IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2858 of 2009()
1. INDIRA MANOHARAN, W/O. MANOHARAN,
... Petitioner
Vs
1. JOHNY MATHAI, S/O. MATHAI,
... Respondent
2. GRACY JOHN, W/O. JOHNY MATHAI,
3. JOICE JOHN, S/O. JOHN MATHAI,
4. JOSHY SEBASTIAN, S/O. MATHEW DEVASIA,
5. THE MANAGER,
For Petitioner :SRI.PHILIP T.VARGHESE
For Respondent :SRI.P.G.GANAPPAN
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :05/07/2010
O R D E R
A.K. BASHEER & P.Q. BARKATH ALI, JJ.
------------------------------------------------------
M.A.C.A. 2858 of 2009
------------------------------------------------------
Dated: JULY 5, 2010
JUDGMENT
Basheer, J.
Appellant is the owner of a stage carriage bearing registration
No.KL-5/T-5744. The said vehicle was involved in an accident that
occurred on October 8, 2006 when it hit against an electric post. One
Jobin John, who was working in the said vehicle as a Cleaner,
sustained fatal injuries in the accident. His legal representatives
claimed compensation from the appellant, his driver and also the
insurer.
2. The Tribunal after considering the contentions of the parties,
passed an award in favour of the claimants for a sum of Rs.3,41,250/-
with 12% interest thereon. The Insurance Company was directed to
pay the compensation to the claimants with liberty to recover the
same from the appellant/owner and the driver. The said award is
under challenge in this appeal.
3. It is vehemently contended by the learned counsel for the
appellant that the Tribunal has proceeded as though the driving licence
of the driver had expired long prior to the accident. Learned counsel
points out that from Ext.B1, photocopy of the driving licence produced
M.A.C.A. 2858 of 2009
2
by the driver, it could not have been discerned that the driver did not
possess a valid and effective licence on the date of the accident.
4. In this context it may be noticed that the accident occurred on
October 8, 2006. A perusal of Ext.B1 will show that the driving licence
was renewed by the driver with effect from October 19, 2006. It is
true that Ext.B1 does not show the date on which the licence had
expired.
5. But learned counsel for the Insurance Company invites our
attention to the photocopy of the relevant page of the driving licence
which was produced by the driver before the investigating officer in the
course of investigation of the crime registered against him. The
photocopy shows that the licence had expired on July 15, 2006 i.e.
about seven weeks prior to the accident. It is contended by learned
counsel that the failure on the part of the owner and driver to
discharge their primary burden cannot be taken as a circumstance to
put a heavier burden on the Insurer. In fact, Ext.B1 was produced by
the driver pursuant to a specific direction sought for by the Insurance
Company in this regard. It is thus contended by the learned counsel
that the appellant cannot now turn around and say that the entire
burden to establish that the driver did not possess a valid licence at
the time of the accident remained on the Insurance Company. In
M.A.C.A. 2858 of 2009
3
National Insurance Company Ltd. V. Swaran Singh {2004 (1) KLT 781
(SC)}, a three Judge Bench of the Apex Court had elaborately
considered the provisions contained in Sec.149 of the Motor Vehicles
Act and the ramifications of the expiry/absence of driving licence.
Their Lordships had summed up the findings on various issues in the
judgment and issued certain directions/guidelines as to how the
provisions contained in Chapter XI of the Motor Vehicles Act, 1988
have to be understood and interpreted. Clauses (iii) to (viii) of the
conclusions in the judgment which are relevant in this case, are
extracted hereunder:
“(iii) The breach of policy conditions, e.g., disqualification of
driver or invalid driving licence of the driver, as contained
in sub-s.(2)(a)(ii) of S.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 care in the matter of fulfilling the
M.A.C.A. 2858 of 2009
4condition of the policy regarding use of vehicles by duly
licensed driver or one who was not disqualified to drive at
the relevant time.
(iv) The insurance companies are, however, with a view to
avoid their liability must not only establish the available
defence(s) raised in the said proceedings but must also
establish ‘breach’ on the part of the owner of the vehicle,
the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how said
burden would be discharged, inasmuch as the same would
depend upon the facts and circumstances of each case.
(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 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
M.A.C.A. 2858 of 2009
5
available to the insurer under S.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.
(viii) If a vehicle at the time of accident was driven by a person
having a learner’s licence, the insurance companies would
be liable to satisfy the decree.”
6. Learned counsel for the appellant, while placing heavy
emphasis on clauses (iii) to (vii) above, submits that in the absence of
any evidence adduced by the Insurance Company to establish that the
appellant had been guilty of negligence and had failed to exercise
reasonable care in the matter of fulfilling the conditions of policies
regarding the use of vehicle by a duly licensed driver, the Tribunal was
not justified in mulcting the appellant with liability to reimburse the
compensation amount to the Insurance Company. It is also
contended by the learned counsel that admittedly the driver employed
by the appellant has been holding a licence to drive Heavy Passenger
Vehicles since 1988. Even assuming without admitting that his licence
M.A.C.A. 2858 of 2009
6
had expired on July 16, 2006 as contended by the Insurance
Company, he had got it renewed within a short span of about seven
weeks of its expiry. The oversight or failure of the driver to renew his
licence at the appropriate time cannot be taken as a ground to fasten
the entire burden on the owner/appellant, especially in the absence of
any evidence to show that the appellant had failed to get the licence
renewed by his employee/driver even after it had been brought to his
notice or that the appellant had entrusted his vehicle to the driver
even after knowing that the latter did not possess a valid and effective
licence as on the date of the accident. Learned counsel contends that
these are all matters which ought to have been specifically pleaded
and proved by the Insurance Company, particularly in view of the
dictum laid down by the Apex Court in Swaran Singh’s case (supra).
It is further contended by the learned counsel that there is absolutely
no pleading or proof that the accident occurred only because the driver
was not experienced enough.
7. We refrain from making any comment on the above
contentions raised by the appellant or the Insurance Company at this
stage. In our view the entire issue relating to liability to pay
compensation has to be reconsidered by the Tribunal. Therefore,
without disturbing the finding entered by the Tribunal on the issue
M.A.C.A. 2858 of 2009
7
relating to quantum, the case is remanded to the Tribunal.
8. The Tribunal shall afford sufficient opportunity to the appellant
and the Insurance Company apart from the driver to adduce further
evidence, if so advised, and take a decision in the matter as
expeditiously as possible, at any rate, within three months from the
date of receipt of a copy of this judgment.
The parties shall appear before the Tribunal on August 19,
2010.
A.K. BASHEER, JUDGE
P.Q. BARKATH ALI, JUDGE
mt/-