BALAKRISHNAN A. V. Vs. K. VIJAYAMMA

JUDGEMENT

(1.) MACA 551/06 is preferred against the award of the Motor Accidents Claims Tribunal, Thalassery in OP (MV) 1853/97 and the other appeal is preferred against the award in OP (MV) 1852/97. The claimants in the said cases sustained injuries in a road accident and the Tribunal has awarded compensation with a direction to the owner of the vehicle to reimburse the amount to the insurance company on satisfaction of the award on the ground that the driver did not have a badge to drive an auto rickshaw. So the two points that arise for consideration here are whether a badge is necessary and secondly whether the absence of a badge alone is sufficient to exonerate the insurance company from the liability.

(2.) So far as the necessity of a badge is concerned admittedly the vehicle which got involved in the accident was a passenger carrying auto rickshaw or it was a vehicle used to carry public. When a vehicle is used to carry public then it becomes a transport vehicle. So in order to drive a transport vehicle the law contemplates that a badge is necessary. The Supreme Court in a recent decision reported in New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir, 2008 (3) TAC 20 (SC) held that when a vehicle is used for transporting passengers the rule mandates that there must be a due licence for driving that vehicle. I hold that possession of a valid driving licence to drive a passenger carrying vehicle is a must and if it is not there, it may amount to breach of conditions of policy.

(3.) Then comes the second question. The Apex Court in the decision reported in Swaran Singh's case, National Insurance Co. Ltd. v. Swaran Singh, 2004 KHC 314 : 2004 (1) KLT 781 : 2004 (3) SCC 297 : AIR 2004 SC 1531 : 2004 SCC (Cri) 733 : 2004 (109) DLT 304 : 2004 (118) Comp Cas 396 has exhaustedly dealt with the various contingencies that may arise and by summarizing it at paragraph 102 of the judgment, specifically with reference to paragraph 102(iii) and (vi) has held that mere absence of a licence may not be sufficient to exempt the insured from the liability. To avoid its liability towards insured, the insured has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter. On satisfying the conditions of policy regarding the use of vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time. The Apex Court also held that: