Bajaj Allianz General Insurance Co. Ltd. vs Sitara and Others

S.K. Gangele, J.—Appellant insurance company has filed this appeal u/s 173 of the Motor Vehicles Act against the award dated 18.12.2007 passed by Motor Accidents Claims Tribunal, Bhind in Claim Case No. 26 of 2007.

On 20.6.2006 deceased Rafiq was going to Mehgaon on his bicycle. When he reached near house of Kalyan Kushwah at Gormi Road, he was dashed by a Bolero Camper vehicle bearing registration No. UP 83-H 9365. In the aforesaid accident he died on the spot. A report of the accident was lodged at the Police Station, Mehgaon. Police registered a case against the driver of the offending vehicle.

Thereafter, the claimants filed claim application before Claims Tribunal, claiming a total compensation of Rs. 12,02,500. The Claims Tribunal, after appreciation of evidence on record held that the accident occurred due to rash and negligent driving of the offending vehicle by the driver. The driver had a valid driving licence. The offending vehicle was insured at the relevant time by the insurance company appellant. Claims Tribunal awarded a total compensation of Rs. 2,98,000 and further directed that the owner, driver and the insurance company are jointly and severally liable for payment of compensation.

The learned Counsel for the appellant insurance company has submitted that the Claims Tribunal has committed an error of law in directing the insurance company to indemnify the insured. The offending vehicle was being driven in contravention of the terms and conditions of the insurance policy and the driver had no valid driving licence to drive the vehicle. In support of his contentions, the learned Counsel relied upon the following judgments:

(1) National Insurance Co. Ltd. Vs. Kusum Rai and Others, ;

(2) New India Assurance Co. Ltd. Vs. Prabhu Lal, ;

(3) Lal Chand Vs. Oriental Insurance Co. Ltd., ; and

(4) Oriental Insurance Co. Ltd. Vs. Angad Kol and Others, .

Contrary to this, learned Counsel for respondent No. 6 has submitted that there was no violation of any terms and conditions of the insurance policy, hence the learned Claims Tribunal has rightly fixed the liability on the insurance company. In support of his contentions, learned Counsel relied upon the following judgments:

(1) United India Insurance Co. Ltd. v. Budhiya Bai 2008 ACJ 17 (MP); and

(2) National Insurance Co. Ltd. Vs. Swaran Singh and Others, .

The point for determination before this Court is: whether the insurance company is liable to indemnify the insured. It is an admitted fact that the offending vehicle was insured at the relevant time by the appellant insurance company. Copy of the insurance policy, Exh. D1, has been filed before Claims Tribunal. As per the aforesaid insurance policy the aforesaid vehicle Bolero Camper was insured for carrying goods and passengers. B.N. Shukla NAW 1, examined before the Claims Tribunal on behalf of insurance company deposed that he was working as Assistant Manager of the insurance company. The vehicle, UP 83-H 9365 was insured as a commercial vehicle by the insurance company under the Commercial Vehicle Package Policy. It was valid from 1.2.2006 to 31.1.2007. As per the insurance policy, the terms and conditions provided that the driver must have a valid driving licence for driving the vehicle. The driver Rajeev Kumar Yadav had no valid driving licence, hence the insurance company is not liable to indemnify the insured. In his evidence he admitted the fact that the vehicle was registered as light motor vehicle. Jaiveer Singh NAW 2, who was working at the relevant time as senior clerk in the office of Assistant Divisional Transport Officer, Etawa, in his deposition stated that driving licence Exh. D2 was issued from the office of Assistant Divisional Transport Officer, Etawa on 27.5.2005. The aforesaid driving licence was issued for driving motor cycle, LMV private vehicle. The driver was not authorised under the aforesaid driving licence to drive commercial vehicle. Nobody has been examined on behalf of owner and driver of the offending vehicle.

A certificate of registration of the vehicle along with an application under Order 41, Rule 27, CPC has been filed by the owner of the vehicle. As per the aforesaid registration certificate the vehicle was registered as ''utility van''. However, from the evidence of B.N. Shukla, Manager of the insurance company, it is clear that the vehicle insured by insurance company was under ''Commercial Vehicle Package Policy'' and the vehicle was registered for commercial purpose. It is also a fact that the vehicle was being used by respondent No. 6 at the time of accident for commercial purpose. Admittedly, in the driving licence issued by Assistant Divisional Transport Officer, Etawa, there is no endorsement that the driver was authorised to drive commercial vehicle, a light motor vehicle.

The Hon''ble Supreme Court in New Indian Assurance Co. Ltd. Vs. Roshanben Rahemansha Fakir and Another, , has held that if a driver has a driving licence to drive a light motor vehicle (non-transport) and there was no endorsement to drive commercial vehicle and the driver had been driving light motor vehicle (commercial) then there was a breach of policy. However, the Hon''ble Supreme Court had further directed under Article 142 of the Constitution the insurance company to pay the amount of compensation to the claimants and it could recover the same from the owner of the offending vehicle.

In the present case also the driver of the offending vehicle had a valid driving licence to drive a light motor vehicle, however, there was no endorsement on the driving licence to drive a commercial vehicle and at the relevant time the driver had a valid driving licence of driving a light motor vehicle but not a commercial vehicle.

A three-Judge Bench of the Hon''ble Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others, , has held as under with regard to liability of the insurance company when the driver has been granted licence for driving one type of vehicle, but at the relevant time he was driving another type of vehicle:

(81) 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 to drive the vehicle falling within that class or description.

(82) 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 Central Government to prescribe the forms of driving licences for various categories of vehicles mentioned in Sub-section (2) of said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are (a) motor cycle without gear; (b) motor cycle 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'', ''maxicab'', ''medium goods vehicle'', ''medium passenger motor vehicle'', ''motorcab'', ''motor cycle'', ''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 licences arise for consideration before the Tribunal. A person possessing a driving licence for ''motor cycle without gear'', (sic may be driving a vehicle) for which he has no licence. Cases may also arise where holder of driving licence for ''light motor vehicle'' is found to be driving a ''maxicab'', ''motorcab'' or ''omnibus'' for which he has no licence. In each case on evidence led before the Claims Tribunal, a decision has to be taken whether the fact of the driver possessing licence 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 accident was caused solely because of some other unforeseen or intervening cause like mechanical failure and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.

Hence, on the basis of the above principle of law laid down by the Hon''ble Supreme Court, in my opinion, there is a breach of insurance policy. Hence, the insurance company is entitled to recover the amount of compensation from owner of the offending vehicle, respondent No. 6 after payment of the amount of compensation to claimants.

Consequently, the appeal filed by the appellant, insurance company, is partly allowed. It is held that the insurance company appellant, shall pay the amount of compensation as awarded by the Claims Tribunal to claimants and it can recover the same from the owner of the offending vehicle, respondent No. 6. The impugned award is modified to the extent indicated hereinabove. No order as to costs.