IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 859 of 2005()
1. THE ORIENTAL INSURANCE CO LTD.,
... Petitioner
Vs
1. K.M.EBRAHIM, S/O.MUHAMMED,
... Respondent
For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA)
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :27/06/2008
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NO. 859 OF 2005
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Dated this the 27th day of June, 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)94/01.
The Tribunal has awarded a compensation of Rs.22,513/-
with 9% interest per annum from the date of application to
the date of deposit. The Tribunal repelled the contention of
the insurance company regarding its non liability on the
ground that it has not been proved that the violation of the
condition is so fundamental as to have contributed to the
accident. The said finding has been based on the decision of
the Apex Court reported in Swaran Singh’s case National
Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT
781). A reading of paragraph 102, (iii) and (vi) would reveal
that,
“To avoid its liability towards insured,
the insurer has to prove that the insured
was guilty of negligence and failed to
exercise reasonable care in the matter of
M.A.C.A. 859 OF 2005
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fulfilling the condition of policy regarding the
use of vehicles by duly licensed driver or one
who was not disqualified to drive at the
relevant time.”
The Apex Court further 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.”
It is also laid down in that decision,
“The insurance companies are, however, with
a view to avoid their liability must not only
establish the available defences raised in the said
proceedings but must also establish breach on the
part of the owner of the vehicle, the burden of
proof therefor would be on them.”
So unless these ingredients are proved and established
when there is a policy the insurance company cannot get
M.A.C.A. 859 OF 2005
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absolved from the liability to the insurer. The Tribunal
applying the dictum laid down by the Apex Court in the
above said decision has arrived at a finding that there is
nothing to prove those facts and therefore negatived the
contentions of the insurance company. As facts are not
proved, there is no ground to interfere with the decision
rendered by the Tribunal and therefore the MACA is
dismissed.
M.N. KRISHNAN, JUDGE.
ul/-