Kerala High Court
New India Assurance Co. Ltd. vs Latha Jayaraj And Ors. on 1 November, 1990
Equivalent citations: I(1991)ACC581, 1991ACJ298
Author: K.S. Paripoornan
Bench: K.S. Paripoornan
JUDGMENT K. Balanarayna Marar, J.
1. The insurer is the appellant. Respondent Nos. 1 to 4 are the legal representatives of one Jayaraj who died in a motor accident which happened on 8.10.1987. He was riding a scooter from Angamaly to Alwaye. When he reached Thottakkattukara the lorry KLN 5458 owned by 6th respondent and driven by 5th respondent dashed against the scooter as a result of which Jayaraj sustained serious injuries and subsequently succumbed to the injuries or. the same day. His wife, daughter and parents moved Motor Accidents Claims Tribunal, Ernakulam claiming an amount of Rs. 2,61,750/- as compensation. Respondent Nos. 5 and 6 resisted that application. Written statement was also filed by appellant disclaiming liability and contending that its liability is limited to Rs. 1,50,000/-. The Tribunal after evidence and hearing both parties awarded an amount of Rs. 1,46,250/-. Aggrieved by that award the insurer has come up in appeal.
2. Heard counsel for appellant.
3. The main grievance of the appellant appears to be that the deceased was not having a valid licence at the material time and that the amount awarded is exorbitant.
4. Under Section 96 (2) of the Motor Vehicles Act an insurer to whom notice of the bringing of any proceeding for compensation has been given can defend the action on any of the grounds mentioned therein. One of the grounds is violation of a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. The deceased was riding the scooter with an 'L' board presumably for the reason that he had obtained only a learner's licence. The report of the Motor Vehicle Inspector shows that an 'L' board was seen exhibited on the scooter. The contention is that a person who is riding a scooter with an 'L' board is not duly licensed and as such the insurer can enforce the condition excluding driving by a person who is not duly licensed. But a person who is holding a learner's licence is also duly licensed within the meaning of Section 96 (2) (b) (ii) of the Act. A person holding a learner's licence is also entitled to drive the vehicle. The licence is also issued under the provisions of the Motor Vehicles Rules. For all practical purposes a person holding a learner's licence is a person duly licensed to drive a vehicle. The Madras High Court had occasion to consider this aspect in National Insurance Co. Ltd. v. A. Babu 1990 ACJ 1003 (Madras). It was held that the condition in the policy that the person holding learner's licence would not be entitled to drive the vehicle would run counter to the provisions of Section 96 (2). It was further held that it would not be possible for the insurance company to avoid its liability to indemnify the owner of the vehicle driven by a person holding a learner's licence. It was observed that the licence is issued under Rule 39 of the Tamil Nadu Motor Vehicles Rules and a person receiving instructions in driving a motor vehicle is issued a permit commonly known as learner's licence. In view of these circumstances it was held that the learner's licence is also a valid permit issued by the specific authority. We are in agreement with this view and hold that the deceased though holding only a learner's licence was duly licensed to drive the vehicle and that there has not been any violation of the conditions in the policy of insurance.
5. The insurer has also challenged the quantum awarded by the Tribunal. Section 96 (2) of the Motor Vehicles Act permits the insurer to canvass the merits of the award only on one or other of the grounds mentioned therein. In case the insurer apprehends that there is a collusion between the person making the claim and the person against whom it is made, the insurer is not without a remedy. A request can be made to the Tribunal by the insurer for permitting it to contest the claim. If the Claims Tribunal is satisfied that there is collusion between the person making the claim and the person against whom the claim is made or if the person against whom the claim is made has failed to contest the claim, the court can direct that the insurer will have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. No such request is seen to have been made by the appellant before the Claims Tribunal. In order to enable the insurer to contest the claim the court has to issue a direction and that has to be done for reason to be recorded. Evidently no permission has been obtained by the insurer from the court to contest the claim. It necessarily follows that the insurer can resist the claim only on one or other of the grounds under Section 96 (2) of the Act and the grounds therefor are absent.
6. The merits of the claim under Section 110-A of the Act do not find a place in that Sub-section. In view of the prohibition contained in that section it is not open to the appellant to canvass the merits of the award in appeal. There is no provision in the Act enabling the insurer to raise the merits of the award in appeal except in accordance with the provisions of the Act. In other words, the rights of the insurer are not in any way enlarged in appeal. The request of the appellant for interference of the award has therefore to be refused.
The appeal is therefore dismissed.