National Insurance Co. Ltd. vs Mahadev Rawat and Another

Satish Chandra, J.—This appeal is filed u/s 173 of the Motor Vehicles Act, 1988 against the award dated 19.10.2001, passed by the Motor Accident Claims Tribunal, Lucknow in Claim Petition No. 52 of 1995.

The brief facts of the case are that on 30.9.1994 at about 8.35 a.m., a driver of the Truck No. U. P.-41- 4886 was driving it recklessly and negligently and at Pahadpur Chauraha P.S. Gudmba district Lucknow collided with a cyclist namely Suresh Rawat who died on the spot. The deceased was working on a contract basis in Space Centre, Lucknow at Rs. 1,000 per month. The truck in question was insured with the appellant company against the cover note No. 834955 which was valid up to 30.9.1994.

For the purpose of computation, the Tribunal took the salary of the deceased at the rate of Rs. 1.000 per month and deduced one third for self expenditure. Thus, the Tribunal took the income of the deceased at Rs. 8,000 per annum and by looking the age of claimant- respondent, applied the multiplier of 13 and awarded the compensation of Rs. 1,04,000. In addition, the amount of Rs. 2,000 was also awarded for funeral expenses. Thus, the total compensation was awarded Rs. 1,06,000. Being aggrieved, the insurance company has filed the present appeal.

During the course of arguments. Mrs. Alka Verma, counsel for the appellant submits that the appellant insurance company has not disputed the said facts and quantum of compensation. She confined her arguments only to the plea that the driver of the truck, Mohd. Parvez was not holding a valid driving licence on the date of accident. She submits that the driving licence was originally issued by the competent authority on 7.8.1979 which was renewed for the period of 18.11.1989 to 17.11.1992. It was again renewed on 27.7.1995 to 17.11.1998. Thus, on the date of accident. i.e.. 30.9.1994, the driver was not holding a valid driving licence. To support her argument, she relied on the ration laid down in the case of Ram Babu Tiwari Vs. United Indian Insurance Co. Ltd. and Others, where it was observed that when the driver was not duly licensed on the date of accident then insurance liability was excluded. She also relied on the ratio laid down in the case of Oriental Insurance Co. Limited Vs. Prithvi Raj, where it was observed that when the licensing authority had not issued any licence as was claimed by the driver then the appellant-insurance company had no liability. She also relied on the following cases where similar ratio was laid down:

National Insurance Co. Ltd. Vs. Swaran Singh and Others,

National Insurance Co. Ltd. Vs. Kusum Rai and Others,

Ram Babu Tiwari Vs. United Indian Insurance Co. Ltd. and Others,

Oriental Insurance Co. Limited Vs. Prithvi Raj,

Premkumari and Others Vs. Prahlad Dev and Others,

National Insurance Company Limited v. Vidhya Dhar Mahariwal and Ors. AIR (2008) SCW 7145 : 2008 (3) ACCD 1668 : 2008 (4) AWC 3820 (SC).

Lastly, she made request that the award may kindly be set aside and the insurance company should not be held liable to pay any compensation as the driver was not having any valid licence on the date of accident.

On the other hand, learned Counsel for the claimant-respondent has justified the impugned order.

We have heard both the parties at length and gone through the material available on record.

It may be mentioned that Section 15 of the Motor Vehicles Act, 1988 deals with the renewal of the driving licence. The said provision reads as under:

Renewal of driving licences.- (1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry.

Provided that, in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with the effect from the date of its renewal:

Provided further that, where the application is for the renewal of a licence to drive a transport vehicle or where in any other case the applicant has attained the age of forty years, the same shall be accompanied by a medical certificate in the same form and in the same manner as is referred to in Sub-section (3) of Section 8, and the provisions of Sub-section (4) of Section 8 shall, so far as may be, apply in relation to every such case as they apply in relation in every such case as they apply in relation to a learner''s licence.

(2) An application for the renewal of a driving licence shall be made in such form and accompanied by such documents as may be prescribed by the Central Government.

