Punjab-Haryana High Court
National Insurance Co. Ltd. vs Parveen Kumar And Ors. on 8 November, 2004
Equivalent citations: 2005ACJ1178, (2005)139PLR230
Author: Jasbir Singh
Bench: Jasbir Singh
JUDGMENT V.K. Bali, J.
1. A Division Bench (comprising two of us, V.K. Bali and Jasbir Singh, JJ) on 25.11.2002, passed the following order of reference to a Full Bench.
"This matter was admitted to be heard by D.B. We have heard arguments at some length. We are prima facie of the view that the law laid down by Division Bench of this Court in National Insurance Co. Ltd. v. Shinder Kaur and Ors., A.I.R. 1998/- P & H 184, needs reconsideration. We may mention that sitting singly, one of us (V.K.Bali, J.) had taken the view contrary to the one reflected in Shinder Kaur's case (supra). Of course, aforesaid DB judgment of this Court was not cited. It may be mentioned that when the matter was admitted to DB, it is possible that at that stage the aforesaid DB judgment was also cited. The ontroversy, it appears can not be settled by a Division Bench inasmuch as if we might ultimately take the view contrary to the one reflected in Shinder Kaur's case (supra), it shall not be permissible for us to do that.
The matter, in our view needs to be considered by a Full Bench. Let this matter be now heard by the Full Bench. We are told that the points involved in this case are subject matter of decision in a number of pending cases. That being the position, Hon'ble the Chief Justice might consider the desirability of constituting a Full Bench as early as possible."
That is how this case is before this Full Bench.
2. Before we may proceed any further, we would like to mention that it is apparent from reading of order,reproduced above, that one of us (V.K.Bali, J) in Hardayan Singh v. Chiranji Lal and Ors., (2002-3)132 P.L.R. 464, had taken a view contrary to the one reflected in Shinder Kaur's case (supra). The matter was not referred to a larger Bench at that time as the Division Bench judgment of this Court in Shinder Kaur's case (supra) was not at all cited.
3. In National Insurance Company Limited v. Shinder Kaur, A.I.R. 1998 Punjab and Haryana 184 : (1998-1) 118 P.L.R. 369 the Tribunal, with respect to the plea that the driver did not have a valid driving licence to drive the tractor had also held that the licence had been issued to him to drive a motor vehicle and it included a tractor. A further finding came to be recorded by the Tribunal that intention of the parties had to be seen. The application submitted by the driver for obtaining the driving licence spelt out that he had applied for issuance of a driving licence pertaining to light vehicles and motor car and tractor were covered within the definition of light motor vehicles and consequently, the Insurance Company could not wriggle out of its liability to pay the compensation. On these findings, the Tribunal proceeded to calculate the compensation and passed the award.
3.1 Before the Division Bench, learned counsel representating the Insurance Company urged that the driver, who was driving the tractor did not have the licence to drive the same and therefore, it must be taken that he was driving the vehicle without proper authority or a licence and thus the Insurance Company could not be held liable to pay the compensation. This contention was sought to be countered by learned counsel appearing for the claimants by contending that intention of the legislature has to be seen and it was apparent that the intention was to get a licence for driving the light motor vehicles which included tractor and by no stretch of imagination, it should or could be held that the driver did not have the licence to drive the tractor.
3.2 The Division Bench relied upon the provisions of the Motor Vehicles Act No. 59 of 1988 (for short the "Act"), pertaining to 'driver' as given in sub-section (9) of Section 2 'driving licence' as given in sub-section (10) of Section 2, 'light motor vehicle' occurring in sub-section (21) of Section 2, 'motor car' and 'motor cycle' in sub-sections (26) and (27) of Section 2 and Section 3 dealing with necessity for driving licence as also judicial precedents in Pakala Narayana Swami v. Emperor, A.I.R. 939 Privy Council 47, Shri Ram v. The State of Maharashtra, A.I.R. 1961 S.C. 674, Anandji Haridas & Co. Pvt. Ltd. v. Engineering Mazdoor Sangh, A.I.R. 1975 S.C. 946 and Chief Justice of Andhra Pradesh v. L.V.A. Dikshitulu, A.I.R. 1979 S.C. 193. On the basis of provisions of the Statute and the judicial precedents, as mentioned above, it held that "thus it is abundantly clear from what has held above that when the language is clear and plain, the statute has to be interpreted accordingly. Literal meaning has to be given. In such like circumstances, the intention has not even to be looked into". 3.3. It held that "the Motor Vehicles Act, 1988 makes a clear distinction between a motor car and a tractor. Both may be light motor vehicles. But when the licence was applied and granted for scooter and a car, it can not be taken to be one for a tractor."
