Himachal Pradesh High Court
New India Assurance Co. Ltd. vs Dharmu And Ors. on 21 April, 2004
Equivalent citations: 2005ACJ1149
Bench: Lokeshwar Singh Panta, Arun Kumar Goel
JUDGMENT V.K. Gupta, C.J.
1. The following question of law has been referred to this Full Bench of three Judges by a Division Bench of this court vide order dated 13.8.2002 passed in F.A.O. No. 74 of 1998 and in ninety-two other connected matters:
"When a person is holding an effective driving licence within the meaning of Sections 2(47), 3(1) and 10(2)(e) of Motor Vehicles Act, 1988, whether such a licence still needs an endorsement authorising him to drive a particular type of vehicle as has been held in the decision of the Division Bench of this court reported in the case of New India Assurance Co. Ltd. v. Suraj Parkash, 2001 ACJ 85 (HP)?"
2. Shorn of all unnecessary details and without going into the facts of individual cases, suffice it to say that the only issue which falls for our consideration in this reference is about the validity of a driving licence in the light of a specific provision of law contained in Sub-section (2) of Section 149 of the Motor Vehicles Act, 1988 ('Act' for short), whereby an insurer (insurance company) as is referred in Sub-section (1) of Section 149 of the Act is entitled to defend action against it on any of the grounds mentioned in Sub-section (2) of Section 149 and one of the grounds mentioned being the condition excluding driving of a motor vehicle by a person who is not 'duly licensed' to drive such a vehicle. For ready reference, the relevant extract of Sub-section (2) of Section 149 is reproduced as under:
"(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely--
xxx xxx xxx
(ii) 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; or xxx xxx xxx"
3. Who is a person 'duly licensed'?
Driving licence has been defined in Section 2(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;"
4. Section 3 of the Act stipulates that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence. It reads as under:
"3(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle (other than 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."
5. Section 10 of the Act relates to the Form and the contents of the licence to drive. For ready reference it shall be advantageous to reproduce this section which reads thus:
"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) invalid carriage;
(d) light motor vehicle;
(e) transport vehicle;
(i) road-roller;
(j) motor vehicle of a specified description."
6. As has been noticed, what has been defined in the Act is a mere driving licence and not an 'effective' driving licence, whereas in Section 3 of the Act the expression used is that no person shall drive a motor vehicle in any public place unless he holds an 'effective' driving licence. An effective driving licence, though not specifically defined in the Act, can be construed to mean a licence which is not only valid and enforceable as on the date of the occurrence or mishap (at a point of time when the vehicle is being driven at that particular date and time) in the sense that its validity or life has not expired, but also that it has validly been issued in favour of the person concerned by the licensing authority authorising him to drive a particular type of vehicle which he has actually been driving as on the date of the accident and which is involved in the accident.
7. Various types of vehicles are in use on the roads of our country, and almost all of them have been defined, as far as possible, in Section 2 of the Act. For our purpose, the following definitions can be taken note of.
Transport vehicle has been defined in Section 2(47) of the Act which reads as under:
"2(47) 'transport vehicle' means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle."
Public service vehicle has been defined in Section 2(35) of the Act and reads as under:
"2(35) 'public service vehicle' means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage and stage carriage."
Heavy passenger motor vehicle has been defined in Section 2(17) of the Act and reads thus:
"2(17) 'heavy passenger motor vehicle' means any public service vehicle or private service vehicle or educational institution bus or omnibus the gross vehicle weight of any of which, or a motor car the unladen weight of which, exceeds 12000 kilograms."
8. Undoubtedly as on the date of the accident in the present case the driver was driving a 'heavy passenger motor vehicle' in the sense that it was a bus with a stage carriage permit and the gross weight of the bus (or its unladen weight) exceeded 12000 kg. Actually it is conceded that the driver of the offending vehicle was possessed of a driving licence which carried an endorsement that he was entitled to drive a 'transport vehicle'.