(3) Where an application for the renewal of a driving licence is made previous to, or not more than thirty days after the date of its expiry, the fee payable for such renewal shall be such as may be prescribed by the Central Government in this behalf.

(4) Where an application for the renewal of a driving licence is made more than thirty days after the date of its expiry the fee payable for such renewal shall be such amount as may be prescribed by the Central Government.

Provided that, the fee referred to in Sub-section (3) may be accepted by the licensing authority in respect of an application for the renewal of a driving licence made under this sub-section if it is satisfied that the applicant was prevented by good and sufficient cause from applying within the time specified in Sub-section (3);

Provided further that, if the application is made more than five years after the driving licence has ceased to be effective the licensing authority may refuse to renew the driving licence unless the applicant, undergoes and passes to its satisfaction the test of competence to drive referred to in Sub-section (3) of Section 9.

(5) Where the application for renewal has been rejected, the fee paid shall be refunded to such extent and in such manner as may be prescribed by the Central Government.

(6) Where the authority renewing the driving licence is not the authority which issued the driving licence it shall intimate the fact of renewal to the authority which issued the driving licence.

In the instant case, originally the licence was issued on 7.8.1979 which was renewed time to time before accident. It was renewed with effect from 18.11.1989 to 17.11.1992 then the application for the renewal was pending before the authority and same was renewed for the period of 27.5.1995 to 17.11.1998. In the instant case, the licence was effective up to 17.11.1992 and the same was renewed w.e.f. 27.5.1995 to 17.11.1998. Thus, the same is within the period of five years and is permissible as per the Section 15(4) proviso of the Act (supra). Once a licence is renewed, then it shall deemed to be operative from original date, keeping in view the mandate of Sub-section (4) of Section 15.

Moreover, the purpose of the driving licence is to certify by the licensing authority that the applicant has the experience, qualification for driving a particular kind of vehicles. For the intermediary period, when the application for the renewal was pending, it cannot be said that the driver was not having the said experience and qualification or forgotten his/her expertise which was certified in the driving licence.

In the cases cited by the learned Counsel for the appellant (supra), the driver was either not holding the licence at all or the licence was not valid licence. But in the instant case, the driver was holding a valid driving licence before and after the said accident. Technically, the application for renewal was pending before the competent authority. Renewal was done within a period of five years as is permissible u/s 15(4) proviso, after paying higher fee. Thus, the driver was holding deemed licence on the date of-accident

In the case of Swaran Singh (supra) it was clearly observed by the Apex Court that the liability of the insurance company would depend upon several factors. The owner would be liable for payment for compensation in the case where the driver was not having a licence at all. But in the instant case the driver was holding a valid licence which was subject to renewal.

Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving licence has lapsed, as in the meantime the provisions for disqualification of the driver contained in Sections 19, 20, 21, 22, 23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter, he cannot be said to be delicensed and because of renewal same shall remain deemed valid for a period mentioned in section which may be up to five years as mentioned in proviso to Section 15(4) of the Act. Argument of appellant''s counsel may be acceptable in case licence would not have been renewed.

The Hon''ble Supreme Court in the case National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others, which has since been followed in Sadhana Lodh Vs. National Insurance Company Ltd. and Another, observed that the defence available to an insurance company would be a limited and the question as to whether an insurer can avoid its liability in the event it raises a defence as envisaged in Sub-section (2) of Section 149 of the Act corresponding to Sub-section (2) of Section 96 of the Motor Vehicles Act, 1939 had been the subject-matter of decisions in a large number of cases.

It is beyond any doubt or dispute that u/s 149(2) of the Act, an insurer, to whom notice of the bringing of any proceeding for compensation has been given, can defend the action on any of the grounds mentioned therein.

However, Clause (a) opens with the words "that there has been a breach of a specified condition of the policy", implying that the insurer''s defence of the action would depend upon the terms of the policy. The said sub-clause contains three conditions of disjunctive character, namely, the insurer can get away from the liability when (a) a named person drives the vehicle; (b) it was being driven by a person who did not have a duly granted licence; and (c) driver is a person disqualified for holding or obtaining a driving licence. In the instant case, none of the conditions is in existence.

