BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31/01/2011 CORAM THE HONOURABLE MR.JUSTICE T.MATHIVANAN C.M.A.(MD)No.1095 of 2010 and M.P.(MD)No.1 of 2010 The Oriental Insurance Company Ltd., through its Manager, Door No.5, Government Hospital Road, Theni Town, Theni District. ..Appellant/ 2nd Respondent Vs 1.Muthaiah 2.Chellan 3.Muthukaruppan 4.Chinnamuthu 5.Ammachiammal .. Respondents 1 to 5 /Petitioners 1 to 5 6.Vallikannu .. 6th Respondent/ 1st Respondent Prayer Appeal filed under Section 173 of the Motor Vehicles Act 1988, to set aside the award of Rs.90,000/- (Rupees Ninety Thousand only) dated 27.01.2010 and made in M.C.O.P.No.61 of 2009, on the file of the Motor Accidents Claims Tribunal (Principal District Judge, Theni). !For Appellant ... Mr.K.Bhaskaran ^For R-1 to R-5 ... Mr.K.P.S.Palanivelrajan For R-6 ... Mr.J.Mathesh :JUDGMENT
Questioning the liability of payment of compensation of Rs.90,000/-
(Rupees Ninety Thousand only) to the respondents 1 to 5/claimants directed by
the award dated 27.01.2010 and made in M.C.O.P.No.61 of 2009 on the file of the
learned Motor Accidents Claims Tribunal (Principal District Judge, Theni), the
Insurance Company being the second respondent in the claim petition has
approached this Court by way of this Memorandum of Civil Miscellaneous Appeal.
2. The facts, which are absolutely necessary for the disposal of
this appeal may be summarised as under:-
That on 14.03.2009, at about 10.40 a.m., an auto bearing registration
No.TN 60 D 8583 had hit against the deceased Velammal from behind, when she was
proceeding by walk on the left side of Theni to Madurai road near Udayappa Trust
and as a result of which, she had succumbed to injuries on the way to hospital
and hence, the claimants being sons and daughter of the deceased had filed a
claim petition in M.C.O.P.No.61 of 2009 before the Motor Accidents Claims
Tribunal (Principal District Judge, Theni), claiming a sum of Rs.1,50,000/-.
3. While the first respondent in the claim petition being the owner of the
auto remind ex parte, the second respondent, who is the appellant herein had
contested the claim on various grounds. On appreciation of the oral and
documentary evidences, the learned Motor Accidents Claims Tribunal had found
that :
(1) The accident was caused due to the rash and negligent driving of the
driver of the auto.
(2) The appellant / Insurance Company with whom the auto was insured is
liable to pay compensation to the claimants.
4. Ultimately the Claims Tribunal had proceeded to pass an award of
Rs.90,000/- directing the appellant Insurance Company to pay this amount to the
claimants with interest at the rate of 7.5% per annum from the date of petition
to till the date of realisation. Hence, this appeal.
5. Heard both sides.
6. The learned counsel for the appellant has mainly argued that the
appellant/Insurance Company is not at all liable to pay compensation as the
driver of the auto-rickshaw was not having valid and effective driving licence
to drive the particular class of vehicle at the time of accident. He has also
made reference to the proviso to Sections 2(47) and (10) of Motor Vehicles Act
1988, Form – 6 and Rule 16 of Central Motor Vehicle Rules 1989. He has also
maintained that the policy of insurance having clearly mentioned that the
vehicle in question is a transport vehicle as defined under Section 2(47) of
Motor Vehicle Act 1988 and as the driver of the said vehicle did not possess a
licence which was not valid for a transport vehicle, the Insurance Company
cannot be forced with the liability to pay compensation to the claimants.
7. The learned counsel has also adverted to that the person having (sic
licence to drive) light Motor vehicle is not authorised to drive a commercial
vehicle without due endorsement made by the competent authorities and that the
driving licence to drive light motor vehicles is not appropriate to drive an
load auto-rickshaw which is a transport vehicle.
8. In the given circumstance, it may be appropriate to seek the assistance
of the testimonies of R.W.1 and R.W.2 as well as the documentary evidences under
Ex.R.1 to R.3. Ex.R.3 is the true copy of the Motor Insurance Certificate cum
Policy Schedule certified by the Senior Branch Manager.
9. Ex-facie the said certificate reveals that the vehicle in respect of
which the Insurance Certificate cum Policy Schedule issued has been captioned as
” GOODS CARRYING MOTORISED THREE WHEELERS AND PEDAL CYCLES – PUBLIC CARRIERS
PACKAGE POLICY – ZONE C. It discloses that the name of the insured as
S.Vellaikannu, who is the owner of the vehicle. In the first tabular column
with regard to Registration Mark and Place, it is stated as TN 60 D 8583. In the
4th column under the caption of Type of Body, it is stated as “CAB LOADBODY”.
