NEW INDIA ASSURANCE COMPANY LIMITED vs MALLANA GOWDA A. PATIL

IN this appeal, the short point for consideration is as to whether the order passed by the District Forum is sustainable.

THE complainant who is respondent before us had filed the complaint before the District Forum, claiming compensation in respect of the damage caused to the tractor-trailor in an accident that took place on 4.12.1993. THE vehicle was insured with the opposite party (appellant). The opposite party took the contention among other things, that the complainant was not entitled to receive the compensation having regard to the fact that the driver of the vehicle in question was having only a learner''s licence. It also took up other contentions reflected in its version.

The District Forum took the view that the holding of a learner''s licence would enable the driver of the vehicle in question to meet the requirements of law. Insofar as the other aspects are concerned, the District Forum on evidence took the view that the complainant is entitled to receive compensation of Rs. 41,942/- towards the damages to the vehicle, Rs. 15,000/- towards mental agony and Rs. 1,000/- towards the costs. The District Forum also awarded interest at 18% p.a. on the sum awarded. Being aggrieved by the same, the Insurance Company has preferred this appeal.

THE main thrust of the submissions made by Mr. Suryanarayana Rao, the learned Counsel for the appellant is that, having regard to the decision of the Hon''ble Supreme Court in New India Assurance Company Limited v. Mandar Madhav Tambe & Ors., reported in AIR 1996 SC 1150, the view taken by the District Forum relying on the decision of the Hon''ble High Court of Karnataka reported in ILR 1989 Kar. 441, is not tenable. It is not in dispute that the driver of the vehicle in question was only having a learner''s licence. As a matter of fact Mr. Pramod, the learned Counsel representing Sri Kalyanashetty, has not disputed the fact that the driver of the vehicle in question was having only a learner''s licence. Even otherwise, the records would also reveal that the driver was holding only a learner''s licence. If that be so, the only question for consideration is as to whether the same would amount to mean that he is having an effective driving licence, in the context of the decision of the Hon''ble Supreme Court pressed into service by the learned Counsel for the appellant. THE Hon''ble Supreme Court at para Nos. 14 and 15 of its judgment has held as under : "xxx xxx xxx xxx xxx 14. From the aforesaid it is clear that what was obtained by respondent No. 3 from the Authorities under the Act was not a licence within the meaning of Section 2(5A) of the said Act. He had obtained a learner''s licence which allowed him to be on the road subject to his fulfilling the conditions contained therein. One of the important conditions was that if he was driving a motor vehicle then there must be besides him in the vehicle as an instructor a person duly licensed to drive the vehicle and sitting in such a position as to be able readily to stop the vehicle. "It is clear from this that two learners by themselves cannot be in one car which is being driven by one of them. If the learner having a learner''s licence under the rules is to drive a car then he must have sitting besides him a person who is duly licensed. This clearly shows that a driving licence as defined in the Act is different from a learner''s licence issued under Rule 96. In other words, a person would be regarded as being duly licensed only if he has obtained a licence under Chapter II of the Motor Vehicles Act and a person who has obtained a temporary licence which enables him to learn driving cannot be regarded as having been duly licensed. THE decision of the Single Judge of the Himachal Pradesh High Court in United India Insurance Company''s case (AIR 1996 Him. Para. 27) (supra) to the extent to which he has taken a contrary view must be held to have been incorrectly decided. 15. 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 did not have a permanent learner''s 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 (sic.) a "permanent driving licence" because driving licence is valid only for a certain period after (sic.) 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 vehicles at the time of the accident must be one who holds a ''driving licence'' within the meaning of Section 2(5A) of the Act. This being so, we are unable to agree with the conclusions of the High Court that the appellant was liable to pay the amount which had been awarded in favour of the respondent No. 1. xxx xxx xxx xxx xxx" We may point out here, that the decision of the Hon''ble Supreme Court was in the context of the conditions reflected in the insurance policy, which was under its consideration. THE observations of the Hon''ble Supreme Court is self-explanatory and it is not necessary for us to dilate further. In that view of the matter, it is clear that the mere holding of a learner''s licence will not be tantamount to the holding of an effective driving licence. We may also point out here that the condition under the policy also would have its own impact on the question as to whether the person holding the learner''s licence can be said to have an effective driving licence. In the instant case, it is noticed that one of the conditions of the policy provided that even the person holding a learner''s licence may also drive the vehicle. If the condition had stopped there, perhaps the matter would have been different. However, there is a rider to the said condition to the effect that a person with a learner''s licence can also drive the vehicles provided the vehicle is not used for transport of goods. It is not in dispute that the vehicle in question was used at the time of accident for the transport of manure. As a matter of fact, the claim form, which is at Ex. R-1 makes this position abundantly clear. In that view of the matter, it is clear that the first part of condition incorporated in the policy and pressed into service so vehemently by Mr. Pramod, the learned Counsel for the respondent is not of any assistance to him in this case.

FOR the reasons stated hereinabove, it is clear that the driver of the vehicle in question was not having an effective driving licence, with the result, there was obviously breach of condition of the policy. In that view of the matter, the Insurance Company did not incur any liability to pay any compensation to the complainant- respondent. Under these circumstances, we are of the view that the finding of the District FORum that the deficiency in service attributed to the opposite party is established is not correct and it is liable to be set at naught. Insofar as, the question relating to compensation is concerned, it is noticed that the District Forum has proceeded mainly on the basis of the Surveyor''s report. The District Forum is also shown to have awarded an amount of Rs. 15,000/- by way of compensation towards mental agony. We have gone through the judgment of the District Forum carefully. After such careful perusal of the discussion made by the District Forum, on these aspects, we are not inclined to take a view different from the one taken by the District Forum insofar as this aspect is concerned. If any finding is necessary on this aspect, we are inclined to hold that the District Forum has rightly held that the complainant (if at all he is entitled to) is entitled to compensation of Rs. 41,942/- towards the damage to the vehicle and Rs. 15,000/- towards mental agony. However, insofar as the point relating to interest is concerned, we are of the view, that it would have been proper for the District Forum to award interest @ 12% p.a. in the light of the decision of the Hon''ble Supreme Court in United India Insurance Company Limited v. M.K.J. Corporation, reported in III (1996) CPJ 8 (SC)=(1996) 6 SCC 428. However, having regard to the fact that we have taken a view that the Insurance Company is not liable to pay any compensation, the question relating to the quantum would not survive for consideration.

FOR the reasons stated hereinabove, the appeal deserves to be allowed.

IN the result, the appeal is allowed. The order passed by the District Forum is set aside and the complaint filed by the instant respondent-complainant stands dismissed. IN the facts and circumstances of the case, we make no order as to costs in this appeal. Appeal allowed.