Jammu & Kashmir High Court
New India Assurance Co. Ltd. vs Sughra Bibi And Ors. on 30 November, 2005
Equivalent citations: I(2007)ACC316
Author: J.P. Singh
Bench: J.P. Singh
JUDGMENT J.P. Singh, J.
1. This Letters Patent Appeal is directed against judgment dated 29th December, 2000 in C.I.M.A. No. 117/96, where by while dismissing the appeal of the appellant, learned Single Judge has upheld the award dated 9th March, 1996 of Motor Accident Claims Tribunal, Jammu.
2. Facts leading to the filing of this Letters Patent Appeal may be summarized thus:
One Noor Haussain was loading milk in cans on to the rooftop of a bus bearing registration No. JK02A 4817, when the driver of the bus, without taking requisite care and caution, drove it rashly and negligently, which resulted in the instantaneous death of said Noor Hussain because of electrocution with over head electric wires.
3. Sughra Bibi-widow of the deceased, Rubla aged 4 years. Tariq Hussain aged 2/2 years and Sadiq Hussain aged 1 year, filed a claim petition, which came to be registered as file No. 125/Claims.
4. The Claims Tribunal raised following issues for deciding the claim petition. These issues read, thus:
1. Whether accident involving death of the deceased has occurred by the use of the offending bus driven rashly and negligently by its driver respondent No. 3?
OPP
2. What is amount of compensation payable to the petitioners and by whom in the event of proof of issue No. 1 in the affirmative?
OPP
3. Whether the offending bus was driven without a valid driving licence and in violation of the terms and conditions of the insurance policy?
OPR-1
4. Relief.
5. The claimants led their widence on the basis whereof issue Nos. 1, 2 and 3 were decided in favour of the claimants in holding that the driver of the vehicle was negligent in driving the vehicle, which resulted in instantaneous death of Noor Hussain, deceased. The claimants were held entitled to an amount of Rs. 2,60,000 along with interest at the rate of 12%.
6. After discussing issue No. 3, in detail, the Tribunal held that the insurance Company cannot escape its liability on the plea that the driver of the offending vehicle did not hold a valid driving licence in his favour. The plea raised by the Insurance Company that the licence though issued in the name of the driver had not been renewed on the date of accident and as such the Insurance Company was absolved of its liability, was found to be without merit.
7. The New India Assurance Company was, thus, directed to satisfy the award.
8. The appellant-Company, filed a Civil 1st Miscellaneous Appeal in this Court putting up the same plea, which it had raised before the Tribunal.
9. Relying on a Division Bench judgment of Madras High Court in Oriental Insurance Co. Ltd. v. Indirani reported as , the learned Single Judge rejected the plea and dismissed the appeal of the Instance Company with costs quantified at Rs. 1,000.
10. Undaunted by the repeated failure of its plea, which appears to have been projected only with a view to protract the litigation and facilitate the filing of appeals one after another, one of the premiere Insurance Companies of the country, ventured again to protract the litigation and aggravated the misery and suffering of those who had been left without a bread winner.
11. Mr. R.K. Gupta, learned Counsel appearing for the New India Assurance Company, canvassed the same old story which the Company had been projecting since 1994, when the claim petition was filed. Mr. Gupta referred to Section 2(10), Section 3 and Section 14 of the Motor Vehicles Act, 1988, to canvass that expression "Duly Licensed" appearing in Section 149(2)(a)(iii) of the Motor Vehicles Act, 1988, would mean 'effective driving licence'. According to Mr. Gupta, non-renewal of a licence of a driver would mean that he is not duly licensed to drive the vehicle, which in turn would be sufficient for an Insurance Company to avoid its liability with the aid of Section 149 of the Motor Vehicles Act, 1988.
12. Mr. R.K. Gupta refers to Oriental Insurance Company Ltd. v. Felix Correa and National Insurance Company Ltd. v. Swaran Singh I (2004) ACC 1 (SC) : (2004) 3 SCC 297, to support his submission.
