Gujarat High Court
Lakhmanbhai Rambhai Barad vs Ravjibhai Ranchhodbhai Parmar on 1 December, 2023
NEUTRAL CITATION
C/FA/2375/2023 JUDGMENT DATED: 01/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2375 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or NO
any order made thereunder ?
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LAKHMANBHAI RAMBHAI BARAD
Versus
RAVJIBHAI RANCHHODBHAI PARMAR
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Appearance:
MR Y J PATEL(3985) for the Appellant(s) No. 1,2
for the Defendant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 01/12/2023
ORAL JUDGMENT
The present appeal is filed at the instance of the original claimants, who are the heirs and legal representatives of the deceased Page 1 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined
- Mensibhai Lakhmanbhai Barad, who unfortunately passed away at the age of 19 years in the motor accident.
2. The original claimants are the appellants of the deceased- Mensibhai Lakhmanbhai Barad (hereinafter to be referred as "the deceased"). In the present appeal preferred under Section 173 of the Motor Vehicles Act, 1988, the original claimants have challenged the judgment and award dated 10.08.2018 passed by the learned M.A.C.T. (main) & Principal District Judge, Gir-Somnath at Veraval in M.A.C.P. Case No.94 of 2010.
3. By the said judgment and award, the learned Tribunal was pleased to partly allow the claim petition preferred by the present appellants awarding the compensation of an amount of Rs.3,40,000/- along with the interest at the rate of 7.5% per annum from the date of registration of the claim petition, till its actual realization within a period of one month thereafter. While passing the aforesaid judgment and award against the owner-original opponent No.1, the Tribunal has dismissed the claim petition against the original opponent No.2- HDFC ERGO General Insurance Co. Ltd. (for short "Insurance Company").
4. Being aggrieved and dissatisfied with the aforesaid judgment Page 2 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined exonerating the respondent-Insurance Company from the liability to pay compensation towards the untimely death of their son in the accident, the original claimants have approached this Court by presenting this appeal.
5. In nutshell, the case put forward by the original claimants before the Tribunal, was that on 10.10.2009 at around 19:00 hours, while the deceased was going on the road side as pedestrian towards bus, at that point of time, the driver of the offending motorcycle bearing registration No.GJ-6-BH-5901 suddenly came on wrong side and hit the deceased from his back, resulting into the serious injuries on head and on chest, causing death. It is further contended by the original claimants that at the time of the accident, the driver conducted in negligent manner violating the traffic rules and endangering the human life.
5.1 The criminal complaint was also lodged against the driver of the vehicle vide C.R. No.I-197 of 2009 registered with Vaghodiya Police Station. It was further contended that the deceased was studying in first year of P.T.C. and was on picnic on the fateful day, while he met with the accident and succumbed to the injuries. Page 3 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023
NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined 5.2 It was further contended that the deceased though studying used to assist the family in the agricultural activity and was earning an amount of Rs.10,000/- every month. The claim of an amount of compensation of Rs.6 Lakhs was raised seeking compensation under different heads.
5.3 The claim petition was presented on 27.07.2010. In response to the summons issued by the Tribunal, the opponent No.2-Insurance Company appeared before the Tribunal, whereas the opponent No.1 being the owner of the offending vehicle refused acceptance of the summons vide (Exh.41). Though served, opponent No.1 chose not to contest the claim petition.
5.4 The Insurance Company contested the claim by filing written statement vide Exh.14. At the outset, while admitting the insurance coverage of the offending vehicle, disputed its liability by contending that the driver of the offending vehicle was not holding valid and effective licence on the fateful day of the accident. The specific ground was raised as defence as reflected in Para-6 of the written statement elaborating the submissions by referring to the definition of various terms appearing in Section 3 read with Section 10 of the Motor Vehicles Act. Apart from the aforesaid ground, the Insurance Page 4 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined Company had also disputed the computation of the claim put forward by the original claimants under the different heads. 5.5 Since, the driver of the offending vehicle was not joined as party respondent, a separate application vide Exh.18 was preferred by the Insurance Company to join the driver as party respondent in the original claim petition. The notice sent by the Insurance Company was responded as unserved, which has been placed for consideration on record vide Exh.40. Simultaneously, the Insurance Company had also given separate application vide Exh.19 calling upon the driver as well as the owner of the offending vehicle to produce the licence as on the date of the accident. Since the driver and the owner have not appeared before the Tribunal, the application under Section 170 of the Motor Vehicles Act was filed by the Insurance Company seeking permission of the driver to raise all the contentions available. The aforesaid application came to be allowed by the Tribunal vide order dated 01.09.2017.