9. Rule 16 of Central Motor Vehicles Rules, 1989 provides that every driving licence issued or renewed by a licensing authority shall be in Form 6. Form 6 appended to 1989 Rules does lay down that the holder of the driving licence which has been issued to him in Form 6 is licensed to drive the types of vehicles of the description mentioned therein and 'transport vehicle' is one of such vehicles which finds a definite place in the list of such vehicles in Form 6 appended to the aforesaid 1989 Rules.
10. The short question, therefore, which falls for our consideration in this case is when a person is possessed of a driving licence validly issued to him in terms of Form 6 appended to 1989 Rules, based on Rule 16 of 1989 Rules and issued under the power vesting in the licensing authority under Section 10 of the Act for driving a 'transport vehicle', should he be considered to be possessed of a valid licence or, as the expression used in Section 149(2)(ii) 'is he duly licensed' to drive, and the answer to this question has to be in the affirmative, because once such a person has been authorised and entitled to drive a 'transport vehicle', undoubtedly a bus falling in the definition of a 'public service vehicle' would be a 'transport vehicle' and if we enlarge the scope of 'transport vehicle', any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward including a stage carrier would be within the definition of a 'public service vehicle' and by applying this definition we can see that a 'heavy transport vehicle' would also be included in the definition of public service vehicle and correspondingly it would be a 'transport vehicle'.
11. Reliance placed on the judgment of the Supreme Court in the case of National Insurance Co. Ltd. v. Swaran Singh, 2004 ACJ 1 (SC), makes no difference to the conclusion arrived at by us because even in the aforesaid judgment, their Lordships of the Apex Court while dealing with the topic "when the person has been granted licence for one type of vehicle but at the relevant time he was driving another type of vehicle" observed as under:
"(82) Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables Central Government to prescribe the forms of driving licences for various categories of vehicles mentioned in Sub-section (2) of said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are (a) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) transport vehicle; (f) road-roller; and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in Sub-section (2) of Section 10. They are 'goods carriage', 'heavy goods vehicle', 'heavy passenger motor vehicle', 'invalid carriage', 'light motor vehicle', 'maxicab', 'medium goods vehicle', 'medium passenger motor vehicle', 'motorcab', 'motor cycle', 'omnibus', 'private service vehicle', 'semi-trailer', 'tourist vehicle', 'tractor', 'trailer' and 'transport vehicle'. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal. A person possessing a driving licence for 'motor cycle without gear', for which he has no licence. Cases may also arise where holder of driving licence for 'light motor vehicle' is found to be driving a 'maxicab', 'motorcab' or 'omnibus' for which he has no licence. In each case on evidence led before the Claims Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.
(83) We have construed and determined the scope of Sub-clause (ii) of Sub-section (2) (a) of Section 149 of the Act. Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches or inconsequential deviation in the matter of the use of vehicles. Such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties."
12. Sub-section (1) of Section 3 of the Act suggests that even though a person has been issued an effective driving licence authorising him to drive a vehicle, such a person, despite such an authorisation (through the medium of being issued such an effective driving licence to drive a vehicle), shall not drive (meaning thereby, he is not entitled to drive) a 'transport vehicle' unless his driving licence specifically entitles him to do so. A harmonious construction of Sub-section (1) of Section 3 of the Act read with Section 2(47), Sub-section (2)(e) of Section 10 and also read with Form No. 6 as well as Rule 16 of 1989 Rules, will enable us to reach the irresistible conclusion that if a driving licence in Form 6 actually entitles the holder of such a licence to drive a motor vehicle which is of the description of a 'transport vehicle', this by itself should be a valid enough entitlement of such a person to drive any 'transport vehicle' and there is no need whatsoever of such a person requiring any specific, or any other, or additional endorsement, authorising him to drive either a 'public service vehicle' as is mentioned in Section 2(35) or for that matter a 'heavy passenger motor vehicle' as is mentioned in Section 2(17) because by permitting him to drive a 'transport vehicle', the licensing authority, knowing that 'transport vehicle' includes a 'public service' as well as a 'heavy passenger motor vehicle', he authorises, entitles and permits him to drive a 'transport vehicle' keeping the aforesaid aspects in mind.
