Uttarakhand High Court
Oriental Insurance Company Limited vs Hukum Chand And Others on 16 June, 2016
Equivalent citations: 2016 AAC 1883 (UTR), (2017) 172 ALLINDCAS 447 (UTR), (2016) 3 TAC 365, (2016) 3 UC 2039, (2016) 4 ACC 353, (2017) 2 ACJ 1202
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal from Order No.201 of 2009
The Oriental Insurance Co. Ltd. ....... Appellant
Versus
Suresh Chand @ Guddu & others ........ Respondents
Mr. V.K. Kohli, Sr. Adv., assisted by Mr. I.P. Kohli, Adv. for the appellant.
Mr. B.M. Pingal with Mr. Mukesh Rawat, Advocates, for the claimants/respondents.
None is present for the driver & owner.
(2) Appeal from Order No.202 of 2009
The Oriental Insurance Co. Ltd. ....... Appellant
Versus
Megh Singh & others ........ Respondents
Mr. V.K. Kohli, Sr. Adv., assisted by Mr. I.P. Kohli, Adv. for the appellant.
Mr. B.M. Pingal with Mr. Mukesh Rawat, Advocates, for the claimants/respondents.
None is present for the driver & owner.
(3) Appeal from Order No.203 of 2009
The Oriental Insurance Co. Ltd. ....... Appellant
Versus
Smt. Leela Devi & others ........ Respondents
Mr. V.K. Kohli, Sr. Adv., assisted by Mr. I.P. Kohli, Adv. for the appellant.
Mr. B.M. Pingal with Mr. Mukesh Rawat, Advocates, for the claimants/respondents.
None is present for the driver & owner.
(4) Appeal from Order No.204 of 2009
The Oriental Insurance Co. Ltd. ....... Appellant
Versus
Smt. Saroj & others ........ Respondents
Mr. V.K. Kohli, Sr. Adv., assisted by Mr. I.P. Kohli, Adv. for the appellant.
Mr. B.M. Pingal with Mr. Mukesh Rawat, Advocates, for the claimants/respondents.
None is present for the driver & owner.
(5) Appeal from Order No.205 of 2009
The Oriental Insurance Co. Ltd. ....... Appellant
Versus
Hukum Chand & others ........ Respondents
Mr. V.K. Kohli, Sr. Adv., assisted by Mr. I.P. Kohli, Adv. for the appellant.
Mr. B.M. Pingal with Mr. Mukesh Rawat, Advocates, for the claimants/respondents.
None is present for the driver & owner.
2
Hon'ble Servesh Kumar Gupta, J.
All the appeals, titled above, have arisen out of the same accident, hence are being taken up for adjudication together herein.
The accident took place on 09.3.2007 which has not been denied by the insurance company and the fact that the offending vehicle was comprehensively insured, is also not in dispute. The point which has been agitated before the Court by learned Senior Counsel on behalf of the appellant is that the driver of the offending vehicle did not possess a valid driving licence on the date of accident, because the Insurance Surveyor has got a report from the Transport Office based at Raipur (Chhattisgarh), which reflects that the driving licence was initially issued on 31.3.1998 having its validity up to 30.4.2003; it was then renewed up till 30.4.2006; but after such date, it could be renewed only with effect from 25.3.2007 to 25.3.2010 viz. the licence could not be renewed during the period 1.5.2006 to 24.3.2007 and during this intervening time, the accident occurred. So, it can safely be argued that the vehicle was not being run in violation of the terms and stipulations of the insurance policy and thus, this factum itself exonerates the insurance company from owing any liability to pay the compensation.
In support of his arguments, learned Senior Counsel has placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of 'United India 3 Insurance Co. Ltd. v. Sujata Arora & others' reported in 2013 (3) TAC 29 (S.C.), wherein the Division Bench, again being fortified on yet two other judgments of the same Court, has held in paragraph no.8 that 'where in a case, if it is found that the offending vehicle was being driven by driver who was holding no licence or a fake licence, then it amounts to violation of terms and conditions of policy and in such circumstances, no liability can be fastened on the Insurance Company.' Another judgment whereon the reliance has been placed on behalf of the appellant has been rendered by the Division Bench of Jharkhand High Court in the case of 'Tripurari Mandal v. Oriental Insurance Corporation & another' 2009 (3) TAC 245 (Jhar.), wherein, considering the law laid down by the Hon'ble Apex Court in the case of 'Sardari & others v. Sushil Kumar & others' 2008 AIR SCW 2075, it was held that 'if the driver is not holding a driving licence, the Insurance Company gets exonerated'.
Having regard to the cases, so relied by learned Senior Counsel, I find that both these precedents do not have any applicability in the present controversy. The reason being that the cases, so relied, deal with the eventuality when the driver of the offending vehicle was holding no licence or had a fake licence, whereas this is not the issue, in hand. That apart, the controversy as regards the driving licence has elaborately been explained by the Constitutional Bench of the Hon'ble Apex Court in the case of 4 'National Insurance Co. Ltd. v. Swaran Singh & others' (2004) 3 SCC 297. In that judgment, the Constitutional Bench has interpreted the words 'effective licence' and 'duly licensed' worded in Sections 3 and 149(2)(a)(ii) of the Motor Vehicles Act respectively. Both these provisions depict the validity of the driving licence and it was categorically held that in the case of motor accident claims, the Court must not adhere to the strict interpretation but the construction should be liberal, more so, when there is apparent difference between the language of both the sections, indicated above. For the sake of convenience, the relevant part of the judgment is quoted below: -
"Under the Act holding of a valid driving licence is one of the conditions of the contract of insurance. Driving of a vehicle without a valid licence is an offence. Whereas in Section 3 the words used are "effective licence", it has been differently worded in Section 149(2) i.e. "duly licensed". If a person does not hold an effective licence as on the date of the accident, he may be liable for prosecution in terms in terms of Section 141 of the Act but Section 149 pertains to insurance as regards third-party risks. A provision of a statute which is penal in nature vis-à-vis a provision which is beneficent to a third party must be interpreted differently. It is also well known that the expressions contained in different provisions are ordinarily construed differently. The words "effective licence" used in 5 Section 3, therefore cannot be imported into Section 149(2) of the Act. Moreover, the words "duly licensed" used in Section 149(2) are used in the past tense."
Keeping in mind the law laid down by the Constitutional Bench of the Hon'ble Apex Court, it is evident that the meaning of the phrase 'effective licence' used in Section 3 is quite different from the phrase 'duly licensed' worded in Section 149(2) of the Act. In the case, in hand, undoubtedly it could not be brought on the record that the driving of the offending vehicle was holding the 'effective licence' as required u/s 3 of the Act but applying the liberal interpretation, as held out by the Apex Court, it is difficult to deny that the driver was not 'duly licensed', and that term is to be and was taken into consideration while adjudicating the instant claim petitions.
Further, the counsel for the claimants did not have any opportunity before the Court below either to cross-examine the Surveyor of the insurance company, who procured the report from the office of the remote place of this country i.e. Raipur (Chhatisgarh), or any official of the Transport Office. So, from this point of view as well, such report issued from the office at Raipur cannot be fully trusted.
In view of what has been set forth above, I find no force in these appeals. All the appeals are, accordingly, dismissed, affirming the judgment and order, under challenge.
6The amount of statutory deposit along with the interest, if lying in this Court in any of the above- titled appeals, shall immediately be remitted back to the Tribunal concerned, for being paid to the respective claimants.
Lower court record be also sent back.
(Servesh Kumar Gupta, J.) 16.06.2016 Rdang