Oriental Insurance Co. Ltd. vs PRABHUDEV G.MOGE

THIS appeal raises an important question as to whether the person holding the learner''s licence for driving heavy goods vehicle is on par with the person holding the valid regular driving licence. The entire controversy centres around this question and answer either way can elieve or placate the appellant/Insurance Company against the respondent, owner of the goods vehicle.

THE complainant owned truck No. MWC 4269, which was insured under the Policy No. 16190/020/00000/31/93.01209/ and which met with an accident on 10.1.1993 near Jalkout on Durg-Hyderabad Road. It was carrying 100 bags of Soyabeans and was proceeding from Sangli towards Hyderabad. THE accident took place due to breakage of rear housing left side piece which got detached from the vehicle. THE driver lost control over the vehicle. At that time the vehicle was driven by one Sanjay Jagannath Tanawade. One Mr. Gangappa Devappa Unnad, who was holding licence for driving heavy motor vehicle, was sitting by the side of the said Sanjay Tanawade. Other vehicle dashed against the said vehicle. It should be pointed out that at the time of accident, Sanjay was holding learner''s licence for driving Heavy Motor Transport Vehicle viz. Truck. THE appellant got recorded the Panchnama and the damage was assessed by the Surveyor. THE complainant was got the truck repaired and was required to spend Rs. 78,775/-. He put up the bills to the Insurance Company for getting claim but it is found that the bill for Rs. 21,000/- in the name of Ratan Automobiles, Hyderabad was found to be a bogus bill. THE Insurance Company also contended that the driver was not holding the regular licence and the owner was therefore, not entitled to any compensation. The District Forum, Solapur on lengthy consideration found that the driver was holding the learners'' licence which amounts to the holding licence and that the driver was not responsible for the accident. In that view of the matter the District Forum ordered the Insurance Company to pay Rs. 57,150/- with cost, after deducting the claim for Rs. 21,000/- for which the bill was found to bogus.

The admitted facts are that Mr. Sanjay was holding learner''s licence for heavy vehicle and the zero copy of the said learner''s licence is on record.

THE learned Advocate for the complainant has relied on two judgments, which according to him to support his view that the driver was having duly issued licence and that the owner was entitled to the claim ordered by the District Forum. Heavy reliance is placed on the judgment of the Bombay High Court reported in 1990, Accident Claims Tribunal, page 854, in the case of Dilip Ranga Geunkar v. Narayan Camu Volip and Others. THE High Court held that the driver who was holding the learner''s licence, can be considered as duly licensed, in view of the ratio of the Division Bench of the High Court in the Mandar Madhav Tambe''s case reported in 1986 ACJ 874. Obviously, therefore, the Single Judge relied on the Division Bench of the same High Court and found that under Section 96, Sub- section 2, Clause (b) of Sub-clause (ii) of the Motor Vehicles Act, a person once duly licensed and not disqualified, cannot be excluded from being a driver of the vehicle. We may state that the view in Mandar Tambe''s case is overruled by the Supreme Court. THE learned Advocate for the complainant further relied on the case of Mr. B.V. Nagaraju v. Oriental Insurance Co. Ltd., by the Supreme Court reported in 1996 ACJ 1178. Now, in that case, it was found that the goods vehicle was carrying more than number of permitted passengers. THE Supreme Court found that this was not so fundamental a breach so as to afford ground to the insurer to eschew liability altogether. THE Supreme Court, in its extensive judgment relied on the view, in the case reported in 1987 ACJ page 411. THE Supreme Court pressed into service the doctrine of reading down the exclusion clause and held that additional number of passengers, which might be 2 or 3 over and above permitted numbers would not have contributed to the accident. THE accident occurred to the vehicle on account different reasons. When the option is between opting for a view, which relate the distress and misery of the victims of the accident or the dependents on the one hand and equally possible view which will reduce the profitability to the insurer, in regard to the option undertaken by way of business of activity. THEre is hardly any choice for the Court but to opt for the former view, and i.e. regarding distress and miserable. That is how, the reading down was held to be applicable in furtherance of the important part of the contract. This was, therefore, contrary view to the view of the National Commission. Relying on all these two judgments, the learned Advocate for the complainant vehemently contended that the accident took place not on account of the fault of the driver and that learner''s licence should be equated with the regular licence, and the claim against the Insurance Company should succeed. The learned Counsel for the Insurance Company had drawn our attention to the latest judgment of the Supreme Court in the case of New India Assurance Co. Ltd. v. Mandar M. Tambe, reported in 1996 ACJ 253. It over-rules the judgment of the Bombay High Court and the net result is that the reasoning adopted by the Single Judge, in the case of Dilip Ranga Geunkar v. Narayan Camu Volip shall be deemed to have been over-ruled by implication. The Supreme Court in its analytical judgment found that duly licensed would never include the learner''s licence. According to the Supreme Court, Chapter II of the Motor Vehicles Act, does not make any reference to the learner''s licence except in Section 21, sub-section which envisages the State Government to frame rules in regard to temporary licensed persons, receiving instructions in driving. The Rule 1A of the Bombay Motor Vehicle Rules, refers to driving licence and the said rules under Sub-section 1 of the Section 3 of the Motor Vehicles Act shall not apply to any person driving the motor vehicle in public place during the course of receiving instructions or if gaining experience in driving with the object of presenting himself for the test required by Sub-section 6 of the Section 7 of the Act, so long as the driver holds the licence in Form (L.L) learner''s licence and that too there is besides the driver in the vehicle an instructor, a person duly licensed to drive the vehicle and sitting in such a position as to be able to stop the vehicle. Apart from that the learner''s licence, no reckoning can be equated with the regular valid licence. A person holding the temporary licence, which enables him to learn, driving cannot be regarded as having been duly licensed.

