Punjab-Haryana High Court
Beer Singh And Ors. vs Satbir Singh And Anr. on 10 December, 1997
Equivalent citations: 2000ACJ681, (1999)122PLR405
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. The short question that comes up for consideration in the present appeal is as to if the respondent United India Insurance Company Ltd., is responsible to pay compensation to the appellants.
2. The relevant facts giving rise to the present question and the appeal are that on 3.1.1994 Satbir Singh was going on his bicycle with drums containing milk for sale. He was going from city Rewari to Sadbusa Nagar. At about 6.40 p.m. when he reached near the house of Hari Narain, one tractor bearing registration No. HNM-1876 was being driven by Beer Singh' appellant No. 1 in a rash and negligent manner. It came from Rewari City side and hit Satbir Singh. Satbir Singh fell down and sustained injuries. The accident is alleged to have occurred because of rash and negligent driving of Beer Singh. Jai Parkash and Parkash son of Daya Ram witnessed the occurrence. Satbir Singh was removed to the hospital at Rewari. He was referred to Medical College, Rohtak. Satbir Singh remained admitted in the said hospital. He claimed a compensation of Rs. 13 lacs with respect to the permanent disability, expense for medical treatment, pain and sufferings.
3. The petition had been contested. The appellants in this reply denied that the alleged incident took place. In any case it was contended that in case of any accident, the tractor was insured with the United India Insurance Company Ltd., and, therefore, the insurance Company was liable to pay the compensation.
4. United India Insurance Company Ltd., respondent No. 2 in its separate reply also contested the claim. It denied factum of such an accident. However, it was pleaded that Beer Singh driver of the tractor was not having a valid driving licence. He was driving the tractor without registration and in violation of terms and conditions of the insurance policy. Consequently, respondent No. 2 denied its liability to pay the compensation.
5. The learned Tribunal vide the impugned award held that Satbir Singh suffered injuries because of rash and negligent driving of Beer Singh. The compensation was awarded amounting to Rs. 65,000/-. But respondent No. 2 - United India Insurance Company Ltd. was exonerated holding that on the date of the accident Beer Singh was not holding any valid driving licence. He was driving the same without a licence and, therefore, the insurance company respondent No. 2 was not liable to pay the compensation.
6. Aggrieved by the same, the present appeal has been filed by Beer Singh, Murti Devi and Kaila claiming that respondent No. 2 - United India Insurance Company should be held liable to pay the compensation.
7. At the motion hearing on behalf of the appellants, there was no controversy raised about the findings arrived at by the learned Motor Accident Claims Tribunal. The only dispute raised was that respondent No. 2 - Insurance Company should be held liable to pay compensation jointly and severally alongwith the appellants. Learned counsel contended that though the licence had expired about 5 years ago before the accident took place. But in terms of Section 149(2)(a)(ii) it must have also been established that Beer Singh was disqualified for holding or obtaining a driving licence. Therefore, as per the appellants' counsel the liability could not be fastened on them only.
8. To appreciate the said controversy, reference with advantage can well be made to the relevant provisions of the Motor Vehicles Act, 1988. It is para materia with sub-section (2) of Section 96 of the Motor Vehicles Act, 1939. Subsection (2) of Section 149 i.e. its relevant portion reads:-
"149(2). No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely: -
xx xx xx xx
xx xx xx xx
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or xx xx xx xx xx xx xx xx."
It is on the strength of the said provision that the learned counsel urged that besides establishing that the vehicle was not being driven by a duly licensed person, it must be established that in addition to aforesaid he had been disqualified from holding or obtaining a driving licence during the period of disqualification. In other words, he wanted the word "or" between the words "not duly licensed or by a person who has been disqualified" read as and there was no controversy raised before us that the driver of the offending vehicle namely Beer Singh only had the licence valid uptil 17.9.1989 and on 31.1.1994 on the date of the accident, he was not holding a valid driving licence. There was also no controversy that as per terms and conditions of the insurance policy only the licensed drivers could drive the vehicles.
9. It is well known that the expression 'or' connotes something which is dis-conjunctive and is vice versa of the same. In Stroud's Judicial Dictionary, 3rd Edn. Vol. 1 it is stated at P. 135:
""And" has generally a cumulative sense, requiring the fulfilment of all the conditions that it joins together, and herein it is the antithesis of OR. Sometimes, however, even in such a connection, it is, by force of a context, read as "or"."
While dealing with the topic 'OR' is read as AND, and vice versa Strouds says in Vol. 3, at P. 2009:
"You will find it said in some cases that "or' means 'and'; but 'or' never does mean 'and'."
