IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2091 of 2007()
1. THE NEW INDIA ASSURANCE CO. LTD.,
... Petitioner
Vs
1. CHARLI, S/O MYCLE,
... Respondent
2. KALADHARAN, S/O PONNUCHAMI,
3. GEORGE PAUL GERI,
For Petitioner :SRI.KKM.SHERIF
For Respondent :SRI.JACOB SEBASTIAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :12/11/2008
O R D E R
M.N. KRISHNAN, J
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M.A.C.A.No. 2091 OF 2007
---------------------------------
Dated this the 12th day of November, 2008
JUDGMENT
This appeal is preferred against the award of the Motor
Accident Claims Tribunal, Palakkad in O.P.(MV) No.1014/2000. The
claimant sustained injuries in a road accident and the Tribunal
awarded compensation and fixed the liability on the Insurance
Company. The Insurance Company has come up in appeal
challenging the said finding as well as some clerical mistakes that
had taken place in the calculation. Let me first decide about driving
licence. The Tribunal in para 15 of the award held that the driver
did not produce the driving licence with badge. But the finding of
the Tribunal that it had not produced policy showing violation of the
terms and conditions is not correct. I feel in all the policies which
are issued by the Insurance Company, there are clauses dealing
with the authority to drive the vehicle only by a licensed driver. But
the mere absence of the licence alone is not sufficient for totally
exonerating the Insurer from the liability. In the decision in
National Insurance Co. Ltd. v. Swaran Singh [2004(1) KLT
781 (Standing Counsel)], while summarising the para 102(iii)
and (vi) the Apex Court held that “To avoid its liability towards
M.A.C.A. No. 2091/2007
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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 the policy regarding use of vehicles by duly
licensed driver or one who was not disqualified to drive at the
relevant time.” It is further held that it is also the duty of the
Insurance Company to prove that the breach or breaches of the
condition of driving licence is/are so fundamental as are found to
have contributed to the cause of the accident. The matter has not
been considered in that angle. The driver has entered appearance
before this Court if he has got a licence he can produce it before
the court. Therefore the award under challenge is set aside, so far
as it relates the inter se liability between the insurer and insured.
The parties are permitted to produce oral as well as documentary
evidence with respect to their contentions and the Tribunal is
directed to dispose of the matter in accordance with law.
The parties are directed to appear before the Tribunal on
20.12.2008.
M.N. KRISHNAN,JUDGE
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