ORDER
1. Defect in the certified copy of award as pointed out by stamp report dated 12.6.2003 is ignored for the present. The Appeal has been filed in time.
2. Heard. The appeal has been filed by the insurer against the judgment and award dated 7.2.2003, passed in Title (M.V.) Suit No. 116 of 2001, whereby the appellant has been directed to indemnify the liability of the owner of the auto-rickshaw, BR-17P-3424, the respondent No. 5 and pay the compensation amount to the tune of Rs. 7,64,000/- with interest (r) 9% per annum from the date of accident till payment to the respondents 1 to 4.
3. The counsel for the appellant submitted that driver of the offending vehicle at the time of accident was not displaying the badge, as required under Rule 18(2) of the Bihar Motor Vehicles Rules 1992 and as such term of the insurance policy was violated and the insurer was not responsible to indemnify the owner’s liability and therefore, on the ratio of the decision of Apex Court in New India Insurance Company, Shimla v. Kamla and Ors., 2001 (3) JCR 245 (SC) : (20.01) 4 SCC 342, the insurer may be given liberty to recover the amount of compensation paid to the claimants, pursuant to the impugned award, from the owner of the vehicle.
4. In the present case admittedly the auto-rickshaw (BR-17P-3424), on which Prabhu Nath Sharma was traveling turned turtle, resulting into his death and for the said accident the Tribunal found the driver to be solely responsible on account of his negligence and rash driving.
5. We find that the submission made by the learned counsel for the appellant aforesaid was considered thoroughly by the Tribunal in paragraph 12 in the impugned judgment and following observations have been made.
“Thus it appears that it is the admitted case of the defendant No. 2 that the driver was holding a valid license. However, it has been submitted that since the driver was not having a badge number and as such his driving license was not effective. Reliance has been placed upon a decision report in 1999 (3) PLJR 119 in which it was held that insurance co. is not liable to indemnify as there has been violation of the terms and conditions of the insurance policy by allowing a driver holding a licence to drive light vehicle to drive passenger carrying vehicle. In this case there was a violation of Rule 18 of Bihar Motor Vehicle Rules where the driver had no licence to drive passenger carrying vehicle and as such the terms of the insurance policy was held to be violated and the insurer was held not liable to indemnify the compensation to the claimants. The fact of the case is totally different from the fact of the present case. In fact the only objection raised by defendant No. 2 is that driver was not holding badge number and as such there was violation of Rule 18 of the Bihar Motor Vehicle Rules. It is pertinent to point out that Rule 18 of the Bihar Motor Vehicle Rule provides for driving of a transport vehicle. There should be proper authorisation by the licensing authorities. Rule 18(1) of the Bihar Motor Vehicle Rules provides, no person shall drive a transport vehicle unless an authorisation in driving licence shall have been granted by licensing authority in affect this section prohibits a person holding a driving license to drive a transport vehicle unless he has got authority to do so. The authority has to be granted by the licensing authority. Rule 19 of the Bihar Motor Vehicle Rules provides that driver of a public service vehicle shall display on his left chest a badge in the form illustrated in the second schedule of the rules. Sub-rule (2) of Rule 19 provides that no driver of a public service vehicle shall display the badge held by him if the authorisation to drive such vehicle is suspended or revoked by any authority or if his driving licence has seized to be valid by efflux of time. It was submitted by the learned counsel appearing on behalf of the defendant No. 1 and also conceded by learned counsel appearing on behalf of the defendant No. 2 that badge of late are not being issued from the D.T.O office, Dhanbad. So this is not a case where the driver of the offending vehicle was not displaying a badge because there was no authorisation for him to drive such vehicle or the authorisation was suspended or revoked by the licensing authority. The plaintiffs have relied on a decision of Orissa High Court cited in 1999 (2) TAC 298 (Ori) in which it was held that non-holding of badge number by a driver is not a condition precedent authorising such driver to drive a transport vehicle and insurer cannot escape its liability to make payment on the ground that the driver had no valid driving licence. It was further held that a licence is issued by any State under Section 13 of the Motor Vehicles Act which is valid through out India and it may so happen that the person authorised to drive a transport vehicle in a particular State may not be required to wear badge and uniform whereas such provisions may be there in another State. The rule framed by State Govt. is subject to the Motor Vehicle Act, which is a Central Act. It was further held that the provisions in rules prescribing for badges and uniform must be taken to be regulatory measures for identity and administrative convenience, and not as a sinequanon for a valid driving licence authorising a person to drive a transport vehicle. The plaintiffs have also cited a decision reported in 2002 (1) PLJR 347 wherein it has been held that non mentioned of the category of transport vehicle in driving licence of the driver cannot lead to a conclusion that the driver on the date of accident was not holding a valid driving licence.
In the facts and circumstances of the case the only objection raised by the defendant No. 2 is with regard to the fact that the driver of the offending vehicle at the time of accident was not holding badge number. In view of the aforesaid discussion and the principle laid down by judicial pronouncement, non holding of a badge number by a driver of the offending vehicle at the time of accident cannot lead to a conclusion that on the date of the accident the driver was not holding a valid driving licence as the provisions related to the badge number and uniforms is only regulatory provision for identify and administrative convenience and Rule 18 and Rule 19 of the Bihar Motor Vehicle Rule 1992 cannot be equated together as Rule 18 is a prohibiting provision and Rule 19 is enabling provision for the purpose of administrative convenience. A driving licence is Issued under the provisions of Section 13 of the Motor Vehicle Act 1988 and is effecting through out India. Section 27 of the Motor Vehicle Act empowers the Central Govt. to make rules regarding the particulars for the test of competence of a person before driving licence is issued to him. The licence is issued to a person after he passed the test as provided under Section 27 of the Motbr Vehicles Act. In other words it can be said that after fulfilling the requirement provided under Section 27 of the Act driving licence is issued to a person which is effective through out India. The State Govt. has been empowered to make rules for the purpose of licensing of drivers of motor vehicle subject to matters specified in Section 27. In other words, the rule making power of the State is expressly made subject to the rule making power of the Central Govt. It is correct that Section 28 Sub-clause 2(d) provides for the rule making power of State in relation to badges and uniform. However, in a given case a particular State Government may frame rules prescribing for badges and uniform for a driver of transport vehicle which may not be contemplated in the rule of another State. In such a case when a vehicle driven by a driver not holding badge number in a State which does not provide for badge number and uniform goes into another State where badge number arid uniforms are to be worn as per the motor vehicles of that State, it cannot be comprehended that the licence of the said driver which was valid and effective in the first state will not be valid and effective in the second state. In view of the aforesaid facts and circumstances I am of the view that the driver of the offending vehicle was holding a valid and effective driving licence at the time of accident.”
6. In the aforesaid circumstances the ratio of the decision of the Apex Court in Kamla and others (supra) cannot be applied in the present case and the insurer is not entitled to recover the amount of compensation paid to the claimant from the owner of the offending vehicle. In view of the decision of the Apex Court in National Insurance Company Ltd v. Nicolletta Rohtagi and Ors., 2002 (3) JCR 201 (SC) : AIR 2002 SC 3350, and in the facts and circumstances of the present case it is not permissible to the appellant to challenge the quantum of compensation also in this appeal. This appeal is dismissed.