13. We have considered the submission of Mr. R.K. Gupta, as also the judgments of the Hon'ble Supreme Court of India.
14. Section 2(10) of the Motor Vehicles Act, 1988, does not advance the plea raised by Mr. Gupta, in that, it only defines 'Driving Licence', which means the licence issued by a Competent Authority under Chapter 41 authorising the person specified therein to drive, otherwise than as learner's licence, a motor vehicle or a motor vehicle of any specified class or description. This definition, excludes only a learner's licence from the definition of the driving licence. It does not exclude a person who though possessing a valid driving licence, under Chapter II, has not got it renewed or had got it renewed after the date when its renewal became due.
15. Likewise, Sections 3 and 14 of the Motor Vehicles Act, 1988, also do not provide any assistance to learned Counsel for the appellant.
16. The judgments cited by learned Counsel for the appellant do not deal with a case where the licence of a driver has not been renewed.
17. Learned Counsel for the appellant was repeatedly asked to cite any judgment, which may support his submission that non-renewal of licence for a short or long period Would bring the case of such licensee as an unlicensed person, disabled, as such, to drive a motor vehicle.
18. Judgment cited by Mr. Gupta in support of his submission reported as National Insurance Co. Ltd. v. Swaran Singh (supra), does not support his submission. It, on the other hand, holds in paragraph 44 that words 'Effective Licence' used in Section 3 cannot be imported in words 'Duly Licensed' occurring in Section 149(2) of the Motor Vehicles Act, 1988. It would be profitable to refer this paragraph. Paragraph 44 (of S.C.C.): (Para 39 of A.I.R.) reads, thus:
44. The words "effective licence" used in Section 3, therefore, in our opinion, cannot be imported for Sub-section (2) of Section 149 of the Motor Vehicles Act. We must also notice that the words "duly licensed" used in Sub-section (2) of Section 149 are used in the past tense.
19. In View of what has been held by Hon'ble Supreme Court of India in the above quoted paragraph, we are not inclined to accept the plea of Mr. Gupta that expression 'Effective Licence' is to be kept in view while interpreting expression 'Duly Licensed', occurring in Section 149.
20. The plea of learned Counsel for the appellant, even otherwise, is untenable because the Counsel had additionally sought to bring the case of non-renewal of licence of the driver of a passenger vehicle, in Section 14(2)(a). This the learned Counsel, appears to have done, being conscious of the fact that the case of the appellant in respect of non-renewal of licence of the driver of a passenger vehicle, may not fall in Clause 14(2)(b), because the age of the driver and the date of issue of licence had not been proved by the Insurance Company.
21. In order to appreciate the plea raised by learned Counsel for appellant, we may refer to Section 14 of the Motor Vehicles Act, 1988 which reads, thus:
14. Currency of licences to drive motor vehicles.-
(1) A learner's licence issued under this Act shall, subject to the other provisions of this Act, be effective for a period of six months from the date of issue of the licence.
(2) A driving licence issued or renewed under this Act shall-
(a)in the case of a licence to drive a transport vehicle, be effective for a period of three years:
Provided that in case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus, and
(b)in the case of any other licence,-
(i) if the person obtaining the licence, either originally or on renewal thereof, has not attained the age of fifty years on the date of issue or, as the case may be, renewal thereof,-
(A) be effective for a period of twenty years from the date of such issue or renewal; or (B) until the date on which such person attains the age of fifty years.
(ii) if the person referred to in Sub-clause (i), has attained the age of fifty years on the date of issue or as the case may be, renewal thereof, be effective, on payment of such fee as may be prescribed for a period of five years from the date of such issue or renewal;
Provided that every driving licence shall, notwithstanding its expiry under this sub-section, continue to be effective for a period of thirty days from such expiry.
22. There is no reason for us to accept the argument of Mr. Gupta that a passenger bus would fall within the definition of a 'Transport Vehicle' as contemplated by Section 14(2) of the Motor Vehicles Act, 1988. A plain reading of various clauses of Section 2, would demonstrate that passenger motor vehicles have been specifically defined in Section 2 of the Motor Vehicles Act, whereas 'Transport Vehicles' have been specifically defined in Sub-section (47) of Section 2. A passenger bus cannot, thus, be said to fall in the definition of 'Transport Vehicle' in terms of Section 14 of the Motor Vehicles Act.
23. The plea projected by Mr. Gupta cannot, thus, come to his rescue to support the view that licence of the driver had ceased to be effective in the absence of any proof on records that the driver had attained the age of fifty years on the date of issue or renewal of the licence.
