Kerala High Court
Govindankutty Nair vs Gopalakrishnan And Ors. on 10 November, 1999
Equivalent citations: II(2000)ACC746, 2001ACJ501, 2000 A I H C 575, (1999) 2 KER LJ 1079, (2000) 1 KER LT 224, (2000) 2 TAC 769, (2000) 2 RECCIVR 647, (2000) 2 ACC 746, (2001) 1 ACJ 501
Author: D. Sreedevi
Bench: D. Sreedevi
JUDGMENT K.K. Usha, J.
1. This is an appeal at the instance of the owner of the offending vehicle. The main contention raised in this appeal is that the Tribunal has committed an error in absolving the insurance company from the liability on the ground that the driver of the vehicle was not having proper licence to drive the offending vehicle, namely, the autorickshaw.
2. The insurance company had taken a specific contention before the Tribunal that the driver was not having a proper licence to drive the transport vehicle. In spite of the fact that an application made by the insurance company seeking direction to produce the driving licence of the driver was allowed, it was not produced before the Tribunal and, therefore, adverse inference was drawn against the respondents. Before this court C.M.P. No. 5759 of 1999 was filed producing photocopy of the driving licence of the respondent No. 2 before the Tribunal. Pursuant to a direction issued by this court learned Government Pleader got down the entire files from the office of the Regional Transport Authority at Ottappalam, regarding the licence issued to the driver of the offending vehicle. It is seen that he was granted authorisation to drive transport vehicle only with effect from 18.11.1992. The badge was also given to him on that date. Therefore, it has to be taken that at the time of the accident he was not authorised to drive a transport vehicle, definition of which will take in an autorickshaw also.
3. Learned counsel appearing for the appellant contended that the provision regarding issue of badge authorising a person to drive a transport vehicle is only directory and not mandatory. Under Rule 10 of the Kerala Motor Vehicles Rules, 1961 which were in force at the time of the accident, an application for grant of an authorisation to drive transport vehicles shall be made to the licensing authority in form 'LTA' and shall be accompanied by the driving licence and certain other certificates. Rule 16 provides for summoning the applicant to appear for an oral test to ascertain whether he is conversant with the duties and responsibilities, etc., of the driver of a transport vehicle. Experience for a period of one year immediately prior to date of application shall not be necessary in the case of an applicant for authorisation to drive an autorickshaw. Rule 18 provides that licensing authority granting an authorisation shall issue a driver's badge to the applicant on payment of the prescribed fee, endorse the driving licence accordingly and return the driving licence to the holder thereof along with the badge issued. The term 'transport vehicle' is defined under Section 2 (33) of the Motor Vehicles Act, 1939, as a public service vehicle or a goods vehicle. Therefore, the autorickshaw which was being driven by the respondent No. 2 before the Tribunal would come within the definition of transport vehicle. In order to drive such a transport vehicle the respondent No. 2 must be having the authorisation evidenced by the badge.
4. In the nature of the provisions contained under the above mentioned Rules we cannot accept the contention taken by the appellant that the requirement of a badge is only directory and not mandatory. The document produced by the appellant along with C.M.P. No. 5759 of 1999 would clearly show that the respondent No. 2 obtained an authorisation to drive a transport vehicle only on 18:11.1992. The original records produced from the licensing authority, Ottappalam also would show the above fact. It is not disputed before us that the requirement of proper licence for the driver of the vehicle is a condition of the policy Exh. B-3. Section 96 (2) of the Motor Vehicles Act, 1939 provides for the grounds of defence that are available to the insurance company. Sub-section (2) (b) (ii) would enable the insurance company to get exonerated from the liability, if a condition excluding driving by a person who is not duly licensed has been violated.
5. In United India Insurance Co. Ltd. v. Gian Chand 1997 ACJ 1065 (SC), the Apex Court has taken the view that when the vehicle is driven by an unlicensed driver, the insurance company gets exonerated from its liability to third party. The exception to the above rule is only when the owner has entrusted the vehicle with a licensed driver and who in turn without the permission of the owner allowed another person without licence to drive the vehicle. A reading of the later decision of the Supreme Court in Rukmani v. New India Assurance Co. Ltd. 1999 ACJ 171 (SC), also would clearly show that if it is proved that the driver was not having valid driving licence the insurance company can take advantage of the provisions contained under Section 96 (2) (b) (ii) of the Motor Vehicles Act, 1939. It has to be noted that a provision similar to the proviso to subsection (4) of Section 149 of the Motor Vehicles Act, 1988 was not available under Section 96 of the 1939 Act. Therefore, all the other decisions relied on by the learned counsel for the appellant arising in 1988 Act have no application to the facts of this case. We, therefore, find no merit in the contention that the Tribunal has wrongly absolved the insurance company of its liability.
6. Certain contentions were raised by the appellant on the quantum of compensation. The claimant-respondent has filed a cross-objection seeking enhancement of compensation. We do not find any merit in the contentions raised by both sides. On examining the award passed by the Tribunal, we find that the compensation granted under different heads is quite just and reasonable. There is no reason to interfere with the quantum of compensation fixed by the Tribunal.
7. In the result, the appeal fails and it stands dismissed.