LAWS(KER)-2007-8-65

P T MOIDU Vs. ORIENTAL INSURANCE CO LTD

Decided On August 03, 2007
P.T.MOIDU Appellant
V/S
ORIENTAL INSURANCE CO. LTD. Respondents

JUDGEMENT

(1.) Can insurance company be exonerated from liability to pay compensation merely because driver who was driving a commercial vehicle was not having a badge Learned single Judge noticed two divergent views expressed by a Division Bench of this Court. Hence, the matter was referred to the Division Bench. In Govindakutty Nair v. Gopalakrishnan, 2000 1 KerLT 224 a Division Bench of this Court held that requirement of driver's badge is necessary to drive a transport vehicle and if the driver is not having a badge at the time of accident, insurance company is exonerated from liability. The Division Bench referred to the decision of the Apex Court in United India Insurance Company Limited v. Gian Chand and Ors., 1997 AIR(SC) 3824 and Rukmani and Ors. v. New India Assurance Company and Ors., 1998 9 SCC 160 . Another Division Bench of this Court in Ramachandran v. Unnikrishnan,2006 2 KerLT 15, Case No. 20, held that mere absence of a badge to drive a commercial vehicle is not sufficient, but, it must be proved that it was the reason for the accident and then only insurance company can get exonerated from the liability for violation of policy conditions. The latter Division Bench followed the decision in National Insurance Co. Ltd. v. Swaran Singh, 2004 AIR(SC) 1531. Normally, if there are two different views expressed by two Division Benches, we are bound to refer the matter to Full Bench. But, we are of the opinion that there is no difference of opinion expressed by the Division Bench decision and on the facts of the case and on the basis of the subsequent decisions of the Apex Court, we are of the opinion that the question can be decided by us.

(2.) In United India Insurance Co. Ltd. v. Gian Chand and Ors., 1997 AIR(SC) 3824 referred to in Govindakutty Nair's case 2000 AIHC 575, the driver had no licence at all. Therefore, it has no application to the question in issue. Rukmani's case 1999 AIR SCW 4712 referred to in Govindankutty Nair's case was explained by the Supreme Court subsequently by a three-member Bench decision in Swaran Singh's case , AIR2004SC1531 as follows:

(3.) In National Insurance Co. Ltd. v. Swaran Singh, 2004 AIR(SC) 1531 , after considering large number of previous decisions, a three-member bench of the Hon'ble Supreme Court summarised the legal position regarding liability of the insurance company when the driver of the insured vehicle has no licence or no effective licence at the time of accident. At paragraph 105 law has declared by the Hon'ble Apex Court as follows ;