JUDGMENT
Elipe Dharma Rao, J.
1. Aggrieved of the order and decree dated 19.2.2003 passed in O.P. No.227 of 1998 by the learned Chairman, Motor Accident Claims Tribunal-cum-District Judge, Khammam, granting compensation of Rs.2.00 lakhs for the injuries sustained by the claimant – first respondent herein, the Insurance Company preferred this civil miscellaneous appeal.
2. Few facts, that are necessary for the disposal of this appeal, in nutshell, are that on 14.8.1997 the respondent-claimant was returning on his cycle to telephone booth and when he reached opposite to Nagabhushanam Hospital, Wyra Road, Khammam, a jeep bearing No.AP-20T-756 came in the opposite direction in high speed in a rash and negligent manner, and dashed against the respondent-claimant and it ran over him as a result of which he sustained crush injuries and other grievous injuries. Therefore, the claimant preferred compensation ofRs.3,00,000/-.
3. The driver and owner of the jeep were set ex parte and the appellant herein being insurer of the said vehicle filed counter denying the averments of the claim petition and contended that the driver of the jeep was not holding a valid driving licence. Appellant also seeks protection under Sections 147, 149 and 170 of the Motor Vehicles Act.
4. On the basis of the above pleadings, the Tribunal framed as many as three issues. To substantiate his claim, the claimant himself was examined as P.W.1 and PW-2 is the doctor who treated him and also exhibited Exs.A.1 to A. 10. The appellant company examined R.Ws.1 and 2 and also exhibited Exs.B.1 to’B:4, on its behalf.
5. On appreciation of both oral and documentary evidence and also on consideration of the facts and circumstances of case with regard to occurrence of the accident and injuries caused to the claimant, the Tribunal awarded compensation of Rs.2,00,000/- with interest at 9% per annum with proportionate costs.
6. Aggrieved of the same, the insurer preferred this appeal.
7. Now in this appeal, the learned Counsel for the appellant submitted that the Tribunal failed to appreciate the evidence of RW-2, an official of the RTA Office that the driver of the jeep did not obtain badge from RTA and without the badge, he cannot drive the passenger vehicle and the vehicle driven by the driver is a T-Series transport vehicle and therefore, without complying the conditions, the driver is not competent to drove the same.
8. On the other hand, it is the contention of the learned Counsel for the respondent – claimant in the absence of any oral evidence on behalf of the driver, owner or the appellant, reliance cannot be placed on the evidence of RW-2 to give a finding that the driver has violated the terms and conditions of the policy and, therefore, the award cannot be interfered with.
9. In this background of the facts and circumstances, now let us examine some of the provisions of law, which have a bearing on the subject.
10. Section 2(9) of the Motor Vehicles Act, 1988, defines “Driver” to mean and includes, in relation to a motor vehicle which is drawn by another motor vehicle, the person who acts as a steersman of the drawn vehicle, while Section 2(10) defines “driving licence” to mean the licence issued by a Competent Authority under Chapter II authorizing the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description. Section 2(21) defines “light motor vehicle” to mean a transport vehicle or omnibus, the gross vehicle weight of either of which or a motorcar or tractor or road roller unladen weight of any of which, does not exceed 7500 KGs. Section 2(34) defines “public place” as a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage. Section 2(35) defines “public service vehicle” to mean 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. Section 2(47) deals with “transport vehicle” to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.
11. As can be gathered from the definitions itself, a light motor vehicle can as well be used as a public service vehicle to transport goods or an educational institution bus. In the instant case, the vehicle involved in the accident is a jeep, which is admittedly a light motor vehicle. The evidence of RW-1, an Insurance Investigator, examined on behalf of the appellant herein deposed that his enquiries with the Transport Authorities reveal that the driver of the jeep was having only light motor vehicle. The contention of the learned Counsel for the appellant is that the driver had no valid driving licence at the time of occurrence of accident to drive the crime vehicle, inasmuch as, as contemplated by Rule 49 of A.P.M.V. Rules, 1964, he must wear a Driver’s Badge to drive a public vehicle, issued from a Competent Authority. Since the controversy revolves round Rule 49, it is apt to extract Rule 49 of the Rules, which reads as under:
“…49-Drivers badge: The driver of a public service vehicle shall while on duty, display on Ms left breast a metal badge, in the Form illustrated in the Second Schedule to these Rules issued by and inscribed with the name of the district of the authority by which an authorization to drive a transport vehicle has been granted and the word “DRIVER” together with an identification number. A badge granted under this Rule shall be valid throughout the State:
Provided that this sub-rule shall not apply to a person holding an effective driving licence authorizing him to drive a motor-car and is driving a motor-car hired by him for his own use…”
Relying on this Rule, the learned Counsel for the appellant contends that since at the time of accident, the driver of the crime vehicle was not wearing the badge, mandated by Rule 49, it amounts to violation of terms and conditions of the policy and, therefore, the appellant is not liable to pay any compensation and the award is liable to be set aside.
