Madras High Court
V.S. Ramani vs S.R. Vasudevan And Anr. on 25 August, 1987
Equivalent citations: (1988)1MLJ264
JUDGMENT S. Swamikkannu, J.
1. Appeal against order in O.P. No. 191 of 1980. This is an appeal preferred by the first-respondent V.S. Ramani against the award in O.P. No. 191 of 1980 on the file of the Motor Accident Claims Tribunal (5th Judge, Court of Small Causes), Madras, finding that the accident was the result of rash and negligent driving of the car by the first-respondent-appellant herein and passing an award for Rs. 11,800. So far as the contention of the second-respondent Insurance Company that the first-respondent V.S. Ramani, the owner of the car, who was driving the same at the time of the accident on 23.9.1979 had no driving licence and there is a violation of the condition of the policy and therefore the Insurance Company is not liable, it was held that the second-respondent Insurance Company is not liable. In the result an award for Rs. 11,800 with proportionate costs was passed in favour of the petitioner-first-respondent herein and against the first-respondent-appellant herein.
2. The case of the petitioner-first-respondent before the Tribunal, as mentioned in the petition under Section 110-A of the Motor Vehicles Act for compensation of Rs. 50,000 for the injuries sustained by him in a motor vehicle accident on 23.9.1979 at about 9:45 a.m. near Lakshmi theatre, Aminjikarai, on Poonamallee High Road, Madras is to the following effect:
The first respondent herein was riding a scooter PYP 4606 in Poonamallee High Road, keeping to the extreme left side of the road and was driving slowly. The car TMY 1659 driven by the first respondent in the same direction came from behind and knocked down the scooter and the petitioner was thrown out and sustained grievous injuries. The accident occurred due to rash and negligent driving of the car by the first-respondent appellant. The petitioner-first-respondent was treated in K.M.C. Hospital from 23.9.1979 to 30.10.1979 and was treated as out-patient till January, 1980 and he has also taken treatment under a private doctor. He sustained fracture of left femur and also dislocation of left arm and abrasion all over the body and he finds it difficult even now to walk. He is unable to lift weight and climb stairs and has pain while walking. The first-respondent-appellant as the driver and owner of the car and the second respondent herein as the Insurance Company are liable.
3. The contentions raised in the counter of the first-respondent appellant are as follows:
The claimant has to prove all the allegations. The various heads of claims have to be proved. There was no negligence or rashness on the part of the first respondent appellant. The first-respondent-appellant was in the traffic queue awaiting clearance in the pedestrian traffic cross held near Ambassador hotel and after the queue was cleared and the first respondent started the car and moved, a cyclist suddenly emerged from a near by lane and the scooter proceeding ahead stopped abruptly and therefore the car also had to stop and in this process the car hit the rear side of the scooter and this was an inevitable accident for which the first-respondent-appellant is not responsible. The accident was the result of the scooter rider suddenly stopping the vehicle. The first-respondent-appellant had a valid temporary licence to drive the car from 4.6.1979 to 3.9.1979 and the licence was renewed with effect from 4.10.1979. The first-respondent-appellant has not been disqualified from holding a licence and the first-respondent-appellant had held a valid licence earlier. In these circumstances, the insurance company is liable. The policy taken by the first-respondent-appellant with the second-respondent was in force during the time of accident.
4. The averments in the counter of the second-respondent are as follows:
All the allegations are denied. The accident was not due to rash driving of the car. The driver of the car was waiting for clearance at the pedestrian traffic clearance and the car started, the scooter which was proceeding ahead suddenly stopped as a cyclist tried to emerge from a lane. As per the terms of the policy, the second respondent will be liable only if the vehicle was driven by a person holding a valid licence. Since the vehicle was driven by a person not having a valid licence, the second-respondent is not liable. At any rate the claim is excessive.
5. The following points were framed by the Tribunal for consideration:
1. Whether the accident was caused due to rash and negligent driving of the car TMY 1659?
2. To what amount, of compensation the petitioner is entitled; and
3. Whether the second-respondent-insurance company is not liable?
6. On behalf of the petitioner-the first respondent-P.W. l Dr. Parthasarathy, Assistant Orthopedic Surgeon, P.W. 2 Joseph, Inspector and P.W. 3 Vasudevan were examined. Ex. P-1 case sheet, P-2 Plan and P-3 first information report were filed. On behalf of the respondents, R.W. 1 Ramani alone was examined and Ex. R-1 Learner's licence and Ex. R-2 Insurance Policy were marked. On the consideration of the above evidence available on record, both oral and documentary, the Tribunal came to the conclusion as mentioned above. Aggrieved by the above decision of the Tribunal, the first-respondent V.S. Ramani has come forward with this Appeal.
7. It is Inter Alia contended on behalf of the appellant by Mr. A. Devanathan that the award of the Tribunal is contrary to law and that in fixing the quantum of compensation at Rs. 11,800 the Tribunal had erred on the excessive side and out of all proporation to the injuries sustained by the scooter rider. It is also contended on behalf of the appellant that the Tribunal erred in awarding a sum of Rs. 10,000 under the heading pain and suffering which is highly excessive, having regard to the nature of injuries and the limited period of treatment undergone by the claimant.
8. The points for consideration that arise in this appeal are:
1. Whether the accident was caused due to rash and negligent driving of the car TMY 1659?
2. To what amount of compensation the first-respondent herein is entitled?
3. Whether the second-respondent Insurance Company is not liable?
9. Point No.l: Regarding the accident, we have the evidence of P.W. 3 Vasudevan, the injured petitioner and R.W. 1 Ramani, the driver of the car. P.W. 3 has stated that on 23.9.1979 he was driving a scooter in Poonamallee High Road and was proceeding towards Central Station from Aminjikarai and he was keeping to the left side of the road. The car driven by the first respondent appellant herein came from behind and dashed against the scooter and P.W. 3 was thrown out and sustained grievous injuries. In the cross-examination, P.W. 3 has stated that he did not stop the scooter at the pedestrian crossing and the scooter was moving at the time of the accident. P.W. 3 denied the suggestion that on seeing cyclist he suddenly stopped the scooter. According to P.W. 3, no cyclist came and there was no need to stop the scooter. R.W. 1 has stated that he had obtained a learner's licence and at the time of the accident the learner licence had also expired. R.W. 1 was driving the car from Aminjikarai to Central Station direction and pedestrians were crossing through the pedestrian cross and a scooter was proceeding ahead. The scooter suddenly stopped and therefore the car hit the scooter. It is significant to note that R.W. 1 has stated in the chief-examination itself that he cannot say whether he is at fault or not. Further he has stated in the chief-examination itself that the car was following the scooter at a distance of four feet and when the scooter rider applied brake, the car hit the scooter. R.W. 1 is an educated person and he is an officer in T.V.S. Lucas and he profusely pleaded guilty in the criminal court for an offence under Section 38, I.P.C. and 116 of the Motor Vehicles Act and suffered conviction, because the learner's licence had expired. The absence of a licence to drive has nothing to do with the charge under Section 338 of the Indian Penal Code. It is clear from the evidence of R.W. 1 that he was following the scooter very close and he hit the scooter because he did not give sufficient clearance. It is also significant to note that R.W. 1 has stated in cross-examination that the pedestrian-cross is about 20 feet away from the place of accident. Therefore, the contention of the first-respondent-appellant that persons were crossing through the pedestrian-cross and a cyclist also came across and therefore the scooter rider suddenly stopped the vehicle, cannot be accepted for a moment. Regarding the accident, we have only the evidence of P.W. 3 and R.W. 1 and both of them are interested witnesses. The evidence of R.W. 1 that the scooter suddenly stopped and therefore the accident happened cannot be accepted because he has admitted in the criminal Court that he drove the vehicle rashly and negligently and caused the accident. Further P.W. 2, Joseph, Inspector of Police, has marked Ex. P.2 sketch prepared by Bastin, Sub Inspector of Police, and the said Bastin was working under P.W. 2 and since the said Bastin has been transferred out of Madras. The sketch prepared by him was marked through P.W. 2 Ex. P-3 is the copy of F.I.R given by P.W. 3 wherein he has stated that he was proceeding on a scooter and the car coming behind knocked him down. Ex. P-2 the sketch shows that the car coming behind the scooter knocked down the scooter. There is absolutely no need for the scooter to suddenly stop at that place and there is no lane at the place of accident and, therefore, the contention of the first-respondent-appellant that a cyclist suddenly emerged from a side-lane is clearly untenable. The entire circumstances of the case clearly point out that the accident was the result of the rash and negligent driving of the car by the first-respondent appellant only.
10. An important question of law has arisen in this case. It is submitted by Mr. Devanathan, learned Counsel appearing for the appellant, that in the case of a person owning a learner's licence, as Ex. R-1 in the instant case before me, the liability of the insurance company is different then the liability which it suffers if one who has a full fledged driving licence and drives the car during the time of the accident. In this regard, he had also taken me through the terms of Ex. R-2 policy. The certificate of insurance though not marked as an exhibit in this case was also referred to by the learned Counsel for the appellant in order to support his contention that the insurance company is not liable to pay the compensation when it is found that even the learner's licence is not valid on the date of the accident. In the instant case, Ex. R-1 is dated 4.6.1979 and the learner's licence which is issued under Rule 39(1) of the Tamil Nadu Motor Vehicle's Rule, 1940 is valid upto the 3rd day of September, 1979.