5.6 The Tribunal while considering the application of the original claimants under Section 140 of the Motor Vehicles Act, considering the limited aspects to be taken into consideration while dealing with such application, vide order dated 27.07.2018, directed the Insurance Page 5 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined Company to pay Rs.50,000/- to the applicants-original claimants as interim compensation with interest at the rate of 7.5 % per annum. The opponents were jointly and severally held liable to pay such amount of compensation with interest.
5.7 Noticing the pleadings raised by the respective parties, the Tribunal proceeded to frame the issues vide Exh.23(A). The same are reproduced as under:
"(1) Whether the claimants proves that deceased had died due to injuries sustained by him in a vehicular accident occurred on account of rash and negligent driving of the driver of the vehicle involved in the accident?
(2) Whether the claimants are entitled to get compensation? If yes, what amount and from whom?
(3) What award?" 5.8 The evidence of the father of the deceased/original applicant
No.1 namely Lakhmanbhai Ramabhai Barad has come on record vide Exh.24. The opponent No.1 has failed to appear before the Tribunal. The Insurance Company has proceeded to cross-examine the said claimant, however, on limited aspect of negligency, the driver and the earning capacity of the deceased, which was contended by the Page 6 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined claimant to be of Rs.10,000/-.
5.9 To substantiate the grounds of invalid and ineffective licence in order to resist their liability, the Insurance Company has placed on record the copy of licence vide mark 44/1. Later on, the Assistant Inspector of R.T.O, Vadodara has been examined as witness by the Insurance Company, whose evidence has come on record vide Exh.48. The said witness has also laid two documentary evidence on record, which includes the certificate issued by Licensing Authority in the name of the driver of the offending vehicle vide Exh.49 and the computer generated slip, the copy of driving licence in the name of the said driver vide Exh.50.
5.10 In his evidence before the Tribunal, the said witness has submitted that the said licence is issued only for four wheeler (LMV vehicles) and heavy vehicles and not for two wheeler vehicles. In his cross-examination, the said witness has confirmed that the driver was holding licence for transport. In light of the aforesaid evidence, which has been laid by the Insurance Company, the Tribunal while examining the issue of liability, though has arrived at a finding that the driver of the offending vehicle was negligent, which had resulted into the death of son of the original claimants in the accident, however, has Page 7 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined proceeded to exonerate the Insurance Company. 5.11 The reliance was placed upon the various judgments of Hon'ble Supreme Court in cases of (1) Sardari vs. Sushil Kumar reported in 2008 ACJ 1307, (2) United India Insurance Co. Ltd. vs. Sujata Arora and others reported in 2013-ACJ-2129; and (3) National Insurance Co. Ltd. vs. Swaran Singh and other reported in 2004 (2) GLR 989, to hold that at the time of the accident, the driver of the vehicle did not possessed any valid and effective driving licence of two wheeler vehicle. The defence raised by the Insurance Company was duly proved by leading evidence. Hence, considering the ratio of the Hon'ble Supreme Court in the case of Swaran Singh (supra), the Insurance Company was directed to be exonerated from its liability to pay the compensation.
5.12 The original claimants being aggrieved by the aforesaid order have approached before this Court in the present appeal.
6. Learned advocate Mr. Y.J. Patel for the appellants- original claimants and Ms. Kirti Pathak, learned advocate on record for the respondent No.2-Insurance Company were heard at length.
7. The only ground, which is urged by the learned advocate for the Page 8 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined appellants-original claimants, is the issue of holding of valid and effective licence and the consequential liability of Insurance Company to pay compensation.
8. The appellants have placed strong reliance upon the judgment of the Hon'ble Supreme Court in the case of S. Iyyapan vs. United India Insurance Company Limited reported in 2013 (7) SCC 62, wherein the Hon'ble Supreme Court has taken into consideration the judgment of Swaran Singh (supra) and has laid down summary of findings on the issues raised.