24. We are supported, in taking this view, by a judgment of Hon'ble Supreme Court of India in Ashok Gangadhar Maratha v. Oriental Insurance Co. Limited , wherein it has been observed that:
For a vehicle to be a transport vehicle, it must be a goods carriage which in turn means any motor vehicle constructed or adapted for use solely for the carriage of goods or when not so constructed or adapted used for the carriage of goods. We have the definitions of 'heavy goods vehicle' and 'medium goods vehicle'.
25. Reasons given by the Tribunal as also learned Single Judge, do not warrant acceptance of any view other than the one taken by two Courts. A driver once licensed, continues to possess the ability to drive the vehicle unless it is proved on facts that he has incurred any physical disability to drive the motor vehicle. Non-renewal of his licence would not disable him, as such, to drive the vehicle. Such omission of the driver would, however, entail infraction of the provisions of Motor Vehicles Act, for which he may be appropriately punished under the Act, if his licence is otherwise proved to need renewal under law. Non-effectiveness of his licence would not, however, permit him to be treated as "Not Duly Licensed" under Section 149 of the Motor Vehicles Act.
26. Section 15 of the Motor Vehicles Act, 1988, deals with 'Renewal of driving licences'. We may refer to this section to appreciate the effect of this section on the plea raised by learned Counsel for the appellant. Section 15 reads, thus:
15. Renewal of driving licences.--(1) Any Licensing Authority may, on application made to it, renew a driving 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 afterthe 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 a transport vehicle or where in any other case the applicant has attained the age of forty years, the same shall be accompanied by a medical certificate in the same form and in the same manner as is referred to in Sub-section (3) of Section 8, and the provisions of Sub-section (4) of Section 8 shall, so far as may be, apply in relation to every such case as they apply in relation to a learner's licence.
(2) An application for the renewal of a driving licence shall be made in such form and accompanied by such documents as may be prescribed by the Central Government.
(3) Where an application for 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 such as may be prescribed by the Central Government in this behalf.
(4) Where an application for the renewal of a driving licence is made more than thirty days after the date of its expiry, the fee payable for such renewal shall be such amount as may be prescribed by the Central Government:
Provided that the fee referred to in Sub-section (3) may be accepted by the Licensing Authority in respect of an application for the renewal of a driving licence made under this sub-section if it is satisfied that the applicant was prevented by good and sufficient cause from applying within the time specified in Sub-section (3):
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 referred to in Sub-section (3) of Section 9.
(5) 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 by the Central Government.
(6) Where 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.
27. It is only the fourth proviso appended to the section, which prescribes that if the application for the renewal of driving licence 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 referred to in Sub-section (3) of Section 9.
28. There is no other disabling provision which debars a Licensing Authority to renew the expired driving licence on any prescribed condition of testing the capability of the person to drive a motor vehicle.
29. A person, once found entitled to the issuance of a driving licence, would, thus, continue to be a person able to drive a motor vehicle regardless of the renewal of his driving licence unless five years have elapsed from the date when his existing driving licence has ceased to be effective. In this view of the matter, we find that the non-renewal of licence, within a period of five years from the date of issue or renewal thereof, would not bring such licensee in the definition of 'Not a duly licensed person'.
30. The present case is not based on any such plea that the licence of the driver had not been renewed within a period of five-years from the date of its alleged expiry.
31. The plea raised by Mr. Gupta is, therefore, misconceived which is, accordingly, rejected.
32. No other plea has been raised by Mr. R.K Gupta.
33.This appeal is, accordingly, found to be without any merit. It is, accordingly, dismissed.
34. Facts of the present case, amply demonstrate as to how a premiere Insurance Company of the country has misused the judicial channel to drag a widow and her minor sons and daughter to the highest Court of the State, thereby causing agony, inconvenience besides unnecessary pecuniary loss in arranging money to defend this litigation launched by the Insurance Company. The widow and minors have been deprived of their due for over a period of eleven long years. This is a fit case where the claimants need to be substantially compensated by awarding litigation expenses in their favour.
35. We, accordingly, while dismissing the appeal, burden the Insurance Company to pay an amount of Rs. 50,000 (Rupees fifty thousand only) as litigation expenses/costs to the claimants-respondents.