IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 226 of 2005()
1. THE ORIENTAL INSURANCE CO.LTD.
... Petitioner
Vs
1. KAMALAKSHA SHETTY @ KAMAL,
... Respondent
2. MURTHALA S/O. BAPANKUNHI,RESIDING AT
3. T.S.BAPANKUNHI, S/O. LATE SYED BEARY,
For Petitioner :SRI.VPK.PANICKER
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :16/07/2008
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NO. 226 OF 2005
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Dated this the 16th 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)294/01.
The Tribunal awarded a compensation of Rs.35,000/- and
directed the insurance company to pay the amount. The said
liability is now challenged. It is contended that the owner-
cum-driver did not have a valid driving licence and therefore
there is breach of policy condition which enables the
insurance company to get exonerated from the liability. The
Tribunal held that mere absence of a driving licence does not
ipso facto lead to the conclusion that there is breach of policy
condition. By virtue of the decision of the Apex Court
reported in Swaran Singh’s case National Insurance Co.
Ltd. v. Swaran Singh (2004 (1) KLT 781), the matter to
be examined in such cases are, one, whether consciously the
owner has entrusted a driver and secondly whether the
absence of the licence was the fundamental cause for the
M.A.C.A. 226 OF 2005
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accident. So far as the first point is concerned when the
owner himself is the driver the question of his conscious
handing over may not be necessary for the reason that he
must be conscious that he can drive the vehicle only with a
valid licence. But the second aspect requires consideration
and the learned counsel for the insurance company would
contend that if an opportunity is given the Company may be
able to establish that fact. I feel there is some force in that
contention and therefore the award, so far as it relates to the
liability of the insurance company, requires consideration. At
any rate, being a third party, the claimant will be entitled to
compensation from the insurance company and the
directions to be provided will be that of reimbursement from
the owner-cum-driver. So, in order to determine that
question the matter is remitted back and the parties are
permitted to adduce documentary as well as oral evidence in
support of their respective contentions. After appearance of
the insurance company before the Tribunal, it can take out
notice to the owner of the vehicle so that a further
M.A.C.A. 226 OF 2005
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opportunity can be given to the owner to raise any
contention, if he so desire. The insurance company is
directed to appear before the Tribunal on 26.8.08.
M.N. KRISHNAN, JUDGE.
ul/-