IMPORTANT POINTS
• Mere absence of driving licence is not a defence available to the insurer against the insured and in order to avoid its liability towards the insured, the insurer must establish breach on the part of the insured.
• The condition mentioned in Section 149(2)(a)(ii) is one excluding driving of the vehicle by a person who is not duly licensed. The said condition would be attracted only when a person who is not duly licensed drives the insured vehicle when the wrongful act giving rise to the claim for compensation is committed.

JUDGMENT :

The insurer in a proceedings for compensation before the Motor Accidents Claims Tribunal has come up in this appeal challenging the decision of the Tribunal in declining the relief of pay and recovery sought by them.

2. One Baby died in a motor accident took place on 15.8.2009. Respondents 1 to 3 who are his wife and children instituted the proceedings for compensation. The case set out by respondents 1 to 3 in the proceedings was that Baby was riding a scooter on the fateful day through Kothamangalam-Muvattupuzha Road from south to north and while so, the fourth respondent who was sitting inside a Maruti van owned by him which was parked on the western side of the road opened its front right door abruptly and negligently and the handle of the scooter ridden by Baby consequently hit on the door of the van and as a result, Baby lost control over the vehicle, fell down and sustained fatal injuries. It is alleged by the claimants in the claim petition that the accident occurred on account of the negligence of the fourth respondent in abruptly opening the door of the van. Compensation was, therefore, claimed in the proceedings from the fourth respondent, and the appellant who was the insurer of the van. The appellant contested the proceedings, contending that the accident occurred on account of the negligence of the deceased himself. It was also contended by the appellant that the fourth respondent was not duly licensed to drive the van at the relevant time and therefore, if it is found that the accident occurred on account of the negligence of the fourth respondent, they shall be permitted to realise the compensation, if any, payable to the claimants from the fourth respondent. The Tribunal found that the accident occurred on account of the negligence of both the fourth respondent and the deceased, and apportioned the negligence on their part at 75% and 25% respectively. The Tribunal also found that respondents 1 to 3 are entitled to a sum of Rs.7,21,697/- by way of compensation. However, in the light of the finding as to the negligence on the part of the deceased, the Tribunal passed an award directing the appellant to pay 75% of the compensation determined as due to respondents 1 to 3 in their capacity as the insurer of the van. The appellant is aggrieved by the decision of the Tribunal, in so far as it declined the pay and recovery right sought by them. Hence this appeal.

3. Heard the learned counsel for the appellant as also the learned counsel for the respondents.

4. It is seen that in the course of the proceedings before the Tribunal, the appellant preferred an interlocutory application as I.A. No.2354 of 2010 for a direction to the fourth respondent to produce his driving licence. It is also seen that in the said interlocutory application, the Tribunal passed an order on 12.10.2010 directing the fourth respondent to produce his driving licence within one month or file an affidavit stating the reasons for non-production. It is also seen that pursuant to the said order, the fourth respondent has produced his driving licence particulars obtained by him from the Motor Vehicles Department. It is revealed from the driving licence particulars of the fourth respondent that the driving licence obtained by him expired on 15.5.2009 and the same was not renewed subsequently.

5. The learned counsel for the appellant, placing reliance on the decisions of the Apex Court in National Insurance Co. Ltd. v. Geeta Bhat, 2008 (2) KLT 1001 (SC) and Shamanna v. Oriental Insurance Co. Ltd., (2018) 9 SCC 650, contended that in so far as it was established that the fourth respondent was not duly licensed to drive the vehicle at the time of accident, the Tribunal should have permitted the appellant to realise the compensation directed to be paid to respondents 1 to 3 from the fourth respondent for breach of the condition in the policy issued by them that the vehicle in respect of which the policy is issued shall be driven only by a person duly