Karnataka High Court
The New India Assurance Co Ltd, vs Sri Basavanthappa on 14 June, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
MFA.No.4884 OF 2008 (MV)
BETWEEN:
The New India Assurance Co.Ltd.,
Davanagere Branch,
Through its Regional Office,
Unity Building Annexe,
Mission Road,
Bangalore-560 027.
Represented by its Assistant Manager,
Sri.C.R.Subramanya. ....Appellant
[By Sri.B.C.Seetharama Rao, Advocate]
AND:
1. Sri.Basavanthappa,
S/o Late Dasobappa,
Aged about 53 years.
2. Smt.Sarojamma,
W/o Basavanthappa,
Aged about 51 years.
Both are Residing at
Nittuvalli, New Extension,
4th Main, 2nd Cross,
Davanagere.
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3. Sri.O.G.Shantharaj,
S/o O.G.Basappa,
Aged about 43 years,
Residing at Daginakatte Village,
Channagiri Taluk,
Davanagere District.
(Driver of the Tempo Trax).
4. Sri.G.Mallikarjuna,
S/o G.Basappa,
Aged about 47 years,
Residing at Daginakatte Village,
Channagiri Taluk,
Davanagere District.
(Owner of Tempo Trax) ...Respondents
[By Sri.D.L.Suresh, Advocate for R-3 & R-4;
Notice to Respondent Nos. 1 & 2 are held sufficient
Vide order dated 14.2.2012]
This Miscellaneous First Appeal is filed under
Section 173 (1) of MV Act, against the judgment and
award dated 8.2.2008 passed in MVC No.945/2006 (Old
MVC No.487/2006) on the file of the Additional
Sessions Judge and Member, Additional Motor Accident
Claims Tribunal, Presiding Officer, Fast Track Court-I,
Davanagere, awarding a compensation of Rs.4, 56,000/-
with interest at 6% per annum from the date of petition
till realisation.
This Appeal coming for hearing on this day, the
court delivered the following:
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JUDGMENT
Short question involved in this appeal filed by the insurer is with regard to the liability of insurer to indemnify the owner of the vehicle on account of the driver of the offending vehicle not possessing valid driving licence as on the date of the accident.
2) In the accident that occurred as a result of collision between the motor cycle ridden by one Ravi, son of Respondent Nos. 1 and 2 herein (claimants 1 and
2) and a Maxi Cab driven by the 3rd respondent herein, said Ravi, died. In respect of the said accident, the claimants filed claim petition under Section 166 of the Motor Vehicles Act (for short, 'MV Act') against the driver, owner and insurer of the Maxi Cab seeking compensation of Rs.18,50,000/-. The driver and owner of the Maxi Cab did not contest the petition. Only the insurer contested the petition.
3) The insurer contended that the driver of the offending vehicle namely Maxi Cab did not possess the 4 valid driving licence to drive the class of the vehicle involved in the accident and therefore, it is not liable to indemnify the insured. In support of its contention that the driver of the offending vehicle did not possess the valid driving licence, the insurer examined the Assistant Road Transport Officer as RW.2 and also produced the 'B' Register extract of the Maxi Cab as per Ex.R1 and the driving licence extract as per Ex.R2.
4) On assessment of oral and documentary evidence, the Tribunal answered the issue regarding actionable negligence in the affirmative in favour of the claimants. However, with regard to the liability of the insurer, the Tribunal relying on the decision of this Court in Balasubramanya Vs. Pradyumna [ 2007 ACJ 176] and the decision of the Apex Court in National Insurance Co. Ltd., Vs. Swaran Singh [2004 ACJ 1], held that since not possessing the badge for the purpose of driving the transport vehicle by the driver of the offending vehicle was not the main or contributory 5 cause for the accident, the Insurance Company cannot escape its liability. In this view of the matter, the Tribunal held that the insurer is liable to indemnify the insured and satisfy the award. Consequently, the Tribunal directed the insurer to pay the compensation amount quantified with interest at 6% from the date of petition till the date of payment. Aggrieved by the said judgment and award, the insurer is in appeal before this court.
5) The only point urged before this Court is that, when admittedly the driver of the offending vehicle did not possess a valid driving licence to drive the transport vehicle and since the offending vehicle was a transport vehicle, the Tribunal has erred in fastening the liability on the Insurance Company. In this behalf, reliance was placed on the decision of the Apex Court in National Insurance Co. Ltd. Vs. Kousalya Devi & others [ 2008 ACJ 2144] and New India Assurance Co. Ltd. Vs. Roshanben Rahemansha Fakir & others [2008 6 AIR SCW 4048] and the decision of this Court in New India Assurance Co. Ltd. -Vs- M.Sureshappa [ILR 2001 KAR 5761].
