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2014 DIGILAW 323 (KER)

Shafeeque v. Jamsheer

2014-04-07

BABU MATHEW P.JOSEPH

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JUDGMENT : 1. The third respondent sustained injuries in a motor accident that took place on 21-02-2009 involving an autorikshaw driven by the first respondent, owned by the first appellant and insured with the second respondent. She has filed a petition claiming compensation on account of the injuries sustained in the accident before the Motor Accidents Claims Tribunal, Kozhikode. The learned Tribunal, after considering the matter, found that the accident had occurred due to the negligence on the part of the first respondent and awarded a total compensation of Rs.75,148/- under various heads. The Tribunal further found that the first respondent was not holding a valid driving licence for driving the autorikshaw at the time of accident. Therefore, the second respondent was directed to pay the compensation to the claimant and permitted them to recover the same from the appellant. Aggrieved by the permission so granted to the second respondent for recovering the amount from the appellant, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the second respondent. The first respondent was the driver of the autorikshaw. Notice to him was dispensed with as found unnecessary. No representation for the third respondent despite serving notice on her. 3. The learned counsel for the appellant submits that the finding entered by the Tribunal that the first respondent was not holding a valid driving licence for driving the autorikshaw at the time of accident was wrong. He was possessing a valid driving licence as well as a badge for driving the autorikshaw at the time of accident. The appellant has produced a copy of the driving licence of the first respondent in this appeal as Annexure-A1. This licence shows that the appellant was licensed to drive the autorikshaw from 16-12-2001 It can also be seen from this document that his licence was valid for driving a transport vehicle from 20-09-2012 to 19-09-2015. The accident in this case had occurred on 21-02-2009. A perusal of) Annexure-A1 does not prove that the first respondent was holding a valid driving licence or badge for driving the autorikshaw on 21-02-2009. Therefore, the contention of the learned counsel for the appellant that the first respondent was holding valid driving licence and badge for driving the autorikshaw at the time of accident cannot be accepted. 4. A perusal of) Annexure-A1 does not prove that the first respondent was holding a valid driving licence or badge for driving the autorikshaw on 21-02-2009. Therefore, the contention of the learned counsel for the appellant that the first respondent was holding valid driving licence and badge for driving the autorikshaw at the time of accident cannot be accepted. 4. Whether absence of driving licence or badge can be raised as a ground for avoiding liability by the insurer in all circumstances? The Honourable Supreme Court has considered the consequence of absence of a valid driving licence for the driver at the time of accident in National Insurance Co. Ltd. v. Swaran Singh ( 2004(1) KLT 781 (SC)). The summary of the findings entered by the Honourable Supreme Court in respect of this matter contains in clause(vi) of paragraph 102 of the judgment which reads 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 orhis 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 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 S.149(2) of the Act.” In the light of this ruling, unless the Insurance Company is able to prove that the absence of driving licence has contributed to the cause of accident, they cannot avoid their liability arising from the Insurance Policy. In the case on hand, the Tribunal has not entered a finding that the absence of a valid driving licence for the first respondent had contributed to the cause of accident. The second respondent Insurance Company has not even made an attempt to prove that the absence of a valid driving licence had contributed to the cause of accident. Merely showing that the driver of the vehicle was not holding a valid driving licence at the time of accident will not absolve the Insurance Company from their liability arising from the Insurance Policy to indemnify the insured. Merely showing that the driver of the vehicle was not holding a valid driving licence at the time of accident will not absolve the Insurance Company from their liability arising from the Insurance Policy to indemnify the insured. Therefore, the absence of driving licence is not a ground in this case for avoiding liability by the Insurance Company. They are bound to indemnify the appellant. 5. Section 149 of the Motor Vehicles Act does not allow the Insurance Company to raise a defence based on absence of badge for resisting a claim for compensation, This Court has considered the consequence of absence of a badge for the driver at the time of accident in Kuruvila v. Jijo Joseph ( 2013 (4) KLT 700 ). Paragraph 38 of the judgment is relevant here which reads as follows:- “Now i shall revert to the facts of the cases involved in these appeals. Except in M.A.C.A. No.1722 of 2012, the finding entered by the Tribunals concerned is only regarding want of badge/authorisation for the driver to drive the transport/goods vehicle involved. There is also no finding that the absence of such badge/authorisation in any way contributed to the cause of the accident. Hence the breach cannot be said to be fundamental as well. Hence in the light of what I have stated above, that by itself cannot exonerate the insurance company from its liability to the third parties (claimants) or, give it a right of recovery of the amount from the insured. The insurers are bound to indemnify the insured. Hence in all the appeals other than in M.A.C.A. No. 1722 of 2012, contention of the insurance companies either that it is not liable, or that it is entitled to recover the amount of compensation from the insured on payment of the same to the claimants cannot be accepted.” In the light of this ruling, unless the Insurance Company is able to prove that the absence of badge has contributed to the cause of accident, they cannot avoid their liability under the Insurance Policy. As already found, there is no finding that absence of badge has contributed to the cause of accident and the Insurance Company has not even made an attempt to prove such a fact. Therefore, the Insurance Company cannot avoid liability under the Insurance Policy to indemnify the appellant. They are bound to indemnify the appellant under the Insurance Policy. As already found, there is no finding that absence of badge has contributed to the cause of accident and the Insurance Company has not even made an attempt to prove such a fact. Therefore, the Insurance Company cannot avoid liability under the Insurance Policy to indemnify the appellant. They are bound to indemnify the appellant under the Insurance Policy. The learned counsel for the Insurance Company submits that they have already paid the amount as per the award to the claimant. In view of the findings of this Court, they are not entitled to recover the amount so paid from the appellant as permitted in the award of the tribunal. In the result, it is declared that the second respondent Insurance Company is liable to indemnify the insured/appellant under the Insurance Policy. They are not entitled to recover the amount paid to the claimant from the appellant as permitted in the award of the Tribunal. This appeal is allowed as above.