United India Insurance Co. Ltd. vs Govindappa And Ors. on 17 April, 2001

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Karnataka High Court
United India Insurance Co. Ltd. vs Govindappa And Ors. on 17 April, 2001
Equivalent citations: 2002 ACJ 1102
Author: T Vallinayagam
Bench: T Vallinayagam


JUDGMENT

T.N. Vallinayagam, J.

1. Aggrieved by the judgment and award dated 11.8.1997 passed by the II Additional District and Sessions Judge and Motor Accidents Claims Tribunal, Bangalore Rural District, Bangalore, in M.V.C. No. 479 of 1990 and questioning the quantum of compensation and also the liability to pay the compensation awarded, the insurer of the offending vehicle, i.e., bus bearing No. CNZ 4820 has come forward with the above appeal.

2. The accident had occurred on 17.2.90 at about 6 p.m. near Basamma Temple on Magadi-Ramanagaram Road involving the motor cycle bearing registration No. MEM 2638 and the bus bearing No. CNZ 4820. It is alleged that on the date of accident, the deceased G. Gangadharaiah was proceeding as a pillion rider on the said motor cycle and at that time the driver of the bus drove the same in a rash and negligent manner and at a high speed and dashed against the motor cycle as a result of the same, the deceased sustained multiple injuries and he succumbed to injuries on 18.2.1990 at NIMHANS Hospital. Thus, the petitioners being the parents of the deceased have filed a petition claiming compensation.

3. The finding of negligence against the driver of the offending vehicle, i.e., bus bearing No. CNZ 4820 has become final inasmuch as no appeal has been preferred challenging the same by the owner or the insurer in the present appeal.

4. On behalf of claimants, the mother of the deceased, respondent No. 2 herein was examined as PW 1 and an eyewitness to the accident and the rider of the motor cycle was examined as PW 2. Exhs. P-1 to P-9 were got marked. On behalf of the respondents, the appellant herein, no oral evidence is adduced. However, copy of the insurance policy and the extract of driving licence were got marked as Exhs. R- l and R-2.

5. The Tribunal after considering the oral and documentary evidence adduced has granted a sum of Rs. 1,68,880 as total compensation with interest at 6 per cent per annum from the date of petition till date of realization under the following heads:

  (1) Loss of
     dependency                    Rs. 1,46,880
(2) Medical expenses               Rs. 2,000
(3) Funeral expenses               Rs. 10,000
(4) Loss of love and
    affection and estate           Rs. 10,000
 

6. The main question raised in this appeal is that the driver of the offending vehicle is not having valid and effective driving licence so as to make the insurance company liable.
 

7. In the objection statement filed by the respondent No. 2 insurance company before the trial court and the appellant herein it was contended that the bus driver had no driving licence to drive a heavy passenger vehicle. He had only licence to drive a heavy goods vehicle and the bus was driven in violation of the policy conditions. Thus the liability of the insurance company was questioned.
 

8. The trial court considered an un-reported decision of this Court in M.F.A. No. 1997 of 1996 dated 30.5.1997 wherein the question as to whether the driver who had a licence to drive the heavy passenger vehicle, if he drives heavy goods vehicle, whether in such circumstances the insurance company is liable to pay, this Court held in the negative. The Tribunal declined to follow the above decision and distinguished the same to the facts of the present case. Reliance was placed upon United India Insurance Co. Ltd. v. Lakshmamma , which is to the following effect:

In order to consider that the driver had the licence to drive heavy goods vehicle or not, it is to be seen that the lorry which is involved in the accident, comes within the definition of the transport vehicle as defined under the Act. As per Exh. D-l, on the date of the accident, he was authorised to drive transport vehicle. Under Section 3 of the Act, no person shall so drive a transport vehicle unless his driving licence specifically entitles him to do so. Goods carriage is also a transport vehicle as defined under Section 2(47) of the Act. So, the lorry involved in the accident is a goods carriage and comes within the definition of transport vehicle. Therefore, the driver of the vehicle was authorised to drive a transport vehicle, i.e., the goods carriage, on the date of the accident. Hence, the contention of the insurance company appellant that the driver had no valid licence to drive the transport vehicle cannot be accepted.