THE learned Advocate for the Insurance Company has drawn our attention to Section 3(1) of the Motor Vehicles Act. THE said Act provides that a person must hold effective driving licence to enable him to drive the motor vehicle in different places and when he drives the transport vehicle the said licence must specifically entitle to do so under endorsement by the Registering Authority. THE said condition will not apply to a person, receiving instruction in driving the motor vehicle and the State Government may prescribe necessary condition in that behalf. It must be pointed out that Section 7, Sub-section 1, Sub- clause ''A'' distinguishes the driving of the heavy goods vehicle for which the driver must have an experience of 2 years to drive the light motor vehicle, or one year to drive the commercial goods vehicle. Our attention is also drawn to the definition of driving licence and learner''s driving licence. Driving licence is issued by Competent Authority authorising the person to drive otherwise than as a learner, a motor vehicle of any specified class or description. Whereas, learner''s licence is defined as licence issued by the Competent Authority to drive the vehicle as a learner. Our attention is also drawn to Rule 3 of the Motor Vehicle Rules, which provided that the person holding in competent learner''s licence should be accompanied by the instructor holding effective driving licence, to drive the vehicle and that should be painted in front and rear of the vehicle or on a plate or card fixed to the front and rear, the letter ''L'' in red (in white background. Rule 141 enables an authorised insurer to issue a certificate of insurance which, so far as goods carriage is concerned, requires that the person holding the effective learner''s licence may drive the vehicle when not used for transport of goods at time of the accident. Now in this case, admittedly, the truck was carrying 100 bags of Soya Beans and therefore, the driver was not driving the vehicle as a learner, he was driving the vehicle as if he was holding the regular licence. The case of Mr. Nagaraju v. Oriental Insurance Company, cannot be any assistance to the complainant because a person, who does not hold proper driving licence shall not be deemed to duly licensed and the holder of the learner''s licence cannot drive on the public road, the goods vehicle which is carrying 100 bags of Soya Beans. We therefore, view that the complainant''s driver was not competent to drive vehicle and that there was a fundamental breach of the conditions of the insurance policy. The Supreme Court in the case of Mandar Madhav Tambe clearly elucidates this position and hence the insurer is not liable to pay any compensation to the complainant, whose driver was not holding the valid driving licence. In that view of the matter, we are unable to agree with the reasoning of the District Forum. The fact that the vehicle was on the road, driven by a learner would not alter the position, even if the driver may not be responsible for the accident. However, in this case, record shows that the driver was at fault. Mr. Singh, the learned Counsel for the Insurance Company has also drawn our attention to the case of M/s. R.M. Metals Pvt. Ltd. v. The New India Assurance Co. Ltd., wherein the National Commission held that when the complainant has approached Redressal Forum on the basis of fake bills and fabricated evidence his entire claim is liable to be rejected for his misconduct. In this case, the bill for Rs. 21,000/- was a fake bill. This has been reported in 1992 (2) C.P.R. page 425. He has also drawn our attention to two other judgments, wherein it was held that when the insurer repudiated the claim properly, and with application of mind and not in bad faith, such repudiation is to be upheld. These cases are Jewellers Narandas & Sons v. The Oriental Insurance Co. Ltd., reported in 1994 (1) CPR page 108 and National Insurance Co. v. Rais Abbas, decided by the National Commission reported in VII/1996(2) page 108 CPR. On this aspect also we are of the view that, it is not maintainable. The Insurance Company has considered all aspects of the claim and has found that the claim was partly based on fake bills and that the driver was not competent to drive the vehicle at the time of accident. For all these reasons, we pass the following order. ORDER The appeal is allowed. The order of the District Forum is set aside. The complaint is dismissed. The Insurance Company be refunded the amount if any, deposited by it with the State Commission. There shall be no order as to cost. Appeal allowed.