With regard to limitations as to use, it is stated as ” the policy covers use
only under a permit within the meaning of Motor Vehicle Act 1988 or such a
carriage falling under Sub-section 3 of Section 66 of the Motor vehicles Act
1988. It is also stated that ” Use only for carriage of goods within the
meaning of the Motor Vehicle Act”. Following that certain conditions have also
been stipulated about the limitation of use of the vehicle.
10. Under the driver’s clause it has been stated that ” Any person
including insured: Provided that a person driving holds an effective driving
license at the time of accident and is not disqualified from holding or
obtaining such a licence. Provided also that the person holding an effective
Learner’s license may also drive the vehicle when not used for the transport of
goods at the time of the accident and that such a person satisfies the
requirements of Rule 3 of the Central Motor Vehicle Rules 1989. From this
document viz., Motor Insurance Certificate cum Policy Schedule, it is clear that
a person, who happens to drive the vehicle at the time of accident should have
been in possession of effective driving licence. It is explicitly made clear
that the vehicle has been characterized as goods carrying motorised three
wheeler.
11. The goods carriage vehicle has been brought under the definition of
Section 2(47).
It reads:
“transport vehicle” means a public service vehicle, a goods carriage, an
educational institution bus or a private service vehicle;
12. The driving licence has been defined under Section 2(10) of the Act :-
“driving licence” means the licence issued by a competent authority under
Chapter II authorising the person specified therein to drive, otherwise than as
a learner, a motor vehicle or a motor vehicle of any specified class or
description;”
Hence, it is clear from the languages coined under Section 2(10) that the
driving licence is issued by a competent authority authorising a person to drive
a motor vehicle or a motor vehicle of any specified class or description.
13. Chapter – II of the Act deals with Licensing of Drivers of Motor
Vehicles. Section 3(1) explains the “Necessity for driving licence”
Section 3(1) enacts as follows:-
Sec.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 him authorising him to drive the vehicle; and no person shall so drive a
transport vehicle other than a motor cab or motor cycles hired for his own use
or rented under any scheme made under sub-section (2) of section 75 unless his
driving licence specially entitles him so to do.
14. The 2nd portion of the proviso to section 3 envisages that no person
shall so drive a transport vehicle unless his driving licence specially entitles
to drive the particular class of vehicle. In this regard this Court may refer
Section 2(47) and a combined reading of Section 2(47) and Section 3(1) of the
Act is very much essential to understand the intention of the legislators.
15. It may also be relevant to refer Section 10 of the Act, Section 10
enacts as follows:-
Sec.10 Form and contents of licences to drive. –
(1) Every learner’s licence and driving licence, except a driving licence issued
under section 18, shall be in such form and shall contain such information as
may be prescribed by the Central Government.
(2) A learner’s licence or, as the case may be, driving licence shall also be
expressed as entitling the holder to drive a motor vehicle of one or more of the
following classes, namely:-
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) transport vehicle;
(i) road – roller;
(f) motor vehicle of a specified description.
(In section 10, in sub-section(2), clause (e) was substituted for clauses
(e) to (h) by Act 54 of 1994 w.e.f. 14.11.1994.)
16. As it appears from sub-section (2) of Section 10, a driving licence
which is issued in favour of a person shall also be expressed, entitling the
holder to drive a motor vehicle of one or more of the classes of vehicle
enlisted in the Section. On coming to the instant case on hand the 6th
respondent herein at the time of accident had driven a transport vehicle as
enlisted under sub-clause (e) of sub-section (2) of Section 10 of the Act.
17. As already discussed in paragraph 11, the transport vehicle has been
defined as ‘goods carriage’. From the evidence of P.W.2, it is clear that the
6th respondent herein was driving auto laden with cement bags and for that
purpose only, the certificate of insurance was issued by the appellant Insurance
Company. For driving this class of vehicle, the 6th respondent was expected to
hold an appropriate driving licence entitling him to drive.
18. Ex.R.1 is the letter written by the Regional Transport Officer, dated
25.12.2009, to the learned District Judge, Theni District, in which, the
Regional Transport Officer has stated that the driving licence was issued to
Thiru.B.Vallikannu on 27.06.2007 to drive only light motor vehicle. The letter
was received from the Sub-Inspector of Police, Theni Police Station on
17.03.2009, informing that a case in crime NO.300 of 2009 under Section 304(A)
IPC was registered against B.Vallikannu. Hence he had requested to cancel the
driving licence issued in favour of Thiru.B.Vallikannu. It also reveals that on
a memorandum received from the Regional Transport Officer, 6th respondent
B.Vallikannu had appeared before him on 25.03.2009 and submitted his explanation
and his explanation was not accepted and consequently his driving licence was
temporarily cancelled from 25.03.2009 to 24.09.2009.
