The Manager vs Gopi on 2 July, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 1193 of 2005()


1. THE MANAGER,
                      ...  Petitioner

                        Vs



1. GOPI, W/O. KRISHNA MANIYANI,
                       ...       Respondent

2. ABDULLA, S/O. ABDUL RAHIMAN,

3. ABDUL RAHIMAN, S/O. MOHAMMED K.,

                For Petitioner  :SRI.MATHEWS JACOB (SR.)

                For Respondent  :SRI.T.B.SHAJIMON

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :02/07/2008

 O R D E R
                     M.N. KRISHNAN, J.
              = = = = = = = = = = = = = =
                M.A.C.A. NO. 1193 OF 2005
            = = = = = = = = = = = = = = =
         Dated this the 2nd 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, Kasaragod in O.P.(MV)821/01

whereby the insurance company has been directed to

indemnify the owner. The grievance of the insurance

company is that since the driver of the vehicle was not

having a valid driving licence there is a breach of policy

condition and so the insurance company is not liable to be

indemnified. The Court below relying upon the decision

reported in Swaran Singh’s case, National Insurance Co.

Ltd. v. Swaran Singh (2004 (1) KLT 781) held that the

insurance company is bound to establish that the absence of

the licence has been so fundamental as to the cause of the

accident. In Swaran Singh’s case the Apex Court has very

clearly stated that to avoid its liability towards the insured

the insurer has to prove that the insured was guilty of

negligence and failed to exercise reasonable care in the

M.A.C.A. 1193 OF 2005
-:2:-

matter of fulfilling the condition of the policy regarding the

use of vehicles by duly licensed driver or one who was not

disqualified to drive at the relevant time. The Apex Court

also held that it has to prove that the breaches of the

condition of driving licence is/are so fundamental as are

found to have contributed to the cause of the accident. The

Apex Court further held that the insurance companies are

bound to prove since they are claiming breach of policy

conditions. The mere production of a copy of the policy and

proof showing that there is no valid driving licence would not

by itself establish those ingredients necessary mentioned in

the Swaran Singh’s case. Therefore I concur with the

finding of the Tribunal and dismiss the appeal.

M.N. KRISHNAN, JUDGE.

ul/-