JUDGMENT
Sanjiv Khanna, J.
1. The present appeal by the Insurance Company, M/s New India Assurance Co. Ltd. (hereinafter referred to as the appellant) is directed against the impugned award dated 2.2.2005.
2. The only contention and ground raised by the insurance company in this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) is that the driver of vehicle bearing No. UP-78-B 9228 was authorised to drive “Light Motor Vehicles” and there was no endorsement on his driving license, which authorised him to drive “Light Motor Vehicles (transport)”. It was thus submitted that the driver was not holding an effective driving license and therefore there was violation of the terms of the insurance policy.
3. On 17.2.2006 learned Counsel for the appellant made a statement that the insurance company was only seeking recovery rights against the owner and, therefore, it was directed that respondents No. 4 to 11, i.e. the claimants, should be paid in terms of the impugned award dated 2.2.2005.
4. Respondent No. 1, the owner of vehicle No. UP 78-B 9228 inspite of service has not entered appearance. Accordingly, I have heard learned Counsel for the appellant in the present appeal.
5. On 8.9.1998 one Mr. Rashid aged 32 years was returning home in a tractor, when vehicle bearing No. UP-78-B 9228 hit the tractor with great force. Mr. Rashid received grievous injuries and was admitted in a hospital. He subsequently, as a result of the said accident, expired on 18.9.1998.
6. Respondents No. 4 to 11 being dependants of Mr. Rashid herein filed a claim petition under the Act and compensation of Rs. 4,70,000/- has been awarded by the ld. tribunal. I need not go into and examine the quantum of compensation etc., in view of the limited question and controversy raised before me. Quantum of compensation has not been challenged.
7. The appellant, insurance company in its defense/reply admitted that vehicle bearing No. UP-78-B-9228 was insured with it for the period 2.2.1998 to 1.2.1999. Thus, the vehicle was insured on the date of the accident. However, it was submitted that the driver of the said vehicle was not holding a valid and effective license and was not qualified to drive the vehicle in question.
8. The appellant relied upon the certificate Ex. R3W-1/1 issued by the Regional Transport Officer, Kanpur. As per the said certificate, the driver Mr. Rajindra Kr. Yadav was authorised to drive light motor vehicles (private). Statement of Mr. Sunil Malhotra, Administrative Officer of the appellant was also recorded. He proved the communication received in respect of the driving license of Mr. Rajinder Kumar Yadav from the Regional Transport Authority, Kanpur. He has also stated that the driver, Mr. Rajinder Kumar Yadav was only authorised to drive “Light Motor Vehicles (private)” and he was not authorised to drive the vehicle in question, the gross vehicle weight of which was 8 tonnes.
9. Section 2(21) of the Act defines the expression “light motor vehicle”. The same is quoted below.
2. Definitions.- In this Act, unless the context other requires, –
(1) xxxx
(2) xxxx
(3) to (20) xxxx
(21) “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight or either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms;
10. The expressions “heavy goods vehicle” and “medium goods vehicle” are defined in Section 2 (16) and (23) of the Act. The said clauses are quoted below:
(16) “heavy goods vehicle” means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms;
(23) “medium goods vehicle” means any goods carriage other than a light motor vehicle or a heavy goods vehicle;
11. It is clear from the statement of Mr. Sunil Malhotra, RW-1 that the insured vehicle in question had gross unladen weight of 8 tonnes or 8000 kgs. Thus, the vehicle would be a Medium Goods Vehicle as defined in Section (23) of the Act and not a Light Motor Vehicle. This is further confirmed from the insurance policy Exhibit R3W1/5. In the said policy the gross vehicle weight of vehicle bearing No. UP 78B 9228 has been mentioned as eight tonnes.
12. Section 3 of the Act states that no person shall drive a motor vehicle in a public place unless he holds an effective driving license issued to him authorising him to drive the vehicle. Section 3 is 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 motor cab or motorcycle hired for his own use or rented under any scheme made under Sub-section (2) of Section 75 unless his 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.
13. Reading of Section 3 shows that a person must hold an effective driving license authorising him to drive a particular vehicle and no person is authorised to drive a transport vehicle, except a motor cab or motorcycle hired or rented by him, unless he has been specifically authorised to drive a transport vehicle. Therefore, for driving a transport vehicle, other than motor cab or motorcycle taken on hire/rent, an endorsement to that effect on the driving license is required in addition to holding an effective driving license.
