Maganbhai Sampatbhai Mali and Another vs Narkli and Another

Mehta, J.—This appeal by the driver and the owner of the offending vehicle is directed against the award of the Motor Accidents Claims Tribunal exonerating the insurer-respondent No. 2 from the liability to indemnify the insured-owner of the vehicle on the ground that the licence at the time of the accident. There is no dispute that the appellant-driver was holding a learner''s licence for driving heavy motor vehicles. The learner''s licence of appellant No. 1 was produced by the insurer and exhibited as exhibit 40 by consent of the parties. The Tribunal has held that the insurance company would not be liable when the vehicle was driven by a person holding a learner''s licence.

Therefore, the question is whether the Tribunal was right in holding that when a driver holds only a learner''s licence at the time of the accident whether the insurance company would be liable to indemnify the insured owner. The policy, exhibit 41, contains the following provision as regards driver :

"Provided that the person driving holds a valid driving licence at the time of the accident or had held a permanent driving licence \\9other than a learner''s licence) and is not disqualified from holding or obtaining such a licence."

Exhibit 40 is the learner''s licence and was valid in force at the time of the accident. It is a licence issued under rule 16 of the Bombay Motor Vehicles Rules and it is "valid in the State of Gujarat". Appellant No. 1, Maganbhai Sampatbhai Mali, is licensed to drive, as a learner, heavy motor vehicles and this driving licence was valid up to 16th day of September, 1980. It was issued on March 17, 1980. The accident has occurred on May 11, 1980. The vehicle in question was a motor truck (heavy motor vehicle) insured by its owner-appellant No. 2 with insurer-respondent No. 2. The period of insurance was from January 5, 1980, to January 4, 1981. Thus, on the date of the accident, May 11, 1980, the policy was in force and the learner''s licence was valid throughout the State of Gujarat and the accident has also occurred in the State of Gujarat.

Chapter II of the Motor Vehicles Act provides for licensing of drivers of motor vehicles and section 3(1) reads as under :

"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 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 deals with grant of driving licence and section 8 prescribes the form and contents of a driving licence. Section 8(2) provides for different classes of vehicles which entitles the holder of a driving licence to drive that class of motor vehicle and Form D is in respect of driving licence. However, these are the provisions for permanent driving licence. Rule 16 of the Bombay Motor Vehicles Rules provides for learner''s driving licence and it states that section 3(1) of the Act shall not apply to any person driving a motor vehicle in a public place during the course of his instructions or of any experience in driving with the object of presenting himself for the test required by section 7(6) of the Act. Rule 16 sub-rule (1)(i) to (iii) reads as under :

"16. Learner''s driving licence. - (1) 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 gaining 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 Lt to these rules entitling him to drive the vehicle ;

(ii) there is beside 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 to stop the vehicle ;

(iii) there is affixed both to the front and rear of the vehicle a plate or card ass set forth below :".

Sub-rule (7) has been deleted with effect from May 31, 1979, and is, therefore, not applicable to the present case. Form L Lr of the learner''s licence is set out in the Schedule to the Rules. The present licence (exhibit 40) is in that form. It states that it is valid in the State of Gujarat and the classes of vehicles are shown in clauses (a) to (f), and the relevant applicable clause (e) refers to "heavy motor vehicle". There is no separate learner''s licence for heavy passenger motor vehicles or heavy goods vehicles. There is only one category of heavy motor vehicles and there are no separate categories of goods or passenger heavy vehicles. The form of the application is also in the same way confined to one category of heavy motor vehicle.

The contention of respondent No. 2 -insurer is that the learner''s driving licence of the driver-appellant No. 1 cannot be said to be a valid licence for the purpose of insurance coverage and in any case it was not a licence for driving a transport vehicles and, therefore, the insurance company is not liable under the policy. The relevant clause of the policy is quoted above. It is in two parts, namely :

(i) the person driving holds a valid driving licence at the time of the accident, or

(ii) had held a permanent driving licence other than a learner''s licence and is not disqualified from holding or obtaining such a licence.