On the above, the Tribunal held that if the person drives the transport vehicle who has even had a driving licence to drive heavy vehicle, it means that he had a valid driving licence and thus it made the insurance company liable. It is this finding that has been challenged in this appeal.

9. Section 10 of the Motor Vehicles Act, 1988 classifies the motor vehicle under different headings as follows:

(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) medium goods vehicle;

(f) medium passenger motor vehicle;

(g) heavy goods vehicle;

(h) heavy passenger motor vehicle;

(i) road roller;

(j) motor vehicle of a specified description.

Section 3, Clause (1) of the Motor Vehicles Act provides as follows:

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 hired for his own use or rented under any scheme made under Sub-section (2) of Section 75) unless his driving licence specifically entitles him so to do.

In New India Assurance Co. Ltd. v. Mandar Madhav Tambe , the Supreme Court laid down as follows:

Apart from the fact that a learner having such a licence would not be regarded as duly licensed, the aforesaid Clause in the insurance policy makes it abundantly clear that the insurance company, in the event of an accident, would be liable only if the vehicle was being driven by a person holding a valid driving licence or a permanent driving licence ‘other than a learner’s licence’. This clause specifically provides that even if respondent No. 3 had held a current learner’s licence at the time of the accident, the appellant would not be liable. In the present case it is clear that respondent No. 3 did not have a permanent driving licence before the date of the accident and he had held only a learner’s licence and it lapsed nearly two years before the accident. The High Court observed that the Act did not contemplate a ‘permanent driving licence’ because a driving licence is valid only for a certain period after which it has to be renewed. This may be so, but the use of the words ‘permanent driving licence’ in the insurance policy was to emphasise that a temporary or a learner’s licence holder would not be covered by the insurance policy. The intention and meaning of the policy clearly is that the person driving the vehicle at the time of the accident must be one who holds a ‘driving licence’ within the meaning of Section 2(5-A) of the Act. This being so, we are unable to agree with the conclusions of the High Court that appellant was liable to pay the amount which had been awarded in favour of respondent No. 1.

In United India Insurance Co. Ltd. v. K. Subramaniam , it has been held as follows:

In order to appreciate the contention so raised, it would be first necessary to make a brief reference to the licence and its contents. It is seen from Exh. B-1 that the holder of the licence had been licensed to drive throughout the State vehicles of the following description: ‘shown as item (c)’. The further writing found is to the effect that the licence is confined to item (c) only. There is also a further endorsement to the effect that ‘the driver is authorised to drive as a paid employee a transport vehicle’. The validity of the licence is also stated to be from 11.8.1979 to 13.8.1982. On 16.8.1981, under the head ‘authorisation to drive a transport vehicle’, the holder of the licence had been authorised to drive transport vehicle LMV only and that authorisation is dated 16.8.1981. There is also an endorsement to the effect that the driver is authorised to drive, as paid employee, a transport vehicle. It is in the light of the aforesaid endorsements found in the licence Exh. B-1 and the relevant provisions of the Act, the question whether the driver of the vehicle, at the time of the accident, had a valid driving licence to drive a Tempo involved in the accident, has to be considered. Section 2(5-A) of the Act states that ‘driving licence’ means the document issued by a competent authority under Chapter II authorising the person specified therein to drive a motor vehicle or a motor vehicle of any specified class or description. Section 2(8) of the Act defines a ‘goods vehicle’ as any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers. Under Section 2(13) of the Act, ‘light motor vehicle’ means a transport vehicle or omnibus the registered laden weight of which, or a motor car or tractor the unladen weight of which, does not exceed 4,000 kilograms. A ‘public service vehicle’ is defined under Section 2(25) of the Act as any motor vehicle used or adapted to be so used for the carriage of passengers for hire or reward and includes a motor cab, contract carriage and stage carriage. Section 2(33) of the Act defines a ‘transport vehicle’ as meaning a public service vehicle or a goods vehicle. Section 3(1) of the Act states that no person shall drive a motor vehicle in any 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. Section 7 of the Act outlines the procedure for the grant of driving licence and Section 8(2) of the Act provides that a driving licence shall specify whether the holder is entitled to drive as a paid employee and whether he is entitled to drive a transport vehicle and further shall express whether the holder is entitled to drive a motor vehicle of one or more of the categories enumerated in Clauses (a) to (g) therein. Clause (c) so enumerated refers to a light motor vehicle. Section 8-A (1) makes provision for addition of any other class of motor vehicles to the licence, according to the procedure prescribed thereunder. In the background of the aforesaid statutory provisions and the endorsements found in the licence already referred to, it has to be considered whether the driver of the vehicle held a valid driving licence to drive the Tempo, a three-wheeler goods vehicle, at the time of the accident. The reasoning of the Tribunal in this regard, as seen from para 8 of the award, is to the effect that as there was an endorsement that the driver was authorised to drive as a paid employee a transport vehicle, that would suffice to hold that the driver was valid-ly licensed to drive the Tempo and as the licence was also valid from 11.8.1979 to 13.8.1982 and the accident took place on 24.12.1980, the endorsement dated 16.8.1981 cannot be construed as enabling him to drive the Tempo only on and from that date as he had even been earlier licensed to do so. That line of reasoning of the Tribunal is not quite correct. The licence originally issued was for the purpose of driving a light motor vehicle, which meant a transport vehicle or omnibus or motor car or tractor, the unladen weight of which was below a particular weight. In this case, even according to the registration certificate Exh. B-9 and the claim submitted to the appellant under Exh. B-10, the vehicle in question was a goods vehicle falling within Section 2(8) of the Act and under Section 2(14) of the Act, a ‘medium goods vehicle’ means any goods vehicle, other than a light motor vehicle, heavy goods vehicle or road roller and this would fall under Section 8(2)(d) of the Act under the description ‘medium goods vehicle’. Therefore, the initial authorisation to drive a light motor vehicle cannot be construed as one enabling the holder of that licence to drive a medium goods vehicle as defined in Section 2(14) of the Act. Under Section 3(1) of the Act, in order to enable a person to drive a motor vehicle in any public place, he should hold an effective driving licence issued to him authorising him to drive the vehicle. This category obviously refers to owners driving motor vehicles. The latter part of Section 3(1) of the Act provides for the paid employees driving motor vehicles as distinguished from owners driving the motor vehicles. In such a case, a person shall not drive a motor vehicle as a paid employee or drive a transport vehicle, unless the driving licence specifically entitles him so to do. In this case, the endorsements found in the licence authorising the holder of the licence to drive as a paid employee is only in compliance with the second part of Section 3(1) of the Act and the licence issued authorised its holder to drive only a light motor vehicle and not a medium goods vehicle, like a Tempo, as a paid employee. It was precisely on account of this that the holder of the licence was obliged to obtain a further endorsement on 16.8.81 to the effect that the holder was authorised to drive a transport vehicle LMV. A transport vehicle under Section 2(33) of the Act included a goods vehicle of the type involved in the accident, as such vehicle would not fall within the category of a public service vehicle intended mainly for the carriage of passengers falling under Section 2(25) of the Act. Thus, on a consideration of the endorsement in the licence and also the relevant statutory provisions, it is clearly made out that the driver of the Tempo was authorised to drive that vehicle as a goods vehicle only by reason of the endorsement made on 16.8.81, long subsequent to the accident. It would be useful in this connection to make a reference to the decision reported in National Insurance Co. Ltd. v. Mahadevayya (1981) TLNJ 170. There the question was as to whether a mere licence to drive a light motor vehicle, which includes an auto-rickshaw, will not enable the holder of the licence to drive an autorickshaw as a public carrier and it was held that in the absence of a special authorisation, it is not possible to conclude that on the strength of the holding of a licence to drive an autorickshaw, such a vehicle could also be driven as a public carrier. Though in that case the terms of the licence were not available, such a conclusion was arrived at. However, in the instant case, as noticed earlier, the endorsements clearly show that on and from 16.8.81, the holder of the licence was authorised to drive the Tempo as a goods vehicle, as it is not disputed before this Court that the vehicle was used only for the carriage of goods. It, therefore, follows that at the time when the accident took place on 24.12.1980, the driver of the vehicle did not hold a valid licence to drive the Tempo and under the terms of the policy of insurance, Exh. B-2, the appellant cannot be made liable to pay compensation.

