Oriental Insurance Company Ltd. vs Kamla Devi

Servesh Kumar Gupta, J.—Having heard the rival contentions, it transpires that the accident occurred on 12.12.2006 at 10:30 PM. Shri Kundan Singh Panwar, an ex-army personnel aged about 50 years, lost his life in the accident caused by Mahindra Utility bearing No. UBA-8724-T at Dehradun-Haridwar road. His dependants presented MACT No. 15 of 2007, which was decreed by the learned Tribunal on 17.12.2008 granting Rs. 2,01,500/- compensation.

The learned counsel of the Insurance Company has challenged the award on the ground that the driver Mr. Rajeev Kumar was having a licence to drive the motorcycle/motorcar on the relevant day and time while the utility vehicle was a Jeep. So, he could not said to have a valid and effective licence. He has relied upon a precedent of the Hon''ble Apex Court in the case of New India Assurance Company Ltd. v. Roshanben Rahemansha Fakir and Another'' reported in 2008(3) T.A.C. 20 (S.C.). The Division Bench of the Hon''ble Apex Court has held that possession of an effective licence necessary in terms of the Section 10 of Motor Vehicle Act and the definition of the "light motor vehicle" would not include a light transport vehicle. In such case an "Auto Rickshaw Delivery Van" caused the accident at the time when it was not being used for the private purpose, but was being used as a commercial vehicle. So, the finding of the Hon''ble Apex Court was that the driver of such vehicle could not be said to possess effective licence necessary in terms of the Section 10 of the Act.

This precedent of the Hon''ble Apex Court does not completely clarify the Constitutional Bench judgment of the Hon''ble Apex Court itself, rendered in National Insurance Company Ltd. v. Swaran Singh & Others reported in (2004) 3 SCC 297, wherein the Hon''ble Supreme Court drew the difference between the phrase "effective licence" and "duly licence" in the following terms:

"Under the Act holding of a valid driving licence is one of the conditions of the contract of insurance. Driving of a vehicle without a valid licence is an offence. Whereas in Section 3 the words used are "effective 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 regards third-party risks. A provision of a statue which is penal in nature vis-à-vis a provision which is beneficent to a third party must be interpreted differently. It is also well known that the expressions contained in different provisions are ordinarily construed differently. The words "effective licence" used in Section 3, therefore cannot be imported into Section 149(2) of the Act. Moreover, the words "duly licensed" used in Section 149(2) are used in the past tense."

Further, the Hon''ble Supreme Court elaborately clarify the position where a driver of the offending vehicle did not have the licence for the type of vehicle which was driving and held that if a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have no licence for driving another type of vehicle, which is of the same category, but of different type. As for example, when a person is granted a licence for driving a light motor vehicle, he can drive either a car or a jeep and it is not necessary that he must have driving licence, both for car and jeep separately. In each case, on evidence led before the Tribunal, 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 the driver no possessing the requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.

The Insurance Company has no where cross-examined the driver Shri Rajeev Kumar on the points to advert the causes as contemplated by Hon''ble Apex Court herein above.

So, in view of what has been set-forth above, I do not find any force in this appeal and thus dismiss it accordingly.

Compulsory statutory amount so deposited by the appellant shall be remitted back to the Learned Tribunal for its disbursement.

Lower court record be sent back.