12. Rule 49 of A.P. M.V. Rules, 1964 is superseded by Rule 37 of the A.P. M.V. Rules, 1989, which is verbatim the same as extracted above. Rule 37(4) further mandates that the driver of a public service vehicle, while on duty, in addition to the badge display on his right breast a plate in white plastic of size 8 CM X 2 CM inscribed with his name in bold black letters of size 0.5 cm. both in English and Telugu, one below the other respectively. The cost of the name plate shall be borne by the weaver himself. Now what is required to be considered is whether non-wearing of the metallic drivers badge, mandated by Rule 37 of the size as prescribed in Second Schedule to the Rules, showing the name of the driver and the Authority of the District which has issued the same to drive the public transport vehicle, in any way contributed for the occurrence of the accident. Incidentally, this Court has to also see whether the insured – owner of the jeep has intentionally engaged the driver to drove the transport vehicle knowing well that he is not having a badge, in terms of Rule 37. The Apex Court, had an occasion to deal with the words “duly licensed” occurring in Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988, in a decision National Insurance Company Limited v. Swarcn Singh and others, , wherein the Apex Court has considered the scope and ambit of Sections 3 and 10 of the Motor Vehicles Act with regard to the obligation of driver to hold effective driving licence for the type of vehicle which he intends to drive. Section 10 prescribes forms of driving licences for various categories of vehicles mentioned in subsection (2) thereof. Various types of vehicles for which the driver may obtain a licence for one or more of them are described, in Para 89 of the judgment, as under:
“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 the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the 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”, “maxi-cab”, “medium goods vehicle”, “medium passenger motor vehicle”, “motor-cab”, “motor-cycle”, “omnibus”, “private service vehicle”, “semi-trailer”, “tourist vehicle”, “tractor”, “trailer” and “transport vehicle”.
13. It is further observed with regard to the breach of conditions of driving licences, that in claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arises for consideration before the Tribunal as a person possessing a driving licence for “motor-cycle without gear” (sic may be driving a vehicle for which he has no licence. Cases may also arise where a holder of driving licence for “light motor vehicle” is found to be driving a “maxi-cab”, “motor-cab” or “omnibus” for which he has no licence. In each case, on evidence led before the 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 the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the 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.
14. As can be seen from the facts and circumstances of the case, it is not the case of the appellant that the driver of the jeep was not having licence or that his licence expired or he was found driving a heavy motor vehicle. Where the driver of the vehicle did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter is different where a disputed question of fact arises as to whether the driver had a valid licence or where the owner of the vehicle committed a breach of the terms of the contract or insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence. In certain cases, the driver of the vehicle may not have any hand in the accident viz., a case where an accident takes place owing to a mechanical fault. The Apex Court while dealing with the issue of driving without having a driving licence has held that driving of a vehicle without a valid licence is an offence, whereas in Section 3 the words used are “effective licence”, it has been differently worded in Section 149(2) i.e., “duly licensed”. If a person does not hold an effective licence, as on the date of accident, he may be liable for prosecution, but third party risks are saved under Section 149 of the Act. It further held that a provision which is beneficent to a third party must be interpreted differently, and as such the words “effective licence” used in Section 3, therefore, cannot be imported into Section 149(2) of the Act.
15. Admittedly, the driver of the jeep was holding an effective licence and it was subsisting as on the date of accident. That apart, the contention of the learned Counsel for the appellant that since the driver did not wear the metallic badge, as contemplated under Rule 37 and it amounts to violation of terms and conditions of the policy, cannot be countenanced, for the simple reason that the purpose of issuance of the metallic badge (Rule 37(1) or the name plate (Rule 37 (4), only for the identity of the driver and the District Authority which has issued the same, apart from authorizing such driver to drive the public transport vehicle throughout the State. By any stretch of magination, non-wearing of the badge, as contemplated under Rule 37, can be extended to attribute any cause for occurrence of the accident. Therefore, in view of these facts, I hold that non-wearing of the metallic badge, as mandated by Rule 37, is not violative of the terms and conditions of the insurance policy.
16. The Apex Court further observed that for grant of compensation the Tribunal has to consider various kinds of breaches with regard to the conditions of the driving licences that arise for consideration before it viz., a person possessing driving licence for motor-cycle for which he has no licence; or cases may also arise where a holder of driving licence for light motor vehicle is found to be driving a maxi-cab or motor-cab or omnibus, for which he has no licence. In such cases, on evidence, led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licences for one type of vehicle was the main or contributory cause of accident. If on, facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes, having no nexus with the driver not possessing requisite type of licence, then the insurance cannot escape its liability.
17. Admittedly, the driver of the jeep had a valid driving licence to drive light motor vehicle yet he did not possess the metallic badge, it cannot be concluded that the accident had occurred due to the non-wearing of badge or that the non-wearing of the metallic badge has in any way contributed for the accident. An exception carved out to this Rule is that it shall not apply to a person holding an effective driving licence authorizing him to drive a motor-car and driving a motor-car hired by him for his own use and he need not display the badge.
18. The evidence on record shows that when PW-1 reached opposite to Dr. Naghabushnam Hospital, the jeep driven by the second respondent herein came from opposite direction and dashed against the cycle of the claimant, as a result of which he sustained grievous injuries. There is no evidence rebutting this positive assertion of the claimant. The oral evidence is at the most it can be held technical breach of licence under Rule 37 of the Rules was well corroborated by Ex.A-1 FIR, Ex.A-2 charge-sheet. As stated earlier, it is not the case of the appellant that the 2nd respondent herein was found driving heavy vehicle, for which he had no valid driving licence. Admittedly the accident had occurred with a light vehicle i.e., jeep. In the facts and circumstances of the case, the only lapse, therefore committed by the driver, is that he did not wear the metallic badge, which I have already held in the foregoing paragraphs, does not contribute for the cause of accident. Therefore, as held by the Supreme Court, a provision which is beneficent to a third party, the claimant herein, must be interpreted differently. The cumulative effect of the above discussion is that wearing of the metallic badge or the plastic name plate on the left and right breast respectively, of the driver of a public transport vehicle, as contemplated under Rule 37 of the Rules is only for the purpose of identification of the driver, the District Authority which has issued the same and to drive the said vehicle throughout the State and its non-wearing, does not, in any way, contribute for the occurrence of the accident. Consequently, the plea raised by the appellant in this appeal fails therefore appeal is liable to be dismissed and is accordingly dismissed, confirming the order and decree impugned herein.