8.1 Learned advocate for the appellants has submitted that in the case of S. Iyyapan (supra), the question that arose for consideration before the Hon'ble Supreme Court, was whether the driver who hold licence of driving light motor vehicle used as a commercial vehicle, without obtaining endorsement to drive a commercial vehicle, can be considered to be holding valid and effective licence? The Hon'ble Supreme Court quashed the order of the High Court by holding that grave error of law was committed by the High Court while exonerating the Insurance Company on the ground that the driver was not holding the licence to driver the commercial vehicles. In facts of the case, the Court further observed that there was no breach of any condition of Page 9 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined Insurance Company, which permits the Insurance Company to recover the compensation.
8.2 Lastly, the learned advocate has alternatively urged to pass pay and recovery order against Insurance Company by placing reliance upon the judgment of the Hon'ble Supreme Court in the case of Kulwant Singh vs. Oriental Insurance Company Limited reported in 2015 (2) SCC 186. He has submitted that even in case of accident by a tempo, the direction of payment of compensation was issued and right of recovery was granted by the Tribunal in favour of the Insurance Company. He urged that in absence of the owner and the driver of the offending vehicle and admittedly, when the insurance policy covers the period of accident, the Insurance Company may be directed to compensate the claimants and liberty to recover such amount be directed in favour of the Insurance Company. 8.3 Learned advocate for the appellants- original claimants has placed reliance upon the following authorities:
(1) In the case of S. Iyyapan vs. United India Insurance Company Limited reported in 2013 (7) SCC 62;Page 10 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023
NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined (2) In the case of Kulwant Singh vs. Oriental Insurance Company Limited reported in 2015 (2) SCC 186;
(3) In the case of National Insurance Co. Ltd. vs. Smt. Kusum Rai & Ors. reported in 2006(2) GLH 15; (4) In the case of Pappu vs. Vinod Kumar Lamba reported in 2018 (3) SCC 208;
(5) In the case of New India Insurance Co. Ltd. vs. Heirs of Decd. Sandhya @ Hema Ramananoj & Ors. delivered in First Appeal No.3510 of 2012 decided on 22.03.2021;
(6) In the case of The United India Insurance Co. Ltd. vs. Gamirbhai @ Gamirabhai @ Gambhirbhai @ Gemarbhai Panglabhai Meda delivered in First Appeal No.2645 of 2020 with Civil Application (For Stay) No.01 of 2020 on 28.06.2021.
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9. On the other hand, the aforesaid submissions of the learned advocate for the original claimants-appellants herein have been vehemently objected by the learned advocate Ms. Kirti Pathak appearing for the respondent-Insurance Company. 9.1 At the outset, learned advocate for the Insurance Company has invited my attention to the relevant provisions appearing under the Motor Vehicles Act. The attention of this Court was invited to the definition of the various terms provided under the Act, to contend that the different categories of vehicles appearing under Section 10 of the Act i.e. "light motor vehicle" and "motorcycle", are required to be treated separate and distinct for the purpose of holding of authority to drive the same. Learned advocate has submitted that even if a person knows how to drive a "light motor vehicle", does not mean that he also knows how to drive the "motorcycle". 9.2 Learned advocate has further referred to Section 10 of the Act, which prescribes the issuance of driving licence as against different categories of vehicles. She has further submitted that Section 3 of the Act strictly prohibits driving of a motor vehicle at public place without any effective driving licence authorizing him to drive the particular category of vehicle.
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NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined 9.3 The attempt was made to distinguish the transport vehicles and non-transport vehicles categories, to emphasize on the fact of the issuance of authorization as per 18(1) and 18(4) of the Gujarat Motor Vehicles Rules. By referring to the aforesaid provisions, she has further contended that in fact, it was the responsibility of the owner of the motor vehicle to see to it that there is no contravention of Sections 3 and 4 while permitting any person to drive his vehicle. 9.4 By referring to the aforesaid provisions, she has submitted that necessary steps were taken by the Insurance Company before the Tribunal to join the driver of the offending vehicle and to call upon the respective parties to place on record the licence in force on the date of accident. Even in absence of the driver and the owner of the offending vehicle, the Insurance Company has successfully brought on record the vital documents in support of their case that the driver of the offending vehicle was not possessing any valid and effective licence on the date of the accident.
