JUDGMENT
Krishnan, J.
1. The appellant-Insurance Company was 4th respondent before the Motor Vehicles Accidents Claims Tribunal, Belgaum in M.V.C. No. 175 of 1981 and being aggrieved by the direction of the Tribunal to satisfy the award of Rs. 5,200/- with Court costs and current interest to the claimant therein, in respect of the injuries sustained by her in the accident involving autorickshaw bearing No. MYL 4537, has preferred this appeal. For the sake of convenience, the parties shall hereafter be referred, by virtue of their ranks before the Tribunal.
2. The accident is stated to have taken place on 10-12-1980 at 9.30 a.m. On Poona-Bangalore road connecting Khade-bazaar, Belgaum when the autorickshaw driven by respondent-3 in a rash or negligent manner dashed against her and caused fracture. The appellant pleaded before the Tribunal that the driver of the rickshaw did not hold a valid driving licence and therefore it was not liable to make good the compensation. The Tribunal has held that the driver held a learner’s licence and he was also not disqualified from holding a licence and therefore the Insurance Company was liable to make good the compensation.
3. The vehicle that was being driven was a rickshaw and it was being driven by respondent-3 as an employee of the owner of the rickshaw and further the 3rd respondent was taking passengers in the vehicle at the time of the accident are all undisputed facts.
4. The only point that was urged on behalf of the Insurance Company in this appeal is, whether the Tribunal was right under such circumstances in fastening-liability on it.
5. Section 96(2)(b)(ii) of the M.V. Act, 1939 enables the insurer to defend the action brought against it by pleading that there has been breach of a specified condition of the policy viz., the 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. One of the conditions limiting the liability of the insurer Inserted in insurance policy Ex.D-1 is –
“Provided that the person driving holds a valid driving licence at the time of the accident or had held a permanent driving licence (other than a learner’s licence) and is not disqualified from holding or obtaining such a licence.”
6. In the present case, we are concerned only with the first part of the clause viz., that the person driving holds a valid driving licence at the time of the accident, as it is nobody’s case that respondent-3 held a permanent driving licence or was not disqualified from holding or obtaining such a licence. This condition in the insurance policy would squarely come within the first part of Section 96(2)(b)(ii) of the Act cannot be disputed and has not in fact been disputed. Therefore what remains to be examined is, whether respondent-3 who held only a learner’s licence at the relevant time could be held to be ‘duly licensed’ within the meaning of the aforesaid Section.
7. It is Section 3 of the Act which enjoins a person not to drive a motor vehicle in any public place without holding a driving licence. Section 3(1) of the Act reads as hereunder:
“3. Necessity for driving licence –
(1) No person shall drive a motor” vehicle in any public place unless he holds an effective driving licence issued to himself authorizing him to drive the vehicle; and no person shall so drive a motor vehicle as a paid employee or shall so drive a transport vehicle unless his driving licence specially entitles him so to do.”
Transport vehicle has been defined by Section 2(33) of the Act as hereunder:
“2(33) “Transport vehicle” means a public service vehicle or a goods vehicle.”
Public “service vehicle has been defined by Section 2(25) of the Act as hereunder:
“2(25) “Public service vehicle” means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and include a motor cab, contract carriage, and stage carriage.”
8. That the autorickshaw involved in the accident had been adapted to be used for the carriage of passengers for hire has not been disputed. That it was also being driven by respondent-3 for carriage of passengers on hire has again not been disputed. Therefore, the vehicle involved in the accident is a public service vehicle and therefore is a transport vehicle within the meaning of the clause referred to above has also not been disputed.
9. Section 3(2) of the Act enables the State Government to prescribe the conditions subject to which Sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle. Rule 19(1) of the Karnataka Motor Vehicles Rules, 1963 (for short ‘the Rules’) is to the effect that Section 3(1) of the Act shall not apply to any person driving a motor vehicle in any public place or places specified by the Licensing Authority in the learner’s driving licence during the course of receiving instructions or of gaining experience in driving, with the object of presenting himself for a test required by Sub-section (5) of Section 7 of the Act. The other sub-sections in this Rule relate to the grant of learner’s licence. A bare perusal of Rule 19(1) of the Rules makes it clear that the motor vehicle could be driven by a person holding a learner’s driving licence only for the limited purpose of receiving instructions or gaining experience in driving with the object of presenting himself for a test subject to other conditions mentioned in the said Rule.
10. It has been held by a Division Bench of this Court in ORIENTAL INSURANCE CO. LTD. v. FELIX CORREA that the term duly licensed would include the holder of learner’s licence as well and that there were no good reasons to limit the phrase to the holder of a regular licence. The decisions of Allahabad High Court in ISHWAR DEVI v. REOTI RAMAN AND ANR. 1978 ACJ 340 Himachal Pradesh High Court in UNITED INDIA INSURANCE CO. LTD. v. TILAK RAM AND ORS. 1985 ACJ 481 Gujarat High Court in CHANCHALBEN AND ORS. v. SHAILESH KUMAR PANDURAO THAKORE AND ORS. 1974 ACJ 393, Punjab and Haryana High Court in GURUMUKH SINGH AND ANR. v. AJMER KAUR AND ORS. 1986(1) ACJ 386, and Bombay High Court in NEW INDIA ASSURANCY CO. LTD. v. MANDAR MADHAV TAMBE AND ORS 1986(2) ACJ 874. have been referred to In this decision of this Court, mentioned already.
