Oriental Insurance Co. Ltd. vs B.R.VENKATESH KAMATH

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

IT is noticed that the District Forum has rejected the contention of the opposite parties that the complainant did not have an effective driving licence on the date of the accident. The vehicle in question met with an accident on 28.12.1991. In respect of the same, the complainant put in a claim before the insurer. The Insurance Company, among other things, took the stand that there was no endorsement in the driving licence of the driver to the effect that he is entitled to drive a transport vehicle. On that count in substance, the Insurance Company repudiated the claim put in by the complainant. The complainant, therefore, approached the District Forum. The District Forum, it is noticed, has taken the view that having regard to the fact that the accident in question took place during the validity of the licence which was obtained in the year 1987, i.e., next before 1988 Act came into force, it is only the provisions of the old Act (1939 Act) which would be applicable and the provisions of Section 3 of the Motor Vehicles Act, 1988 cannot be called in aid. In other words, the District Forum felt that such an endorsement like the one which is. required under Section 3 of the 1988 Act was not required under the provisions of the 1939 Act. In that view of the matter, the contention raised by the Insurance Company was rejected and the complaint was allowed in terms of the operative portion of the order, in the light of the evidence on record. Hence, the instant appeal by the Insurance Company-opposite party.

The main thrust of the submission made by Mr. Manojkumar, the learned Counsel appearing for the appellant, is that the District Forum has erred in believing that the endorsement like the one required under Section 3 of the Motor Vehicles Act, 1988 was required to be had under the provisions of the Motor Vehicles Act, 1939. The learned Counsel has brought to our notice the provisions of Section 3 of 1939 Act and submitted that the same is para-materia with the provisions reflected in Section 3 of 1988 Act. He, therefore, contended that the order passed by the District Forum is required to be set aside.

ON the other hand, the learned Counsel for the respondent-complainant, contended that even under the New Act, an endorsement under Section 3 is not necessary if the vehicle is being driven by the driver of light motor vehicle and if he has got a licence to drive a light motor vehicle. Pressing into service the decision of our Hon''ble High Court reported in ILR 1996 Kar. 2220, the learned Counsel for the respondent contended that in the instant case, having regard to the fact that the motor vehicle in question was a light motor vehicle and having regard to the fact that the driver in question had the license to drive a light motor vehicle, an endorsement under Section 3 either in the old Act or in the new Act is not necessary at all. We have given our anxious consideration to the submission made on either side. It will have to be seen as to whether the first submission made by Mr. Manojkumar, the learned Counsel for the appellant, is correct. Section 3 of the Motor Vehicles Act, 1939 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 drive a motor vehicle as a paid employee or shall so drive a transport vehicle unless his driveing licence specifically entitles him so to do. (2) A State Government may prescribe the conditions subject to which Sub-section (1) shall not apply to a person receiving instruction in driving a motor vehicle. (3) Notwithstanding anything contained in Sub-section (1) a person who holds an effective driving licence authorising him to drive a motor car may drive any motor car hired by him for his own use."

Section 3 of the Motor Vehicles Act, 1988 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 him authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab or motor cycle 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. (2) The conditions subject to which Sub- section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government."

IF the aforesaid two provisions are juxtaposed with each other, it is obvious that there is no change in pith and substance with reference to the requirement of endorsement relating to a transport vehicle. In other words, endorsement relating to drive a transport vehicle in the license is a must both under the old Act as also under the new Act. In our view, the District Forum has erred in taking the view which it has taken on this aspect. IF that be so, the only other point which is required to be considered is as to whether the decision of our High Court, pressed into service by the learned Counsel for the respondent, is of any assistance to him. It would be indeed in fitness of things to cull out the relevant paras, viz., paras 5 and 6 of the judgment in the said case in order to understand the said decision from a correct perspective. The same read as under: "5. 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 Ex. 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."

"6. There is one another reason to reject the contention of the appellant which is that Section 2(21) of the Act defines "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road- roller the unladen weight of any of which, does not exceed 7,500 kgs." The unladen weight of the lorry involved in this accident is less than 7,500 kgs. as per Ex. D-6. Admittedly, the driver was having a driving licence to drive LMV. The unladen weight of the vehicle involved in the accident is less than 7,500 kgs. and therefore it is light motor transport vehicle. In view of this evidence, it cannot be said that the driver had no driving licence authorised to drive the vehicle involved in the accident."