9.5 Lastly, the attention of this Court was invited to the relevant observations of the Tribunal and has submitted that no error can be attributed to the Tribunal in exonerating the Insurance Company, in light of the evidence, which has come on record. Page 13 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023
NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined 9.6 Learned advocate for the respondent-Insurance Company has placed reliance upon the following authorities:
(1) In the case of M/s. Bajaj Alliance General Insurance Co. Ltd. vs. Rambha Devi & Ors. reported in 2022 LiveLaw (SC) 270;
(2) In the case of N.K. Sadashivappa vs. The Branch Manager, M/s. Bajaj Allianz General Insurance Co. Ltd. & Anr. delivered in Civil Appeal No.1786 of 2023 decided on 20.03.2023;
(3) In the case of National Insurance
Company Limited through Its Ahmedabad
Regional Office vs. Babulal Mohanbhai Vala & 3 others delivered in R/First Appeal No.529 of 2012 and allied matters decided on 03.10.2022; and (4) In the case of Oriental Insurance Co. Ltd.
vs. Zaharulnisha and Ors. reported in (2008) 12 SCC
385.
10. This Court, vide order dated 08.11.2023, had reserved the Page 14 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined matter for orders and had also permitted the learned advocates on record to submit the written submissions along with the authorities in support of their case. The same has been placed on record by the respective learned advocates.
ANALYSIS:
11. Having heard the learned advocates appearing for the respective parties and upon perusal of the record & proceedings, the question, which arose for consideration is:
" Whether in the facts of the case, the Tribunal was justified in exonerating the Insurance Company from reimbursing the compensation to the original claimants?"
12. The aforesaid issue is required to be examined, in light of the facts that, whether the driver of the offending vehicle was holding licence of light motor vehicle and the transport vehicle, can be considered to possess the licence to drive the motorcycle at the time of the accident. In this regard, I have carefully examined two vital documents, which has emerged on record, as laid by the Insurance Company, (1) certificate issued by the Licensing Authority, Vadodara in Page 15 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined the name of the driver of the offending vehicle (Exh.49); and (2) the computer generated copy of extract of driving licence of driver of the offending vehicle (Exh.50).
13. On appreciation of the aforesaid documents, it is evident that the driver of the offending vehicle was issued licence for Light Motor Vehicle (L.M.V.). The date of issuance of such certificate is referred as 05.11.1996. The validity period of the aforesaid licence is shown as 15.12.2009 to 14.12.2012.
14. Indisputably, the accident had taken place on 10.10.2009. Again the extract of driving licence produced vide Exh.50 goes to indicate the period of the aforesaid driving licence in the category of non- transport vehicle is mentioned as 15.12.2012 to 31.01.2025 and for transport vehicle, it is mentioned as 14.12.2015 to 14.12.2018. Under the head of the transaction history, the date of renewal of driving licence, the endorsement date of renewal of driving licence is mentioned as 21.12.2012, whereby the validity period is extended in case of non-transport to 31.01.2025 and for transport up to 14.12.2015. On close examination of the aforesaid evidence, no material has been brought on record to indicate the existence of the effective licence to drive motorcycle i.e. on the date of the accident. Page 16 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023
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15. Having noticed so and considering the arguments canvassed by the learned advocate for the appellants, more particularly, the summary of findings of the Hon'ble Supreme Court in the case of S. Iyyapan (supra), there cannot be any dispute to the legal position that burden is upon the Insurance Company to prove his case with regard to breach of terms of policy to resist the liability of payment of compensation. Relevant observations of the Hon'ble Supreme Court in the case of S. Iyyapan (supra) are as under:
"14. In the case of National Insurance Co. Ltd. v. Swaran Singh & Ors., (2004) 3 SCC 297, a 3-Judge Bench of this Court held as under:-
"47. If a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have no licence for driving another type of vehicle which is of the same category but of different type. As for example, when a person is granted a licence for driving a light motor vehicle, he can drive either a car or a jeep and it is not necessary that he must have driving licence both for car and jeep separately.