11. As already noted, the accident took place on 23.9.1979. As on that date, there was no licence for the vehicle in question. The contention of the 2nd respondent-Insurance Company even before the Tribunal is that the first respondent, V.S. Ramani, the owner of the car who was driving the same at the time of the accident on 23.9.1979 had no driving licence and there is a violation of the condition of the policy, Ex. R-2, and, therefore, the insurance company is not liable. Ex. R-1 learner's licence issued to the first respondent on 4.6.1979 is valid upto 3.9.1979. R.W.1 the first respondent, has stated that the learner's licence expired on 3.9.1979 and the accident occurred on 23.9.1979. He got another learner's licence on 4.10.1979. It is common ground that there cannot be any renewal of learner's licence. As a matter of fact the condition of the learner's licence is that the learner who is possessing it should never drive a vehicle in the absence of an instructor by his side who in turn must be fully qualified to drive the vehicle. It is seen from the evidence that R.W.1 took a permanent licence only on 21.9.1980. Ex. R-2 insurance policy also shows that the insurance company will not be liable if the vehicle was driven by a person without a valid licence or by a person having only a learner's licence. R.W.1 had only a learner's licence and even that had expired on the date of the accident. As already mentioned, there cannot be any question of renewal of a learner's licence. A permanent licence was obtained only on 21.9.1980 and that is spoken to by R.W. 1. At the material point of time, the first respondent who was driving the car had no learner's licence and no permanent licence. In other words, he was driving the vehicle without a licence.
12. Mr. Devanathan, learned Counsel for the appellant, draws my attention to the decision of a Division Bench of this Court in Srinivasa Roadways v. Saroja 1975 A.C.J. 265, wherein it has been held that even if the licence had expired and there is no disqalification, then the insurance company is liable. If all the conditions laid down is Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939 are not reproduced in the policy and the policy positively undertakes to cover the liability in respect of an accident caused by a person who though not having in effective licence at the time of the accident has not been disqualified to hold a licence, the company cannot escape liability. In the instant case before us, the first respondent had no driving licence but only a learner's licence. Therefore, this decision will not apply to the facts of this case.
13. It is contended that the instant case before us is identical on facts with the facts of the case reported in Ambujam v. Hindusthan Ideal Insurance Company . In the said decision, at or about the time of the accident in which the appellant's taxi was involved, it was being driven by a mechanic who had a learner's licence. One of the clauses in the insurance policy was that the person driving the vehicle, should hold a licence to drive a motor vehicle. On the point whether the person who drove the vehicle could be deemed to be one having a valid licence, it was held that obviously effective driving licence cannot be an equation for a learner's licence which is only granted to a person learning driving and which, by itself, cannot vest him with a right independently to negotiate a motor vehicle on the strength of it. T. Ramaprasada Rao, C.J., had observed in paragraph 5 of the judgment as follows:
So far as the first point is concerned, except for a reiteration of the same argument which was projected before the learned Judge, learned Counsel did not point out to anything on record to substantiate his contention that the owner of the vehicle had authorised the mechanic to drive the vehicle. Secondly, on merits, we are not satisfied that R.W. 2 who was also in the taxi, was in control of the vehicle. Actually, he was there to observe the performance of the vehicle and not to control the learner who was attempting to take the vehicle on a public road. We therefore, come to the question whether under the contract of insurance, the possession by R.W. 1 of a learner's licence was sufficient compliance with the terms of the Insurance Policy and whether therefore, liability could also be thrown on the shoulders of the Insurance Company. Mr. Kalayanasundaram, learned Counsel for the Insurance Company, referred to Sections 3 and 5 of the Motor Vehicles Act, which, in our view, clinch the issue. In fact, these provisions have been referred to by the learned Judge in his judgment in extenso. Under the chapter on licensing of drivers of motor vehicles, an embargo is created by statute prohibiting persons from driving in a public place without holding an effective driving licence. Obviously effective driving licence cannot be an equation for a learner's licence, which is only granted to a person learning driving and which by itself cannot vest him with a right independently to negotiate a motor vehicle on the strength of it. The intention of the Legislature is made more clear in Section 5 which speaks of the responsibility of owners of Motor Vehicles for contravention of Section 3 and 4. No owner or person in charge of a motor vehicle shall cause or permit any person, who does not satisfy the provisions of Section 3 to drive a motor vehicle. Therefore, even if the owner could be deemed to have given any permission to the learner who was driving the vehicle, it would contravene Section 5 of the Act. On the facts, therefore, we are satisfied that as R.W. 1 who was driving the vehicle had only a learner's licence, but not an effective licence, which alone could enable him to take a motor vehicle on a public road and as the accident occurred whilst the vehicle was being negotiated by a person who did not have a regular licence, the Insurance Company was right when it took up the objection that the policy did not govern such a situation and that it should be exonerated from paying compensation to the injured person. We, therefore, agree with the conclusion of the learned Judge and uphold that part of his judgment under which he exonerated the Insurance Company.
14. In the decision reported in M/s. Srinivasan Roadways, Madurai v. Saroja 1975 A.C.J. 265 it was held that if all the conditions laid down in Section 96(20)(b)(ii) are not reproduced in the policy and the policy positively undertakes to cover liability in respect of an accident caused by a person who though not having an effective licence at the time of accident has not been disqualified to hold a licence, the company cannot escape liability. We had already mentioned about this decision. In the said case, the licence held by the driver had expired prior to the accident. On the question whether the insurance company was liable to pay compensation, it was answered in the affirmative.
15. In the decision reported in Madras Motor and General Insurance Co. Ltd. v. Madathi Ammal it was held that all that Section 96 does is to enumerate the conditions, which the Insurance Company is at liberty to incorporate in the policy. What the Act in effect tells the Insurance Company is 'There are certain risks which under the statute," you are bound to cover. There are certain other risks, which by negotiating with the owner of the vehicle you may choose to cover at your option though under the statute you are not bound to cover the same'. In other words, the three sub-clauses in Section 96(2)(b)(ii), which are disjunctive show the amplitude of exclusion. They cannot be so interpreted as to exonerate the insurance company from liability where it specifically undertakes to cover liability in respect of a person who at the time of the accident had no effective licence but who had held a licence and was not disqualified for holding or obtaining licence. It was also held that there is nothing in Section 3 or any other section of the Act which would justify the contention that a driver violating Section 3 or any other penal provision of the Act would by virtue of his violation relieve the Insurance Company of its liability to indemnity. The penalties prescribed for violation of rules cannot exonerate the Insurance company of its liability under contract. In the instant case before us, the contention of the appellant is that there should be a valid licence for the driver of the vehicle so as to make the insurance company liable.
16. In the decision reported in The General Assurance Society Ltd., v. Chandmull Jain 1966 A.C.J. 267, it was held by the Supreme Court that documents like the proposal, cover note and the policy are commercial documents and to interpret them commercial habits and practice cannot altogether be ignored. During the time the cover note operates, the relations of the parties are governed by its terms and conditions, if any, but more usually by the terms and conditions of the policy bargained for and to be issued. When this happens, the terms of the policy are incipient but after the period of temporary cover, the relations are governed only by the terms and conditions of the policy unless insurance is declined in the meantime. Delay in issuing the policy makes no difference. The relations even then are governed by the future policy if the cover notes give sufficient indication that it would be so. In other respects, there is no difference between a contract of insurance and any other contract except that in a contract of insurance there is a requirement of Uberimae Fides, i.e., good faith on the part of the assured and the contract is likely to be construed Contra Preferentium that is against the company in case of ambiguity or doubt. It has been further observed by the Supreme Court as follows:
The Letters of acceptance clearly mentioned that cover notes were being sent. The contract of insurance was based upon the cover notes for the period covered by the cover notes. Nothing happened in the 30 days during which the cover notes operated. It is true that the letters of acceptance showed that risk was covered for the whole year and not for 30 days. This was an unfortunate way of expressing that the acceptance of the proposal would operate in the first instance for 30 days only during which the company would be free to decline the policy. The four essentials of a contract of insurance are (i) the definition of the risk, (ii) the duration of the risk, (iii) the premium and (iv) the amount of insurance. But the policy which is issued contains more than these essentials because it lays down and measures the rights of the parties and each side has obligations which are also defined. In a policy against fire the purpose is not so much to insure the property but to insure the owner of the property against loss. The policy not only defines the risk and its duration but also lays down the special terms and conditions under which the policy may be enforced on either side. Even if the letter of acceptance went beyond the cover notes in the matter of duration the terms and conditions of the proposed policy would govern the case because when a contract of insuring property is complete, it is immaterial whether the policy is actually delivered after the loss and for the same reason the rights of the parties are governed by the policy to be, between acceptance and delivery of the policy. Even if no terms are specified the terms contained in a policy customarily issued in such case, would apply. In Eames v. Home Insurance Co. 24 L.Ed. 298, the Supreme Court of the United States observed:
If no preliminary contract would be valid unless it Specified minutely the terms to be contained in the policy to be issued no such contract could ever be made or would ever be of any use. The very reason for sustaining such contracts is, that the parties may have the benefit of them during that incident period when the papers are being perfected and transmitted. It is sufficient if one party proposes to be insured, and the other party agrees to insure, and the subject, the period, the amount and the rate of insurance is ascertained or understood, and the premium paid is demanded. It will be presumed that they contemplate such form of policy, containing such conditions and limitations as are usual in such cases, or have been used before between the parties. This is the sense and reason of the thing, and any contrary requirement should be expressly notified to the party to be affected by it.