19. Ex.R.2 is the colour Xerox copy of the original driving licence issued
in favour of 6th respondent B.Vallikannu and also attested by the Regional
Transport Officer in which, it appears that the 6th respondent, the owner-cum-
driver of the vehicle B.Vallikannu was authorised to drive Non-Transport
vehicle, which is valid upto 26.06.2027. From Ex.R.2 it is thus clear that the
6th respondent B.Vallikannu was not authorised to drive the transport vehicle as
envisaged under Section 10 of the Motor Vehicles Act.
20. Even if it is us not expressly entitles a person to drive a transport
vehicle as contemplated under Section 11 he can apply to the licensing authority
having jurisdiction in the area in which he resides for the addition of such
other class or description of motor vehicle to the licence.
21. In the given circumstance, this Court consider that it may be relevant
to lay emphasis on the decision in National Insurance Company Limited Vs.
Kaushalya Devi and others reported in 2008 (2) TNMAC 497 (SC). In this case
the High Court, against whose judgment the appeal preferred before the Hon’ble
Supreme Court, while holding that the driving licence of the driver Shyam Lal
was not valid, has observed as follows:-
” Since I am of the opinion that the endorsement permitting Shyam Lal to
drive Heavy Goods Vehicle was ante-dated and was not existing on the date of
accident it is clear that the owner could not have handed over the vehicle to a
person who held no valid driving licence. On 16.03.2000 Shyam Lal only held a
licence to drive a Light Transport Vehicle and the owner could not have checked
or verified the licence for driving a Heavy Goods vehicle. In fact in this case
the owner has not even stepped into the witness box to say anything in this
regard. Therefore, I hold that the Insurance Company was wrongly held liable to
pay compensation.”
22. While speaking on behalf of the Division Bench, the His Lordship
Hon’ble Mr.JUSTICE S.B.Sinha has held that:-
” The provisions relating to the necessity of having a licence to drive a
vehicle is contained in Sections 3, 4 and 10 of the Act. As various aspects of
the said provisions, vis-a-vis, the liability of the Insurance Company to
reimburse the owner in respect of a claim of a Third Party as provided in
Section 149 thereof have been dealt with in several decisions, it is not
necessary for us to reiterate the same once over again. Suffice it to notice
some of the precedents operating in the field.”
23. His Lordship has also referred the decision in National Insurance
Company Limited vs Swaran Singh and others, 2005(1) TNMAC 104(SC): 2004(3) SCC
297. In this case, the Hon’ble Supreme Court has held
“88. Section 10 of the Act provides for forms and contents of licences to
drive. The licence has to be granted in the prescribed form. Thus, a licence
to drive a light motor vehicle would entitle the holder there to drive the
vehicle falling within that class or description.
89. 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.”
24. As adumbrated in the forgoing paragraph, it is brought into light that
the 6th respondent herein being the owner-cum-driver of the vehicle was not
having valid driving licence to drive the transport vehicle as evident from
Ex.R-2 driving licence.
25. In this connection, the learned counsel appearing for the appellant
has also adverted to that the 6th respondent should have displayed on his chest
packet a white plastic badge inscribed with his name. He has also added that at
the time of accident the 6th respondent/owner-cum -driver of the vehicle was not
even in possession of the badge as required under Rule 21 of the Tamil Nadu
Motor Vehicle Rules 1989. He has also added that a combined reading of Rules 7,
10, 12, 21 and 40 of Tamil Nadu Motor Vehicles Rule 1989 it reveals that apart
from specific authorisation, to drive a transport vehicle, the driver should
display a badge with number.
26. The learned counsel for the respondents/claimants has submitted that
since the 6th respondent was carrying cement bags in his auto for his own use no
badge was required to be displayed. He has also made reference to the testimony
of R.W.1 and R.W.2 in this connection. However, either it may be for his own
use or for hire, when the 6th respondent was found on the steering wheel of the
vehicle, he should have been in possession of a valid and effective driving
licence to drive the type of vehicle which he intended to drive.
27. With regard to possession or non-possession of badge it may be
relevant to refer the decision in National Insurance Company Limited vs. Raisa
Bibi reported in AIR 1999 Orissa 78 (DB). In this case it is observed:
” A combined reading of the provisions contained in Chapter 2,
particularly, the provisions contained in Ss.3, 8, 9, 10, 13 and 27 of the Act
shows that the licence is to be issued in accordance with rules prescribed by
the Central Government. Though Rule 71 of the Orrissa Motor Vehicle Rules, 1993
framed under Section 28 of the Act, contemplates that driver of a public service
should wear a badge and in fact a particular dress, there is nothing in the Act
or Rules framed by the Central Government that issuance of a badge to a driver
is a condition precedent authorising such driver to drive a transport vehicle.