48. Furthermore, the insurance company with a view to avoid its liabilities is not only required to show that the conditions laid down under Section 149(2)(a) or (b) are satisfied but is further required to establish that there has been a breach on the part of the insured. By reason of the provisions contained in the 1988 Act, a more extensive remedy has been conferred upon those who have obtained judgment against the user of a vehicle and after a Page 17 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined certificate of insurance is delivered in terms of Section 147(3). After a third party has obtained a judgment against any person insured by the policy in respect of a liability required to be covered by Section 145, the same must be satisfied by the insurer, notwithstanding that the insurer may be entitled to avoid or to cancel the policy or may in fact have done so. The same obligation applies in respect of a judgment against a person not insured by the policy in respect of such a liability, but who would have been covered if the policy had covered the liability of all persons, except that in respect of liability for death or bodily injury.
xxx xxx xxx
73. The liability of the insurer is a statutory one. The liability of the insurer to satisfy the decree passed in favour of a third party is also statutory.
xxx xxx xxx
110. The summary of our findings to the various issues as raised in these petitions is as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third-party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) An insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Page 18 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licenced driver or one who was not disqualified to drive at the relevant time.
(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish "breach" on the part of the owner of the vehicle;
the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the Page 19 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach"
to allow defences available to the insurer under Section 149(2) of the Act.
(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The Claims Tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the Tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between the insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in Page 20 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub- section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal.
(xi) The provisions contained in sub-section (4) with the proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims Page 21 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined inter se might delay the adjudication of the claims of the victims."
15. In the case of National Insurance Co. Ltd. v. Kusum Rai and Others, (2006) 4 SCC 250, the respondent was the owner of a jeep which was admittedly used as a taxi and thus a commercial vehicle. One Ram Lal was working as a Khalasi in the said taxi and used to drive the vehicle some times. He had a driving licence to drive light motor vehicle. The taxi met with an accident resulting in the death of a minor girl. One of the issues raised was as to whether the driver of the said jeep was having a valid and effective driving licence. The Tribunal relying on the decision of this Court in New India Assurance Co. v. Kamla (supra) held that the insurance company cannot get rid of its third party liability. It was further held that the insurance company can recover this amount from the owner of the vehicle. Appeal preferred by the insurance company was dismissed by the High Court. In appeal before this Court, the insurance company relying upon the decision in Oriental Insurance Co. Ltd. v. Nanjappan, 2004 (13) SCC 224 argued that the awarded amount may be paid and be recovered from the owner of the vehicle. The Insurance Company moved this Court in appeal against the judgment of the High Court which was dismissed."
16. In light of the aforesaid observations and in fact of the present case, the breach of the policy condition i.e. invalid and effective driving licence as contained in Sub-Section (2)(a)(i) of Section 149 of Page 22 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined the Act has to be proved, to have been committed by the insured for avoiding liability of the insurer. It is for the Insurance Company to prove that the insured was guilty of negligence and had failed to exercise reasonable care in fulfilling the aforesaid condition of the policy with regard to use of the vehicle by a duly licenced driver. The burden is upon the Insurance Company to establish the aforesaid fact by leading cogent material, even where the insurer has proved the fact of breach of policy condition. The further burden is placed on the Insurance Company to establish the fact that such breach of condition of driving licence had contributed to the cause of the accident. Thus, as laid down by the Hon'ble Supreme Court, the Tribunals are expected to interpret policy conditions in light of the aforesaid provision to find out as to whether "fundamental breach" was there, to allow such defence to be raised by the insurer.
17. For the purpose of the determination of the above issue, it would be germane to look into the relevant provisions of the Motor Vehicles Act. In the Act itself, the various terms appearing in different provisions are defined under Section 2 "Definitions".The same are reproduced as under:
"(9) "driver" includes, in relation to a motor vehicle which is Page 23 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined drawn by another motor vehicle, the person who acts as a steersman of the drawn vehicle;
(10) "driving licence" means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description;
(21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 1 [7500] kilograms;
(25) "motorcab" means any motor vehicle constructed or adapted to carry not more than six passengers excluding the driver for hire or reward;
(26) "motor car" means any motor vehicle other than a transport vehicle, omnibus, road-roller, tractor, motor cycle or invalid carriage;
(27) "motor cycle" means a two-wheeled motor vehicle, inclusive of any detachable side-car having an extra wheel, attached to the motor vehicle;
(29) "omnibus" means any motor vehicle constructed or adapted to carry more than six persons excluding the driver;
Section 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 him authorising Page 24 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined him to drive the vehicle; and no person shall so drive a transport vehicle [other than 3 [a motor cab or motor cycle] hired for his own use or rented under any scheme made under sub-section (2) of section 75] unless his driving licence specifically entitles him so to do. (2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.