11. In the decision of this Court, the vehicle that was involved in the accident was a motor cycle. Even in the decision of Allahabad High Court and Himachal Pradesh High Court, the vehicles involved were motor cycles. In the decision of Gujarat High Court, the vehicles involved were lambretta scooter and a Vespa scooter. Therefore, in none of these decisions was there any scope to consider whether the driver concerned had been specifically entitled to drive a transport vehicle within the meaning of Section 3(1) of the Act. In the case of decisions of Punjab and Haryanas and Bombay High Courts, except referring to the vehicles involved in the accident as motor vehicle no further material is forthcoming to make out whether it was a two wheeler or any other type of vehicle which could come within the meaning of “transport vehicle” as defined in the Act. Again, there is also no discussion in these decisions in relation to driving of a transport vehicle within the meaning of Section 3(1) of the Act.
12. The three decisions of the Madras High Court
reported in MOTOR OWNERS INSURANCE CO. LTD. v. V. DANIEL AND ANR. 1971 ACJ 318, SRINIVASA ROADWAYS MADURAI v. SAROJA AND ORS 1975 ACJ 265. and AMBUJAM v. HINDUSTAN IDEAL INSURANCE CO. 1981 ACJ 175 have been referred to in the decision of this Court. In the first decision, the vehicle involved was no doubt a lorry and the driver held a licence earlier, but it had expired and the Insurance Company was held to be entitled to disclaim its liability when the driver did not have a valid licence as on the date of the accident. In this case also, the aspect whether a person holding a learner’s licence could be held to have been duly licensed was not at all for consideration. In the second decision of Madras High Court the vehicles involved were a bus and a lorry and the driver held a valid licence but had not actually got it renewed at the time of the accident and further it was a case where all the conditions laid down in Section 96 of the Act had not been reproduced in the policy and therefore, the Madras High Court observed that the Insurance Company could not in disregard of its policy fall back upon the Section and say that despite the contract it had entered into to the contrary it must be exonerated of its liability. The earlier decision of the Madras High Court has not been over-ruled in this later decision, but only distinguished. In the third decision of the Madras High Court, the vehicle involved was a taxi and it was held that effective driving licence could not be an equation for a learner’s licence which was granted only to a person learning driving and which by itself could not vest him with a right independently to negotiate a motor vehicle on the strength of it and the Insurance Company in that case was held not liable to answer the claim.
13. Thus, it could be seen that in none of the decisions referred to above, including the decision of this Court, there was any appreciation of Section 3(1) of the Act, especially pertaining to driving of a transport vehicle, to hold that the driving of a transport vehicle by a person holding a learner’s licence could be equated to driving by a person duly licensed within the meaning of Section 96(2)(ii) of the Act. Therefore, all these decisions, barring the last decision of the Madras High Court could be distinguished from the facts of the present case and they have no application to the facts of this case which pertain to the driving of a transport vehicle by a person holding only a learner’s licence.
14. Yet in another decision of the Madras High Court in ANJANADEVI v. ARUMUGHAM AND ANR. the vehicle involved was a tourist taxi and we find discussion relating to the driving of a transport vehicle as mentioned in Section 3(1) of the Act and it has been pointed out that Section 3 of the Act contemplates a driver of a tourist taxi having a special endorsement in his licence to drive such a vehicle and as there was no proof that the driver of that case had such an endorsement in his licence and it was held that the Tribunal was right in holding that the Insurance Company was not liable to, meet any portion of the claim in that case. We are in respectful agreement with these observations in the decision of the Madras High Court. By the very circumstances noticed already in relation to grant of learner’s licence, it may be seen that there is no scope for anyone to make such a special endorsement to drive a transport vehicle on a learner’s licence, nor was it urged that the learner’s licence in the present case had such an endorsement.
15. Under the circumstances, no further argument or reasoning is necessary to say that there is no scope for a person holding a learner’s driving licence to drive the transport vehicle for hire as the learner’s licence cannot be said to have specially entitled him to do so within the meaning of Section 3(1) of the Act. Therefore, it follows that respondent No. 3 was not duly licenced to drive the transport vehicle and in that view of the matter there was breach of condition of the policy, in that, the owner permitted his transport vehicle to be plied for hire by a person holding only a learner’s licence and therefore the Tribunal was not justified in fastening the liability on the Insurance Company. Hence, the finding in this regard has to be set aside.
16. In the result, the direction given to the appellant-Insurance Company, by the Tribunal to pay the compensation to the claimant is set aside and the petition shall stand dismissed against it. 10.
17. The appeal is allowed in those terms and in the circumstances of the case, the parties shall bear their own costs in this Court.