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IN THE HIGH COURT OF KERALA AT ERNAKULAM
THOMAS P. JOSEPH, J.
Kunjukuttanpillai, S/o Krishnapillai – Appellant
Versus
Muhammad Hussain, S/o Nazeer, Kunnumpurathu – Respondents
M.A.C.A. Nos. 1391 of 2011, 103, 942, 943, 1041, 1534, 1536, 1541, 1655, 1722 and 1797 of 2012, 567 and 1471 of 2013 Against the Award in O.P. (MV) No. 754/2008 of Motor Accidents Claims. Tribunal, Pala Dated 26-10-2009
Decided on : 25-09-2013
Driver's Authorisation/Badge - Motor Accident Claims - Sec.3(1), Sec.9, Sec.14, Sec.15, Sec.149(2)(a)(ii) of the Motor Vehicles Act, 1989 - The court discussed the necessity for driving license, issue of new license, currency of the license, renewal of the license, and circumstances in which the insurer could avoid its statutory liability to the third parties. The court highlighted the difference in phraseology used in different sections and emphasized the need to prove that the breach of the condition of driving license was fundamental and contributed to the cause of the accident.
Fact of the Case:
The appeals arose from separate awards passed by different Motor Accident Claims Tribunals, involving the liability of insurers to pay compensation to claimants and the right of recovery from the insured. The main question was whether the driver's lack of authorisation/badge to drive the vehicle at the relevant time exonerated the insurer from liability and entitled it to recover the amount from the insured.
Finding of the Court:
The court dismissed most appeals, holding the insurers liable to pay compensation without the right of recovery from the insured. However, one appeal was allowed by way of remand for further enquiry to determine the liability of the parties.
Issues: The main issue was the liability of insurers in cases where the driver lacked the necessary authorisation/badge to drive the vehicle at the time of the accident.
Ratio Decidendi: The court emphasized the need to prove that the breach of the condition of driving license was fundamental and contributed to the cause of the accident. It highlighted the distinction between 'effective license' and 'is not duly licensed' and held that the absence of authorisation/badge alone is not sufficient to exonerate the insurer from liability.
Final Decision: Most appeals were dismissed, holding the insurers liable to pay compensation without the right of recovery from the insured. One appeal was allowed by way of remand for further enquiry to determine the liability of the parties.
JUDGMENT
These appeals, though arise from separate awards passed by the different Motor Accident Claims Tribunals, the same are being disposed of by a common judgment since common questions of fact and law are involved for a decision.
2. The question for decision is whether, if the driver of the offending vehicle was not having the authorisation/badge to drive the transport/goods vehicle involved in the accident though he was having a license to drive a vehicle of the same type, the insurer is exonerated from its statutory liability to the third parties and at any rate, is entitled to recover the amount paid to the claimants from the insured? Short facts are as under:
3. M.A.C.A. No. 103 of 2012:
This appeal arises from the award dated 26.10.2009 in O.P. (M.V). No. 754 of 2008 of the Motor Accident Claims Tribunal, Pala. The vehicle involved is a TATA Ace vehicle. The second respondent, insurer of that vehicle contended that the appellant who is the registered owner cum driver of that vehicle had no badge/authorisation to drive the said vehicle. The Tribunal accepted that contention and while making the second respondent/insurer liable to pay compensation to the claimant, permitted it to recover the amount from the appellant/registered owner-insured. He has challenged the award to that extent.
4. M.A.C.A. No. 1471 of 2013:
This appeal is preferred by the third respondent in O.P. (M.V). No. 514 of 2008 of the Motor Accident Claims Tribunal, Muvattupuzha from the award dated 09.05.2013. The Tribunal found that the driver of the offending vehicle though, had a license, did not have the badge/authorisation to drive a transport vehicle on the date of the accident. Ext.B2, driving license of the driver revealed that the authorisation to drive the transport vehicle was only with effect from 29.04.2008 while the accident occurred on 09.05.2007. Hence while holding that the insurer is liable to pay compensation to the claimant, it was allowed to recover the amount from the appellant/owner-insured. He is aggrieved to that extent.
5. M.A.C.A. Nos. 942 and 943 of 2012:
These appeals are preferred by the first respondent in O.P. (M.V). Nos. 893 and 892 of 2008 respectively, of the Motor Accident Claims Tribunal, Muvattupuzha. The vehicle involved is a goods autorikshaw. The third respondent, insurer of that vehicle contended that the driver of the goods autorikshaw was not having a valid license or badge to drive the goods autorikshaw.
The Tribunal found that the driver had a valid license but the badge/authorisation to drive the goods vehicle was from 22.04.2005 to 21.04.2008 while the accident occurred on 03.07.2008 and its renewal was only on 17.07.2008 meaning thereby that on the date of the accident, the driver had no badge/authorisation to drive the goods vehicle. The Tribunal exonerated the insurance company from liability to pay compensation to the claimants and made the owner/insured liable. He is aggrieved.
6. M.A.C.A. Nos. 1391 of 2011, 1534, 1536, 1541 & 1655 of 2012:
These appeals arise from the common award dated 28.01.2011 passed by the Motor Accident Claims Tribunal, Pathanamthitta.
The vehicle involved is a jeep belonging to and driven by the first respondent. The appellant/insurer contended that the driver had no license or badge to drive the offending vehicle. The Tribunal found that the driver-cum-owner had no badge but, based on the decision in National Insurance Company Ltd. v. Annappa Irappa Nesaria, (2008 ACJ 721 (SC) the insurer was made liable. No right of recovery was given. The insurer has preferred the appeals.
7. M.A.C.A. No. 567 of 2013
This appeal is preferred by the insurer, against the award dated 03.12.2012 in O.P. (M.V). No. 764 of 2007 of the Motor Accident Claims Tribunal, Paravur. The offending vehicle is a goods autorikshaw. The Tribunal found, accepting the contention of the insurer that the driver was not having the badge/authorisation to drive a goods vehicle on the date of accident (15.09.2007). The Tribunal f
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