Point of Law: Accident claim - Even where the insurer is able to prove breach on the part of the insured concerning the policy conditions regarding holding of a valid licence by the driver of qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breaches of the conditions of driving licence is so fundamental as are found to have contributed to the cause of the accident

JUDGMENT :

A.BADHARUDEEN, J.

1. The 3rd respondent in O.P(MV) No.774 of 2011 on the file of the Motor Accidents Claims Tribunal, Mavelikkara is the appellant herein. Other respondents and the petitioners are the respondents in this appeal. The challenge in this appeal is refusal of pay and recovery right claimed by the insurer from the insured on the ground that the driver of the offending vehicle does not have badge at the time of the accident.

2. Brief facts of the case :

On 24.08.2009 at about 4.00 pm, while the deceased was pushing the bicycle by the side of the road, and when he reached at the spot of accident, the offending vehicle No. KL 3R 8284 driven by the 1st respondent in a rash and negligent manner hit the deceased and as a result he sustained serious injuries and he succumbed to his injuries. The case of the petitioners is that the accident happened solely due to the rash and negligent act of the 1st respondent driver, who is primarily liable and the 2nd respondent, who is the owner, is vicariously liable for the act of the 1st respondent. The 3rd respondent is the insurer, who is liable to indemnify the second respondent.

The respondents are jointly and severally liable. The petitioners claimed total compensation of Rs.14,89,000/-.

3. As against the claim of Rs.14,89,000/-, the Tribunal granted a total compensation of Rs.4,72,500/-. It is submitted by the learned counsel for the insurance company that the driver of the vehicle, who is the 1st respondent, did not possess authorisation (badge) at the time of the accident and therefore there is violation in policy conditions. Therefore, the company is entitled to get recovery of the amount from the insured.

4. Ext.B1 is the copy of the policy produced from the side of the insurance company. On perusal of the same, the gross vehicle weight is shown as 16200 k.g. If the ratio of the ruling is applied to the facts of the case, no doubt, the driver of the trailer involved in the accident must possess the authorisation (badge) to drive the transport vehicle involved in the accident and absence of the same is a fundamental breach.

5. The learned counsel for the insured, though appeared before this Court, the insured failed to produce a valid badge during the period of accident and he did not produce the badge even after the Tribunal directed to produce the same as per order in I.A.No.1582 of 2016. Later the learned counsel for the insured placed argument note contending that the purpose of authorisation to drive a transport vehicle is conversant with the duties and responsibilities of a driver of the transport vehice and the same has nothing to do with the driving proficiency and infraction of the statutory requirement to have an authorisation as held in Paul v Chandran [2013 (4) KLT Suppl.110 (Ker.)]. Relying on the decision reported in National Insurance Company Ltd. v. Jisha.K.P and others reported in 2015(1) KHC 29 it is argued further that mere technical violation like absence of a badge by the driver of a transport vehicle is not sufficient to exonerate the insurance company from liability. The decision reported in National Insurance Co. Ltd. v. Swaran Singh [2004 KHC 314] also is highlighted to canvass the point that even where the insurer is able to prove breach on the part of the insured concerning the policy conditions regarding holding of a valid licence by the driver of qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breaches of the conditions of driving licence is so fundamental as are found to have contributed to the cause of the accident. The decision reported in New India Assurance Co. Ltd. v. Balakrishnan and Others [2011(4) KHC 203] is also highlighted in this regard. I have gone through a Full Bench decision cited by the learned counsel for the appellant/3rd respondent reported in Shaji v. Pradeesh [2018 (2) KLT 136 (F.B)] wherein National Insurance Co. Ltd. v