Similarly, in Maxwell on Interpretation of Statutes, 11th Edn., PP229-30, it has been accepted that 'to carry out the intention of the legislature, it is occasionally found necessary to read the conjunctions 'or' and 'and' one for the other'. The word 'or' is normally disconjunctive and 'and' is normally conjunctive, but at times they are read as vice versa. As Scrutton L.J. said in Green v. Premier Glynrohnwy Slate Co., (1928)1 K.B. 561 at p. 568, 'you do sometimes read 'or' as 'and' in a statute ..........But you do not do it unless you are obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. As Lord Halsbury LC. observed in Mersey Docks & Harbour Board v. Handerson, (1988)13 A.C. 595 (603) the reading of 'or' as 'and' is not to be resorted to "unless some other part of the same statute or the clear intention of it requires that to be done". The substitution of conjunctions, however, has been sometimes made without sufficient reasons, and it has been doubted whether some of cases of turning 'or' into 'and' and vice versa have not gone to the extreme limit of interpretation. These observations of the different authors were looked with approval by the Supreme Court in the case of Ishwar Singh Bindra and Ors. v. State of U.P., A.I.R. 1968 S.C. 1450 and it was held further that to carry out the intention of the legislature, it is sometimes necessary to read the conjunctions 'or' and 'and' one for the other. Same principle had been considered in the case of Hasiruddin v. State Transport Appellate Tribunal, A.I.R. 1976 S.C. 331. The facts of the case are not relevant but it was observed that ordinarily where words are plain and unambiguous, the ordinary meaning should be given to the same. Only if the intention appears to be otherwise, sometimes the word 'or' can be read as 'and'. In paragraph 26 the Court held:-
"The word "or" cannot be read as "and". If the precise words used are plain and unambiguous, they are bound to be construed in their ordinary sense. The mere fact that the results of a statute may be unjust does not entitled a court to refuse to give it effect, if there are two different interpretations of the words in the Act, the Court will adopt that which is just, reasonable and sensible rather than that which is none of those things. If 'the inconvenience is an absurd inconvenience, by reading an enactment in its ordinary sense, whereas if it is read in a manner in which it is capable, though not in an ordinary sense, there would not be any inconvenience at all; there would be reason why one should not read it according to its ordinary grammatical meaning. Where the words are plain the Court would not make any alteration."
No different was the view of the Supreme court in the case of M. Satyanarayana v. The State of Karnataka and Anr., A.I.R. 1986 S.C. 1162 and it was held:-
"A statute cannot be construed merely with reference to grammar. Statute whenever the language permits must be construed reasonably and rationally to give effect to the intention and purpose of the legislature. The expression 'and' has generally a cumulative effect, requiring the fulfilment of all the conditions that it joins together and it is the antithesis of 'or'."
It is obvious from what has been stated above that ordinary meaning of the words have to be given its due effect. Even if it causes inconvenience, the plain language has to be construed with its ordinary grammatical meaning. Only when intention of the statute is so apparent or otherwise, word 'or' may be read as 'and' and word 'and' should be read as 'or'.
10. In the present case, it cannot be said that the word 'or' has to be read as 'and'. It is clear from provisions of sub-section (2)(a)(ii) of Section 149 that if there is a condition in the insurance policy that only a licensed driver is to drive the vehicle, the insurance company would not be liable in case there is a breach. This had nothing to do with the other part that the person has been disqualified for holding a driving licence during the period of disqualification. Both are independent of each other. The disqualification for holding a licence during the period of disqualification is independent of not having a licence.
11. Under the provisions of Motor Vehicles Act, 1988, Under Section 19 the licensing authority after giving the holder of the licence an opportunity of being heard with respect to the grants contemplated under sub-section (1) of Section 19, can disqualify that person for holding or obtaining any driving licence for a specified period. It can revoke the licence. It can keep the driving licence during the period of disqualification. Similarly, under Section 20 of the Motor Vehicles Act, 1988 when a person is convicted for certain offences mentioned under the provisions of Section 20 of the said Act, the Court may disqualify the person from driving the vehicle of any specific class or otherwise. Similar are the provisions of Sections 21 and 22 of the said Act. Section 23 of the Motor Vehicles Act, 1988 reads:-
"23. Effect of disqualification order.- (1) A person in respect of whom any disqualification order is made under Section 19 or Section 20 shall be debarred to the extent and for the period specified in such order from holding or obtaining a driving licence and the driving licence, if any, held but such person at the date of the order shall cease to be effective to such extent and during such period.
