Kerala High Court · 2012

HARUN-UL-RASHID, J.------------------------M.A.C.A.No.1745 Of 2010----------------------Dated this the 10th day of August, 2012.J U D G M E N TThe oriental Insurance Company is the appellant. Theappeal is directed against the award in O.P.(MV).No.381/2007 onthe file of the M.A.C.T., Irinjalakuda. The Tribunal passed anaward allowing the claimant to realise compensation amount ofRs.13,500/- from the respondents jointly and severally withinterest at the rate of 7% per annum from the date of petition tillrealisation and proportionate costs. Parties hereinafter arereferred to as the claimant and respondents as arrayed in theclaim petition.2.The claimant sustained injuries in a motor vehicleaccident on 11.11.2006. While he was riding on his bicycle theoffending autorickshaw driven by the 2nd respondent hit on thebicycle. Respondents 1 & 2 remained ex-parte. The 3rdrespondent alone contested the case. The insurance coverage ofthe autorickshaw was admitted. It is contended that the 2ndrespondent had no licence and badge at the time of the accident.3.The Tribunal held that the accident occurred due to therashness and negligence on the part of the 2nd respondent. The ::2::M.A.C.A.No.1745 Of 2010total compensation payable to the claimant was worked out asRs.13,500/- with interest.4.The appellant produced Ext.B1, copy of the policy andExt.B2 driving licence particulars. The Tribunal examined thecontention raised by the insurance company. The Tribunal foundthat Ext.B2 extract of the driving licence of the 2nd respondentshows that the 2nd respondent is a licensed person and he hadproper and valid licence for driving the autorickshaw on the dateof the accident, but, badge was obtained only from 21.11.2006.The date of accident was on 11.11.2006. The Tribunal held thatabsence of badge by itself is not a defence under Section 149 ofthe Motor Vehicles Act. The Tribunal held that the 2nd respondenthad valid licence, that he obtained badge within a few days afterthe accident and that the insurance company cannot be absolvedfrom the liability. 5.The learned counsel for the appellant contended thatthe 2nd respondent was not holding a valid driving licenceauthorising him to drive a transport vehicle and that it amountsto violation of policy conditions. According to the learned counsel ::3::M.A.C.A.No.1745 Of 2010there is violation of policy conditions on the part of the insuredand ought to have allowed right of recovery from the insured.6.7.The Apex Court in National InsuranceCompany v. Swaran Singh [2004(1) KLT 781(SC)] held asfollows:“The person who alleges breach must prove thesame. The insurance company is, thus, required toestablish the said breach by cogent evidence. In theevent the insurance company fails to prove that therehas been breach of conditions of policy on the part ofthe insured, the insurance company cannot be absolvedof its liability.”It was also held that,“Mere absence, fake or invalid driving licence ordisqualification of the driver for driving at the relevanttime, are not in themselves defences available to theinsurer against either the insured or the third parties.To avoid its liability towards insured, the insurer has toprove that the insured was guilty of negligence andfailed to exercise reasonable care in the matter offulfilling the condition of the policy regarding use ofvehicles by duly licenced driver or one who was notdisqualified to drive at the relevant time”. ::4::M.A.C.A.No.1745 Of 2010Clause (6) in the summary of findings in paragraph 102 in theabove referred decision it was held that unless the insurer is ableto prove breach on the part of the insured concerning the policycondition regarding holding of a valid licence by the driver or hisqualification to drive during the relevant period, the insurer wouldnot be allowed to avoid its liability towards insured unless thesaid breach or breaches of the conditions of driving licence is/areso fundamental as are found to have contributed to the cause ofthe accident. From the above said dictum it is clear that not onlyfake or invalid driving licences or disqualification of the driver fordriving at the relevant time are not themselves available to theinsurer against the insured or third parties, the absence of licenceis also, it is stated, is not by themselves a defence available tothe insurer in a case where a person drove the vehicle without alicence. To avoid its liability towards insured, the insurer has toprove that the insured was guilty of negligence and failed toexercise reasonable care in the matter of fulfilling the condition ofthe policy regarding use of vehicles by duly licenced driver or onewho was disqualified to drive at the relevant time. Therefore, it ::5::M.A.C.A.No.1745 Of 2010is clear that the absence of driving licence by itself is not adefence available to the insurer. The Apex Court in paragraph 77of the Swaran Singh's case (supra) considered the specificquestion as to the liability of the insurer, when admittedly nolicence was obtained by a driver. The Apex Court held as follows:“Where the driver of the vehicle admittedly did nothold any licence and the same was allowed consciouslyto be driven by the owner of the vehicle by such person,the insurer is entitled to succeed in its defence andavoid liability”. 7.The insurer in order to succeed in its defence and toavoid its liability in a case like this, mere absence of the drivinglicence by the person who drove the vehicle at the time ofaccident is not enough, the insurance company has to prove thatthe vehicle was allowed consciously to be driven by the owner ofthe vehicle by a person who is not holding a valid licence. So,there should be evidence to show that the owner after fullknowledge about the fact that the person who drove the vehiclehas no licence allowed consciously to drive the vehicle. Theinsurer also has to prove that the owner was guilty of negligence ::6::M.A.C.A.No.1745 Of 2010and failed to exercise reasonable care in the matter of fulfillingthe conditions of the policy. In this case, the insurance companydid not adduce any evidence to show that the owner of thevehicle consciously allowed the second respondent to drive thevehicle. The insurance company also did not give any evidenceto prove that the owner of the vehicle was guilty of negligenceand the owner failed to exercise reasonable care in the matter offulfilling the conditions of policy.In the result, the appeal fails and accordingly dismissed. Noorder as to costs. HARUN-UL-RASHID, Judge.bkn/-