IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 460 of 2003(F)
1. P.BALAKRISHNAN, S/O. KRISHNAN,
... Petitioner
Vs
1. P.S. KUNJUMON (DEAD).
... Respondent
2. PONNARATTA NALINI, W/O.LATE P.S.KUNJUMON
3. PONNARATTA ARUN,S/O.LATE P.S.KUNJUMON
4. P.S.SETHUBAI,
5. PALANGODAN SREEDHARAN,
6. THE ORIENTAL INSURANCE CO. LTD.,
For Petitioner :SRI.SURESH KUMAR KODOTH
For Respondent :SRI.K.S.MADHUSOODANAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :10/07/2008
O R D E R
M.N. KRISHNAN, J.
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M.F.A.NO. 460 OF 2003
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Dated this the 10th day of July, 2008.
J U D G M E N T
This appeal is preferred against the award of the Motor
Accidents Claims Tribunal, Thalassery in OP(MV) 1803/95.
The claimant sustained injuries in a road accident and he was
awarded a compensation of Rs.69,500/-. The Tribunal found
that the accident had taken place on 16.7.95 and that the
driving licence had expired on 4.5.95 and it was renewed only
on 28.7.95. So the Tribunal arrived at a decision that there
was no valid driving licence and therefore directed the
insurance company to pay and take reimbursement from the
owner of the vehicle. It is against that decision the owner has
come up in appeal.
2. Learned counsel for the appellant had submitted
before me that the very absence of a driving licence on the
date of the accident is not by itself sufficient to order
reimbursement in the light of the Apex Court decision reported
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in Swaran Singh’s case National Insurance Co. Ltd. v.
Swaran Singh (2004 (1) KLT 781). The Apex Court while
summarizing the principles at paragraph 102 had laid down
the propositions to be followed by the Tribunal. It has been
held in paragraphs (iii) and (vi) as follows.
(iii) “The breach of policy conditions,
i.e., disqualification of driver or invalid driving
licence etc. 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 condition of policy regarding the
use of vehicles by duly licensed driver or one
who was not disqualified to drive at the
relevant time.”
(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 are so fundamental as are
MFA 460 of 2003
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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
available to the insurer under Section 149(2)
of the Act.”
So from the extraction of paragraph (iii) and (vi) it can
be seen that the Tribunal was entrusted with the duty to see
that whether the owner of the vehicle was conscious of the
fact there was no licence and it must be established that it was
the fundamental cause for the accident. Unfortunately this
decision was not available for the Tribunal when it disposed of
the matter in May 2001. Therefore, the matter requires
reconsideration at the hands of the Tribunal and therefore the
award under challenge is set aside so far as it relates to the
right of reimbursement and the Tribunal is directed to consider
that question afresh after affording equal opportunities to both
sides. The insurance company is permitted to produce
documentary as well as oral evidence in support of their
respective contentions and the Tribunal shall dispose of the
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matter in accordance with law. The junction of the claimants
are not necessary for a disposal in this case and the insurance
company and owner are directed to appear before the Tribunal
on 20.8.08. Till a final decision is taken, any recovery
proceedings initiated by the insurance company shall remain
stayed.
M.N. KRISHNAN, JUDGE.
ul/-
MFA 460 of 2003
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M.N. KRISHNAN, J.
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M.F.A. No. 460 OF 2003
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J U D G M E N T
10th July, 2008.