The Branch Manager Oriental Insurance Co. Ltd. vs Sakarabai

A.S. Pachhapure, J.—The appellant insurer has challenged its liability to pay the compensation for the death of Damodhar in a motor vehicle accident.

The facts reveal that on 15.06.2001 at about 8.00 p.m., while the deceased (Damodhar) on the left side of the road, a tanker bearing registration No. NWC-4505, driven in a rash and negligent manner and hit him. Thereby, the deceased sustained severe injuries and died on the spot. His legal representatives i.e., the wife and children made a claim for compensation.

The appellant appeared before the tribunal and filed its objections contending that the driver of the vehicle had no valid driving licence as on the date of the accident and sought for dismissal of the claim petition.

During the enquiry, the 3rd respondent was examined as PW. 1 and other witness as PW. 2. In their evidence, Exs. P1 to P5 were marked. On behalf of the respondents, RW. 1 was examined and in their evidence Exs. R1 to R5 were marked.

The tribunal after hearing the parties held liability on the part of the driver of the vehicle and awarded a sum of Rs. 3,14,000/- as compensation with interest at 6% per annum. It held that the insurer is liable to indemnify the owner on the ground that on the next date of the accident, the licence was renewed. Aggrieved by the judgment and award imposing liability on the insurer, the present appeal is filed.

Heard the learned counsel for the parties.

The points that arise for consideration are:

i. Whether the driver had valid driving licence on the date of the accident?

ii. Whether the insurer is liable to indemnify the owner?

Learned counsel for the appellant submits that the licence to drive the vehicle was renewed for a period from 16.06.2001 to 15.06.2004. Though the licence had expired in the year 1996. She submits that on the date of the accident there is no valid driving licence therefore, in view of breach of conditions of the policy, the insurer cannot be held responsible.

On the other hand, learned counsel for respondents submit that as renewal of the policy is from 16.06.2001 and the application has been filed prior to the said date. Therefore, he submits that the insurer was rightly made liable to pay the compensation. He also submits that the licence was issued subsequently and he was qualified to drive the vehicle. He further submits that the Court may direct for payment of the said award amount by the insurer and recover it from the owner of the vehicle. On these grounds, he prays for dismissal of the appeal.

The reliance is placed on the decision of the Apex Court reported in Ishwar Chandra and Others Vs. The Oriental Insurance Co. Ltd. and Others, . The Apex Court has taken into consideration the breech of policy conditions on the ground that the driver of the offending vehicle was not holding valid driving licence and the same expired before the date of the accident. The Apex Court held that the insurer cannot made liable to pay the compensation. Later the decision of the Apex Court reported in IV (2008) ACC 714 (SC) (National Insurance Co. Ltd., Vs. Vidhyadhar Mahariwala & Ors.) the same question was taken into consideration and it was held that if the driving licence was not valid on the date of the accident, the subsequent renewal of the licence is of no help and insurer cannot be made liable to pay the compensation.

So far as the facts on hand are concerned, it is relevant to note that the insurer has produced Ex. R4, the intimation. It reveals that the driver had licence to drive the heavy goods vehicle on 14.05.1981. It was renewed from 16.06.2001 to 15.06.2004. So from this intimation that has been brought on record and accepted by the tribunal, the driver was not holding licence within the period from 16.06.2001 to 15.06.2004. The accident in question was occurred on 15.06.2001 i.e., a day prior to the period of renewal. From this, it is clear that on the date of the accident, he had no licence to drive the vehicle.

Now to refer to the provisions of Section 15 of the Motor Vehicles Act, it provides that the licensing authority may grant licence to drive the vehicle or renew such licence issued under the proviso of the Act w.e.f. its expiry. By way of an exception the proviso has been provided wherein the application is made for renewal of licence after the expiry of 30 days from the date of the expiry of the licence, the driving licence will have to be renewed w.e.f. its date of renewal. Admittedly, the licence held by the driver had expired on 05.07.1996 and he did not file an application for renewal within 30 days. Therefore, any licence granted subsequently cannot be given retrospective effect to the date of the expiry of the earlier licence. Under the proviso, it is only the date of renewal till the expiry of the said licence, which would be valid. It is for this reason that subsequently licence was granted to the driver from 16.06.2001 to 15.06.2004 and it cannot be related back to the date of expiry of the licence in the year 1996. Though it is contended that the application must have been filed prior to the date 16.06.2001. No such material has been placed on record either by the claimants or by the owner of the vehicle. In the absence of any such application having been filed earlier, the only presumption is that the licence was valid from 16.06.2001 to 15.06.2004. So it is the owner who is liable to pay compensation.

In the aforesaid circumstances and by following the decisions of the Apex Court, I am of the opinion that the driver was not holding a valid driving licence to drive on the date of the accident and the insurer cannot be held liable to indemnify the owner.

So far as the principle of pay and recover is concerned, it is only under Article 141 of the Constitution of India that the Apex Court can order such payment. Therefore, the question of directing the insurer to indemnify the owner does not arise. Therefore, the points are answered in the negative.

The appeal is allowed. The judgment and award impugned in this appeal are modified and it is held that the insurer is not liable to indemnify the owner. It is for the owner (respondent No. 4) to pay the compensation awarded, with interest.

The amount in deposit be refunded to the appellant insurer.