The insurance company is not liable for claims arising from accidents involving unlicensed drivers, and it is the insurer's responsibility to prove any breach of contract terms.

JUDGMENT

Joseph, J.

Appellant is the 4th respondent in O.P.(MV)

No.1528 of 1996. The said petition was a petition filed under Section 166 of the Motor Vehicles Act by the wife and children of one deceased Ramakrishnan. According to the claimants, late Ramakrishnan while walking on the side of the Thrissur-Palakkad NH Road was knocked down by a tempo which is driven by the 2nd respondent in the petition. He succumbed to the injuries. The 3rd respondent Insurance Company which had issued the policy has raised a contention that the appellant is the owner of the vehicle. Consequently, the appellant came to be impleaded as the 4th respondent. It is noted in the award that he remained exparte. Finding that there was negligence on the part of the 2nd respondent driver, the Tribunal proceeded to compute the compensation as MACA 265/2004 -2-

Rs.1,96,000/- and it was ordered that the amount shall be paid with interest at 12% by the 3rd respondent Insurance Company which was given liberty to recover the amount from the appellant. It is being aggrieved by this award that this appeal is filed.

2. We heard Sri.V.V.Surendran, learned counsel for the appellant and Sri.Rajan P.Kalliath learned counsel appearing on behalf of the Insurance Company. Learned counsel for the appellant would contend as follows-- The Tribunal erred in permitting the Insurance Company to recover the amount from the appellant. He would submit that though made a party to the proceedings he was made exparte. He had no notice in the original proceedings. He also did not have notice in the execution proceedings. He came to know about the award when revenue recovery steps were taken apparently at the instance of the 3rd respondent Insurance Company which had paid the amount in terms MACA 265/2004 -3-

of the award. The Tribunal found that though there is a valid insurance policy there is violation of the terms of the policy in so far as on the date of accident took place namely, on 22.5.1996, the second respondent driver was not possessed of a valid licence. It was found that the licence was valid from 10.3.1993 to 22.3.1996, and thereafter, it was renewed only on 22.11.1996. Thus, as on the date of the accident there was no valid licence. Learned counsel for the appellant would submit that the finding and direction of the Tribunal are unsustainable for the reason that while it may be true that on 22.5.1996 the date on which the accident took place there was no licence it was renewed on 22.11.1996. He would contend that the Tribunal has to find it if it is the fundamental cause which contributed to the accident. He placed reliance on the judgment of the Apex Court reported in National Insurance Co. Ltd. Vs. Swaran Singh {2004 (1) KLT 781 (SC} wherein the Apex Court interalia held as MACA 265/2004 -4-

follows:

“The person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability. Apart from the above, we do not intend to lay down anything further, i.e., degree of proof which would satisfy the aforementioned requirement inasmuch as the same would indisputably depend upon the facts and circumstances of each case. It will also depend upon the terms of contract of insurance. Each case may pose different problem which must be resolved having to a large number of factors governing the case including conduct of parties as regard duty to inform, correct disclosure, suppression, fraud on the insurer, etc. It will also depend upon the fact as to who is the owner of the vehicle and the circumstances in which the vehicle was being driven by a person having no valid and effective licence. No hard and fast rule can therefore be laid down. If in a given case there exists sufficient material to draw an adverse inference against either the insu