SHAJI Vs. PRADEESH

JUDGEMENT

(1.) The law stands declared by a Full Bench of this Court, vide decision (National Insurance Company Ltd. v. Jisha K.P. and others, 2015 AIR(Ker) 190), that mere absence of "badge" by driver of a transport vehicle is not sufficient to exonerate the insurer from the liability to pay compensation to the claimant and that absence of "badge is not a fundamental breach of the statutory/policy condition to enable the insurer to have recovery from the insured, after satisfying the liability to the claimant/third party. The question remains to be considered is what is a "badge" and is it the same as "authorisation to drive a transport vehicle" . If it is not the same, will it not come within the purview of statutory defence under Section 149 (2) r/w. sub-sections (4) and (8) of Section 149 of the M.V.Act, enabling the insurer to have recovery from the insured for driving the transport vehicle without authorisation to drive such vehicle (based on the experience to be gathered at least for "one year" as envisaged under Section 7 (1) of the M.V.Act), which right in fact stands declared by the Apex Court as well, as per the celebrated judgment in (National Insurance Company Ltd. v. Swaran Singh, 2004 AIR(SC) 1531). It also remains a matter to be considered whether some of the observations made by the Full Bench in 2015(1) KLT 1 : (AIR 2015 Ker 190) as to the meaning of the term "duly licensed" are correct, in view of the subsequent Larger Bench decision of this Court explaining the meaning of the said term in (Oriental Insurance Company Limited v. Poulose, 2015 AIR(Ker) 148).

(2.) In understanding the findings of the Supreme Court in Swaran Singh's case, as summed up in paragraph 102 of the judgment, it is essential to have reference to the actual point mooted by the appellants before the Apex Court, as contained in paragraph 11 of the judgment and the rival contentions of the respondents in paragraph 12, as to whether the Insurance Company could "avoid" the liability in cases of such violation (instead of the settled principle of pay and recover), thus leading to the findings in paragraphs 62, 63 and 64 that the Insurance Company cannot absolve its liability; that each case will have to be considered and decided by the facts in each case , (since no factual position was considered by the Apex Court but for the question of law); further holding that it would be the liability of the insurer to satisfy the decree at the first instance with liberty to proceed under sub-sections (4) and (5) of Section 149.

(3.) The M.V.Act, of course, is a "beneficial statute" requiring liberal interpretation as observed in paragraph 65 of the judgment in Swaran Singh, 2004 AIR(SC) 1531 . But is it not for the benefit of the victim , or is it for extending unlawful gain to the "wrong doer/owner or driver" who violates the law . Is it still not a matter of mistake of fact made by the Full Bench in 2015 (1) KLT 1 : (AIR 2015 Ker 190) while observing in "paragraph 25" that the words "duly licensed" under Section 149(2)(a)(ii) of the M.V. Act has been used in "Past Tense" ; (which in fact has been used in the Present Perfect Tense) . Since a number of decisions have already been rendered both ways round, it still requires clarity in understanding the provision; particularly as to whether "badge" is same as "authorisation" to drive transport vehicle; more so when the term "badge" is nowhere defined either under the Act or under the Central/State Rules.