Section 5. Responsibility of owners of motor vehicles for contravention of sections 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 or section 4 to drive the vehicle.
Section 10. Form and contents of licences to drive.--(1) Every learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.
(2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:--
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) 2 [Adapted vehicles]
(d) light motor vehicle;
2 [(e) transport vehicle;]
(i) road-roller;Page 25 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023
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(j) motor vehicle of a specified description. Section 11. Additions to driving licence.--(1) Any person holding a driving licence to drive any class or description of motor vehicles, who is not for the time being disqualified for holding or obtaining a driving licence to drive any other class or description of motor vehicles, may apply to the licensing authority having jurisdiction in the area in which he resides or carries on his business in such form and accompanied by such documents and with such fees as may be prescribed by the Central Government for the addition of such other class or description of motor vehicles to the licence.
(2) Subject to such rules as may be prescribed by the Central Government, the provisions of section 9 shall apply to an application under this section as if the said application were for the grant of a licence under that section to drive the class or description of motor vehicles which the applicant desires to be added to his licence.
Rule 18(1) and 18(4) of the Gujarat Motor Vehicles Rules, 1989 are reproduced as under:
18. Grant of authorization to drive a transport vehicle.- (1) No person shall drive a transport vehicle unless an authorization in the driving licence shall have been granted by the licensing authority.
(4) The holder of a driving licence may at any time apply to the licensing authority in Form T.V.A. for the grant of Page 26 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined authorization to drive a transport vehicle. Such application shall be accompanied by - (a) a report of moral character obtained from the police station or the Gazetted officer or Sarpanch of Gram Panchayat or President of Municipal Borough or President of Municipality or Councilor of Municipality Corporation or Member of Legislative Assembly or Member of Parliament of the area in which the applicant resides; (b) a proof of educational qualification as may have been prescribed by the Central Government under sub-section (4) of section 9; (c) a fee for test, prescribed under rule 6."
18. This Court in the case of National Insurance Company Limited through Its Ahmedabad Regional Office vs. Babulal Mohanbhai Vala& 3 others delivered in R/First Appeal No.529 of 2012 and allied matters, had an occasion to examine the aforesaid provisions in light of the issue of holding valid and effective licence to drive the motorcycle. The Court has held as under:
"9. As per Section 2(10) of the Act, "driving licence" means the licence issued by the competent authority under Chapter II, authorizing the person specific therein to drive a motor vehicle of any specified class or description. As per Section 2(27) "motor cycle" means two-wheeled motor vehicle inclusive of any detachable side-car attached to the motor vehicle. As per Section 2(28) "motor vehicle" adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and Page 27 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding[twenty-five cubic centimeters].
9.1. Therefore, in my opinion when the motorcycle has been specifically defined under the Act and in view of Section 2 (10) when a stipulation is made that driving licence means the licence issued by the competent authority authorizing the person specified in the driving licence, to drive a motor vehicle of any specified class or description, a general meaning to a motor vehicle cannot be made applicable to hold the driving licence as valid and effective licence. In other words, once the "driving licence", "motorcycle" and "motor vehicle" or "vehicle" has been defined under the Act, a specific meaning in this regard is to be given to the phrases used in the section. The conjoint reading of all the three definitions makes it clear that a specific licence, authorised by the competent authority to drive the motor vehicle of a specific class or description is the requirement of the Section to describe valid and effective licence.
10. Section 3 of the Act, refers to necessity of driving licence. It stipulates that no person shall drive a motor vehicle, in any public place unless, he holds effective driving licence issued to him, authorising him to drive that vehicle.
Section 10 of the Act, refers to the Form and contents of licence to drive. Section 10, sub section (2), clause (a) and (b) of the act, states that the driving licence shall also be expressed as entitling holder to drive a motor-vehicle of one or more of the classes, where clause (a) classifies motor Page 28 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined cycle without gear and clause (b) classifies motorcycle with gear. Therefore, in my opinion, conjoint reading of section 3 with section 10 (2) mandates the driver to hold licence to drive motor cycle with or without gear. Moreover, a driver is not stated to have valid and effective licence if he does not possess the same for the class of vehicle which he is to drive."
