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2013 DIGILAW 65 (KER)

V. M. Kunjumon v. Meera

2013-01-28

HARUN-UL-RASHID

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JUDGMENT : Harun-Ul-Rashid, J. The 1st respondent in O.P.(MV).No.1322/2006 on the file of the Motor Accidents Claimants Tribunal, Ottapalam is the appellant. The appeal is directed against the award dated 10/6/2010 passed in the said original petition. The 1st respondent herein is the claimant. The appellant herein is the owner of the vehicle and the 2nd respondent is the driver. The claim petition was filed claiming compensation for the injury sustained by the claimant in the motor vehicle accident occurred on 28/6/2005. 2. The evidence consists of oral testimony of RW1, Exts. A1 to A7, B1 and X1. On the basis of the evidence on record, the Tribunal held that the accident occurred due to the negligent act of the 2nd respondent. The Tribunal allowed the claimant to recover and realise a sum of Rs. 18,160/- with 8% interest from the date of petition till the date of realisation and costs of Rs. 1,000/- from respondents 1 to 3. The Tribunal further directed the 3rd respondent-Insurance Company to deposit the amount awarded within one month and can reimburse the amount from respondents 1 and 2. Aggrieved by the direction allowing the Insurance Company to reimburse the award amount from respondents 1 and 2 this appeal is filed. 3. The Insurance Company contended that the 2nd respondent driver was not holding valid badge at the time of the accident. RW1, who is the Assistant Motor Vehicle Inspector, testified before the Tribunal that on the date of the accident the 2nd respondent was not holding a valid badge. He has produced Ext.X1 document, which is the copy of the driving licence particulars. Ext.B1 is the copy of the driving licence. Ext.B1 would show that the 2nd respondent was holding valid driving licence at the time of the accident. Ext.X1 particulars would show that the validity of the badge expired on 4/2/2004 and renewed only on 30/6/2005. The date of accident was on 28/6/2005. The Tribunal held that the appellant had violated the policy conditions by permitting the 2nd respondent to drive the vehicle without valid driving licence. The Tribunal also held that the 3rd respondent shall deposit the amount initially and can reimburse the amount from respondents 1 and 2. It is a fact that the driver was holding valid licence at the time of accident. The Tribunal also held that the 3rd respondent shall deposit the amount initially and can reimburse the amount from respondents 1 and 2. It is a fact that the driver was holding valid licence at the time of accident. Ext.X1 particulars of driving licence would show that the driver was not holding valid badge at the time of the accident. The validity of the badge which he was holding has expired on 4/2/2004 and the same was renewed with effect from 30/6/2005. The only violation pointed out is that the driver was not holding valid badge at the time of the accident. He failed to renew the badge which he was holding prior to the date of accident. 4. In the decision reported in National Insurance Company v. Swaran Singh, 2004 (1) KLT 781 (SC) the Apex Court held as follows: "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 the insured unless the said 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 Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insurer under Section 149 (2) of the Act." The said decision was followed by this Court in New India Assurance Co. Ltd. v. Balakrishnan, 2011 (4) KLT 412. In paragraph 18 of the said decision this Court held as follows: ".....The law declared by Swaran Singh (supra), it is evident, states clearly that it is not enough if the violation and contumacious breach are proved. An insurer will not be allowed to avoid its liability towards insured merely on proof of the violation and breach. It is up to the insurer to show that the breach is so fundamental that it is found to have contributed to the cause of the accident. The rule of main purpose and fundamental breach is to be imported to ascertain whether the breach was such that it can be said to have contributed to the cause of the accident. It is up to the insurer to show that the breach is so fundamental that it is found to have contributed to the cause of the accident. The rule of main purpose and fundamental breach is to be imported to ascertain whether the breach was such that it can be said to have contributed to the cause of the accident. Any liability under Section 166 of the M.V. Act is built only on proof of negligence on the part of the driver/owner. The contribution to the cause of the accident cannot certainly be said to refer to that breach of duty under the law of torts. It has to be established that the breach of the condition of the policy was responsible or had contributed to the cause of the accident. That evidently is the mandate of the stipulation in paragraph 102(vi). We understand paragraph 102(vi) of Swaran Singh (supra) to mean that violation is to be proved. In addition contumacious breach has to be proved. Further it has got to be proved that the alleged breach of the policy condition was so fundamental and the same had contributed to the cause of the accident. We are unable to agree that an insurer can avoid liability to the insured merely on proof of violation or on proof of the breach. It has got to be proved further that the breach was so fundamental and the breach had caused or contributed to the cause of the accidents." 5. It is upto the insurer to show that the breach is so fundamental that it is found to have contributed to the cause of the accident. It is not enough if the violation and contumacious breach are proved. In this case the driver was holding a valid driving licence. He was also the holder of a valid badge. The only thing is that on the date of the accident there was no renewal of the badge. The Insurance Company shall further prove that the breach of the condition of the policy had contributed to the cause of the accident. In this case it is not proved that the alleged breach of the policy condition is fundamental and the same had contributed to the cause of the accident. In these circumstances, the direction issued by the Tribunal to recover the award amount from respondents 1and 2 cannot stand. 6. In this case it is not proved that the alleged breach of the policy condition is fundamental and the same had contributed to the cause of the accident. In these circumstances, the direction issued by the Tribunal to recover the award amount from respondents 1and 2 cannot stand. 6. In the result, the appeal is allowed. The award under challenge is set aside to the extent it direct that the Insurance Company is entitled to get reimbursement of the award amount from respondents 1 and 2. In all other respects, the award passed by the Tribunal stands.