This, at the time of the accident, the driver is required to hold a valid driving licence and such licence is not necessarily a permanent driving licence. The second contingency is that at the time of the accident the driver had no valid licence in force but had in the past held a permanent driving licence ; and is not disqualified from holding or obtaining such a licence. Therefore, at the time of the accident, even though the driver may not hold an effective driving licence, if he had held in the past a permanent driving licence, the insurance company would still be liable to indemnify the owner, if such person without an effective licence is not disqualified from holding such a licence. But this condition of permanent driving licence is applicable only in the case of a person who had held the permanent driving licence in the past and it wa not effective at the time of the accident. At the time of the accident, if the person has a valid driving licence, that is sufficient to attract the liability of the insurance company and such driving licence is not necessarily a permanent driving licence and a learner''s licence is not excluded. Learner''s licence is also a driving licence and a valid driving licence. It cannot be said that a learner''s licence is not a valid driving licence.

This driving licence which is valid not only having been issued by the competent authority under the law, but also valid in point of time and places (valid at the time of the accident and valid at the place of the accident). The accident had occurred on May 11, 1980, and the learner''s licence was valid up to September 16, 1980. The accident had occurred in Surat District in State if Gujarat and the learner''s driving licence is valid throughout the State of Gujarat. It is a licence to drive a heavy motor vehicle. The offending vehicle which is the insured truck is a heavy motor vehicle. Thus, all the conditions of validity of a driving licence are fulfilled and appellant No. 1- driver was holding such a valid driving licence while driving the offending vehicle at the time of the accident and, therefore, the insurance company cannot escape the liability to indemnify the insured in respect of the present claim.

In the case of Public Prosecutor v. Albert See [1972] ACJ 381, the High Court of Singapore held in a criminal case where the accused was charged with an offence of using a motor cycle without there being in force in relation to the user a policy of insurance in respect of third party risk. The accused was holding a driving licence which had already expired on October 7, 1969, and there being no "L" plates displayed on the front and rear and he had a policy of insurance covering third party risk which was valid at the material date and the relevant clause read as follows :

"Provided that the person driving is permitted in accordance with the licensing or other laws or regulations to drive the motor vehicle or has been so permitted and is not disqualified by order of a court of law or by reason of any enactment or regulation in that behalf from driving the motor vehicle."

This clause is, to some extent. similar to the present clause in the policy. The question of law reserved for consideration of the court was whether or not a learner driver who drives his motor vehicle whilst in possession of an expired provisional driving licence and who failed to display "L" plates or otherwise infringes the licensing rules or other regulations governing learner drivers and is guilty of an offence under the Act ? and it was held that if a person drives even during the period when his provisional driving licence is in force, his motor cycle being on the road without displaying "L" plates, he is not permitted in accordance with the rules to drive his motor cycle and, therefore, he was committed breach of the policy of insurance. In the present case, there is no such breach of any rule or term of policy. The driving licence is in force and the insurance company has not proved breach of any terms of the licence or of any rule.

In the case of Chanchalaben and Others Vs. Shaileshkumar and Others, , the Division Bench of this court had occasion to consider the expression "the person driving holds a licence to drive the motor cycle" and had held that if includes not only a fully qualified and regularly licensed driver but it also means a learner-driver. The relevant observations of the Division Bench are as under (at page AIR 1974 Guj 149) :

"The Form L Lr. appended to the said Rules also states that the applicant (who is to be named by him) is licensed to drive as a learner. Driving, therefore is common both to a fully qualified to drive as well as to a learner. Whereas a fully qualified driver drives a vehicle either for making an income or for pleasure as in the case of an owner-driver, a learner drives a vehicle in order to learn driving. Therefore, both drive a motor vehicle with different objects in view. The difference in the objects with which they drive a vehicle cannot cloud be concept of driving in the case of a learner. For the reasons stated above, we are of the opinion that the expression `the person driving holds a licence to drive the motor cycle'' means not only a fully qualified and regularly licensed driver but it also means a learner-driver. Mr., Vakil has invited our attention to a passage in Fire and Motor Insurance by E.R. Hardy Ivamy, 1968 edition, at page 231, under the caption `Licence includes provisional licence'' : it has been stated there that the expression `licence'' includes a provisional licence. The aforesaid observation made by the learned author has been based upon the decision of the Westminster County Court in Rendlisham v. Dunne : Pennine Insurance Co. Ltd. [1974] 1 LR 192. In that decision, Judge Herbert of the WEstminster County Court has held that the meaning of the word `licence'' cannot be restricted to `full licence''. Indeed, hiss decision has been based upon the Road Traffic Act, 1960, of Great Britain. The scheme of the Motor Vehicles Act, 1939, is largely similar to the Road TRaffic Act, 1960. Mr. Vakil has also invited our attention to Road Traffic Offenses by G. S. Wilkinson, 5th edition, at page 196, where it has been observed that the expression `who holds or has held a driving licence'' includes a driver who has once held a licence, even though such a licence was provisional. That observation has also been made by the Westminster author on the strength of the strength of the aforesaid decision of the Westminster County Court in Rendlessham v. Dunne [1974] 1 LR 192. We have made reference to the aforesaid two books just to show that in matters which raise such questions, there is identical thinking in England also."

