IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 178 of 2008()
1. NATIONAL INSURANCE COMPANY LTD.
... Petitioner
Vs
1. T.PRABHAKARAN
... Respondent
2. LEELAVATHI, W/O. PRABHAKARAN
3. N.K.SADASHIVA, S/O.KRISHNAN
For Petitioner :SRI.MATHEWS JACOB (SR.)
For Respondent :SRI.T.SETHUMADHAVAN
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :28/07/2009
O R D E R
K. M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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M.F.A.(W.C.C.)No. 178 of 2008
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Dated this the ...th day of July, 2009
JUDGMENT
Joseph Francis, J.
This appeal under Section 30 of the Workmen’s
Compensation Act is filed by the second opposite party in
W.C.C. No. 177 of 2001 on the file of the Commissioner for
Workmen’s Compensation, Kannur. Respondents 1 to 3 herein
are the applicants 1 and 2 and the first opposite party in that case.
2. The brief facts of the case are as follows. An
application under Section 22 of the Workmen’s Compensation
Act was filed by respondents 1 and 2 herein claiming
compensation of Rs.2,50,000/- for the death of their son Dinesh
in an accident on 11.6.2000. The deceased was employed as a
driver of an autorikshaw, No.KL 14/B 5397, owned by the third
M.F.A.(W.C.C.)No. 178 of 2008
2
respondent. It is alleged that the accident occurred while he was
driving the autorikshaw.
3. While admitting the policy, the appellant contended that the
deceased was not having a valid and effective driving licence to drive
the above said autorikshaw and hence there is no legal employer-
employee relationship.
4. The first applicant was examined as AW1 and Exts. A1 to A4
were marked. After considering the evidence, the Commissioner held
that the deceased was employed as a driver of the above said
autorikshaw under the third respondent and calculated the
compensation at Rs.2,22,710/-, which is directed to be paid by the
appellant with 12% interest from the date of the accident. Aggrieved
by that order, the appellant/second opposite party filed this appeal.
5. Heard the learned counsel for the appellant and the learned
counsel for the respondents.
6. The learned counsel for the appellant submitted that the
Commissioner went wrong in not even considering the contention of
M.F.A.(W.C.C.)No. 178 of 2008
3
the appellant that the deceased was not having a valid driving licence
or badge to drive the aforesaid autorikshaw. The learned counsel
invited our attention to the decision reported in National Insurance
Co. Ltd. v. Kusum Rai (2006 (2) KLT 300 (SC), in which it was
held that the driving the vehicle without having a valid driving licence
is a breach of condition of the contract of insurance and the insurer
can raise the said defence. In the decision reported in National
Insurance Co. Ltd. v. Mastan (2006 (1) KLT 853 (SC), it was held
that an insurer, while defending an action initiated under the
Workmen’s Compensation Act, is not precluded from raising any
defence as envisaged under Section 149(2) of the Motor Vehicles Act.
7. The learned counsel for the respondents invited our attention
to the decision reported in Premkumari v. Prahlad Dev (2008 (2)
KLT SN 21 (C.No. 25) SC), in which it was held that the mere fact
that the driver had a fake licence would not absolve the Insurance
Company from the liability, unless it is proved that inspite of
awareness of fake licence the owner permitted him to drive the
M.F.A.(W.C.C.)No. 178 of 2008
4
vehicle. In the decision reported in Oriental Insurance Co. Ltd. v.
Nirarudeen (2008 (2) KLT 291), it was held that apart from proving
that the driving licence had expired, the insurer has to prove that
absence of driving licence was the cause of the accident. In the
decision reported in P.T. Moidu v. Oriental Insurance Co. Ltd.
(2007 (4) KHC 385 (DB), it was held that absence of badge in driving
commercial vehicle will attract penal consequences. But it cannot be a
ground to deny the statutory liability to third party compensation.
8. In the decision reported in National Insurance Co. Ltd. v.
Swaran Singh (2004 (1) KLT 781 (SC), it was held that the mere
absence of fake or invalid licence or disqualification of the driver for
driving are not themselves defences availabale to the Insurance
Company. The burden to establish the breach on the part of the owner
of the vehicle lies on the Insurance Company.
9. In the present case, the appellant has not adduced any
evidence to show the breach of condition on the part of the owner of
the vehicle. Therefore, the appellant Insurance Company cannot be
M.F.A.(W.C.C.)No. 178 of 2008
5
absolved from the liability. The result is that the appeal has to be
dismissed, as it is without any merit.
10. This appeal is accordingly dismissed. There is no order as to
cost.
(K. M. JOSEPH)
Judge
(M.L. JOSEPH FRANCIS)
Judge
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