(2) The operation of a disqualification order made under Section 20 shall not be suspended or postponed while an appeal is pending against such order or against the conviction as a result of which such order is made, unless the appellate Court so directs.
(3) Any person in respect of whom any disqualification order has been made may at any time after the expiry of six months from the date of the order apply to the Court or other authority by which the order was made, to remove the disqualification; and the Court or authority, as the case may be, may, having regard to all the circumstances, either cancel or vary the disqualification order:
Provided that where the Court or other authority refuses to cancel or vary any disqualification order under this section, a second application thereunder shall not be entertained before the expiry of a period of three months from the date of such refusal."
It is abundantly clear from aforesaid that a licence can be suspended and a person can be disqualified for driving a vehicle of a particular class for a specific period. It is obviously clear from perusal of Sections 19 to 23 that the period of disqualification and the order to that effect are independent of the condition in the insurance policy that a person shall not drive the vehicle if he is not holding the licence. Thus expression 'or' cannot be read as 'and'.
12. In this regard our attention has been drawn towards different precedents. Reference to them would be appropriate. In the case of Motor Owners' Insurance Co. Ltd. v. V. Daniel and Anr., A.I.R. 1972 Madras 15 a learned Single Judge of Madras High Court held that when the driver did not have a valid driving licence on the date of the accident and he was not disqualified from holding the licence, the insurance company was entitled to rely on Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939 and disclaim liability. We are of the considered opinion that the expression 'and' used in the cited judgment in fact had to be read as 'or' for the reasons already recorded by us. A Division Bench of Madras High Court in the case The New India Assurance Co. Ltd. Madras v. C.B. Shankar and Ors., 1985(2) Accident Compensation Cases 352 was concerned with a situation where the Court held that onus of proving that driver of the vehicle did not have a valid driving licence or that he was disqualified from driving at the time of the accident is on the insurance Company. In the facts of that case it was held that the onus had not been discharged. During the course of discussion the Court held:-
"It is in evidence that the driver of the taxi was charged under Section 3 read with Section 2(21) of the Motor Vehicles Act, in C.C. 11634 of 1981 on the file of the V. Metropolitan Magistrate's Court, Egmore and the owner of the vehicle was charged under Section 5 in the same proceedings, Both pleaded guilty and they were convicted. Under the proviso to 96(2)(b)(ii), the Insurance Company would not be liable unless "the person driving holds a licence to drive the motor vehicle or has held and is not disqualified for holding or obtaining such a licence." There could be no doubt, therefore, that in order to escape the liability not only it should be proved that the driver of the vehicle was not having a licence at the time of the accident, but also the Insurance Company should prove that the driver was disqualified from holding or obtaining a licence or never had any licence at all. Merely proving that on the date of the accident the driver did not have a licence and that he pleaded guilty and was convicted in the criminal Court, itself is not enough to hold that the Insurance Company is not liable for the claim."
We find ourselves not in agreement with the said view point because as is noticed hereinafter, it is contrary to the decision of the Supreme Court. A Single Judge of Madras High Court in the case of Mariyayee alias Rajalakshmi Ammal v. M. Basheer and Anr., 1993(1) Accident Claims Journal 456 was concerned with a case where the person driving the vehicle was having a learner's licence. The policy excluded the liability of the insurance Company if the vehicle was being driven by a person holding a learner's licence. It was held that insurance company was not liable. The learned Single Judge of that Court went on to hold that liability of the insurance Company is purely contractual and it depends on the terms and conditions of the insurance policy.
13. A Division Bench of this Court in the case Krishna Bus Service (P) Ltd. v. New India Assurance Co. Ltd. and Ors., 1993(2) Accidents Claims Journal 959 also held that where the driver of the offending bus did not possess a driving licence, the insurance company will not be liable. Same view prevailed with the Division Bench of Gujarat High Court in the case of Arvindhai Narsinghbhai Patel v. Shardabehn Amarsing Thakore and Ors., 1993(2) Accident Claims Journal 1053. Therein the Court held:-
"We feel that the picture right from the beginning is clear showing that the owner has approached the Tribunal with a clear-cut case that he was not holding a valid licence to drive at the relevant time. We would like to make a reference to the Supreme Court decision in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, 1987 A.C.J. 411 (SC), in the above said background as detailed by us. In this decision it has been said that if there is a breach of promise committed by the insured then the insurer would be exonerated from the statutory liability which is being fastened upon it under the provisions contained in sections 96(1)(2)(b)(ii), 94 and 84 of Motor Vehicles Act (4 of 1939). The case put forth by the owner of the vehicle, Arvind Patel and his testimony at Exh. 67 go to show very clearly that the insured Arvind Patel was guilty of the breach of the terms and conditions of the insurance contract. This becomes obvious from the policy of insurance at Exh. 73 which shows that there was restriction of driving the vehicle by any person not holding the valid licence to drive. In view of this position we feel that the insurer is getting the benefit of the factual and legal position and it requires to be exonerated from the liability of satisfying the award as has been done by the Tribunal.