This ratio is clearly and directly applicable to the present case. It was also a case of a learner''s licence and the insurance company was held liable to indemnify the owner due to the accident committed by the negligence of the learner driver.

In the case of Smt. Ishwar Devi Vs. Reoti Raman and Another, , the Division Bench of the Allahabad High Court Dealt with a similar question on the following term in the policy (at page 309) :

"Provided that the person driving holds a licence to drive the motor cycle or has held and is not disqualified for holding or obtaining such a licence".

This clause was much wider than the clause in our policy. On the interpretation of that clause, the learner licence was held to be a valid licence ; even an expired learner licence was held to be a licence once held and the person is not being disqualified for obtaining or holding such a licence. In the present case, the driver was holding a valid and effective learner licence. Therefore, there is no need to go to the extent to which the Allahabad High Court had to to but the fact remains that the Allahabad High Court has also held that a learner licence was a valid driving licence. In the present case, the policy also makes a distinction between a permanent licence and a provisional licence. A provisional licence is a learner licence and that risk is covered even if at the time of accident if a driver holds only a learner licence.

In view of the aforesaid discussion, it is clear that the appellant driver was holding a valid learner licence to drive heavy motor vehicles and, therefore, the risk of accident caused by such a driver is covered by the policy of insurance and, therefore, respondent No. 2-insurer is liable to indemnify the appellants to satisfy the award.

In the result, the appeal succeeds and is allowed and the judgment and award of the Motor Accidents Claims Tribunal, in so far as it exonerates the insurance company-respondent No. 2, is quashed and reversed and the insurance company-respondent No. 2 is held jointly and severally liable so as to satisfy the award of Rs. 30,000 with interest running at the rate of 6% from the date of the application, i.e., July 16, 1980, till the amount is deposited with the Tribunal with costs throughout. The second respondent company-insurance company is directed to deposit with the Tribunal the entire amount of compensation with interest and costs of both the courts within three months from today. Out of the total amount of compensation, costs and interest, 1/10th of the amount to be paid to the claimant, widow of the deceased, Ramavtar, by an account payee cheque in her name and the rest of the amount shall be invested by the Tribunal in long-term fixed deposit and the periodical interest shall be paid to the claimant regularly by account payee crossed cheque in her name. The Tribunal shall see that the amount of compensation is paid to her and the periodical interest is remitted to the claimant who is residing at a distant interior village in Bihar. Since the amount is required to be invested by the Tribunal, there is no question of any loan or overdraft or other facility being availed of on the said amount.

Appeal is accordingly allowed with costs.

C. A. No. 1410 of 1984 is filed by the appellants for leading additional evidence. By this application, an attempt is made by the driver and owner to lead additional evidence to show that at the time of the accident, the driver was accompanied by another person holding a permanent licence. For that purpose, reliance is also sought to be placed on the F. I. R. recorded contemporaneously showing the presence of Vasant Rao in the vehicle. The appellants propose to examine the said Vasant Rao and tom prove hiss permanent licence and his presence in the vehicle at the time of the accident. This application is opposed by the insurance company. We also do not feel that it is necessary for the applicants to lead this additional evidence to enable the court to pronounce the judgment. The onus is on the insurance company to establish its defence. It is for the insurance company to show and prove that there was any breach of rule or condition of the licence or condition of the policy so as to exonerate the insurance company from the liability. The insurance company has not raised such contention and has not led such evidence and, therefore, there is no question of rebutting any such case and, therefore, this additional evidence is not at all necessary. The insurance company had already led the evidence in the trial court and has also this opportunity of cross-examining these additional witnesses. However, the insurance company has chosen to oppose this application. We do not feel that this additional evidence is necessary to enable us to pronounce the judgment. Therefore, this application is rejected. Rule is discharged. No order as to costs.