In General Accident Insurance Corporation v. Cronk (1901)17 T.L.R. 233, it was also ruled that a person making a proposal must be taken to have applied for the ordinary form of policy issued by the company. It is only when there is a condition precedent that the policy must be delivered that the assurer is not on the risk, otherwise he is. In such a case acceptance is merely an intimation that the assurer is willing to issue a policy but there will be no binding contract. In the present case, there will be no binding contract. In the present case, there was no such condition, precedent and the company was on risk throughout. An insurance was asked for on the policy of the company; the usual policy would have issued and as the insurance was from 3rd June, 1950, the policy would have related back to that date. The issuance of the policy does not add to the contract. The incipient terms and conditions of the contract later merge in the policy and the terms and conditions then become express.
17. The attempt of the. assured in this case, therefore, has been to establish that the cover notes having expired, did not bind the parties and the reference to the policy being in the cover notes and not in the letters of acceptance, the terms and conditions of the policy were not attracted. We are satisfied that this is not the true position. The letters of acceptance expressly mentioned the cover notes and the cover notes expressly mentioned the policy. Therefore both during the period of 30 days when the cover notes operated and also thereafter, the terms and conditions of the policy governed the relationship between the parties. We have already held that as there was only one standard fire-policy, the use of the plural word 'policies' made no difference and the delay in sending the cover notes, if any, was also immaterial. The terms and conditions of the usual policy accordingly governed the relations of the parties, and made condition 10 applicable. It was, however, contended that the policy itself never came into existence, because it was cancelled before it was issued and the endorsement of cancellation was engrossed and incorporated with the making of the policy. It was argued that condition 10 would not come into operation at all, because the policy itself was cancelled before it was engrossed. In other words, the contention is that condition 10 could not operate between the parties till the policy was signed and delivered to the assured and as this never happened the cancellation was improper. This argument is scarcely open, because, the assured is obviously basing his suit on the policy. In his plaint he invoked the policy. The assured cannot sustain the suit except by basing it upon the policy because unless one reads the policy and the terms on which it was effective, mere reading of the proposals and the letters of acceptance would not give any terms. Further when a contract of insuring property is complete, it is immaterial whether the policy is delivered or not, for, the rights of the parties are regulated by the policy which ought to be delivered. In this way also the terms and conditions of the standard fire-policy would apply even though the policy was not issued.
18. With respect to the scope of Section 96(2)(b)(ii), in the decision reported in New India Assurance Co. Ltd. v. Mandar Madhav Tambe 1986 A.C.J. 874, the driver was not holding any regular licence to drive on the date of the accident though he held a learner's licence about two years before the accident. The insurance company contended that the driver was holding merely a learner's licence much prior to the accident and claimed that no award could have been made against it. On the question whether the term 'duly licensed' would include a holder of a learner's licence and the insurance company is liable, it was held that the insurance company is liable since a person once duly licensed and not disqualified to be a driver is not excluded from being 'a driver' of the vehicle in terms of the policy. The decision reported in United India Insurance Co. Ltd. v. Tilak Ram 1985 A.C.J. 481, (Himachal Pradesh) was followed in the said decision:
19. In the decision reported in United India Insurance Co. Ltd. v. Tilak Ram 1985 A.C.J. 481, which was followed in the previous decision viz., New India Assurance Co. Ltd. v. Mandar Madhav Tambe 1986 A.C.J. 874, Sections 2(5-A), 3(1) and 96(2)(b)(ii) of the Motor Vehicles Act, 1939 and the distinction between 'Driving Licence' and 'Duly Licenced' and whether a person holding a learner's driving permit is duly licenced were considered by the Himachal Pradesh High Court and it was held that the expression 'duly licenced' will cover a person who holds a 'driving licence' or a learner's driving permit since both of them are issued in accordance with law by the Licensing Authority and duly authorise a person who holds either to drive a motor vehicle in a public place subject to conditions attached to each. The Himachal Pradesh High Court has further observed in paragraphs 7, 8 and 9 of its judgment as follows:
In view of the limited defence available under Section 96 Sub-section (2), Clause (b) Sub-clause (ii) what the appellant insurance company must show in the instant case is that there has been a breach of a specified condition of the policy which excluded the driving of the insured vehicle by a person who is not 'duly licensed'. What does the expression 'duly licensed' mean? Does it mean and include only a person holding a 'driving licence' or also a person holding a 'learner's driving permit'? The word 'licence' having not been defined, it must be understood in its ordinary grammatical meaning. According to Webster's Third New International Dictionary, 1966 Edition, Volume II, at page 1304, the word 'licence', Inter Alia, means, (1) permission to act, (2) a right or permission granted in accordance with law by a competent authority to engage in some business or occupation, to do some act, or to engage in some transaction which but for such licence would be unlawful, (3) formal permission from local authorities and (4) a document embodying such permission or evidencing the licence granted. In words and Phrases, Permanent Edition, Volume 32, at page 233, and 23 the word 'licence' is stated to signify the following:
The term 'licence' in its general and popular sense, as used with reference to occupations and privileges, means a right or permission granted by some competent authority to carry on a business or to do an act which without such licence would be illegal and is the grant of a special privilege not enjoyed by citizens generally, and words 'licence' and 'permit' are often used synonymously.... 'Licence' means and is synonymous with 'permission' or 'authority'.... The law dictionary and lexicographers concur in saying that a licence is a 'permit' to do a certain thing, and it is clear that these words are used synonymously.... Little difference exists in meaning of words 'licence' and 'permit' as used in statute authorising licensing of dealers in malt beverages, and the word 'Licence' as used in Section prohibiting manufacture, distribution and sale of malt beverages in municipalities without a permit.... In its general sense a licence is a permission to do something which without such permission would have been unauthorised or prohibited.
It is thus evident that the law dictionary and lexicographers are one in saying that 'licence' means and is synonymous with 'permit', 'permission', or 'authority'. The word, in its general and popular sense means a right or permission granted in accordance with law by some competent authority to do some act, to do a certain thing, to engage in some transaction which but for such licence would not be lawful. A document embodying such permission or evidencing such authority is oftentimes called 'Licence'. Against the aforesaid background and having regard to the context, collocation and the subject-matter, the words any person who is not duly 'licensed' in Section 96, Sub-section (2), Clause (b), Sub-clause (ii) must mean a person who does not hold a permit or authority, by whatever name called, granted in accordance with law by the licensing Authority. Construed accordingly, the expression will not cover a person who holds a 'driving licence' or a 'learner's driving permit' since both of them are issued in accordance with law by the Licensing Authority and duly authorise a person who holds them to drive a motor vehicle in any place subject to the conditions attached to each.
20. This construction finds support in the provisions of Section 3, Sub-section (2) read with Section 21, Sub-section (2) Clause (c) and Rule 2, 14, the combined effect whereof is to lift the bar against the driving of a motor vehicle in a public place by a person who does not hold an 'effective driving licence' if such person holds a 'temporary licence' for receiving instruction in driving which is called a 'learner's driving permit'. Besides, there is an internal indication in Section 96, Sub-section, (2) Clause (b), Sub-clause (ii) that the words 'duty licensed' are not to be construed narrowly so as to mean only the holding of a 'driving licence' inasmuch as the sub-clause makes a distinction between 'any person who is not duly licensed' and 'any person who has been disqualified for holding or obtaining a driving licence.
21. The conclusion-and the Only conclusion-which must, therefore, follow is that since, in the instant case, the first respondent was holding a 'learner's driving permit' at the material time, it is not legally open to the appellant insurance company to disclaim the liability to satisfy the award on the ground that there has been a breach of a specified condition of the policy, namely, that which excluded the driving of the vehicle by a person who is not duly licensed.
22. In the instant case, as already stated, the 1st respondent/appellant had a valid temporary licence to drive the car from 4.6.1979 to 3.9.1979 and the licence was renewed with effect from 4.10.1979. According to the appellant /1st respondent, since he was not well, he could not attend to the renewal work of the licence before it expired on 3.9.1979. It is the contention of the learned Counsel-appearing for the insurance company that the learner's licence is not a licence at all for being renewed. According to the learned Counsel, the learner's licence is effective only for the period for which it is issued.