19. Upon cumulative reading of the aforesaid provisions of the Act, it is incumbent upon a person driving a motor vehicle in any public place to hold a valid and effective driving license issued to him by the competent authority for each of the specified categories appearing under Section 10 of the Act. The plain language of the aforesaid provision and the distinct categories specified herein, being defined under the Act, clearly reflects the intention of legislation. The aforesaid view is fortified from the procedure envisaged under Section 11 of the Act permitting the holder of license of a particular class or description of motor vehicle, to apply for addition of other class or description of motor vehicle. Further considering the definition of the term "light motor vehicle" as provided under Section 2(21) of the Act, I am of the view that the class or category of vehicle of "motorcycle" cannot be treated as inclusive in category of "light motor vehicle". In such circumstances, the skills of the driver to drive vehicle of class of "motorcycle" are bound to be tested by competent Page 29 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined authority to issue such licence or authorization to drive such class of vehicle. In absence of such licence or authorization, there cannot be presumption of such fact that the driver is competent to drive "motorcycle" though holding valid and effective licence for driving "light motor vehicle".
20. In light of the aforesaid interpretation of the various provisions referred to above, indisputably, the certificate of the driving licence brought on record by the Insurance Company if examine in light of the evidence of the RTO Inspector at Exh.48, clearly goes to indicate that the driver of the motorcycle was not holding any valid or effective licence to drive the motorcycle. In absence of any endorsement being made on the driving licence, the close examination of the driving licence goes to indicate that the driver was holding licence to drive "light motor vehicle" and "transport vehicle" for relevant period and not "motorcycle".
21. Having held so, thus, in absence of any valid and effective licence to drive the motorcycle, the driver and the owner of the offending vehicle committed not only breach of condition of policy issued by the Insurance Company but also had violated the statutory provision of Section 10 of the Motor Vehicles Act. Page 30 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023
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22. In such circumstances, considering Section 149 of the Act, I am of the view that the learned Tribunal has rightly not held respondent- Insurance Company liable to pay compensation.
23. In the opinion of this Court, the aforesaid breach of the statutory provision amounts to the fundamental breach, which has contributed to the cause of the accident. Having held so the submission of the learned advocate for the appellants to direct the Insurance Company to reimburse the amount of compensation to the original claimant in absence of availability of the driver and the owner of the vehicle, cannot be accepted. There can not be dispute to the settled proposition of the law that Insurance Company cannot flee away of its third party liability. The reliance placed on various decisions, by the learned advocate for the appellants in support of the aforesaid submissions, would not be applicable in the facts of the case, having noticed the fundamental breach of the statutory provision, which has ultimately contributed to the occurrence of the accident. In such circumstances, the alternative submission of learned advocate for the appellants to direct for pay and recovery of compensation against Insurance Company cannot be issued.
24. In light of the aforesaid discussion, the present First Appeal is Page 31 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023 NEUTRAL CITATION C/FA/2375/2023 JUDGMENT DATED: 01/12/2023 undefined hereby dismissed. Notice stands discharged.
25. Record & proceedings be sent back to the concerned Tribunal forthwith.
26. Needless to clarify that amount paid by the Insurance Company under Section 140 of the Act is directed to be retained by the original claimants.
(NISHA M. THAKORE,J) FURTHER ORDER After the order was pronounced, Mr. Y. J. Patel, learned advocate for the appellants has submitted that execution petition filed against the respective opponents is pending consideration. He further submitted that the award passed against the owner is pending adjudication since long. He, therefore, urged this Court that the same may be decided qua the owner in accordance with law without there being influenced by any of the observations made by this Court in the present appeal.
Considering the fact that the original claim petition relates to the year 2010, the concerned Court is directed to expedite the proceedings and to dispose of the same preferably within a period of three months from the date of receipt of the present order.
(NISHA M. THAKORE,J) SUYASH SRIVASTAVA Page 32 of 32 Downloaded on : Fri Dec 01 20:47:37 IST 2023