A Division Bench of Madhya Pradesh High Court in the case Niranjan Singh v. Satya Wati and Ors., 1997(1) Accident Claims Journals 4 also held that when the driver of the offending vehicle did not have a driving licence, the company would be exonerated from the liability. In paragraph 5 the Court held:-
"5. Yet in a later decision in New India Assurance Co. Ltd. v. Mandar Madhav Tambe, 1996 A.C.J. 253 (SC), their Lordships have held that the said clause in the insurance policy makes it abundantly clear that the insurance company, in the event of an accident, would be liable only if the vehicle" was being driven by a person holding a valid driving licence. That was, however, in relation to a case where the driver of the vehicle had held only a learner's licence as distinguished from a permanent driving licence.
In the present case, the driver did not have any licence at all with the result the insurance Company was rightly relieved of its obligation under the policy of insurance in relation to the claim in question."
14. At this stage, two decisions of the Supreme Court can well be noted. In the case of Kashiram Yadav and Anr. v. Oriental Fire and General Insurance Co. Ltd., and Ors., 1989(2) Accident Claims Journal 1078 a constable while returning home after performing his duties has knocked down by a tractor owned by Kashiram. He did not have a driving licence. The widow of the con-stable claimed compensation. The Tribunal awarded compensation only against the owner. It was urged before the Supreme Court that the insurance Company should also be held liable. The said contention was rejected holding that when there was no licence with the driver, the insurance Company will not be held liable. In paragraph 4 the Supreme Court observed:-
"4. Section 96 of the Motor Vehicles Act, 1939 imposes duty on the insurer to satisfy judgments against persons insured in respect of third party risks. Sub-section (2) thereof provides exception to the liability of the insurer. Sub-section 2)(b) of Section 96 provides that the insurer is not liable to satisfy the judgments against the persons insured if there has been a breach of a specified condition of the policy. One of the conditions of the policy specified under clause (ii) is that the vehicle should not be driven by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining driving licence during the period of disqualification. It is not in dispute that the certificate of insurance concerned in this case contains this condition. If, therefore, there is a breach of this condition, the insurer will not be liable to indemnify the owner."
Same is the position in the present case. The view point in the case of Sohan Lal Passi v. P. Sesh Reddy and Ors., (1996-3)114 P.LR. 311 (S.C.) of the Supreme Court is also identical. Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939 was considered. It was concluded:-
"In other words, once there has been a contravention of the condition prescribed in sub-section (2)(b)(ii) of Section 96, the person insured shall not be entitled to the benefit of sub-section (1) of Section 96. According to us, section 96(2) (b) (ii) should not be interpreted in a technical manner, sub-section 92) of Section 906 only enables the insurance company to defend itself in respect of the liability to pay compensation on any of the grounds mentioned in sub-section (2) including that there has been a contravention of the condition excluding the vehicle being driven by any person who is not duly licensed. If the person who has got the vehicle insured has allowed the vehicle to be driven by a person who is not duly licensed then only that clause shall be attracted. In a case where the person who has got insured the vehicle with the insurance company, has appointed a duly licensed driver and if the accident takes place when the vehicle is being driven by a person not duly licensed on the basis of the authority of the driver duly authorised to drive the vehicle whether the insurance company in that event shall be absolved from its liability? The expression 'breach' occurring in Section 96(2) (b) means infringement or violation of a promise or obligation. As such' the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to satisfy the Tribunal or the Court that such violation are infringement on the part of the insured was wilful."
It is abundantly clear from aforesaid that if the driver of the offending vehicle does not have a licence to drive the said vehicle and there is a breach of the contractual agreement, the Insurance Company will not be liable. It is not necessary to further establish that the driver was disqualified from holding a licence. That would be an independent breach of the agreement. As noted above, the liability of the insurance Company is contractual. Once there is breach of the same, it cannot be enforced against it. The above said discussion would show that such a breach occurred and consequently the Tribunal rightly did not award compensation against the insurance company.
For these reasons, the appeal being without merit must fail and is dismissed.