23. In the decision reported in Chanchalben and Ors. v. Shailesh Kumar Pandurao Thakore 1974 A.C.J. 393 it was held that the expression 'driving licence' means the person driving holds a licence to drive the motor cycle and that the said expression includes not a fully qualified and regularly licensed driver but it also means a learner driver. In paragraph 23 of the judgment it is observed as follows:
It has been contended before us on behalf of opponent No. 3, the insurer of Lambretta scooter, that, in terms, of the insurance policy issued by it, Ex. 103, read with Section 96 of the Motor Vehicles Act, 1939, it is not liable to indemnify the opponent No. 2 and to pay the aforesaid amount to the claimants. It has been contended by Mr. Vakil on behalf of the claimants that, under Section 96 of the Act, such a Contention is not open to opponent No. 3 Mr. Patel, appearing for opponent No. 3, has sought to controvert that contention. It is necessary, therefore, to have a look at Section 96 of the Motor Vehicles Act. Sub Clause (ii) of Clause (b) of Sub Section (2) of Section 96 provides that an insurance company to whom a notice of the proceeding has been given is entitled to defend the action on the ground that there has been a breach, Inter Alia, of the following condition of the policy.
A condition excluding driving by a named person or persons or by any person who is not duly licenced, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification.
Mr. Patel has, on the strength of the said clause, contended that the opponent No. l, who had been driving Lambretta Scooter, was not a 'duly licensed' driver and that the opponent No. 2, the insured, had committed a breach of the said condition of the policy. Mr. Vakil appearing for the claimants has contended that the expression 'duly licensed' not only means a person holding a regular licence to drive but also includes a learner, who holds a learner's driving licence. In order to bring home this contention, Mr. Vakil has relied upon Section 3 and clauses (5) and (5A) of Section 2, Clause (5) of Section 2 defines the expression 'driving license'. He has also relied upon Sub-section (2) of Section 3, read with Rule 16 of the Bombay Motor Vehicles Rules, 1959. Rule 16 read with Sub-section (2) of Section 3 carves out an exception and provides for the circumstances under which a learner's licence can be issued to a person who will then not be subject to the right of sub Section (2) of Section 3. Our attention has also been invited to form L.Lr. appended to the Rules. The expression used is 'licensed to drive as a learner'. The warning appended as a foot-note to the said form mentions 'duly licensed to drive'. The form L. Lr.A. appended to the said Rules uses the expression 'driving licence'. The first mentioned form is a form of learner's driving licence. The second mentioned form is a form of application for learner's driving licence. Clause (1) of Sub-rule (1) of Rule 16 uses the expression 'learner's driving licence'. Sub Rule (6) of Rule 16 uses the expression 'driving'. All these expressions used in Sub-section (2) of Section 3 and Rule 16 and the aforesaid two forms go to show, according to Mr. Vakil, that the learner's driving licence fails within the expression 'duly licensed'. Section 96 is relevant only in so far as we have to discover what defence is available to the insurance company against a third party. The expression 'duly licensed' used in sub Clause (ii) of Clause (b) of Sub-section (2) of Section 96 indeed permits an insurance company to raise a defence relating to the holding of a licence. If the appropriate term incorporated in the insurance policy is wider in connotation than what the expression 'duly licensed' permits, it shall not be available to the insurance company against the third party to the extent to which it transgresses beyond the connotation of the expression 'duly licensed'. If an appropriate term in an insurance policy is more liberal in connotation than what the expression 'duly licensed' permits can a third party rely upon it for the satisfaction of the judgment obtained by it against the insured?. It is necessary, therefore, to see the appropriate term in the policy, Ex. 103. It reads as follows:
'Limits of Liability' Driver: Any of the following:
(a) The Insured. The insured may also drive a motor cycle not belonging to him and not hired to him under a Hire Purchase Agreement.
(b) Any other person who is driving on the Insurer's order or with his permission. Provided that the person driving held its licence to drive the Motor Cycle or has held and is not disqualified for holding or obtaining such a licence'.
The concept which emerges from the expression 'duly licensed' as contended by Mr. Patel is more emphatic and is capable of permitting an insurance company to provide for a condition different from the one which we have quoted above. One thing is clear in our mind that the idea which is conveyed by the word 'duly' used in the expression 'duly licensed' does not find its place in the above quoted term of the policy. Since the term in the policy appears to be more liberal so far as third parties are concerned than what the expression 'duly licensed' used in Section 96 may connote, it is "not necessary for us to determine the exact scope and connotation of the expression 'duly licensed'. We, therefore, do not decide whether the expression 'duly licensed' includes within its ambit a person who holds a learner's driving license and confine our decision to the interpretation of the aforesaid term of the policy, Ex. 103. In the instant case, the opponent No. 2 had not been driving the Lambretta scooter at the material time. Therefore, Clause (a) in the above quoted term of the policy has no application to this case. There is no dispute before us that opponent No. l had been driving the Lambretta scooter with the permission of the opponent No. 2, the owner of the Lambretta scooter. He had a learner's driving licence, which had expired on 29th October 1967, sometime before the accident occurred. Is he included within the meaning of expression 'the person driving holds a licence to drive the motor cycle or has held' used in the proviso to Clause (b) in the aforesaid term of the policy? Mr. Vakil has contended that the aforesaid term in the policy does not expressly exclude a learner and that, therefore, we must construe the aforesaid clause so as to mean not only a regular and fully qualified driver but also a learner. He has also contended that opponent No. 3, the insurer, has made a departure while underwriting the risk under the policy. Whereas Section 96 of the Motor Vehicles Act, 1939 requires an insurance company to underwrite risk arising out of the accidents committed by persons who are 'duly licensed' by the aforesaid term in the policy, the insurance company, opponent No. 3, has underwritten greater risk by deleting the concept emerging from the expression 'duly licensed'. In his turn, Mr. Patel has argued that the risks involved in permitting an insured to have his vehicle driven by a learner and by a regular and fully qualified driver are different. According to him, in the case of a learner, the insurance company underwrites a greater risk, while in the case of a regular and fully qualified driver, it underwrites a lesser risk. The argument advanced by Mr. Patel is Ex Facie plausible but it cannot lead us to construe the policy in a particular manner. The construction of the relevant term in the policy depends upon the language which it has employed. Now, within the meaning of the proviso to Clause (b) in the aforesaid term of the policy the opponent No. 3 has underwritten a risk arising out of an accident committed by a person while driving the motor cycle if he holds a licence to drive the motor cycle or has held and is not disqualified for holding or obtaining such a licence. 'Mr. Patel had tried to advance his contention on two grounds. His first ground is that the expression 'the person driving holds a licence to drive' means the person driving holds a regular licence to drive. If we have to accept the contention raised by Mr. Patel, we will have to add the word 'regular' before the word 'licence' and to qualify it. The question, therefore, which arises for our consideration is this : Does the language employed in the proviso to Clause (b) in the aforesaid term of the policy necessarily lead to that implication? In order to make good this contention, he has invited our attention to General Exception No. 3(b) specified in the policy Ex. 103, General Exception No. 3(b) reads as under:
The Company shall not be liable under this policy in respect of....
(3) any accident, loss, damage and or liability caused, sustained or incurred whilst the Motor Cycle is....
(b) being driven by any person other than a Driver.
He has asked us to read the aforesaid proviso in Clause (b) in the above quoted term of the policy in light of General Exception 3(b). When both are read together, one is not in a position to throw any light upon another, because the concept which emerges out of the expression 'driver' used in general exception (3)(b) is also the concept which emerges out of the expression? The person driving holds a licence to drive' used in the proviso to Clause (b) in this aforesaid term. One who drives a motor cycle is a driver. What is, therefore, the meaning of the expression 'drive' or 'driver' appearing in the policy? If the insurance company had intended to subject the insured to the condition that his vehicle should be driven by a regular licence holder, there was nothing which prevented the insurance company from using the expression 'a regular licence' in place of the expression 'a licence' used in the proviso to Clause (b) in the aforesaid term. Secondly, can we say that a learner, when he drives a vehicle under the learner's driving licence, does not hold a licence to drive? The expression used in the policy has got to be construed in the light of the definition given in the Act. The expression 'driver' has been given an inclusive definition in the Act. It includes where a separate person acts as a steersman of a motor vehicle, that person as well as any other person engaged in the driving of the vehicle. Now, Rule 16 of the Bombay Motor Vehicles Rules, 1959, Inter Alia, provides that a learner driver must have an instructor by his side who is duly licensed to drive the vehicle. But the proviso to Sub-rule (1) of Rule 16 lays down that the aforesaid requirement shall not apply to a person who is learning to drive a two wheeled motor cycle with or without a sidecar attached. It is, therefore, clear that a person, who has just taken out a learner's driving licence and who, on the strength of such a licence, wants to learn to drive a motor cycle is not required to have a duly licensed instructor by his side. In other words, such a person can be in full control of his motor cycle. He tries to drive the vehicle and in the process tries to learn. He is in complete control of the vehicle. If a steerman, which is the expression used in the definition of 'driver' given in Clause (5) of Section 2, means a person who handles the sterring and if he is included within the definition of the expression 'driver' learner who is learning to drive a motor cycle is both a steersman in the narrow sense and driver in the wider sense. The test which we apply where a learner has been driving a motor cycle is whether he is in full or partial control of the vehicle, So far as motor cycles are concerned, the learners are in full control of the vehicles. We have no doubt in our mind, therefore, that a learner drives a motor Cycle when he tries to learn driving under a learner's driving licence. If that is what is meant by the expression 'drive' it must lead to the logical conclusion that the expression 'a licence to drive' not only means a regular licence to drive but also a learner's licence to drive. What is contemplated by Sub-section (2) of Section 3 of the Act is also the concept of driving by receiving instruction to drive. Rule 16 of the Bombay Motor Vehicles Rules, 1959, which has been framed to give effect to Sub-section (2) of Section 3, also contemplates that a learner drives when it says that Sub-section (1) of Section 3, shall not apply to any person driving a motor vehicle in a public place during the course of receiving instruction or of gaining experience in driving with the object of presenting himself for the test required by Sub-section (6) of Section 7 Clause (i) of Sub-rule (i) of Rule 16 also contemplates that a person who holds a learner's driving licence is a driver and that person is entitled to drive his vehicle. Clause (ii) of Sub-rule (i) of Rule 16 also contemplates that a driver, who where it is required, must have an instructor by his side, who is duly licensed to drive the vehicle. It is therefore, clear that where there is a learner and an instructor by his side, both are drivers and, where there is no instructor by the side of a learner, as in the case of motor cycle, the learner is a driver. Form L.Lr. A appended to the Rules also contemplates the same thing. An applicant for a learner's driving licence is required to state in his application as follows:
I hereby apply for a driving licence authorising me to drive as a learner a vehicle of the following class.