13. The language employed in Sub-section (2) of Section 10 also clearly suggests that the driving licence as is issued by the licensing authority shall also be construed as entitling the holder to drive a motor vehicle of one or more of the classes mentioned in Sub-section (2) (supra) and a 'transport vehicle' finding a mention at Clause (e) of Sub-section (2), the intention becomes still more amply clear. If there was any doubt left, this should also set at rest when we reproduce the relevant extract of Form 6 which clearly uses the language that the holder is licensed to drive the vehicles of the description mentioned in Form 6, which 'description' includes a 'transport vehicle'. The relevant extract of Form 6 is reproduced as hereinbelow:
"xxx xxx xxx The holder of this licence is licensed to drive throughout India vehicles of the following description:
Motor cycle without gear Motor cycle with gear Invalid carriage Light motor vehicle Transport vehicle xxx xxx xxx"
(Emphasis supplied) Form 6 undoubtedly is a statutory form because Sub-rule (1) of Rule 16 does specifically lay down that every driving licence issued by a licensing authority shall be in Form 6. Sub-rule (1) of Rule 16 is reproduced hereinbelow for ready reference, which reads thus:
"16(1) Every driving licence issued or renewed by a licensing authority shall be in Form 6."
14. Adopting the aforesaid harmonious construction, therefore, interspersed as it is by reading all the aforesaid provisions of the Act together, in conjunction with each other, rather than reading them in isolation, or separately, independent of each other, we can perhaps also venture to observe that the expression "unless his driving licence specifically entitles him so to do" occurring in Sub-section (1) of Section 3 of the Act can only lead to one interpretation and that is, if a person already is in possession of a driving licence authorising him to drive a vehicle, other than a transport vehicle, he cannot be permitted to drive a transport vehicle unless, as per Form 6 and in terms of Rule 16 of 1989 Rules, the driving licence additionally authorises and entitles him to drive a transport vehicle, in addition to any other type of vehicle for which he might have already been licensed/ authorised to drive. If, however, the only licence that he possesses is to drive a transport vehicle, or in other words such a person is already possessed of a licence which entitles/authorises him to drive a transport vehicle, there is no question of any additional entitlement or authorisation and in such an eventuality the aforesaid expression "unless his driving licence specifically entitles him so to do" occurring in Sub-section (1) of Section 3 of the Act would be rendered otiose and be treated as such.
15. Viewed in the aforesaid perspective and the legal background, the answer to the question posed to us by the Division Bench, viz., whether such a person who is already possessed of an effective driving licence, authorising him to drive a transport vehicle needs any additional endorsement authorising him to drive a particular type of vehicle, will be that, insofar as all types of vehicles falling within the definition of 'transport vehicle' are concerned, in the light of the aforesaid observations made by us, such a licence does not need any other or additional endorsement nor such a person needs any further, other or additional entitlement or authorisation to drive any vehicle which comes within the definition and scope of the term 'transport vehicle' as occurring in Section 2(47), encompassing within itself all the attributes of such definition, including Sub-sections (17) and (35) of Section 2 of the Motor Vehicles Act.
16. Because of the observations of their Lordships in National Insurance Co. Ltd. v. Swaran Singh, 2004 ACJ 1 (SC) and a very clear exposition of law as has now been laid down by us in this judgment, we feel that we need not express any comment with respect to the Division Bench judgment of this court in New India Assurance Co. Ltd. v. Suraj Parkash, 2001 ACJ 85 (HP), especially when at the Bar there was a very strong dispute with respect to the factual aspects involved in the aforesaid Division Bench case, viz., whether the vehicle involved in the accident was a light motor vehicle (LMV) or a light transport vehicle (LTV).
17. Reference is answered accordingly. Based on this answer, individual cases shall now be dealt with by the appropriate Benches.