Orissa High Court
National Insurance Co. Ltd. vs Raisa Bibi And Ors. on 16 November, 1998
Equivalent citations: 2000ACJ600, AIR1999ORI78, AIR 1999 ORISSA 78, (1999) 2 TAC 298 (2000) 1 ACJ 600, (2000) 1 ACJ 600
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. MISRA, J.
1. The Insurance Company challenge the order dated 12-12-1995, passed by the Second Motor Accident Claims Tribunal, Cuttack.
2. The present opposite parties 1 to 8 filed claim application under Section 166 of the Motor Vehicles Act, 1988, for compensation alleging that the husband of opposite party No. 1 expired in an accident caused due to negligent driving of the vehicle, a trekker bearing number OR 04-5341 belonging to present opposite party No. 9. The claim option was placed before Lok Adalat and the amount of compensation payable to the claimants was amicably settled subject to verification of the Driving Licence of the driver of the Trekker. Thereafter, the Insurance Company filed an application stating that though the driver of the vehicle had the Driving Licence bearing number 803/88-89, he did not have P.S. V. Badge and as such was not authorised to drive any public service vehicle. It was stated that since the trekker was registered as public service vehicle and on the date of accident passengers were being carried in the trekker, the Insurance Company was not liable, as the trekker was being driven by a person who did not have effective driving licence. Subsequently, an additional written statement was filed by the Insurance Company to the very same effect as per Annexure 1 to the present writ application.
3. After examining the documents filed by both parties, the Claims Tribunal found that on the date of accident, the driver had a Driving Licence to drive a heavy goods vehicle. It was further observed :--
". . . . .This being so, in the absence of any endorsement that he was not authorised to drive transport vehicle, he cannot be said to have D. L. to drive a light Motor Vehicle (Trekker). In this circumstance, at best the driver of the vehicle can be answerable in the Criminal Court if had violated any rule. The insurer cannot claim for exemption on ground as he had a valid D. L. to drive both light and heavy motor vehicle on the date of accident.
In the result, therefore, the objection raised is groundless and therefore, the O. P. No. 2 cannot escape liability which he has undertaken to discharge in the compromise petition."
With the aforesaid observation, the second Motor Accident Claims Tribunal rejected the application of the Insurance Company not to give effect to the compromise effected before Lok Adalat. The said order, Annexure 3, is being impugned in the present writ application.
4. The claimants (opposite parties 1 to 8) have filed a counter. The owner-opposite party No. 9 has entered appearance through counsel, but no counter has been filed. Along with the counter of opposite parties 1 to 8 copy of the Driving Licence of the driver of the vehicle in question has been filed as Annexure A/1 and copy of the application filed by the Insurance Company before the Claims Tribunal after the settlement before Lok Adalat has been filed as Annexure B/ 1. They have also filed copy of the judgment passed in W. C. Case No. 671 -D/93 as Annexure C/l, where under the Workmen's Compensation Commissioner passed an award for payment of compensation to the driver of the trekker. The said judgment has been relied upon in support of the contention that the driver had a valid driving licence.
5. The subsequent order of the Motor Accident Claims Tribunal holding that there was a driving licence and the Insurance Company was liable to honour the settlement effected in Lok Adalat should also be taken to be in award within the meaning of Section 173 of the Motor Vehicles Act, as it adjudicated the liability of the Insurance Company to pay the compensation in accordance with the compromise effected between the claimants and the Insurance Company in Lok Adalat and as such in ordinary course, could have been challenged by filing an appeal as envisaged under Section 173 of the Motor Vehicles Act. However, since writ application has been filed and all the parties have appeared and after their relevant documents, instead of driving the Insurance Company to file a separate appeal, the writ application is being disposed of on merit notwithstanding the availability of alternative remedy.
6. It is contended by the learned counsel for the petitioner that Annexure 2, the xerox copy of the certificate issued by the Licensing Authority. Chandikhole, indicates that the driver was authorised to drive light motor vehicle and heavy goods vehicle, but there is no endorsement that he was authorised to drive transport vehicle, nor any PSV Badge number had been issued. Opposite parties I to 8 have filed xerox copy of Driving Licence which indicates that the driver was authorised to drive light motor vehicle and heavy motor vehicle and was also authorised to drive as a paid employee (transport vehicle). The correctness of this Driving Licence (Annexure A/1) has not been challenged by the petitioner by filing any rejoinder and as such, it is reasonable to proceed on the footing that the driver was authorised to drive light motor vehicle as well as heavy motor vehicle as a paid employee. The licence further indicates that the driver was also authorised to drive as paid employee heavy goods vehicle with effect from 17-12-1991. In other words, he was authorised to drive a transport vehicle. The learned counsel for the petitioner, however, submitted that the licence does not indicate that the driver was issued any PSV Badge (Public Service Vehicle Badge) and since the trekker was being used for carrying passengers on hire and was as such a public service vehicle, the driver, in the absence of such badge, was not having any effective driving licence.
