JUDGMENT
Neeladri Rao, J.
1. Both these appeals were heard together as the same point is involved.
2. R-1 in OP 83/85 and OP 82/85 on the file of the Motor Accidents Claims Tribunal (District Judge) Chittoor, is the appellant in both the appeals. R-2 in each of these appeals filed the petitions under Section 110-A, Motor Vehicles Act. (for short ‘M.V. Act’)
3. On 3-8-1984 when Sri Muneendra (Petitioner in O.P. 82/85), Sri B. Gangi Reddy (Petitioner in O.P. 83/85) and another were going on a cycle along Palamaneru-Punganuru road, Sri Vijayakumar, brother of the appellant was coming opposite to them on T.V.S. moped bearing No. ADL 1065. The Lower Tribunal found that the said moped hit the cycle on which the petitioners were going on and due to the impact, the cycle had fallen and the petitioners sustained injuries.
4. The Moped bearing No. ADL 1065 belongs to the appellant. By the time of the accident, Sri Vijayakumar, the brother of the appellant was having learner’s licence for the moped. The lower tribunal held that the learner’s licence cannot be equated to effective driving licence as envisaged under Section 3 of the Motor Vehicles Act, 1939, and hence the Insurance Company with which the moped was insured can avoid liability. Accordingly the petitions against the Insurance Company were dismissed. Being aggrieved, the owner of the moped preferred these appeals. Sri Muneendra preferred cross-objections contending that the compensation awarded was meagre.
5. The short point that arises for consideration is whether Section 3(1), M.V. Act is applicable, if the person holding the learner’s licence complies with Rule 33 of the A.P. Motor Vehicles Rules, 1964.
6. For consideration of this point it is convenient to read Section 3 of the M.V. Act and Rule 33 of the A.P. Motor Vehicles Rules, 1964 and they are as under:
“Section 3 M.V. Act: Necessity for driving licence:-
(1) No person shall drive a motor vehicle in a public place unless he holds an effective driving licence issued to himself authorising 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 specifically entitles him so to do.
(2) A State Government may prescribe the conditions subject to which Sub-section (1) shall not apply to a person receiving instruction in driving a motor vehicle.
(3) Notwithstanding anything contained in Sub-Section (1), a person who holds an effective licence authorising him to drive a motor car may drive any motor car hired by him for his own use.
Rule 33 of the A.P. M.V. Rules:-
“33. Learner’s licence:- Sub-section (1) of Section 3 shall not apply to any person driving a motor vehicle in a public place during the course of receiving instruction or of training experience in driving with the object of presenting himself for the test required by Sub-section (6) of Section 7 so long as–
(i) the driver is the holder of a learner’s licence in Form L.Lr. entitling him to drive the vehicle.
(ii) there is, besides the driver in the vehicle as instructor, a person duly licensed to drive the vehicle and sitting in such a position as to be able readily to stop the vehicle; and
(iii) there is affixed both to the front and rear of the vehicle a plate or Card as set forth below:
Plate (or Card)
178 millimetres square, to be white, with letter ‘L’ in red, 102 millimetres in high 89 millimetres wide and 19 millimetres thick:
Provided that clause (ii) shall not apply to a person driving a two-wheeled motor cycle with or without a side-car attached.”
It is manifest from Rule 33 that in case of learner’s licence for plying two wheel vehicle, Section 3(1), M.V. Act is not applicable if the licence is in Form ‘L entitling him to drive the said two wheel vehicle and a card with letter ‘L was affixed both to the front and rear of the vehicle as envisaged under Rule 33(iii). It is not the case of the respondent-Insurance Company that the learner’s licence of Sri Vijayakumar, the brother of the appellant is not in form ‘L’ and it is not for plying the moped or that the card with ‘L was not affixed to the front and rear of the moped. It is evident from proviso to Rule 33 that Rule 33(ii) is not applicable in regard to two wheel vehicles. Thus when the vehicle in question is a two wheeler and when the conditions in Rule 33(i) and (iii) are complied with, Section 3(i) is not attracted. In such a case, there is no violation of the provisions of M.V. Act if a person possessing learner’s licence plied a moped in a public place so long as Rule 33(i) and (iii) are complied with. Hence the Insurance Company cannot avoid liability.
