Oriental Insurance Co. Ltd. vs Darshna Devi and Others

Muzaffar Hussain Attar, J.—Raj Kumar, a painter by profession, died in vehicular accident, on 11.11.2001. He was 30 years of age. A

claim petition was filed, wherein an amount of Rs. 30,00,000 was claimed as compensation, besides present Appellant, driver and owner were

impleaded as Respondents in the claim petition. It was alleged that one Kaka Ram, driver, was driving bus bearing registration No. JKS 7637

negligently which resulted in death of Raj Kumar Appellant insurance company filed objections to the claim petition, wherein it took a specific plea

that as the driver was not holding a valid and effective driving licence, there being a breach of insurance policy, the insurance company was not

liable to indemnify insured, in the event it was held that Raj Kumar died because of negligent driving of driver.

Three issues were framed which are reproduced as under:

(1) Whether an accident took place on 11.11.2001 at Saroot, Jammu due to rash and negligent driving of the offending vehicle No. JKS 7637 by

its driver, Respondent No. 3, in which deceased, namely, Raj Kumar has died? OPP

(2) If issue No. 1 is proved in affirmative whether Petitioners are entitled to the compensation; if so of what amount and from whom? OPP

(3) Whether the driver of the offending vehicle at the time of accident was not holding a valid driving licence? OPR1

Issue No. 3 provided that as to whether the driver of offending vehicle at the time of accident was not holding a valid driving licence.

After the conclusion of the enquiry the learned Motor Accidents Claims Tribunal (MACT), Jammu on 6.12.2003, passed an award of Rs.

5,45,336 which amount is stated to have been already paid to the claimants. The MACT directed the insurance company to satisfy the award.

Insurance company being aggrieved of the said award filed the present appeal before this Court. The court vide its order dated 1.4.2004

ordered for admitting the appeal against owner and driver of the offending vehicle. The appeal against the claimants, Respondent Nos. 1 to 4, was

dismissed.

The Respondent Nos. 5 and 6 have been served but despite service they have chosen not to appear. They are proceeded ex parte.

Heard learned Counsel for Appellant. Considered the matter.

The learned Counsel for Appellant has raised two contentions in support of his appeal, viz., that the driver Kaka Ram, was driving bus which

according to learned Counsel is heavy transport vehicle (HTV), whereas he was authorised to drive light transport vehicle (LTV). He further

submitted that the driving licence was renewed only up to year 1998, while as accident has taken place on 11.11.2001. The learned Counsel

would thus submit that insurance company in this backdrop was not liable to indemnify the insured and it is on these grounds this appeal deserves

to be allowed.

In support of the issue No. 3, the insurance company has examined Jaswant Singh, clerk at RTO Office, Jammu and Arun Kumar an employee

of the Appellant insurance company.

Jaswant Singh, whose statement has been recorded on 27.10.2003, deposed before the MACT, Jammu, that he has brought the original record

of the driving licence No. 17280. He has further deposed that the driving licence was issued on 13.3.1995 in favour of Kaka Ram. He has further

deposed that the driving licence was issued to drive LTV. It is specifically stated by the said witness that the driving licence was not issued for any

other kind of vehicle. The driving licence was said to be valid up to 12.3.1998. A photocopy of driving licence placed on the record of MACT,

Jammu, along with the claim petition, was shown to him, which was found to be correct by the said witness on the basis of original record and was

marked as Exh. EXRWJS. It was further deposed that the licence was not renewed after 12.3.98. The said witness has further stated that for

driving a bus one must have a licence having endorsement of HTV. No question was asked in cross-examination.

Arun Kumar, an employee of the insurance company, had in his statement recorded on 11.11.2003 by the MACT, Jammu, deposed that the

bus bearing No. JKS 7637, was insured with the Appellant insurance company from 9.5.2001 up to 8.5.2002. He further deposed that the

original insurance documents were sent to the owner of the vehicle. He had brought with him the copy thereof, which according to record, was

declared by him to be correct and was marked as Exh. EXRWAK. The witness has further deposed that the insurance company was not liable to

pay the compensation as the driver of the offending vehicle was not holding valid and effective driving licence. The witness has further stated that

when the accident occurred a copy of driving licence was obtained from the Police Station, Gharota, which was produced by him before the

Tribunal. The witness on the basis of copy of driving licence, stated that the driver Kaka Ram was authorised to drive LTV and the said licence

was valid up to 12.3.1998. The said witness was not cross-examined.