It is, therefore, clear that the Legislature contemplates that a learner also drives a vehicle. The form L.Lr.A. appended to the said Rule also states that the applicant (who is to be named by him) is licensed to drive as a learner. Driving, therefore, is common both to a fully qualified driver as well as to a learner. Whereas a fully qualified driver drives a vehicle either for making an income or for pleasure, as in the case of an owner-driver, a learner drives a vehicle in order to learn driving. Therefore, both drive a motor vehicle with different objects in view. The difference in the objects with which they drive a vehicle cannot cloud that concept of driving in the case of a learner. For the reasons stated above, we are of the opinion that the expression 'the person driving holds a license to drive the motor cycle means not only a fully qualified and regularly licensed driver but it also means a learner driver. Mr. Vakil has invited our attention to a passage in Fire and Motor Insurance by E.R. Hardy Ivamy, 1968 Edition. At P. 231, under the caption 'Licence includes Provisional Licence' it has been stated that the expression 'licence' included a provisional licence. The aforesaid observation made by the learned author has been based upon the decision of the Westminister County Court in Rendlesham v. Dunne; Pennine Insurance Co. Ltd. In that decision the Judge has held that the meaning of the word 'licence' cannot be restricted to 'full licence'. Indeed his decision has been based upon Road Traffic Act, 1960 of Great Britain. The scheme of the Motor Vehicles Act, 1939 is largely similar to Road Traffic Act 1960. Mr. Vakil has also invited our attention to Road Traffic Offences by G.S. Wilkinson, 5th Edition. At p. 196, it has been observed that the expression 'who holds or has held a driving licence' included a driver who has once held a licence, even though such a licence was provisional. That observation has also been made by the learned author on the strength of the aforesaid decision of the Westminister County Court in Rendlesham v. Dunne. We have also made reference to the aforesaid two books just to show that in matters, which raise such questions, there is identical thinking in England also.
24. In the decision reported in Ishwar Devi v. Reoti Raman 1978 A.C.J. 340, a question arose whether the insurance company was liable to pay compensation if a learner's driving license had expired prior to accident but later on he obtained a permanent driving licence, it was held in the affirmative because he was not disqualified to hold and obtain a driving licence.
25. Section 3 of the Motor Vehicles Act, 1939 reads as follows:
Necessity for driving licence-(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to himself authorising him to drive the vehicle; and no person shall so drive a motor vehicle as a paid employee or shall so drive a transport vehicle unless his driving licence specially entitles him so to do.
(2) A State Government may prescribe the conditions subject to which Sub-section (1) shall not apply to a person receiving instruction in driving a motor vehicle.
Notwithstanding anything contained in Sub-section. (1), a person who holds an effective driving licence authorising him to drive a motor car, may drive any motor cab hired by him for his own use.
Section 10 of the Motor Vehicles Act reads as follows:
Currency of driving licence; A driving licence issued or renewed under this Act after the commencement of the Motor Vehicles (Amendment), Act 1978 shall, subject to the provisions contained in this Act as to the cancellation of driving licences and the disqualification of holders of driving licences for holding or obtaining driving licences, be effective without renewal for a period of five years only, from the date of the issue of the licence or, as the case may be, from the date with effect from which the licence is renewed under Section 11; and the driving licence shall be deemed to continue to be effective for a period of thirty days after the date of its expiry.
Provided that a driving licence issued or renewed to drive as a paid employee or to drive a transport vehicle shall be effective without renewal for a period of three years only.
Section 11 of the Motor Vehicles Act reads as follows:
11. Renewal of driving licences: (1) Any licensing authority may on application made to it, renew a licence issued under the provisions of this Act with effect from the date of its expiry;
Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal;
Provided further that where the application is for the renewal of a licence to drive as a paid employee or to drive a transport vehicle or where, in any other case, the original licence was issued on production of a medical certificate, the same shall be accompanied by a fresh medical certificate in Form 'C', as set forth in the First Schedule, signed by a registered medical practitioner, and the provisions of Sub-section (5) of Section 7 shall apply to every such case.
(2) An application for the renewal of a driving licence shall be made in Form B as set forth in the First Schedule and shall contain the declaration required by that Form; Provided that where the applicant does not or is unable to subscribe to the said declaration the provisions of Sub-section (5) of Section 7 shall apply.
(3) Where an application for the renewal of a driving licence is made previous to, or not more than thirty days after the date of its expiry, the fee payable for such renewal shall be the amount specified in the rules made by the Central Government in this behalf.
(3-A) Where an application for a renewal of a driving licence is made more than 30 days after the date of its expiry, the fee payable for such renewal shall be the amount specified in the rules made by the Central Government in this behalf;
Provided that the fee referred to in Sub-section (3) may be accepted by the licensing authority, if it is satisfied that the applicant was prevented by good cause from applying within the time specified in that sub-section;
Provided further that if the application is made more than five years after the driving licence has ceased to be effective, the licensing authority may refuse to renew the driving licence, unless the applicant undergoes and passes to its satisfaction the test of competence to drive specified in the Third Schedule.
(3-B) When the authority to whom an application for the renewal of a licence to drive as a paid employee or to drive a transport vehicle is made is not the authority which issued the licence sought to be renewed, it may for the purpose of deciding whether the application for such renewal may be granted, verify the antecedents of the applicant in such manner as may be prescribed and pending the verification, such authority may grant a provisional licence for such period or periods not exceeding six months in the aggregate, subject to the condition that every such, provisional licence shall cease to the effective immediately on the renewal of the licence sought to be renewed, or, as the case may be, on the refusal to renew the licence, and (i) where the application for renewal has been rejected, the fee paid shall be refunded to such extent and in such manner as may be prescribed, (ii) Where the application for renewal has not been rejected within the said period, the licence shall be renewed.
(4) When the authority renewing the driving licence is not the authority which issued the driving licence it shall intimate the fact of renewal to the authority which issued the driving licence.
Section 95 of the Motor Vehicles Act reads as follows:
Requirements of policies and limits of liability; (1) In order to comply with the requirements of this chapter, a policy of insurance must be a policy which
(a) is issued by a person who is an authorised insurer or by a co-operative society allowed under Section 108 to transact the business of an insurer, and
(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2)-(i) against any liability which may be incurred by him in respect of the death of or bodily injury to, any person or damage to any property of a third party, caused by or arising out of, the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place;
Provided that a policy shall not be required
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to, any such employee
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods vehicle, being carried in the vehicle, or
(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or
(iii) to cover any contractual liability.
Explanation: For the removal of doubts it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party, shall be deemed to have been caused by, or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person, who is dead or injured or the property which is damaged, was not in a public place, at the time of the accident, if the act, or omission which led to the accident, occurred in a public place.
(2) Subject to the proviso to Sub-section (1) a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely:
(a) Where the vehicle is a goods vehicle, in limit of one lakh and fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act 1923 (8 of 1923) in respect of the death of. or bodily injury to, employees (other than the driver) not exceeding six in number, being carried in the vehicle;
(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of, in pursuance of, a contract of employment
(i) in respect of persons other than passengers, carried for hire or reward, a limit of fifty thousand rupees in all;
(ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passenger;
(c) save as provided in Clause (d), where the vehicle is a vehicle of any other class, the amount of liability incurred;
(d) irrespective of the class of the vehicle a limit of rupees six thousand in all in respect of damage to any property of a third party;
4. A policy shall be of no effect for the purposes of this chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars or any conditions subject to which the policy is issued and of any other prescribed matters; and different forms, particularly and matters may be prescribed in different cases.
4-A. Where a cover note issued by the insurer under the provisions of this chapter or the rules made there under is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.
5. Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purposes to cover in the case of that person or those classes of persons'.