14. The evidence on record clearly shows that the vehicle involved in the accident and covered by the insurance policy was a Medium Goods Vehicle and not a Light Motor Vehicle. The driver, Mr. Rajinder kr. Yadav at the time of the accident was not holding an effective driving license to drive Medium goods Vehicle as required by section 3 read with other provisions of the Act. He was also violating the terms of the insurance policy Exhibit R3W1/5 that required that the person driving should hold an effective driving license for driving the insured vehicle and was not disqualified from holding or obtaining the license. In view of the above findings, I do not think the judgment of Karnataka High Court in the case of United India Insurance Co. Ltd. v. S.S. Mukharam and Anr. , is applicable to the facts of the present case. The learned tribunal had applied the said judgment, while rejecting the plea raised by the appellant/insurance company before him. In the said case, the unladen weight of the vehicle involved in the accident was less than 7500 kgs. I, therefore, also do not deem it necessary to examine, whether or not the judgment in the case of Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd. has been correctly interpreted and understood by the Karnataka High court in S.S. Mukharam case. The citation of the second judgment mentioned by the learned tribunal in paragraph 24 of its award dated 2.2.2005 is not correct.
15. I now proceed to examine the effect of Section 149 of the Act in light of the judgment of the Supreme Court in the case of National Insurance Co. Ltd. v. Swaran Singh . In this case, Supreme Court noticed that the legislature has used the expression ‘duly licensed’ in Section 149(2) instead of the expression ‘effective license’ used in Section 3 of the Act. It was held that this was deliberately done as the Act is a beneficial legislation for protecting interest of innocent third parties. Thus, cases in which driving license has expired/lapsed but could be renewed within grace period etc. would be cases covered by the expression ‘duly licensed’. In the same judgment while referring to the provisions of Section 149(2) it has been held that once a third party has obtained a judgment against the person insured in respect of liability required to be covered by the statute/Act, the same must be satisfied by the insurance notwithstanding the fact that the insurance company may be entitled to avoid or cancel the policy or in fact has cancelled the policy. Driving a vehicle without a valid license is an offence, but this by itself may not be ground available to void payment to third parties under the policy, unless the act was done intentionally or so recklessly that the insured did not take care about the consequences of his act, involving willful violation or infringement. Burden of proof in such cases is upon the insurance company, which seeks to defend the claim on the ground that it falls within an exception. With regard to cases where a driver holds a driving license but for a different type of vehicle, than the one he was driving at the time of the accident it was observed as under:
89. Section 3 of the Act casts an obligation on a driver to hold an effective driving license for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licenses 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 license for one or more of them are: (a) motorcycle without gear, (b) motorcycle 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”, “motorcycle”, “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 licenses arise for consideration before the Tribunal as a person possessing a driving license for “motorcycle without gear”, [sic may be driving a vehicle] for which he has no license. Cases may also arise where a holder of driving license for “light motor vehicle” is found to be driving a “maxi-cab”, “motor-cab” or “omnibus” for which he has no license. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing license 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 license, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving license.
90. We have construed and determined the scope of Sub-clause (ii) of Sub-section (2) of Section 149 of the Act. Minor breaches of license 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 of inconsequential deviation in the matter of 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.
91. On all pleas of breach of licensing conditions taken by the insurer, it would be open to the Tribunal to adjudicate the claim and decide inter se liability of insurer and insured; although where such adjudication is likely to entail undue delay in decision of the claim of the victim, the Tribunal in its discretion may relegate the insurer to seek its remedy of reimbursement from the insured in the civil court.
16. In the present case it has not been found that the accident was caused due to unforeseen or intervening causes like mechanical failure etc. that had no connection or cause or relationship with the driver not possessing the license as required under law. It cannot be said that there was mere technical breach of conditions concerning driving license. Medium Goods Vehicles are different from Light Motor Vehicles. The two types of vehicles have been separately categorised under the Act and in the present case it has to be held that the driver was not holding the requisite and required driving license. Accordingly, I feel that recovery rights against the owner under Section 174 of the Act should be given to the insurance company.
17. Accordingly, the present appeal is allowed to the extent stated above. The appellant/insurance company is granted recovery rights under Section 174 of the Act against the insured/owner. However, the appellant is liable to make payment to third parties, i.e. Respondent Nos. 4 to 11, in terms of the award dated 2.2.2005. In the facts and circumstances of the present case there will be no order as to costs.