We may also take note of the fact that whereas in Section 3, the words used are ''effected licence'', it has been differently worded in Section 149(2), i.e., ''duly licensed''. If a person does not hold an effective licence as on the date of the accident, he may be liable for prosecution in terms of Section 141 of the Act but Section 149 pertains to insurance as regard third party risks. Needless to mention that a provision of a statute which is penal in nature vis-a-vis a provision which is beneficent to a third party must be interpreted differently. It is also well known that the provisions contained in different expressions are ordinarily construed differently.

The words ''effective licence'' used in Section 3, therefore, in our opinion cannot be imported for Sub-section (2) of Section 149 of the Motor Vehicles Act. We must also notice that the words ''duly licensed'' used in Sub-section (2) of Section 149 are used in past tense.

Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed thereunder despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor. Proviso appended to Section 15 in unequivocal term states that the licence can be renewed within interim period which may be maximum five years as per proviso Section 15(4) of the Act from its expiry.

In the instant case, the licence was earlier renewed from 18.11.1989 to 17.11.1992 and again it was renewed from 27.5.1995 to 17.11.1998. Thus, the interregnum period is less than 5 years and fully covered by proviso to Section 15(4) of the Act, as stated above. Moreover, during this period, it cannot be said that the driver has lost his skill or has forgotten expertise for driving the particular vehicle.

It may be mentioned that this Hon. Court in the case of Oriental Insurance Company Ltd. v. Shri Achchelal and Ors. F.A.F.O. No. 268 of 1999, dated 14.9.2009 : 2010 (1) ACCD 345 (SC), observed that on the date of accident, the driver did not have a licence and that the renewal beyond 30 days will not take effect from the date of expiry of the licence. The vehicle was thus driven against the terms and conditions of the insurance policy. The insurance company, therefore, could not be held liable for payment of compensation. The principles of law laid down by Hon''ble Supreme Court in Oriental Insurance Company Ltd. v. Nanjappan and Ors. (2004) 13 SCC 224 : 2006 (1) ACCD 301 : 2004 (2) AWC 1837 (SC), will thus be attracted, and that the insurance company would be liable to deposit the amount.

22 It may be mentioned that Insurance Act is a social welfare legislation which will have to be interpreted liberally. The insurance liability arises from contract as well as statute. It, therefore, may not be proper to apply the strict rules for interpretation of a contract alone for interpreting a statute as observed by the Hon''ble Supreme Court in the case of Oriental Insurance Co. Ltd. Vs. Samayanallur Primary Agricultural Coop. Bank, Further, the Hon''ble Supreme Court in the case of Jitendra Kumar Vs. Oriental Insurance Co. Ltd. and Another, has held that there may be a case where an accident takes place without there being fault on the part of the driver. In such an event, the question as to whether a driver was holding a valid licence or not, would become redundant. A beneficent statute, as is well known, must receive a liberal interpretation as per the ratio laid down by the Hon''ble Supreme Court in the case of Kunal Singh Vs. Union of India (UOI) and Another, Further, it may be mentioned that the insurance company is not liable if the driver is not possessing any licence or having a fake licence but this instance is not in the case in hand.

However, by looking into the peculiar facts and circumstances of the case discussed above and the amount involved, the right of recovery from the vehicle owner cannot be given to the appellant-insurance company.

In the light of the above discussion and by considering the totality of the facts and circumstances of the case, we are of the view that at the time of accident, the licence of the driver was pending for renewal in accordance to the proviso to Section 15(4) of the Act. The insurance company cannot escape its liability in the instant case. We uphold the impugned order passed by the Tribunal.

Moreover, in the instant case, the appellant insurance company has not obtained permission u/s 170 of the Act which is required as per the ratio laid down in the case of National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others,

The F.A.F.O. is dismissed accordingly.