IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA No. 335 of 2003()
1. SOBHA N.C. W/O.MONY K.K.,
... Petitioner
Vs
1. MAHILAMANI P.N., PALLATHU HOUSE, CHOWARA
... Respondent
2. DILEEP, S/O. SURBAN, KUNJUVEETTIL,
3. THE UNITED INDIA INSURANCE CO. LTD.,
For Petitioner :SRI.K.I.ABDUL RASHEED
For Respondent :SRI.A.MOHAMED MUSTAQUE
The Hon'ble MR. Justice K.T.SANKARAN
Dated :13/12/2006
O R D E R
K.T. SANKARAN, J.
………………………………………………………………………..
M.A.C.A No. 335 OF 2003
………………………………………………………………………..
Dated this the 13th December, 2006
J U D G M E N T
The claimant in O.P.(MV) 775 of 2000 on the file of the Motor
Accidents Claims Tribunal, North Paravur is the appellant. By the
impugned award, the Tribunal awarded a sum of Rs. 13,000/- as
compensation to the appellant/claimant. However, in paragraph 17 of the
judgment, it was held that the 2nd respondent, driver of the autorickshaw,
was not having a valid driving licence at the time of the accident and
therefore the third respondent is not liable to indemnify the first
respondent, the insured. This finding of the Tribunal is not correct in view
of the decision in National Insurance Co. Ltd. vs. Swaran Singh (2004
(1) KLT 781) wherein it was held that mere absence, fake or invalid
licence or disqualification of the driver are not in themselves defences
available to the insurer against either the insured or the third parties. It
was held that the Insurance Company will be liable to satisfy an award in
such cases. However, the Insurance Company would be entitled to
recover the award amount from the owner of the vehicle when the insurer
could establish breach of terms of policy on the part of the owner of the
vehicle.
M.A.C.A. No. 335 OF 2003
2
2. The finding of the Tribunal is that the owner of the vehicle
allowed the second respondent to drive the vehicle when the second
respondent was not having a valid driving licence at the relevant time
and therefore the third respondent insurer is absolved from indemnifying
the 1st respondent insured. As stated earlier, this finding is unsustainable.
In the result, the M.A.C.A. is allowed in part. The award of the
Tribunal in respect of point No. 4 holding that the Insurance Company is
not liable to indemnify the insured, the first respondent is set aside. The
third respondent, the United India Insurance Company Ltd., would be
liable to pay the award amount to the claimant in the first instance.
However, as held in National Insurance Co. Ltd. vs. Swaran Singh
(2004(1) KLT 781), the third respondent may recover from the first
respondent the award amount paid by it. The award of the Tribunal is
modified to the extent indicated above. The third respondent shall deposit
the award amount within a period of two months.
K.T. SANKARAN,
JUDGE.
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