7. But the learned counsel for the Insurance Company referred to the decision in Ambiyam v. Hindustan Ideal Insurance Company, AIR 1980 Mad. 214. Therein when mechanic having learner’s licence was driving a taxi, it was involved in an accident. It was found that the regular driver of the taxi was in the said taxi to observe the performance of the vehicle, after the repairs were effected and he was not there to help the said mechanic in his driving or to keep watch over his driving. In view of the said facts, it was held that at the time of the accident, the person who was at the wheels, that is the mechanic, was not having an effective licence. So it was held that as one of the terms of the contract as between the Insurance Company and the owner, i.e., ‘that the person driving the vehicle holds a licence to drive a motor vehicle’ is not complied with, the liability cannot be fastened on the Insurance Company.
8. Rules formulated by Tamil Nadu Government under M.V. Act, 1939 are not available in this court. But form the reading of the above judgment of Madras High Court it suggests that there is a rule similar to Rule 33(ii) of A.P. M.V. Rules in Tamil Nadu M.V. Rules. The said sub-rule lays down that besides the driver holding the learner’s licence in the vehicle, there should be a person with due licence to drive the vehicle and sitting in such a position as to be readily to stop the vehicle. As the said sub-rule was not complied with, in the case considered by the Madras High Court, it was held that Section 3(i) M.V. Act is attracted and as the mechanic who was driving the taxi in that case was only having learner’s licence but not the permanent licence, it was observed that the driver therein was not having an effective driving licence as envisaged under Section 3(1) of M.V. Act. But as already observed Rule 33(ii) is not applicable in regard to two wheel vehicle in view of the proviso. As that is compliance of Rule 33(i) and (iii), Section 3(1) is not applicable in regard to a person possessing learner’s licence for the vehicle in question. With due respect, I fully agree with the view taken by the Madras High Court in regard to vehicles other than two wheel vehicles, if the conditions in the relevant rules are not complied with. The question that arises for consideration in this case, is in regard to two wheeler and the Rule in regard to the same is different from the Rule applicable for a four wheeled vehicle in regard to which the Madras High Court considered.
9. The decision in Ishwar Devi v. Reoti Raman, 1978 ACJ. 340 (Allahabad) referred to for the appellant has no bearing for consideration of this case. In the case before the Allahabad High Court, the person who was driving the vehicle was not having any licence at all by the time of the accident. But earlier he was having learner’s licence and later he got the permanent licence. The relevant clause in the policy was construed in the light of those facts. But in this case Sri Vijayakumar who had been driving the moped was having learner’s licence as on the date of accident, and there was compliance of Rule 33(i) and (iii). Hence the appellant need not rely upon the relevant clause in the Policy. There is no contravention of any of the provisions of M.V. Act when Sri Vijayakumar plied the moped in a public place as he was having the learner’s licence for plying the moped and as he complied with Rule 33(i) and (iii).
10. The Insurance Company next relied upon the following term in Ex.B-Policy. Provided that the person driving holds a valid driving licence at the time of the accident or had held a driving licence (other than a learner’s licence) and he is not disqualified from holding or obtaining such a licence. It is in two limbs. The first limb lays down that the person driving should hold a valid driving licence at the time of accident. Second limb arises if the person driving did not hold a valid licence at the time of the accident. By construing Section 3(i) along with Rule 33, I hold that if the person possessing learner’s licence complies with Rule 33, he is not prohibited from driving the vehicle for which the learner’s licence is given in a public place. Thus such learner’s licence can be treated as a valid driving licence so long as the conditions referred to in Rule 33 are complied with. I already held that in regard to two wheelers, Rule 33(ii) is not applicable and this case Rule 33(i) and (iii) are complied with. Thus Vijayakumar, the brother of the appellant, who was driving the moped at that time was having valid licence. The first limb of the relevant term under Ex. B-3 is applicable in this case. As such the appellant need not rely upon second limb of the above term.
11. Thus in this case there is no violation of either statutory provision or a term of the policy. As such, the liability has to be fastened on the Insurance Company also and I find accordingly.
12. The cross-objector in CMA 834/88 had a fracture of the middle 1/3rd shaft of femur the right thigh. The other injuries were simple. His plea that there was shortening of the right leg because of the injury is not believed. In the circumstances an amount of Rs. 2,000/- was awarded for expenses for treatment and extra nourishment, Rs. 5,000/- for pain and suffering and Rs. 8,000/- for loss of happiness and loss of expectation of life. Thus total amount of Rs. 15,000/- was awarded. In view of the material on record, the same cannot be held as meagre or low. Thus it does not warrant any enhancement.
13. In the result both these appeals are allowed and the orders of the lower tribunal dismissing the petitions against R-1 herein United India Insurance Company, Chittoor are set aside and the award is passed in each of the cases against the said Insurance Company jointly and severally along with the appellant herein. The cross-objections in CMA.834/88 are dismissed. No costs.