Rule 39 of the Tamil Nadu Motor Vehicles Rules reads as follows:
... Sub-section (1) of Section 3 of the Act shall not apply to any person driving a motor vehicle in a public place during the course of receiving instruction or of gaining experience in driving with the object of presenting himself for the test required by Clause (a) of Sub-section (6) of Section 7 of the Act, so long as (i) the driver is the holder of a learner's licence in Form LLR entitling him to drive the vehicle;
(ii) There is beside the driver in the vehicle as instructor a person duly licensed to drive the vehicle and sitting in such position as to be able readly to stop the vehicle;
(iii) There is affixed both to the front and rear of the vehicle a plate or card as set forth below:
Plate (or card) 18 Centimeters, square to be white, with letter 'L' in red 10 Centimeters high 9 Centimeters wide:
Provided that Clause (i) shall not apply to former Rulers of Indian States who have been driving their vehicles for many years:
Provided further that a person while receiving instructions or gaining experience in driving a two-wheeler motor cycle with or without a side car attached shall not carry a person besides himself on the motor cycle except for the purpose, and in the manner mentioned in Clause (ii) above.
Rule 5(a) of the Tamil Nadu Motor Vehicles Rules reads as follows:
... No person shall drive a transport vehicle within the State of Tamil Nadu (a) unless authorisation has been granted by licensing authority within the State to that effect....
26. In Halsbury's Laws of England-Fourth Edition-Volume 25 in paragraph 368 at page 203 it is stated as follows:
... Facts Affecting the physical hazard. Any fact is material which leads to the inference, in the circumstances of the particular case, that the subject matter of insurance is not an ordinary risk, but is exceptionally liable to be affected by the peril insured against. This is referred to as the physical hazard. It is material in fire insurance that at the time of insuring there has been a fire in adjoining premises which has just been extinguished and is likely to break out again. Similarly, in the case of a motor car insured against fire, the structure and situation of the garage in which the car is kept may be important.
27. In paragraph 372 at page 205, it is stated relating to 'continuing nature of the duty, as follows:
... The duty to make full and frank disclosure continues to apply throughout the negotiations for the contract, but it comes to an end when the contract is concluded; therefore, material facts which come to the proposer's knowledge subsequently need not be disclosed. The proposer need not disclose the fact that, after acceptance of his proposal, another proposal made to other insurers has been declined. If, however, any new material fact arises before acceptance of the proposal, or if an existing fact which was previously immaterial becomes material owing to a change of circumstances, it must be properly disclosed. In the first category, a refusal by other insurers to renew an existing policy is material and must be disclosed; and if, pending the acceptance of a proposal for life insurance, the proposer sustains a serious injury or contracts a serious disease, that fact too is material and must be disclosed. Similarly, in the second category, it may happen that a proposer for life insurance is advised by a specialist that he is in a dangerous state of health which is then for the first time diagnosed; in such a case the diagnosis must be disclosed to the insurers even if the medical officer for the insurers has examined the proposer and passed him as fit.
28. In the instant case before me, in the light of the provisions in Section 3, we have to consider the question whether the learner's licence can be equated to regular licence, whether the policy conditions exclude the conditions of the learner's licence when in force, whether the company is entitled to exclude an expired learner's licence from the purview of the policy or scope of coverage under the certificate of insurance and the policy and whether the contents of certificate and policy have to be given effect to.
29. In the instant case before us, it is common ground that the learner's licence had already expired. He had not produced any subsequent licence in this court or before the Tribunal. We are in the dark as to whether the driver of the vehicle was receiving instructions from the person who is obliged to sit by his side while he has been driving as a learner; in other words, whether any one was present inside the vehicle as instructor to the driver during the time of the accident. In this regard the provisions of Sections 10 and 11 as well as Section 3(1) and (2) of the Motor Vehicles have to be borne in mind.
30. As already stated, we have to scrutinise whether in the instant case the expired learner's licence is excluded from the second clause of the policy in question. Ex. R-2 has been marked by consent.
31. In the decision reported in Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. 1977 A.C.J. 343, in paragraph 19 at page 353, it was observed as follows:
... As Section 95 of the Motor Vehicles Act, 1939, as amended by Act 56 of 1969 is based on the English Act it is useful to refer to that. Neither the Road Traffic Act, 1960, nor the earlier 1930 Act required users of motor vehicles to be insured in respect of liability for death or bodily injury to passengers in the vehicle being used except a vehicle in which passengers were carried for hire or reward or by reason of or in pursuance of a contract of employment. In fact Sub-section 203(4) of the 1960 Act, provided that the policy shall not be required to cover liability in respect of the death of or bodily injury to persons being carried in or upon, or entering or getting into or alighting from, the vehicle at the time of occurrence of the event out of which the claims arise. The provisions of the English Act being explicit the risk to passengers is not covered by the insurance policy. The provisions under the English Road Traffic Act, 1960, were introduced by the amendment of Section 95 of the Indian Motor Vehicles Act. The law as regards general exclusion of passengers is stated in Halsbury's Laws of England, Third Edition, Vol. 22, at p. 368 para 765 as follows:
Subject to certain exceptions a policy is not required to cover liability in respect of the death or bodily injury to, a person being carried in or upon, or entering or getting into or alighting from, the vehicle at the time of the occurrence of the event out of which the claim arises.
32. In Corpus Juris Secundum-Volume 44, dealing with the subject matter in issue in paragraphs (d) and (e) under the topics 'Terms and Conditions of Contemplated Policy' and 'Termination by Insurance of Policy', it is stated as follows:
(d) Terms and conditions of Contemplated Policy: Where the contract does not specify the terms and conditions of the policy, it is presumed to contemplate insurance on the terms contained in the policy customarily issued.
Where the contract to insure or issue a policy of fire insurance does not specify the terms and conditions of the policy, it is a general rule that the parties will be presumed to have contemplated a form of policy containing such conditions and limitations as are usual in such cases, whether insured sues in equity or at law directly on the contract for recovery of damages for a breach thereof in failing to issue the policy. It has been held, however, that, where insured merely ordered a specific amount of insurance on certain property, nothing being said about other insurance, he was not bound by a stipulation in the policy subsequently issued avoiding it in case there was then or should be thereafter any other insurance on the property, at least in the absence of evidence that policies usually contain such a stipulation.
(e) Termination by issuance of Policy.
33. Liability under an executory contract to insure is terminated by the issuance and acceptance of a policy even though it does not follow the terms of the contract: but the rule is otherwise where the policy was issued but not accepted:
When a fire insurance policy is issued and accepted in pursuance of a parol agreement for insurance, the liability under the executory contract is terminated, and such contract is merged in the policy, the fact that the policy does not follow the terms of the preliminary contract being immaterial if the policy is accepted and acted on by insured; but the liability of the company under the executory contract is not merged in a policy which does not conform to the terms of the preliminary agreement and is not accepted as a substitute therefor.
34. The following passages from the book MacGillivray on Insurance Law-Volume I page 35 dealing with the subject regarding the commencement of the insurance under the topic 'no Insurance Until First Premium is paid' were referred to:
735. Effect of Condition: Where there is a binding contract to insure or a policy has been issued, subject to a condition that there shall be no insurance until the first premium is paid, the condition saves the company from the unsatisfactory position of being on a risk for which they may never receive the premium. The condition operates to suspend the risk where, but for the condition, it would have attached at the time the contract was made or at some specified date. Further than this, the condition does not affect the date upon which the renewal premium is payable or the expiration of the risk upon non-payment.
736. Specified Commencement Date: The expression that there shall be no insurance, or that the insurance shall not be in force, until the premium is paid is not altogether free from ambiguity. If it is coupled with an agreement to insure from a specified date it is open to argument that the condition has the effect of making the insurance subject to a suspensive condition, and that when the condition is satisfied by payment of the premium, the insurers are bound to indemnify the assured in respect of losses happening between the specified date and the payment of the premium. Where no policy has been delivered or, in England, executed under seal the insurers may escape liability by refusing to accept the premium on the ground that there has been a change of risk before the policy was called for. But if a policy has been delivered or, in England, executed under seal the insurers are probably liable.
737. Insurance From Date of Policy: Even where the insurance is not from a specified date, but is expressly or impliedly to run from the date of the policy or from the delivery of the policy, the condition that it shall not be in force until the premium is paid is probably not in itself sufficient to exclude all liability for loss happening after the execution or delivery of the policy and before payment of the premium. If insurers desire to avoid all risk of having to pay upon such a loss they must either delay execution, or in Scotland delivery, of the policy until the premium has been paid or else insert the less ambiguous proviso that they shall not be liable in respect of any loss happening before the premium is paid, and at the same time take care that they do not by declaration in the policy or otherwise admit payment of the premium before it has in fact been received. In own-life policies a provision that 'the policy shall not be in force until the premium is paid', might perhaps be sufficient, as payment means payment by the assured, and he cannot pay after his death; but a safer form of proviso available also for insurances upon the lives of third parties, is that 'policy shall not be binding until the premium has been received during the life-time of the party assured.
35. In the decision reported in Madras Motor and GL. Insurance Co. v. Madathi Ammal (1974)2 M.L.J. 204, it has been laid down as follows:
Section 96 of the Motor Vehicles Act gives an option to an Insurance Company to incorporate in the policy any of the conditions mentioned in Section 95(2)(b)(ii). The Insurance Company may, therefore, incorporate in the policy 'a condition excluding driving by 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 or to exclude driving by all these three classes of persons'. It is open to the company to refuse to cover a risk brought about by a person who, at the time of the accident, had held a license but had no effective license covering the period of the accident. Inasmuch as the Insurance Company had, in the instant case, exercised its option and thought it right to cover an accident caused by a person who had held a license prior to the date of the accident that is, a license that had expired prior to the date of the accident but had not 'chosen to renew it during the period allowed by law, the company cannot be exonerated of liability in respect of the accident.