3.4 The Division Bench, while taking into consideration the definitions of driver and driving licence as given in Sub-Sections (9) and (10) of Section 2 of the Act, held that "a conjoint reading of both the above said definitions would show that while a driver means and includes who acts as the steersman of the vehicle but the driving licence has to be obtained and means that it should be issued by the competent authority under Chapter II authorizing the person specified therein to drive the vehicle other than a learner, motor vehicle of any specified class. Chapter-II of the Act refers to licensing of drivers of motor vehicles. Under Section 3 of the said Act, it is mandatory that before a motor vehicle can be driven, the driver must, have a driving licence. The driving licence has to be with respect to the particular type of vehicle that has to be driven. This is clear from the expression occurring under Section 3 which states "authorising him to drive the vehicle". After producing Section 3 dealing with necessity for 'driving licence' sub-sections (21), (26) and (27) of Section 2 of the Act 'defining light motor vehicle', 'motor car' and 'motor cycle' respectively, the Division Bench then relied upon the judicial precedents, mentioned in earlier part of this judgment and held that "thus it is abundantly clear from what has been held above that when the language is clear and plain, the statute has to be interpreted accordingly. Literal meaning has to be given. In such like circumstances, the intention has not even to be looked into. It has already been discussed above that the Motor Vehicles Act, 1988 makes a clear distinction between a motor car and a tractor. Both may be light motor vehicles. But when the licence was applied and granted for scooter and a car, it can not be taken to be one for a tractor. The Tribunal was patently in error in thus concluding to the contrary". In consequence of the findings so recorded as reproduced above, it was held that even if the tractor might have been insured, it will not fasten any liability on the Insurance Company.
3.5 In the context of the findings given by Division Bench, as mentioned above, the consequences were that the Insurance Company was absolved from its liability to pay compensation to the victim of the accident.
4. One of us (V.K.Bali, J.) while sitting singly, as mentioned above, took a contrary view in Hardhyan Singh's case (supra). Brief facts of the case were that on March 10, 1997 Smt, Murti alongwith her husband, Chiranji Lal, Chander Bhan, Mahender son of Chander Bhan and other passengers was travelling in a tempo. They were going from village Nangal Chaudhary to village Shahbajpur. The tempo was being driven by Hardayan Singh. As per the case set up by the claimants, the tempo was being driven in a rash and negligent manner, as a result of which it became out of control and turned turtle. Smt. Murti Devi and Chander Bhan came underneath the body of the tempo. They were taken to the Government Hospital. The claim petitions were contested, giving rise tone of the issue as to what amount of compensation the claimants are entitled to get and if so from whom. The Tribunal, under the said issue, held that Hardhayan driver of the tempo was not holding a valid driving licence to drive a tempo on the date of accident as he was only issued the driving licence by the Licensing Authority, Narnaul to drive a scooter, motor cycle, car and jeep only. There are more than 26 types of motor vehicles which come within the definition of Light Motor Vehicle but in the instant case the licensing authority had issued a driving licence to Hardhayan Singh to drive a motor cycle, car and jeep only. While so holding, the Insurance Company was not saddled with the responsibility to pay the compensation.