7. Section 9(1) of the Motor Vehicles Act envisages that application for issuance of driving licence shall be made to the licensing authority havingjurisdiction in the area. Section 9(2) of the Act prescribes that such application shall be in the form prescribed by the Central Government. Section 9(3) of the Act contemplates (subject to certain exceptions which are not relevant for the purpose of this case) that the applicant shall be issued driving licence if he passes such test as may be prescribed by the Central Government. Section 9(6) of the Act contemplates that the test of competence to drive shall be carried out in a vehicle of the type to which the application refers. Section 9(7) of the Act contemplates that a licensing authority after being satisfied about the competence to drive shall issue the licence. Under Section 13 of the Act a driving licence shall be effective throughout India. Section 27 of the Act empowers the Central Government to frame rules regarding the particulars for the test of competence. Minimum educational qualification of the applicant, form and contents of the licence are referred to in Sub-section (1) of Section 10 of the Act. Under Section 28 of the Act the State Governments are authorised to make rules for the purpose of carrying into effect the provisions of Chapter 2 of the Act other than the matters specified in Section 27 of the Act. In other words, the rule making power of the State is expressly made subject to the rule making power of the Central Government. It is, of course, correct that Section 28(2)(d) of the Act envisages the rule making power of the State in relation to "badges and uniform" to be worn by the driver of a transport vehicle and fees to be paid in respect of the badges. It can be comprehended that in a given case a particular State Government may frame rules prescribing the "badges and uniform" for a driver of a transport vehicle which may not be contemplated in the rule of another State. Since under Section 13 of the Act, a licence issued in any State is valid throughout India, it may so happen that the person authorised to drive a transport vehicle in a particular State may not be required to wear badges and uniforms whereas such provisions may be there in another State. A combined reading of the provisions contained in Chapter 2, particularly, the provisions contained in Sections 3, 8, 9, 10, 13 and 27 of the Act, leaves no room for doubt that the licence is to be issued an accordance with rules prescribed by the Central Government. Though Rule 71 of the Orissa Motor Vehicle Rules, 1993, framed under Section 28 of the Act, contemplates that driver of a public service vehicle should wear a badge and in fact a particular dress, there is nothing in the Act or Rules framed by the Central Government that issuance of a badge to a driver is a condition precedent authorising such driver to drive a transport vehicle. The provisions in the rules prescribing for badges and uniform must be taken to be regulatory measures for identity and administrative convenience and as a sine qua non for a valid driving licence authorising a person to drive a transport vehicle.
8. A combined reading of the relevant provisions of the Act, particularly, Sections 3 and 10 of the Motor Vehicles Act leaves no room for doubt that unless a person is authorised to drive a transport vehicle, he cannot drive such a vehicle even though he may be authorised to drive that particular kind of vehicle. For example, a person may be authorised to drive a light motor vehicle and if such light motor vehicle is used for carrying passengers for hire, it becomes a public service vehicle and hence a transport vehicle, as defined in Section 2(47) of the Act. While driving such a transport vehicle, the driver may possess licence to drive light motor vehicle, but if the licence does not authorise him to drive a transport vehicle (which may be even a light motor vehicle), he would not be so authorised to drive the vehicle when used as Transport Vehicle. Different types of vehicles depending upon their user may come within the definition of "transport vehicle". In the present case, it is apparent from Annexure A/1 filed by opposite parties 1 to 8 that the driver was authorised to drive a transport vehicle even though there is no material on record to indicate that PSV Badge had been issued or not. The main contention of the counsel for the petitioner to the effect that in the absence of PSV badge, the driving licence was not valid and effective cannot be accepted.
9. In view of the aforesaid conclusion, we do not find any merit in the writ application which is accordingly dismissed. The amount in question may be paid to the claimants within a period of one month from the date of this judgment, falling which such awarded amount shall carry interest at the rate of twelve per cent thereafter. There will be no order as to costs.
D.M. Patnaik, J.
10. I agree.