36. In Richards on Insurance-Volume 3-Fifth Edition by Warren Freedman regarding 'Contract Governed by Terms of Usual Policy' it is mentioned as follows at pages 1296 and 1297:
... Whether the contract of insurance is closed orally or by a binder or binding receipt, if there is no express agreement to the contrary, the legal presumption is that the usual form of policy is to follow. Hence, the stipulations and conditions of the policy are binding upon the insured from the moment of closing the contract, although the policy may not be received until after the loss, and although, through ignorance of its conditions, he may have forfeited his rights thereunder. For example, the insured, though suing on the binder or binding receipt, or preliminary oral contract, must observe the provisions of the policy relating to proofs of loss and limitations of time for bringing action. In a like manner the terms of the usual policy are binding upon the insurer, which can cancel a binder for fire insurance during the duration of the risk only by complying with provisions of the five day cancellation clause of the standard fire insurance policy. All statutes and common law rules applicable to the particular contract automatically become part of it by force of law, and any provisions in conflict with such statutes or rules will be declared inoperative.
37. In the decision reported in United Fire and Genl. Ins. Co. v. Ayisa 1979 A.C.J. 526, the licence held by the driver had expired prior to the accident and renewed after the accident. On the question whether the Insurance Company was liable to pay compensation, it was held that it was liable because the appellant had not chosen to take advantage of the provisions of Section 96(2)(b)(ii) by not incorporating in the policy the condition to exclude the use of vehicle by all non-licenses and the driver had not been disqualified from driving or holding a driving licence.
38. Every licence is issued for a particular period. There is no such licence known as permanent licence. To say that one has obtained a permanent licence is not correct. Section 95(1)(b)(ii) of the Motor Vehicles Act reads as follows:
... Requirements of policies and limits of liability:
1. In order to comply with the requirements of this chapter a policy of insurance must be a policy which....
(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2)....
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place....
In the instant appeal before us, Mr. A. Devanathan, learned Counsel for the appellant, submitted that in view of the importance of the matter, the appeal should be referred to a Full Bench since there are conflicts of judicial opinions expressed in many caws regarding the character of a learner's licence. According to him, the questions such as (1) whether the learner's licence can be equated to a regular licence (2) whether the policy conditions exclude the liability when a learner's licence is in force (3) whether the Insurance Company is entitled to exclude an expired learner's licence from the purview of the policy or the scope of coverage and (4) whether the certificate and policy are to be taken into consideration for the determination of the above points or not. In this regard, the provision of Section 3 of the Motor Vehicles Act 1939 is also pointed out by Mr. A. Devanathan, learned Counsel for the appellant. The said Section 3 under Chapter II Licensing of Drivers or Motor Vehicles reads as follows:
3. Necessity for driving licence (1) No person shall drive a motor vehicle in any public place unless he holds an effective (driving licence) issued to himself authorising him to drive the vehicle; and no person shall so drive a motor vehicle as a paid employee or shall so drive a (transport vehicle) unless his (driving licence) specially entitles him so to do.
(2) A State Government may prescribe the conditions subject to which Sub-section (1) shall not apply to a person receiving instruction in driving a motor vehicle.
(3) Notwithstanding anything contained in Sub-section (1), a person who holds an effective driving licence authorising him to drive a motor car, may drive any motor car hired by him for his own use.
On the other hand, Mr. K.S. Narasimhan submits that the Tribunal has come to a correct conclusion regarding the nature of learner's licence and since each case has to be decided on the facts of that particular case, in the instant case, as the Tribunal has come to the correct conclusion in accordance with law with respect to the aspect now sought to be referred to a Full Bench, there is no necessity for referring the matter and this Court itself can decide the questions involved in this appeal. It is also relevant in this connection to note that there is in existence Rule 39 of the Tamil Nadu Motor Vehicles Rules, 1940 (corrected upto 1st April, 1970) which reads as follows:
30. Sub-section (1) of Section 3 of the Act shall not apply to any person driving a motor vehicle in a public place during the course of receiving instruction or of gaining experience in driving with the object of presenting himself for the test required by Clause (a) of Sub-section (6) of Section 7 of the Act, so long as.
(i) the driver is the holder of a learner's licence in Form LLR entitling him to drive the vehicle;
(ii) there is besides the driver in the vehicle as instructor a person duly licensed to drive the vehicle and sitting in such position as to be able readly to stop the vehicle;
(iii) there is affixed both to the front and rear of the vehicle a plate or card as set forth below:
L plate (or card) 18 Centimeters, square to be white, with letters 'L' in red 10 Centimeters high 9 Centimeters wide;
In the said rules, to Rule 39, for the proviso, the following provisions shall be substituted, namely:
Provided that Clause (1) shall not apply to former Rules of Indian States who have been driving their vehicles for many years;
Provided further that a person while receiving instructions or gaining experience in driving a two-wheeler motor cycle with or without a side car attached shall not carry a person besides himself on the motor cycle except for the purpose, and in the manner mentioned in Clause (ii) above.
At the risk of repetition this Rule is being incorporated in this judgment for the sake of concentrating on the points stressed by either side.
39. Let us now examine the position when the licence held by the driver had expired prior to the accident.
40. The following observation made in the decision reported in M/s. Srinivasa Roadways, Madurai v. Saroja 1975 A.C.J. 265, would be useful to decide the position when the licence held by the driver had expired prior to accident and whether insurance company was liable to pay compensation.
In the schedule to this policy the limitations as to use of the bus have been defined and it is stipulated that.
The vehicle may be driven either by the insured or any other person provided he is in the insured's employ and is driving on his order or with his permission; provided that 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.
What is the construction to be placed on the words 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? This clause clearly contemplates a person who did not hold a valid licence on the date of the accident, but who had held a licence previously and who had not, at the time of accident, been disqualified for holding or obtaining such a licence. The Insurance Company, with its great business experience, must have thought it right to cover an accident caused by a person who has had considerable driving experience, and yet due to inadvertence or absentmindedness, has not chosen to renew that licence during the period allowed by law and has been involved in an accident while he had not yet obtained a renewal of the licence. Evidently, the Insurance Company trusts experienced drivers not to drive the vehicles rashly and negligently, this expectation, resting upon their past performance rather than upon the technical, but unimportant question whether they have been careful and alert enough to renew the licence within the period allowed by law.
41. The views expressed by the Bench with regard to a regular licence-holder where the Insurance Company has extended a coverage cannot be applied to a person who is learning and is not having sufficient experience. Hence, the company is right in excluding a person whose learner's licence had expired from the scope of indemnity.
42. It is relevant in this connection to note the evidence relating to the point of rashness and negligence on the part of the vehicle concerned which had been properly taken into consideration in the light of the evidence available on record by the Tribunal. Regarding the accident we have the evidence of P.W. 3, Vasudevan, the injured petitioner and R.W. 1 Ramani, the driver of the car. P.W. 3 has stated that on 23.9.1979, he was driving a scooter in Poonamallee High Road and was proceeding towards Central Station from Aminjikarai and he was keeping to the left side of the road. The car driven by the first respondent came from behind and dashed against the scooter and P.W. 3 was thrown out and sustained very grievous injuries. In the cross-examination P.W. 3 has stated that he did not stop the scooter at the pedestrian crossing and the scooter was moving at the time of the accident. P.W. 3 denied the suggestion that on seeing a cyclist, he suddenly stopped the scooter. According to P.W. 3, no cyclist came and there was no need for the scooter to stop. R.W. 1 has stated that he had obtained a learner's licence which had also expired. R.W. 1 was driving the car from Aminjikarai to Central Station direction and pedestrians were crossing through the pedestrian cross and a scooter was proceeding ahead. The scooter suddenly stopped and therefore the car hit the scooter. It is significant to note that R.W. 1 has stated in the chief-examination itself that he cannot say whether he is at fault or not. Further, he has stated in the chief-examination itself that his car was following the scooter at a distance of four feet and when the scooter rider applied brake, the car hit the scooter. R.W. 1 is an educated person and he is an officer in T.V.S. Lucas and he pleaded guilty in the criminal court for an offence under Section 338, I.P.C. and 116 of the Motor Vehicles Act and was found guilty and convicted therein. Strangely, R.W. 1 states that he pleaded guilty to a charge under Section 338, I.P.C because the learner licence had expired. The absence of a licence to drive has nothing to do with the charge under Section 338, I.P.C. It is clear from the evidence of R.W. 1 that he was following the scooter very close and he hit the scooter because he did not give sufficient clearance. It is also significant to note that R.W. 1 has stated in the cross-examination that the pedestrian cross is about 20' away from the place of accident. Therefore, the contention of the first respondent that persons were crossing through the pedestrian cross and a cyclist also came across and therefore the scooter rider suddenly stopped the vehicle, cannot be accepted for a moment. Regarding the accident we have only the evidence of P.W. 3 and P.W. 1 and both of them are interested witnesses. The evidence of R.W. 1 that the scooter suddenly stopped and therefore the accident happened cannot be accepted since in the criminal court he has admitted that he drove the vehicle rashly and negligently and caused the accident. P.W. 2, Joseph, Inspector of Police, has marked Ex. P-2, sketch prepared by Bastin, Sub Inspector. The said Bastin was working under P.W. 2 and since the said Bastin was transferred out of Madras, the sketch prepared by him was marked through P.W. 2, Ex. P. 3 is the copy of F.I.R. given by P.W. 3 wherein he has stated that he was proceeding on a scooter and the car coming behind knocked him down. Ex. P-2 the sketch shows that the car coming behind the scooter knocked down the scooter. There is absolutely no need for the scooter to suddenly stop at that place and there is no lane at the place of accident and therefore the contention of the first respondent the appellant herein that a cyclist suddenly emerged from a side lane is unacceptable and untenable. The entire circumstances of the case clearly point out that the accident was the result of rash and negligent driving of the car by the first respondent appellant herein only. The finding regarding this aspect by the Tribunal is hereby confirmed.