4.1. It was urged by learned counsel representing Hardhyan Singh, who had filed the appeal challenging order of the Tribunal, that the driving licence could be granted for the types of vehicles mentioned in Section 10(2) of the Motor Vehicles Act, 1988 and the same could either be with regard to Motor Cycle without gear, invalid carriage, light motor vehicle, transport vehicle, road roller or motor vehicle of a specified description. In the said case, it was not disputed that the appellant had a valid licence, even though therein it had been mentioned that the same was granted for scooter motor cycle car and jeep. It was urged that jeep is a light motor vehicle and so would be a tempo. That being so, it was wholly irrelevant, if in the licence granted to the appellant, all that was mentioned was scooter/motor/car/jeep. It shall be deemed to be a licence for all light motor vehicles. Light motor vehicle has been defined in Section 2(21) of the said Act of 1988 to mean a transport vehicle or mini bus, gross vehicle weight or either of which or a motor car or tractor or road roller, the unladen weight of any of which does not exceed 7500 Kgs. By virtue of Act No. 54 of 1994 w.e.f. November 14, 1994 figure "6000" in Section 2(21) has been substituted with the figures "7500". Weight of tempo, it was urged was not more than 7500 Kgs. On the contention of learned counsel as noted above, it was held as follows:-
"The contentions of learned counsel as noted above, has substance, Once a licence can be granted by virtue of provisions contained in Section 10 only with regard to kind of vehicles or type of vehicle, enumerated therein, the mere fact that in the licence of the appellant scooter, motor cycle, ear, jeep were mentioned, would be of no consequence. It shall be considered to be driving licence for a light motor vehicle and tempo, as per definition of light motor vehicle as contained in Section 2(21) of the Act of 1988, would be a light motor vehicle, The definition of light motor vehicle apart, it does not sound to reason even otherwise that a person who is issued a valid licence to drive a car, jeep could not drive a tempo. There is no special training that may be required to drive a tempo which may be different in material details for driving a jeep/car. The mechanism of all these vehicles is practically same. The distinction in driving various kinds of vehicles and grant of licence thereof is primarily when such vehicles are different in mechanism and require different kind of training. Looked, thus, from any angle, award passed by learned Tribunal foisting entire responsibility upon the appellant to satisfy the claim of the claimants, can not be possibly sustain. That being so, findings recorded by the Tribunal under Issue No. 2, to that effect are set aside."
4.2 Correctness of the view taken under this judgment was not challenged by the Insurance Company either by virtue of Letters Patent Appeal before this Court or by filing a Special Leave Petition before the Supreme Court.
5. We have heard Shri Anupam Gupta, the learned amicus curiae and the learned counsel for the parties and given our thoughtful consideration to the issues raised in the matter. 6. The question under debate, as rightly urged by the learned amicus curiae has been answered by the Supreme Court very recently in National Insurance Company Limited v. Swaran Singh and Ors., AIR 2004 SC 1531. The interpretation of Section 149(2)(a)(ii) vis-a-vis the proviso appended to subsections (4) and (5) of the Motor Vehicles Act, 1988 came up for adjudication. The Insurance Companies, in me claim petition, has raised defences like (a) driving licence produced by the Driver or owner of the vehicle was a fake one (b) driver did not have any licence whatsoever; (c) Licence although was granted to the concerned driver, but on expiry thereof, the same had not been renewed; (d) licence granted to the drivers being for one class or description of vehicle but the vehicle involved in the accident was of different class or description; and (e) the vehicle in question was driven by a person having a learner's licence. In the present case, we are concerned with the defence of the Insurance Company that licence granted to the drivers being for one class or description of vehicle but the vehicle involved in the accident was of different class or description. Before, however, dealing with the precise question as mentioned above, in paragraph 16, it was held that the relevant provisions of the Act indisputably are beneficent to the claimant. They are in the nature of a Social Welfare legislation. The precise question as mentioned above, has been answered by the Supreme Court.
6.1 The Supreme Court held as follows:-
"86. Section 10 of the Act provides for forms and contents of licences to drive. The licence has to be granted in the prescribed from. Thus a licence to drive a light motor vehicle would entitle the holder there to drive the vehicle falling within that class or description.
87. Section 3 of the Act casts an obligation on a driver to hold an effective driving license for the type of vehicle which he intends to drive. Section 10 of the Act enables Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are (a) Motor cycle without gear, (b) motor cycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are 'goods carriage', 'heavy goods vehicle', 'heavy passenger motor vehicle', 'invalid carriage' 'light motor vehicle', 'maxicab' 'medium goods vehicle', 'medium passenger motor vehicle' 'motor cab', 'motor cycle', 'omnibus,' 'private service vehicle', 'semi trailer', 'tourist vehicle', 'tractor', 'trailer' and 'transport vehicle'. In claims for compensation for accidents various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal. A person possessing a driving licence for 'motor cycle without gear' for which he has no licence. Cases may also arise where a holder of driving licence for 'light motor vehicle' is found to be driving a 'maxi cab', 'motor cab', or 'omnibus' for which has no licence. In each case on evidence led before the tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle was the main or contributory pause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence."