The provisions in the rules prescribing for badges and uniform must be taken to
be regulatory measures for identity and administrative convenience and not as a
sine qua non for a valid driving licence authorising a person to drive a
transport vehicle.”
28. The Insurance Company contended that the driver of the Trekker did not
have P.S.V. Badge and as such, was not authorised to drive any public service
vehicle. The contention cannot be accepted. In the instant case, the Motor
Vehicle Claims Tribunal has found that since it was established that the 6th
respondent/owner-cum-driver of the vehicle was used his vehicle for own use, the
conditions of the policy had not been violated. The findings of the Tribunal is
absolutely wrong and the 6th respondent, as discussed in the earlier paragraph
was not having valid and effective driving licence to drive the particular type
of vehicle at the time of accident. Hence, the liability could not be fastened
on the Insurance Company to pay the compensation to the respondents 1 to 5 /
claimants.
29. In this connection, several judicial pronouncements are available. As
cited in the foregoing paragraph in National Insurance Company Limited Vs.
Kaushalya Devi and others reported in 2008 (2) TNMAC 497 (SC), the High Court
against whose judgment and 2 SLPs were filed had held that the endorsement
permitting driver to drive Heavy Goods Vehicle was found to be ante-dated and
was not existing on the date of accident, and that the Insurance Company was
wrongly held liable to pay the compensation. The decision of the Hon’ble High
Court has been upheld by the Hon’ble Supreme Court. Further the Apex Court has
held that the Swarn Sing however, is not made applicable in relation to the
owner or passenger of a vehicle, which is insured. In this Judgement, His
Lordship Hon’ble Mr.JUSTICE S.P.Sinha has also referred the decision in National
Insurance Company Limited vs. Laxmi Narain Dhut, 2007(1) TN MAC 301 (SC) :
2007(4) SCALE 36, and observed that this Court referring to Swaran Singh (Supra)
and discussing the law on the subject, held :
” In view of the above analysis the following situations emerge:
1. The decision in Swaran Singh’s case (Supra) has no application to cases
other than third party risks.
2. Where originally the licence was a fake one, renewal cannot cure the
inherent fatality.
3. In case of Third Party risks the Insurer has to indemnify the amount
and if so advised, to recover the same from the insured.
4. The concept of purposive interpretation has no application to cases
relatable to Section 149 of the Act.
30. His Lordship has also observed that the High Courts/Commissions shall
now consider the mater afresh in the light of the position in law as delineated
above.
31. Ultimately, His Lordship has held that in view of the findings arrived
at by the High Court, it must be held that the owner alone was liable to pay
compensation to the first respondent herein for causing death of her son by rash
and negligent driving on the part of the driver of the truck.
32. Keeping in view of the above observations made by the Apex Court this
Court has determined on the footing of Section 149 sub-section 2(ii) that the
Insurance Company is not at all liable to pay compensation as the 6th
respondent/owner-cum-driver of the vehicle was not holding valid and effective
driving licence at the time of accident as evident from Ex.R.2. The appellant
Insurance Company has also established before the Tribunal by producing the
policy and other records such as the driving licence (Ex.R.2) not authorising
the 6th respondent to drive the particular type of vehicle, as well as the
letter from the Regional Transport Officer to show that the 6th respondent was
not at all authorised to drive the particular class of vehicle. In this
connection, it may also be relevant to refer another decision in Oriental
Insurance Company Limited Tuticorin vs. PetchiMuthu Asari reported in AIR 1999
Madras 413, wherein the following ratio has been laid down.
” The Insurance Company would certainly disclaim liability, if the driver
of the vehicle was not duly licensed to drive the said vehicle insured with the
company. But, in order to prove its immunity from liability, the Insurance
Company has to establish before the Court by producing the policy and other
records that one of the conditions mentioned in the policy that the vehicle
should not be driven by a person who is not duly licensed to drive the said
vehicle on the date of the accident, was violated.”
33. In the given case on hand, the findings of the Motor Accidents Claims
Tribunal that the appellant Insurance Company is liable to pay compensation to
the tune of Rs.90,000/- to the respondents 1 to 5 / claimants is not in
conformity with the proviso to Section 149(2)(ii) of the Act. Insofar as the
quantum is concerned, it does not require any interference of this Court. It
requires only with regard to the fastening of liability with the appellant
Insurance Company to indemnify the 6th respondent/owner-cum-driver of the
vehicle.
34. In the result, the appeal is allowed. The order of the Motor
Accidents Claims Tribunal (Principal District Judge), Theni is modified as
detailed below. The 6th respondent/owner-cum-driver of the vehicle, which is
involved in the accident alone is liable to pay compensation to the
respondents/claimants 1 to 5. The appellant/Insurance Company is not liable to
pay the compensation. Consequently, connected miscellaneous petition is closed.
There is no order as to costs.
skn
To
The Principal District Judge,
Theni.