IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1331 of 2008()
1. THE MANAGER, UNITED INDIA INSURANCE CO.
... Petitioner
Vs
1. RAJENDRAN, S/O.SATHYENESAN ,
... Respondent
2. P.NAUSHAD, PALLINADE PUTHEN VEEDU
3. ANEESH, S/O.SASIDHARAN NAIR, KARTHIKA,
For Petitioner :SRI.K.SANDESH RAJA
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :07/07/2008
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NO. 1331 OF 2008
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Dated this the 7th 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, Neyyattinkara in O.P.(MV)
1344/02. The claimant who sustained injuries in a road
accident has been awarded a compensation of Rs.86,960/-
and the 3rd respondent, insurance company is directed to
make the payment. The appeal is preferred by the 3rd
respondent, insurance company on the ground that there has
been breach of policy conditions and therefore the insurance
company is not liable to indemnify the insured and therefore
the award of the Tribunal is erroneous. Learned counsel also
would contend that at least the Tribunal should have given
the right to recovery under the provisions of the Act.
2. So far as the liability of the insurance company
with respect to the driving licences had been elaborately
dealt with by the Full Bench decision of the Supreme Court
reported in National Insurance Co. Ltd. v. Swaran Singh
M.A.C.A. 1331 OF 2008
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(2004 (1) KLT 781). In paragraph 102, the matter has
been put in a nutshell as follows.
“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.”
It is further held that “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 found to have
contributed to the cause of the accident.
“The Tribunal in interpreting the policy conditions would
apply ‘the rule of main purpose’ and the concept of
M.A.C.A. 1331 OF 2008
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‘fundamental breach’ to allow defences available to the
insurer under Section 149(2) of the Act.” The Bench also
held that “the insurance companies are, however, with a
view to avoid their liability must not only establish the
available defences raised in the said proceedings but must
also establish breach on the part of the owner of the vehicle,
the burden of proof therefor would be on them.”
4. Learned counsel appearing for the company would
strongly contend before me that absence of a licence and the
existence of the policy are not proved and that the insurance
company filed I.A.509/05 to prove the licence. The Tribunal
in paragraph 10 of its award held that the driving licence has
been produced and there is no mention about the badge
therein. But the Tribunal proceeds to rely upon the police
charge and found that there was a valid driving licence and it
also gives proper badge No.542/02. So the Tribunal was
convinced that there was valid driving licence and a badge to
the person who was driving the vehicle at the time of the
accident. When there are materials as held by the Apex
M.A.C.A. 1331 OF 2008
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Court the burden is on the insurance company to prove it
otherwise. The Apex Court has held that mere absence of a
badge would not amount to breach of policy condition unless
it is established that it was a fundamental cause for the
accident. This Court has held so in the decision reported in
Ramachandran v. Unnikrishnan (2006 (2) KLT SN page
15 case No.20). It was held therein that, “Mere absence of
a badge to drive a commercial vehicle is not sufficient but it
must be proved that it is the reason for the accident.”
In the absence of any materials it cannot be held that it
is the reason for the accident and I am convinced that
materials are not sufficient to hold about the fundamental
breach. Therefore I do not propose to interfere with the
decision rendered by the Tribunal and so the MACA is
dismissed.
M.N. KRISHNAN, JUDGE.
ul/-