43. Now let us discuss the evidence relating to the determination of the quantum of compensation that is payable. P.W. 1, Dr. Parthasarathy, Assistant Orthopedic Surgeon, K.M.C. Hospital, has treated the petitioner/first respondent herein in Kilpauk Medical College Hospital and has stated that the petitioner/first respondent herein was aged 39 years, and that he was admitted in the hospital on 23.9.1979 and discharged on 30.10.1979. The petitioner/first respondent herein had sustained the following injuries in a road traffic accident:
(i) Posterior dislocation of left elbow and
(ii) fracture neck of femur left.
The petitioner/first respondent herein was discharged on 30.10.1979 with a (derotation boot) with an advice for bed-rest for a further period of two months and therefore, he was treated as an out-patient in the same hospital and the injuries are grievous in nature and Ex. P-1 is the case sheet. P.W. 3 has stated that he sustained fracture of left femur bone and was in the hospital for more than a month as in-patient and then took treatment as out-patient for two months and he is unable to lift weight. He is working as Secretary in the Family Welfare Centre, Indian Medical Association, drawing a salary of Rs. 1,000 per month. He sustained loss of four months medical leave due to the accident. The evidence of P.W. 1 Dr. Parthasarathy also shows that the petitioner/first respondent herein was advised bed rest for two months after discharge on 30.10.1979 and therefore, he would have been disabled for a total period of four months. The wrong doer has to compensate him for the loss of four months medical leave sustained by the petitioner/first respondent herein; but the first respondent herein has not claimed loss of earnings or loss of leave.
44. The petitioner/first respondent has claimed Rs. 500 towards transport to hospital. He sustained very severe fractures and attended the hospital as out-patient for two months. He had necessarily to travel by taxi from his residence in Kellys to Kilpauk Medical College Hospital in Kilpauk in Poonamallee High Road. Hence, he would have easily spent about Rs. 250 towards transport to hospital and he is entitled to the said sum.
45. The petitioner/first respondent has claimed Rs. 1,000 towards extra nourishment. Having regard to the nature of injuries and period of treatment, he would have easily spent Rs. 250 to recoup his health and he is entitled to this sum.
46. He has claimed Rs. 1,300 towards hospital and medical expenses. He has not produced the bills or receipts issued by the hospital even though he claimed that he was a paying-patient. Ex. P-1, case-sheet shows that he was a paying patient and his income has been noted as Rs. 950 p.m. He being a paying patient would have been charged by the hospital authorities during his stay of one month and seven days in the hospital and he would have incurred Rs. 1,300 even though he has not produced bills for the same. Hence, he is entitled to Rs. 1,500 under this head.
47. He has claimed Rs. 200 towards damages to clothing and articles. There is absolutely no material placed by the petitioner/first respondent herein to prove this claim. He has also not stated that the clothes were damaged and he has also not spoken to about the damages caused to the scooter. Hence this claim has necessarily to be disallowed and the Tribunal has correctly disallowed the same.
48. He has claimed Rs. 40,000 towards pain and suffering. He sustained fracture of neck, of left femur and dislocation of left elbow and he would have undergone very severe pain and suffering. He was an in-patient for one month and seven days and took treatment as out-patient for two months and during this period, he was advised bed rest. Therefore, towards pain and suffering and injuries, we have to hold that in the interest of justice, a sum of Rs. 10,000 has to be awarded. Accordingly the compensation of Rs. 10,000 awarded towards pain, suffering and injuries by the Tribunal is confirmed.
49. He claimed Rs. 7,000 towards loss of earning power P.W. 1 Dr. Parthasarathy has not stated anything about the disability sustained by the petitioner/first respondent herein. No medical evidence has been adduced to prove the disability. The petitioner/first respondent merely says that he is unable to lift weight, But this oral evidence of P.W. 3 is not supported by any medical evidence. P.W. 3 has admitted that he is now drawing the same salary and there is no reduction in the salary and he is also getting the usual increments. Therefore, the claim towards loss of earning power has not been proved and the same s therefore, disallowed. The Tribunal has correctly disallowed this claim. In all, we find that the petitioner/first respondent will be entitled to a compensation of Rs. 11,800.
50. So far as the contention of the second respondent Insurance Company that the first respondent V.S. Ramani, the appellant herein, the owner of the car who was driving the same at the time of the accident on 23.9.1979 had no driving licence and there is a violation of the conditions of the policy Ex. R-2 and therefore, the Insurance Company/Second respondent in the appeal is not liable. Ex. R-1 is the learner's licence-issued to the first respondent/appellant herein on 4.6.1979 and it is valid upto 3.9.1979. R.W. 1 the first respondent/appellant herein has stated that the learner's licence expired on 3.9.1979 and the accident was on 23.9.1979 and he got another learner's licence on 4.10.1979. There cannot be a renewal of a learner's licence. R.W. 1 has stated that he obtained only another learner's licence on 4.10.1979 and he took a permanent licence only on 29.1.1980. Ex. R-2 the insurance policy, also shows that the insurance company will not be liable if the vehicle was driven by a person without a valid licence or by a person having only a learner's licence. Admittedly, R.W. 1 had only a learner's licence and even that licence had expired on the date of the accident. As pointed out by the Tribunal, there cannot be any question of renewal of learner's licence. A permanent licence was obtained only on 29.1.1980 and that is spoken to by R.W. 1. At the material point of time, the first respondent/appellant herein who was driving the car had no learner's licence and no permanent licence. The learned Counsel for the first respondent/appellant herein contends that the decision reported in Srinivasa Roadways v. Saroja 1975 A.C.J. 265 is applicable to the instant case. It was held in the said case that even if the licence had expired and there is no disqualification then the insurance company is liable. But in this case, the first respondent had no driving licence; but only a learner's licence. Therefore, the above decision will not apply to the facts of the present case. In an identical case reported in Ambujam v. Hindusthan Ideal Insurance Company , a Division Bench of our High Court has held that:
... Effective driving licence cannot be an equation for a learner's licence which is only granted to a person learning driving and which, by itself, cannot vest him with a right independently to negotiate a motor vehicle on the strength of it.
It has been further held in the above case Ambujam v. Hindustan Ideal Insurance Company that since the person who drove the vehicle had no regular licence, the insurance company is not liable. In the instant case before us, R.W. 1, the driver, had neither a regular licence nor a learner's licence on the date of the accident. Further, the learner's licence had expired long before the date of the accident. Under these circumstances, this Court is inclined to confirm the finding of the Tribunal that the second respondent Insurance Company is not liable. The conclusion arrived at under this point by the Tribunal is confirmed.
51. Coming to the question of quantum it is represented by Mr. A. Devanathan, learned Counsel for the appellant that the Tribunal is not correct in having given a sum of Rs. 10,000 towards pain and suffering because there is no permanent disability and if such a huge sum is given for a fracture, it would be certainly on the high side which has to be necessarily reduced by this Court. I am unable to uphold his contention. Merely on the ground that the injured is an young man, it cannot be said that he would not have felt the pain and suffering. It cannot also be said that for a fracture of this kind, a sum of Rs. 10,000 is excessive. As a matter of fact when there had been a fracture whether it is minor fracture or major fracture, the minimum time required for healing would be at least 6 weeks. Therefore it is not at all excessive when a sum of Rs. 10,000 is awarded by the Tribunal in this case.
52. It is further contended that usually in a case where such a sum of Rs. 10,000 is awarded, there should be medical evidence adduced through a medical officer who had examined the injured and there must also be a clear ascertainment of disability. It is not as if the Court is bereft of knowledge of the suffering of an young man as in the instant case and to assess. It is not as if that there should be necessarily a medical certificate regarding disability and also medical evidence available. The Court is duty bound to assess the situation and to arrive at an adequate figure regarding the compensation for pain and suffering. Hence, the Tribunal is correct in awarding a sum of Rs. 10,000 under this Head. The facts that are available by way of evidence both oral and documentary, show this Court has no other alternative but to confirm the award of Rs. 10,000 by the Tribunal towards 'pain and suffering' as compensation.
53. In the result, the award for Rs. 11,800/ with proportionate costs passed by the Tribunal in favour of the petitioner/respondent herein is confirmed. The appeal is dismissed. Under the circumstances, there will be no order as to costs.