7. We are of the view that the Division Bench judgment of this Court in Shinder Kaur 's case (supra) does not lay down correct law. We find that no comprehensive discussion of the provisions of the Statute was made. The judicial precedents relied upon to arrive at the conclusion that when the language is clear and plain the statute has to be interpreted accordingly and literal meaning has to be given would not hold the field in interpreting the provisions of the Act, which are undisputedly beneficent to the claimants are in the nature of social welfare legislation.
7.1 The Division Bench relied upon Anandji Haridas & Company's case (supra). The question that came up for adjudication before the Supreme Court in the said case was as to whether the difference of ten per cent between an industrial company and other companies in the levy of income tax, provided in the Finance Act, 1966 is to be construed a "rebate" or "relief in the payment of any direct tax, for the development of an industrial for the purposes of Section 7(e) of the Payment of Bonus Act, 1965. In LVA Dikshitulu's case (supra), also relied upon by the Division Bench, the question debated and adjudicated pertained to term "appointment" with regard to powers vested in the Chief Justice of High Court. The other two judgments relied upon by the Division Bench in Pakala Narayana Swami and Sh. Ram's cases (supra), the debate centered around the words employed in Section 162 of the Code of Criminal Procedure and Section 207-A(4) of the Code of Criminal Procedure. These judicial precedents, in our view, did not pertain to interpretation of a social welfare legislation, like the Motor Vehicles Act, 1988. What we have said above would be clear from some of the judicial precedents that we shall refer to and which pertain to the very Act under consideration.
8. Reference in this connection first is made to judgment of the Supreme Court in Skandia Insurance Co, Ltd. v. Kokilaben Chandravadan and Ors., (1987) 2 SCC 654. The facts of the case, which were not in dispute were that an accident had taken place and the truck had come from Barejadi and had been un- loaded at Baroda. The driver had gone for bringing snacks from the opposite shop leaving the engine running. The ignition key was in the ignition lock and not in the cabin in the truck as alleged by the driver. The driver had handed over control of the truck to the cleaner. On these facts, the driver was grossly negligent in leaving such a truck with its running engine in the control of the cleaner. This being the immediate cause of the accident, the owner of the car, viz. the Insured was held vicariously liable along with the driver and the cleaner. The High Court took the view that there was not even an allegation that the insurer had at any time committed a breach of this condition. The insured had never permitted the cleaner to drive on the fatal occasion. The insured had permitted only the driver, who was admittedly the licenced driver. It is the driver's negligence in leaving the vehicle with its engine running with the ignition key in the ignition lock that resulted in the accident. The Insurance Company relied upon the exclusion clause incorporated in Sections 96(1) and 96(2)(b)(ii) of the said Act. While dealing with the same, the Hon'ble Supreme Court observed that the defence could not succeed for three reasons, namely:-
(1) xx xx (2) xx xx (3) The exclusion clause has to be read down in order that it is not at war with the 'main purpose' of the provisions enacted for the protection of victims of accidents so that the promiser is excluplated when he does every thing in his power to keep the promise."
8.1 The exclusion clause, it is clear, was read down by specifically holding that the provisions of the Act were meant for protection of the victims of accidents.