The observation of our Hon''ble High Court is self-explanatory and it is not necessary for us to dilate much on this aspect. Para 5 would go to show that His Lordship has given a finding to the effect that in the said case, there was an endorsement in the licence of the driver. In that view of the matter, the contention of the other side in the said case to the effect that the driver did not have the effective driving licence was rejected. The emphasis in para 6 is with reference to the question as to whether the vehicle in question was a light motor vehicle or not. The said aspect, in our view, was required to be considered having regard to the change brought into being in the definition of ''light motor vehicle.'' It is significant to notice here that the definition of ''light motor vehicle'' has undergone a change by virtue of Act 54 of 1994 which came into force on 14.11.1994. Under the earlier provision of ''light motor vehicle'' was one the unladen weight of which was less than 6,000 kgs. Under the changed provision, light motor vehicle is one the unladen weight of which does not exceed 7,500 kgs. This aspect has been emphasized by His Lordship in the said decision in para 6. This is clear from the last two sentences of para 6. Under these circumstances, it is clear that the said decision of our Hon''ble High Court is not applicable to the facts of this case at all. Further, this very aspect has been the subject matter of the decision of the Hon''ble National Commission. The Hon''ble National Commission in Oriental Insurance Co. Ltd. v. Ashok, reported in II (1995) CPJ 208 (NC), has taken the view that an endorsement under Section 3 of the Motor Vehicles Act, is a must. The National Commission, in paras 6 to 8, has observed as under: "6. The learned Counsel for the appellant pointed out that is not disputed in the present case that ill-fated vehicle was a light transport vehicle but it was contracted or adopted for the carriage of goods and accordingly insured. According to him, the driver of that vehicle named Naga Saheb Jadhav, who was driving the vehicle at the time of the accident, was not holding an effective driving licence. He placed reliance upon Section 3(1) of the Motor Vehicles Act, 1988 which reads as follows : 7. His argument was though the driver was holding a licence for driving a light motor vehicle, there was no specific endorsement on his licence that he was also authorised to drive transport vehicle. He also placed reliance upon Form 6 of driving licence contained in Chapter 11 of Central Motor Vehicle Rules which deal with "Licensing of Drivers of Motor Vehicles." He pointed out that the form of licence suggests that in case the driver is authorised to drive a transport vehicle then a specific endorsement is made by the Licensing Authority on the licence to the effect "the licence to drive transport vehicle is valid from... to..."

After considering the arguments advanced by the learned Counsel for the appellant we are of opinion that the above argument has force. As noticed earlier Naga Saheb Jadhav who was driving the vehicle in question at the time of incident was holding licence to drive a light motor vehicle. Such a vehicle is defined in Clause (2) of Section (2). In addition to other vehicles mentioned therein it includes a transport vehicle unladen weight of which does not exceed 7500 kgs. The transport vehicle has been defined in Clause 47 of the said section and it means a public service vehicle, a goods carriage and educational institution bus or a private service vehicle. Thus the "goods carriage" is defined in Clause 14 of Section 2 that the vehicle in question was a transport vehicle. Naga Saheb Jadhav, driver of the vehicle in question was not holding a specific authorisation for driving a transport vehicle as required by Section 3 of the Act nor such authorisation was endorsed on his licence."

Further, the Hon''ble National Commission, in Revision Petition No. 451/1994 decided on 30.8.1996, N. Shanmugham v. M/s. United India Insurance Company Ltd. and Others has, in its short judgment, observed as under : "After hearing Mr. M.N. Krishnamani, Senior Advocate, appeared on behalf of the Revision Petitioner and Mr. C.K. Kambeyanda, Advocate appearing for the respondent - M/s. United India Insurance Company Ltd., we are satisfied that the view taken by the State Commission that the benefit of the insurance policy could not be claimed by the complainant inasmuch as the driver who was involved in the accident did not have a valid licence at the time of occurrence of the accident which contained the requisite endorsement authorising him to drive a tourist taxi. The order passed by the State Commission does not, therefore, call for any interference. This Revision Petition accordingly fails and it is dismissed. No costs.

IN the light of what is stated hereinabove, we are of the view that the conclusion reached by the District Forum that the driver of the vehicle in question had an effective driving licence is wrong. The complaint was liable to be dismissed on that count. It was not necessary for the District Forum to go into the question relating to quantum of compensation.

SINCE we have taken the view that the complaint is liable to be dismissed on the point referred to hereinabove, it is not necessary for us to go into the quantum of compensation. As a matter of fact, the said contention was not taken by the Advocates at the Bar on that aspect. Under these circumstances, we are of the view that the appeal deserves to be allowed and the complaint is liable to be dismissed.

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