In the decision of United India Insurance Co. Ltd. v. Palaniammal , it has been held as follows:

In order to appreciate the rival contentions thus raised, it would be necessary to notice a few undisputed facts. The vehicle in question bearing registration No. MDG 3133 had been registered as a tourist taxi and the insurance cover in respect of this vehicle was also on that footing. At the time of the accident on 19.5.1981, the driver, who drove the vehicle, had a valid driving licence in respect of a light motor vehicle and it was long subsequently, on 21.6.1982, a licence for driving a tourist taxi was issued to him. The question that now arises for consideration is whether in the background of these undisputed facts, the insurance company is entitled to avoid its liability, on the terms of the policy issued by it as well under the provisions of Motor Vehicles Act. Considering the basis on which the insurance company sought to avoid its liability, the Tribunal proceeded to fasten liability on the insurance company on the ground that when the accident took place, the vehicle was on a test run and was not used as a tourist taxi and, therefore, the licence issued to the driver for driving a light motor vehicle would suffice to hold that the vehicle, at the time of the accident, was driven by a duly licensed driver. In other words, according to the Tribunal, though the vehicle was registered as a tourist taxi, at the time when the accident took place, it was not used as such and, therefore, the driving of the tourist taxi by a driver duly licensed to drive a light motor vehicle was in order and covered by the terms of the policy as well. It would be necessary at this stage to notice a few relevant definitions in the Motor Vehicles Act (hereinafter referred to as ‘the Act’) and also a review of its provisions. Section 2 of the Act defines different kinds of vehicles like articulated vehicle, goods vehicle, heavy goods vehicle, heavy passenger motor vehicle, light motor vehicle, medium goods vehicle, medium passenger motor vehicle, motor car, motor cycle, motor vehicles, etc. It is obvious from this that the purpose of defining the different types of motor vehicles is to describe and classify them into specific or particular categories, predominantly related to their user as well. It would be now useful to refer to Section 2(5-A) which defines a driving licence as meaning the document issued by a competent authority under Chapter II of the Act, authorising the person specified therein to drive a motor vehicle or a motor vehicle of any specific class or description. Sections 2(8) and 2(9) of the Act define goods vehicle and heavy goods vehicle. Section 2(9-A) sets out the definition of a heavy passenger motor vehicle. Under Section 2(13) of the Act, a light motor vehicle means a transport vehicle or omnibus the registered laden weight of which, or a motor car or tractor, the unladen weight of which, does not exceed 4,000 kilograms. Medium goods vehicle and medium passenger motor vehicle are defined in Sections 2(14) and 2(14-A) respectively. Under Section 2(15) of the Act, a motor cab means any motor vehicle constructed, adapted or used to carry not more than six passengers excluding the driver, for hire or reward. A motor vehicle under Section 2(18) of the Act means any mechanically propelled vehicle adapted for use upon roads, whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer, but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises. Section 2(25) of the Act defining a public service vehicle states that it includes a motor cab as defined in Section 2(15) of the Act. A transport vehicle, according to Section 2(33) of the Act, means a public service vehicle or a goods vehicle. Section 3 of the Act prohibits a person from driving a motor vehicle in any public place, unless he holds an effective driving licence issued to him authorising him to drive the vehicle and the further provision is to the effect that 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 to do so. Section 3(3) enables a person holding an effective driving licence authorising him to drive a motor car, to drive a motor cab, hired by him for his own use. Section 5 of the Act places an embargo on the owner or other person in charge of a motor vehicle from permitting any person, who does not satisfy the provisions of Section 3, to drive the vehicle. Under Section 8 of the Act relating to the form and contents of driving licence, the different kinds of vehicles in respect of which a driving licence may be issued, as entitling the holder to drive a motor vehicle belonging to one or other of the categories enumerated therein, are given. In the background of the above statutory provisions, it is clearly established that there is a nexus between the classification of the vehicles into different categories and also the issue of driving licence to persons to drive the vehicles belonging to different categories. It is not as if a person holding a licence under the Act to drive a particular category of vehicle can be permitted to drive a totally different category of vehicle altogether merely on the basis of a licence to drive vehicles belonging to one category. It is also necessary to bear in mind that the requirement of ability for obtaining a driving licence in respect of a light motor vehicle or a heavy goods vehicle is not the same. A person licensed to drive light motor vehicle may not be in a position even to start and drive a laden heavy goods vehicle. Therefore, merely from the circumstance that a person has been duly licensed to drive a light motor vehicle, he cannot claim that he is also entitled to drive or capable of driving a heavy goods vehicle. Though the only thing in common between them is driving a vehicle, the requirements to be fulfilled and the capacity required are not the same. To say, that the issue of licence for driving a light motor vehicle would be sufficient to drive a motor vehicle of a different category and classification, is opposed to the very concept of statutory classification of the vehicles into different categories and the issuing of licence and the fulfilment of different capacity requirements in respect of the driving of the vehicles belonging to each one of the categories. That would also totally nullify the classification of the vehicles under different categories as per the provisions of the Act and under Sections 3 and 8 of the Act nugatory. The different user of a vehicle belonging to a specified category would not take the vehicle out of the category to which such a vehicle has been assigned, under the provisions of the Act. For instance, a light motor vehicle can be used for carrying the luggage, though that would not make the vehicle a goods vehicle. It is a common sight nowadays to see lorries carrying passengers, but that would not suffice to label it a contract carriage for transport of passengers. A light motor vehicle or a goods vehicle, answering specific description in the Act, would continue to be the same kind of vehicle, though the owner of the vehicle may attempt to put it to a different use. In this case, the Tribunal had taken the view that at the time when the accident took place, the vehicle in question was not used for the purpose of transporting passengers and, therefore, it could not be regarded as a motor cab driven by a person, who had a licence only for driving a light motor vehicle and not a tourist taxi. Earlier, it had been pointed out how a varied user of vehicles on specific or even on a few occasions would not make any difference, whatever be their classification and categorisation as different kinds of vehicles under the provisions of the Act and a stray or steady different user would not also have the effect of altering or changing the statutory nomenclature conferred on the vehicle. Viewed in that light, the mere user of the tourist taxi or motor car on the date of the accident, in this case, for a purpose other than that for which it could be used, would not have, in any manner, affected the character of the vehicle in question, as a motor cab or tourist taxi. In such a situation, unless the tourist taxi or motor cab was driven by a person duly licensed to drive such a vehicle, it would follow that the driving of that vehicle by a person not authorised to drive a tourist taxi or motor cab would be by a person not duly licensed within the meaning of the provisions of the Act and also under the terms of the policy of the insurance in this case.