6) The contents of Ex.R1 - 'B' register extract issued by the Regional Transport Officer, Davangere, in respect of the offending vehicle clearly indicates that it is a Light Motor Vehicle ('LMV' for short) manufactured by M/s. Bajaj Tempo Ltd. and it is a Trax Taxi with the seating capacity of 5+1. From this, it is clear that, it is a public service vehicle as defined under Section 2(35) of the MV Act, as such, it is a transport vehicle as defined under Section 2(47) of the MV Act. Ex.R2 is the driving licence extract issued by the Assistant Regional Transport Officer, Davangere, in respect of the driver of the offending vehicle, namely, O.G. Shantharaj. It was issued on 02.04.2002. As per this licence, he was permitted to drive LMV (non-transport) only. Thus, the driver of the offending vehicle, who was on the wheels of the vehicle at the time of accident, possessed a licence to drive LMV, which is a non-transport vehicle. No 7 doubt, the definition of LMV as per Section 2(21) of the MV Act includes 'Transport vehicle' or an Omni Bus, the gross un laiden weight of either of which does not exceed 7500 Kgs. Therefore, the vehicle in question was a LMV and a transport vehicle. Therefore, it was contended by the learned counsel for the respondents- claimants that the licence which authorized the driver to drive LMV includes permission to drive a transport vehicle. There is no force in this argument. Section 3 deals with necessity for driving license and it reads as under:-
3. "Necessity for driving license.-
(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him authorising him to drive the vehicle;
and no person shall so drive a transport vehicle [other than [a motorcab or motor cycle] hired for his own use or rented under any scheme made under sub-section (2) of Section-75] unless his 8 driving license 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."
Thus, this section creates an embargo for driving a transport vehicle unless the driving licence specifically entitles to do so. In other words, unless a driving licence issued to a person specifically entitles such person to drive a transport vehicle, he cannot drive a transport vehicle, though it is an LMV. This is further clear from reading of Section 7 of the MV Act. As per Section 7 of the MV Act, no person shall be granted Learning Licence (LL for short) to drive a transport vehicle unless he held driving licence to drive the LMV for atleast one year. From this it is clear that licence to drive LMV is different from licence to drive the transport vehicle. For the purpose of getting even LL to drive the 9 transport vehicle, the person should have held a driving licence to drive the LMV atleast for a period of one year. Section-10 of the MV Act deals with forms and contents of the licence to drive. As per sub-section (2) of Section 10, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the classes described in Clauses (a) to (j) mentioned therein. In Clause (b) the LMV is mentioned while under Clause
(e), transport vehicle is mentioned. The term 'Transport vehicle' in Clause (e) was introduced by way of amendment with effect from 14.11.1994. From this, it is further clear that a licence to drive the LMV without mentioning that he is also permitted to drive the transport vehicle would not authorize or permit the licence holder to drive a transport vehicle, though it is LMV. In the case on hand, admittedly, the driver of the offending vehicle possessed a licence to drive the LMV, which is a non-transport vehicle only and thereby he did not possess a licence to drive the transport vehicle as on the date of the accident. RW.2, who is the 10 Assistant Regional Transport officer, in his evidence has stated that, to drive the type of vehicle involved in the accident, the driver needs to possess a Badge and the driver of the offending vehicle had not been issued with any Badge. Thus, the driver of the offending vehicle did not possess a valid and effective driving licence to drive the class of vehicle involved in the accident.
7) In Kousalya Devi's case referred to supra, the Apex Court has affirmed the judgment of the High Court holding that since the driver of the offending vehicle had no valid driving licence to drive the class of the vehicle involved in the accident, the Insurance Company cannot be held liable to pay compensation. In that decision, the Apex Court has referred to a decision in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut [2007 ACJ 721], wherein, the Apex Court, has discussed and explained the decision in Swarna Singh's Case.
8) In Roshanben Rahemansha Fakir's case referred to supra, the Apex Court referring to Sections 11 3 and 10 of the MV Act, and considering the fact that driver of the offending vehicle was holding a licence to drive a vehicle other than transport vehicle, and since the offending vehicle was a transport vehicle, the Apex Court held that the driver did not possess valid and effective driving licence to drive the offending vehicle, as such, the insurer is not liable to satisfy the award.
9) In M. Sureshappa's case, referred to surpa, this Court has held that since the vehicle involved in the accident admittedly is a goods vehicle, as such it is a transport vehicle and since the person who drove the said vehicle at the time of the accident possessed a LL to drive a non-transport vehicle, he did not possess a valid and effective driving licence to drive class of vehicle involved in the accident, therefore, the insurer cannot be made liable to satisfy the award.
10) In the light of the aforesaid decisions of the Apex Court and this court, and in view of the fact that admittedly the offending vehicle is a transport vehicle 12 and since the driver, who was on the wheels at the time of accident did not possess a valid and effective driving licence to drive the said vehicle, the insurer cannot be held liable to satisfy the award. The Tribunal without considering these aspects of the matter, has proceeded to fasten the liability on the insurer. Therefore, the judgment of the Tribunal directing the appellant-Insurer to satisfy the award, is illegal and contrary to law, therefore, it is liable to be set aside.
11) Accordingly, the appeal filed by the Insurance Company is allowed. The judgment and award insofar as it relates to directing the appellant/Insurance Company to satisfy the award is hereby set aside. The claim petition as against the appellant-Insurance Company is hereby dismissed. It is made clear that the claimants are entitled to recover the compensation as determined by the Tribunal from the driver and owner of the offending vehicle. 13
The amount in deposit is ordered to be refunded to the appellant-Insurance Company.
SD/-
JUDGE KGR*