach on the part of the insurer and the alleged breach has contributed to the accident. Here, there is no pleading or proof that the insured committed a breach by knowingly entrusting the vehicle to a person without badge or absence of badge speaks only about driving licence, but, not M.F.A.No.520 of 2002 4 badge. Absence of badge in driving a commercial vehicle will attract penal consequences, but, it cannot be a ground to deny statutory liability to third party compensation based on section 149(2) (ii). Merely because driver of the vehicle who was duly licensed was not having a badge will not enable the insurance company to shirk its liability as per section 149 of the Motor Vehicles Act and insurance company also failed to prove that insured has committed a fundamental breach of the policy conditions resulting in the accident.” 5. In this case, the Insurer has raised a contention that the driver was not in possession of a valid badge. According to the Insurer, to drive a commercial vehicle, the driver must have badge, and then only he can be said to be a duly licensed driver. In the case at hand, the driver of auto rickshaw was possessing a driving licence authorizing him to drive a three wheeler. But according to the appellant, on the date of accident, he was not holding a valid badge, and as such, he was not entitled to drive a commercial vehicle. Apart from pleading that there is breach of policy, the company has not produced any evidence. Considering all aspects of the matter, I am of the view that it is a fit case in which the appellant can be given one more opportunity to prove its case. For that purpose, the case has to go back. M.F.A.No.520 of 2002 5 In the result, the appeal is allowed. The award passed by the Tribunal in O.P.(M.V.) No.468/1998 is hereby set aside. The case is remanded to the Tribunal for fresh disposal in accordance with law. Parties shall appear before the Tribunal on 10.3.2008. K.PADMANABHAN NAIR, JUDGE nj. K.PADMANABHAN NAIR, J. ------------------------------- M.F.A.No.520 of 2002 J U D G M E N T Dated:4th February, 2008. -------------------------------