In M. Sammamma v. Syed Kaja Maunud-din . it has been laid down as follows:

On a perusal of the evidence, it has been found from the entries in Exh. A-2 that the driver who drove the vehicle is not having the valid licence to drive the lorry. Mere fact that he was in possession of the driving licence for a light motor vehicle does not mean that he is having a valid licence. What is a valid licence has to be considered with reference to the vehicle that was involved in the accident. Since different classes of licences are there and different periods and experience has been required for having those licences, it cannot be said that a person who is having light motor vehicle licence can drive the ‘vehicle wherein it requires, under the rules, heavy motor vehicle licence’. In this case, the vehicle involved is the lorry and admittedly, the driver was not having a licence for driving the lorry. Under those circumstances, the court was perfectly justified in arriving at the conclusion that the insurance company is not liable to pay him.

In two unreported decisions of this Court in M.F.A. No. 2193 of 1984 and M.F.A. No. 933 of 1992 disposed of on 6.12.1990 and 8.12.1993 respectively, this Court has held as follows:

The appellant has also challenged the award of the Tribunal in making R-2, the insurance company not liable to pay the amount of the award. But the finding of the Tribunal is that the driver was holding licence to drive only the passenger vehicles and not heavy goods truck. The evidence of PW 1 the Motor Vehicles Inspector clearly establishes that the driver had no licence to drive heavy goods vehicle. In view of this finding of the Tribunal, R-2 the insurance company cannot be made liable to pay the compensation awarded to the appellant on account of rash and negligent driving of the driver in driving heavy goods vehicle which was involved in the accident.