8.2 In Sohan Lal Passi v. P.Sesh Reddy and Ors., (1996-3)114 P.L.R. 311 (S.C.):(1995)5 S.C.C. 21, on behalf of the appellant-owner of the bus, a stand was taken that as he had appointed a driver to drive the vehicle, if the said driver allowed the cleaner/conductor of the bus to drive the vehicle without any authority from the appellant, then in that event, the appellant shall not be liable to pay any compensation to the hairs and legal representatives of the victim. Rejecting this contention, the Supreme Court held that the crucial test is as to whether the initial act of the employee was expressly authorised and lawful. Then the employer shall nevertheless be responsible for the manner in which the employees, that is, the driver and cleaner/conductor executed the authority. This is necessary to ensure so that the injured third parties, who are not directly involved or concerned with the nature of authority vested by the master to his servant are not deprived from getting compensation. If the dispute revolves around the mode or manner of execution of the authority of the master by the servant, the master can not escape the liability so far third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. It is once again that the defence of insurer that the condition of the policy i.e. the vehicle should not be driven by a person who is not duly licenced under Section 92(2)(b)(ii) of the said Act that was subject matter of debate. In Oriental Insurance Company Limited v. Hansrajbhai v. Kodala and Ors.,(2001)5 S.C.C. 175, the Supreme Court approved the view taken by it in Sohan Lal Passi's case (supra).
8.3 Once again in United India Insurance Co. Ltd. v. Lehru and Ors., (20032)134 P.L.R. 124 (S.C.):(2003)3 S.C.C. 338, where the appellant Insurance Company contested the claim before the Motor Accidents Claims Tribunal on the ground that since the license of the driver of the motor vehicle involved in the accident was fake, the appellant was not liable, it was held, in the context of Section 149(2)(a)(ii) dealing with breach of conditions, that where the owner has satisfied himself that the driver had a licence and was driving competently, there would be no breach of the said section and the insurer would not be absolved of its liability.
8.4 In Oriental Insurance Company Limited v. Hansraibhai v. Kodala and Ors., (2001-2)128 P.L.R. 663 (S.C.):(2001)5 S.C.C. 175, after giving brief legislative history of the statute under consideration, the Supreme Court relied with approval, the following observations made by it, in Utkal Contractors and Joinery (P) Ltd. v. State of Orissa, (1987)3 S.C.C. 279:-
" The reason for a statute is the safest guide to its interpretation. The words of a statute take their colour from the reason, for it. How do we discover the reason for a statute? There are external and internal aids. The external aids are Statement of Objects and Reasons when the Bill is presented to Parliament, the reports of the committees, which preceded the Bill and the reports of the Parliamentary Committees. Occasional excursions into the debates of Parliament are permitted. Internal aids are the preamble, the scheme and the provisions of the Act, Having discovered the reason for the statute and so having set the sail to the wind, the interpreter may proceed ahead. No provision in the statute and no word of the statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The Setting and the pattern are important.........Again, while the words of an enactment are important the context is no less important." . .
8.5. The observations reproduced above made by the Supreme Court are in sharp contrast to the observations made by the Divisional Bench in Shindar Kaur's case (supra). It may be recalled that the Division Bench has held that it is abundantly clear that when the language is clear and plain, the statute has to be interpreted accordingly. Literal meaning has to be given. In such like circumstances, the intention has not even to be looked into.
9. From the discussion made above, it is quite apparent that the canons of interpretation, while dealing with social welfare legislation were not brought to the notice of learned Division Bench.
10. The issue being no more res-integra, needs no further elaboration. We may, however, hasten to add that the Insurance Company can not be absolved of its liability to pay the compensation by simply pleading that the licence granted to the driver being for one class or description of vehicle but the vehicle involved in the accident was of the different class of description, unless it is proved that the cause of accident was the licence granted to the driver being for one class or description of vehicle but the vehicle involved in the accident was of different class or description. The observations made by the Supreme Court presuppose that if the driver was driving a vehicle, of which he might not be holding licence as such, but was holding a driving licence of a different description of vehicle, and the driving method of both the vehicles, for which licence was obtained and the one which was being driven, was the same and when even the mechanism of the vehicle is also same, the defence projected by the Insurance Company with regard to the driver not possessing requisite type of licence could be of no avail to it.
11. We thus overrule the view taken by the Division, Bench in National Insurance Company Ltd. (supra) and hold that if on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence. The defence projected by the Insurance Company in the context of Section 149(2)(a)(ii) and proviso appended to sub-sections (4) and (5) of the Motor Vehicles Act, 1988 can succeed only if it is proved that the accident had taken place only because the driver was not possessing requisite type of licence.
12. The question of law having been answered in the manner indicated above, all these cases now need to go to the Division Bench or Single Bench as the case may be for decision on merits.