Partly allowed

Itl Tours and Travels Pvt. Ltd. v. Baiju.a and Others

Kerala HC10 Aug 2010MACA/260/2010

Case brief

AI extract

What is this about?

In an appeal against a Motor Accident Claims Tribunal award, the Court held that a driver of a taxi operating without a specific transport vehicle license breached policy conditions. The appellant's appeal to quash the insurance company's right to recover the compensation amount was dismissed.

What did the court decide?

Appeal dismissed but recovery of amount granted for 4 months without coercive proceedings.

Itl Tours and Travels Pvt. Ltd. Vs Baiju.a and Others — Insurance | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.N.KRISHNAN

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TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932

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MACA.No. 260 of 2010(F)

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----------------------------------[ O.P(MV).NO.1890/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,PERUMBAVOOR ]

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APPELLANT/RESPONDENT IN O.P(MV):

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--------------------------------------------------------

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I.T.L. TOURS AND TRAVELS PVT LTD., I.T.L. HOUE, 39/4704, M.G.ROAD, RAVIPURAM, COCHIN, REPRESENTED BY ITS BRANCH MANAGER, MRS. SONIA THOMAS.

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BY ADVS. SRI.C.K.THANU PILLAI, SRI.T.K.SHAIJ RAJ.

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RESPONDENTS:

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------------------------

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1. BAIJU.A., S/O. ARJUNA PILLAI, AGED 29 YEARS, "NAVEENA HOUSE", THOTTUVARA KARA, KODANAD VILLAGE, KOOVAPPADY.P.O., ERNAKULAM DISTRICT.

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2. M/S. UNITED INDIA ASSURANCE CO. LTD., KALOOR, COCHIN-682 017.

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3. BAIJU.K.M. S/O. MATHAI KIZHAKKEDATH VEETTIL, KUTTAMPUZHA KARA, ERNAKULAM DISTRICT.

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4. NATIONAL INSURANCE CO. LTD., PERUMBAVOOR.

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R2 BY ADV. SMT.P.K.SANTHAMMA, R4 BY ADV. SMT.SARAH SALVY.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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prv.

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M.N. KRISHNAN, J.

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M.A.C.A.NO.260 OF 2010

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Dated this the 10^th day of August, 2010.

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J U D G M E N T

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This is an appeal preferred against the award of the Claims Tribunal, Perumbavoor in O.P.(MV)No.1890/2004. The claimant was a rider on a bike and it met with an accident with an Indica car resulting in injuries to him. The Tribunal found that the accident took place on account of the negligent driving of the car driver and fixed a compensation of Rs.87,700/=. Thereafter,the Tribunal considered regarding the licence of the driver of the car. It was not produced and therefore, the Tribunal directed the third respondent to pay the compensation and granted recovery right from the first and second respondents. It exonerated the 4^th respondent insurance company. It is against the decision of the of the order of reimbursement, the appeal is preferred by the owner of the vehicle.

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The learned counsel for the appellant had made available before me for perusal a copy of the driving licence of the driver of the car. Admittedly, the car was used as a

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: 2 :

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M.A.C.A.NO.260 OF 2010

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taxi - a public carrying vehicle. A perusal of the licence would reveal that the driver did have a valid driving licence to drive a non transport vehicle from 20.5.1998 to 19.5.2018 and to drive a transport vehicle from 7.8.2007 to 6.8.2010. The date of accident in this case is 30.5.2004. So by perusing the licence, it can be seen that the driver did not have a valid driving licence to drive a transport vehicle on the date of accident. Whether licence to drive a non transport vehicle is sufficient has come up for consideration before this Court. Under Section 2(47) of the Motor Vehicles Act a transport vehicle is defined which means a public service vehicle, a goods carriage and an educational institution bus or a private service vehicle. Since the vehicle involved in this case is being run as a taxi, it satisfies the definition of transport vehicle. Section 3 of the Motor Vehicles Act makes it very clear that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising to drive the vehicle and no person shall so drive a transport vehicle unless his driving licence specifically entitles him so to do. There was a discussion

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: 3 :

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M.A.C.A.NO.260 OF 2010

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among the courts that when a person is holding a driving licence to drive a light motor vehicle, whether it will be sufficient to drive a transport vehicle. There was a view that if the laden weight of a vehicle is less than 7500 kgs, it becomes a light motor vehicle and auto rickshaws, cars and jeeps which carry passengers will fit into the definition of light motor vehicle and therefore, no additional licence is necessary.

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The Hon'ble Supreme Court has considered the impact of Section 10 of the Motor Vehicles Act which was amended in 1994 whereby the transport vehicle has been included in this section. The Hon'ble Supreme Court in the decision reported in New India Assurance Co.Ltd. v. Roshanben Rahemansha Fakir (2008 (8) SCC 253) held that when a driver is not holding appropriate licence i.e., for the correct kind/class of vehicle which caused the accident, it amounts to breach of policy conditions. The entire case law on the subject was discussed and the court held that the very holding of driving licence of a light motor vehicle is not sufficient to drive a public passenger carrying vehicle.

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: 4 :

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M.A.C.A.NO.260 OF 2010

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Therefore, the insurance company cannot be refused the right at least to get recovery of the amount, i.e., paid to the claimant. It has also to be stated that the contract of insurance is between the insurer and the insured and when the insured commits breach of contract, the insurer is liable and therefore the insurer cannot escape from the liability. So I find that the Tribunal was justified in granting an order of reimbursement.

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Therefore the appeal lacks merit and it is dismissed. But considering the amount involved and also the situation in which the second respondent is placed, I direct the Revenue Recovery Authorities as well as the insurance company not to initiate any coercive proceedings against the present appellant for realisation of the amount for a period of four months. If the amount is not paid within the period of 4 months, the insurance company is at liberty to proceed in accordance with law.

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M.N. KRISHNAN, JUDGE.

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M.A.C.A.NO.260 OF 2010

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M.A.C.A.NO.260 OF 2010

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M.N. KRISHNAN, J.

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A.S.NO.OF 2010

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............................................. 2^nd day of August, 2010.

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J U D G M E N T

Itl Tours and Travels Pvt. Ltd. v. Baiju.a and Others

Case brief

What is this about?

What did the court decide?

Itl Tours and Travels Pvt. Ltd. v. Baiju.a and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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