10. Section 2 (16) and (17) of the Act define the ‘heavy passengers vehicle’ and ‘heavy goods vehicle’ as follows:

(17) ‘heavy passenger motor vehicle’ means any public service vehicle or private service vehicle or educational institution bus or omnibus the gross vehicle weight of any of which, or a motor car the unladen weight of which, exceeds 12,000 kilograms;

(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.

11. In the decision reported in United India Insurance Co. Ltd. v. Dhanalakshmi 1998 ACT 715 (Karnataka), this Court has held that the driver having licence to drive ‘heavy passenger vehicle’ and driving a ‘heavy goods vehicle’ cannot make the insurance company liable and this Court laid down as follows:

On a perusal of the evidence on record. I find that there is no need for remanding the matter to the Tribunal. A perusal of Exh. R-1 the insurance policy cover note given by the insurance company relating to the vehicle involved in the accident goes to show that the ‘gross vehicle weight’ of the vehicle involved in the accident was 16,200 kilograms. It would therefore be a heavy goods vehicle within the meaning of Section 2, Clause (16) of the Act. Therefore, the driving licence held by respondent No. 1 before the Tribunal as per Exh. R-2 which is for a heavy passenger motor vehicle cannot be considered as driving licence for a heavy goods vehicle. Hence, there is a clear violation of the terms of the insurance policy and the insurance company cannot be made liable to pay the compensation determined in this case. Hence, the appeal has to be allowed and the award passed by the Tribunal has to be modified.

12. The Supreme Court in United India Insurance Co. Ltd. v. Gian Chand , has considered the breach of terms of policy. In that case when the vehicle was driven by unlicensed driver, the insurance company was held to be exonerated of its liability. In the earlier case in New Asiatic Insurance Co. Ltd. v. Pes-sumal Dhanamal Aswani 1958-65 ACJ 559 (SC), case arising out of the old Act and in the decision of Guru Govekar v. Filomena F. hobo 1988 ACJ 585 (SC), cannot be preferred in view of the above decision of the Supreme Court rendered in 1997. In fact the view of another single Judge of this Court in a decision in United India Insurance Co. Ltd. v. Lakshmamma , held that the light motor vehicle includes a vehicle which is less than the unladen weight has to be construed to be a transport vehicle to make the insurance company liable cannot be considered to be a good law in the light of the dictum of the Apex Court in United India Insurance Co. Ltd. v. Gian Chand . The Apex Court has made clear the position that once a finding is rendered that an unlicensed driver drove the vehicle and even the insured handed over the vehicle for being driven by the unlicensed driver, the insurance company would get exonerated of its liability to meet the claim of third party who might have suffered on account of vehicle involved in the accident caused by such an unlicensed driver. The said decision reads as follows:

As regard exoneration of insurance company on account of the insured vehicle being driven by. an unlicensed driver there are two lines of cases. The first line of cases consists of fact situations wherein the insured are alleged to have committed breach of the condition of insurance policy, which required them not to permit the vehicle to be driven by an unlicensed driver. Such a breach is held to be a valid defence for the insurance company to get exonerated from meeting the claims of third parties who suffer on account of vehicular accidents which may injure them personally or which may deprive them of their breadwinner on account of such accidents caused by the insured vehicles. The other line of cases deals with the insured owners of offending motor vehicles that cause such accidents wherein the insured owners of the vehicles do not themselves commit breach of any such condition and hand over the vehicles for driving to licensed drivers who on their own and without permission, express or implied, of the insured, hand over vehicles or act in such a way that the vehicles get available to unlicensed drivers for being driven by the latter and which get involved in vehicular accidents by the driving of such unlicensed drivers. In such cases the insurance company cannot get benefit of the exclusionary clause and will remain liable to meet the claims of third parties for accidental injuries, whether fatal or otherwise. When, as in the instant case, no case was put up by the insured that he did not know that the driver to whom the vehicle was being handed over, was not having a valid licence nor he stepped into the witness-box to prove his case exposing him to an adverse inference being drawn against him to the effect that the vehicle had been handed over by him for being driven by an unlicensed driver and a finding is reached that the insured had handed over the vehicle for being driven by an unlicensed driver, the insurance company would get exonerated from its liability to meet the claims of third party who might have suffered on account of vehicular accident caused by unlicensed driver.