Section 2(10) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'Act of 1988') defines 'driving licence' to mean licence issued by a

competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle of any specified

class or description.

The learned Counsel for the Appellant referred to Section 3 of the Act of 1988 which provides that no person shall drive motor vehicle in any

public place unless he holds an effective driving licence issued to him authorising him to drive particular type of vehicle; and no person shall so drive

a transport vehicle other than a motor cab or motor cycle hired for his own use unless driving licence specifically entitles him so to do.

The learned Counsel also referred to Section 5 of the Act of 1988, which provides that no owner or person in charge of a motor vehicle, shall

cause or permit any person, who does not satisfy provisions of Section 3 or Section 4 to drive the vehicle.

So far as the objection about the renewing of the driving licence is concerned, the witness produced by insurance company before Tribunal has

admitted that the photocopy of driving licence which is available on the record is correct. The photocopy of the driving licence available on the

record of the Tribunal reveals that same has been renewed beyond March 1998 as well, but the date is not legible and it appears that the driving

licence was renewed for the year 2001 as well.

Since the witness produced by the insurance company has admitted the said certificate to be correct, it cannot be said that the driving licence

was not renewed beyond year 1998. The learned Counsel for the Appellant has fairly submitted that one cannot in view of the evidence and

material available on record with certainty say that the licence is not renewed beyond year 1998. The evidence so produced, does lead to the

conclusion that the licence of the driver who was driving the offending vehicle was renewed and was in force on the date when the accident took

place.

The question now arises as to whether driver of the offending vehicle was holding effective and valid driving licence?

The Appellant insurance company examined two witnesses, Jaswant Singh and Arun Kumar; both the witnesses have stated that the licence

issued in favour of Kaka Ram, driver of the offending vehicle, was for plying LTV. It has also come on record through these witnesses that the

driver Kaka Ram was driving bus which is a heavy transport vehicle (HTV). The evidence so brought on record does show that the driver was

holding licence only to drive LTV and not HTV.

Section 2(10) of the Act of 1988 provides that driving licence means licence issued by a competent authority under Chapter II authorising the

person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description. When once a

driving licence is issued to drive motor vehicle of specified class or description, the driver would be said to possess the driving licence only to drive

the vehicle of that specified class or description. It has come on record in this case in the evidence that the driver was issued licence to drive LTV

whereas at the time of accident he was driving HTV.

The insurance company in such eventuality could avoid liability of indemnifying the insured if it would have satisfied the Tribunal that the

accident was caused solely because of the reason of driving a vehicle for which the driver was not holding the driving licence. The reference in this

behalf can be made to judgment of Hon'ble Apex Court in case titled National Insurance Co. Ltd. Vs. Kusum Rai and Others, wherein judgment

reported in National Insurance Co. Ltd. Vs. Swaran Singh and Others, has been relied upon. In order to absolve the insurance company from

liability of indemnifying the insured it is to be found on facts that the accident was caused solely because of some other unforeseen or intervening

causes like mechanical failures 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 the driving licence. Relevant part of para is reproduced as under:

...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 [sic 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

the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures 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.

This case on facts projects a hazy scenario, as neither there is pleading nor evidence has been led to show that the accident was caused solely

for the reason of driver possessing licence of one type when he was driving the vehicle of another type. A situation can be assumed that a person

holding driving licence for specific type of vehicle is competent and capable to drive another type of vehicle though, he is not possessing the driving

licence for driving such type of vehicle.

A marked distinction is to be drawn in a case in which the driver is not holding the driving licence at all, and in case in which the driver is

holding driving licence for driving a particular type of vehicle but is driving another type of vehicle. In the case of driver having no licence, the

insurance company cannot be held to be liable to indemnify the insured. In second type of case it has to be shown and proved by leading evidence

that the accident is the direct result of the driver driving another type of vehicle for which he was not holding driving licence and it is the main cause

of accident, then alone insurance company may avoid its liability.

In such type of cases where the person is holding licence the insurance company in order to avoid its liability to indemnify the insured has

further to prove that the owner of vehicle has committed wilful breach of the terms and conditions of the insurance policy. In this case, neither there

is pleading nor any evidence is led to show and prove that the owner of the vehicle has committed any wilful breach in engaging the person who

was not holding the driving licence of the type of vehicle he was allowed to drive.

Though the insurance company has succeeded in proving that the driver was holding licence to drive LTV while as at the time of accident he

was driving HTV, but for the above stated reasons this appeal cannot succeed, which is accordingly dismissed.