IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2273 of 2009()
1. J.ANIL KUMAR, S/O.JANARDHANAN NAMBOODIRI
... Petitioner
Vs
1. M.J.CLIFF @ CLIFF JOSEPH, S/O.JOSEPH,
... Respondent
2. L.RAJENDRAN, S/O.LAKSHMANA PANICKER,
3. THE ORIENTAL INSURANCE COMPANY LTD.,
For Petitioner :SRI.S.K.BALACHANDRAN
For Respondent :SRI.R.SUDHISH
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :14/07/2010
O R D E R
A.K. BASHEER & P.Q. BARKATH ALI, JJ.
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M.A.C.A. 2273 of 2009
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Dated: JULY 14, 2010
JUDGMENT
Barkath Ali, J.
The short question which arises for consideration is whether in
motor accidents claim the insurer/Insurance Company can be absolved
of the liability to indemnify the insured merely because the driver has
not renewed his licence on the date of accident.
2. The appellant is the 1st respondent in OP(MV) 2073/1996
on the file of the Motor Accidents Claims Tribunal, Ernakulam. He is
the registered owner of the car bearing registration No.KEE 3744
involved in a motor accident. The 1st respondent/claimant filed the
OP under sec.166 of the Motor Vehicles Act claiming a compensation of
Rs.2 lakhs for the loss caused to him on account of the injuries
sustained in a motor accident which occurred on April 23, 1995 at 2.55
p.m. at Varappuzha Chirackakom on the Varappuzha – Paravur road,
alleging negligence against the 2nd respondent in the OP, the driver
of the car. The 1st respondent in the OP was the registered owner
and the 3rd respondent was the Insurer of the offending car.
3. PWs.1 to 3 and RWs.1 and 2 were examined and Exts.A1
to A10 and Exts.B1 and B2 were marked and the Tribunal by its
award dated January 14, 2002 found that the accident occurred due to
M.A.C.A. 2273 of 2009 2
the negligence of 2nd respondent in the OP, the driver of the car, and
awarded a compensation of Rs.66,650/- against respondents 1 to 3 in
the OP. Challenging the said award the 3rd respondent filed MFA
1330/2002 before this Court contending that the contention of the
Insurance Company regarding non-possession of licence by the 2nd
respondent in the OP and consequent liability of the Insurance
Company was not properly considered by the Tribunal. This Court by
judgment dated July 3, 2008 accepted the above contention of the
insurer and set aside the award to the limited extent of casting total
liability on the Insurance Company and to decide afresh the liability of
the Insurance Company in the light of the contention raised by the
insurance company that the 2nd respondent, the driver, was not
holding a valid and effective driving licence at the time of the accident
and that therefore the Insurance Company cannot be made liable.
4. After remand Ext.B3 was marked and the Tribunal by the
impugned award found that the 2nd respondent was not holding a valid
and effective licence at the time of the accident and ordered the
Insurance Company to satisfy the award and permitted the Insurance
Company to recover the amount from the appellant who is the
registered owner of the offending vehicle. Aggrieved by the above
award of the Tribunal, the 1st respondent in the OP has now come up in
appeal.
5. The counsel for the appellant/1st respondent argued that
M.A.C.A. 2273 of 2009 3
merely because the 2nd respondent has not renewed his driving licence
during the period of accident, it cannot be said that he was not duly
licensed to drive vehicle, that therefore there is no breach of condition
of policy and hence the Insurance Company is bound to indemnify the
owner.
6. The counsel for the Insurance Company submitted that as on
the date of the accident the 2nd respondent was not holding a valid
driving licence and that therefore the Tribunal is perfectly justified in
permitting the Insurance Company to recover the award amount from
the insured, the appellant.
7. In Oriental Insurance Co.Ltd. v. Paulose {2004 (1) KLT 8
(F.B.)} a Full Bench of this Court has considered a similar question.
In that case the accident occurred on May 23, 1997 and the licence of
the driver expired on 30.11.1996 and was renewed subsequently on
18.6.1997. Interpreting the provisions of Sec.149(2)(a)(ii) of the
Motor Vehicles Act, it has been held herein hat there will be a breach
of condition of policy only when the driver was not duly licensed or has
been disqualified from holding or obtaining driving licence and that
thus if the licence had expired on the date of accident but was
subsequently renewed, it would fulfill the mandate of the statute.
8. In our view the principle laid down in the above decision
squarely applies to the facts of the present case. It is seen from
Ext.B3, the copy of licence particulars issued by the licensing authority
M.A.C.A. 2273 of 2009 4
that the licence of 2nd respondent was seen renewed on March 17,
1991, the validity of which is upto March 16, 1994 and thereafter a
duplicate licence was issued on May 5, 1995. The accident was on
April 23, 1995. Thus the 2nd respondent has not renewed his licence
on the date of the accident.
9. Thus, applying the principles laid down in the above decision
we hold that even if the driving licence of the 2nd respondent had
expired on the date of accident, but was subsequently renewed, he has
to be considered as a duly licensed person and the insurer cannot so
long as the policy is admitted, avoid liability to compensate the injured
or to indemnify the insured, as none of the conditions in the policy
comes within Sec.149(2) of the Act has been violated in this case.
That being so, the Insurance Company is bound to indemnify the
appellant/owner of the offending vehicle.
In the result, the judgment of the Tribunal that the Insurance
Company is given the right of recovery of the award amount from the
appellant/1st respondent is set aside.
The appeal is disposed of as found above.
A.K. BASHEER, JUDGE
P.Q. BARKATH ALI, JUDGE
mt/-