13. The Madras High Court in the case of Oriental Insurance Co. Ltd. v. Petchi Muthu Asari , has held that the insurance company is not liable in a case where a person who is authorised to drive the ‘heavy motor vehicle’ was driving ‘heavy goods vehicle’ at the time of accident. The court also considered that whether authorisation to drive one category of vehicle enables the driver to drive another category of vehicle. It is further considered that the person who is holding driving licence for driving a bus which is a ‘heavy passenger motor vehicle’ is not authorised to drive a truck which is also ‘heavy goods vehicle’. This is what the court has held:

Since vehicles are classified by statutory provisions into different categories, authorisation to drive one category of vehicle cannot enable the driver to drive another category of vehicle.

In the light of the above provisions, it can be concluded that on the date of the accident, the driver of the lorry, heavy goods vehicle as classification under Section 2(9) of the Act, cannot be said to be duly licensed, even though he was having a driving licence for driving the bus, viz., heavy passenger motor vehicle as classified in Section 2(9-A) of the Act.

XXX XXX XXX

However, on principle there is no difficulty in accepting the contention urged by the counsel for the appellant that if the driver without any authorisation to drive the heavy goods vehicle, drove the vehicle and met with an accident even though he was having licence for driving heavy passenger vehicle, then the insurance company would certainly claim that it is not liable for paying compensation.

14. Under the relevant provisions of law, the insurance company is given an option to impose condition which is provided by the statutory command itself and excludes its liability when the vehicle is driven by a person who does not have due authorisation and without having valid and effective licence at the time of accident.

15. Another question was raised by the respondents that the appeal by the insurance company is not maintainable. A Division Bench of the Madhya Pradesh High Court has considered the position in United India Insurance Co. Ltd. v. Ramdas Patil and held that if the Tribunal has passed shockingly excessive award and the quantum of compensation awarded is arbitrary, insurance company can invoke revisional jurisdiction of High Court under Section 115 of Civil Procedure Code or supervisory jurisdiction under Article 227 of the Constitution of India. This is what the court held in paras 16 and 17:

We have given our thoughtful consideration to the above argument advanced on behalf of the insurance company. As we have found above, the provisions of the Act, as interpreted by this Court and the Apex Court, do not permit any right of appeal to the insurer on quantum of compensation awarded. In cases where the Tribunal has passed shockingly excessive awards of compensation throwing all settled principles to the wind or the quantum of compensation awarded is arbitrary, in our considered opinion, the insurer is not without remedy. It can then instead of resorting to the remedy of appeal which is not available to him under the Act, invoke revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure or its supervisory jurisdiction under Article 227 of the Constitution.

This court has held in a series of cases, one of such is reported in Sarjubai v. Gurdip Singh , that Tribunal constituted under the Motor Vehicles Act is a ‘court subordinate to the High Court’ within the meaning of Section 115 of the Code of Civil Procedure and is, therefore, amenable to the revisional jurisdiction. The Constitutional power of this Court under Article 227, of exercising superintendence over all the subordinate courts and Tribunals can also be invoked in cases where by awarding an extremely high amount of compensation the Tribunal has acted arbitrarily in exercise of its jurisdiction.

16. This question may not arise in this appeal as the main question involved in this appeal is violation of the terms of policy. Admittedly, the vehicle was driven by a person who does not have an authorized licence to drive the particular vehicle. In the above circumstances holding the two points raised in favour of the appellant, the appeal is allowed insofar as it relates to the insurance company is concerned and the liability of the insurance company alone is set aside. The amount deposited, if any, shall be refunded to the appellant.

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