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Judgment
P.S. Dinesh Kumar, J—Insurer and claimants in M.V.C. Nos. 691, 692 and 693/2006, feeling aggrieved by the common judgment and award dated 30.05.2008 passed by the M.A.C.T., Gangavathi, (''the Tribunal'', for short) have preferred these appeals.
Facts leading to the case are that the claimants had hired a goods lorry bearing registration No. KA-35/6660 and travelling from Gulbarga to Doddaballapura along with pig livestock on 28.05.2006. The said lorry while proceeding on Sindhanoor-Karatagi road, at about 9.00 P.M., rammed into a stationary lorry near Ambamath cross resulting in the claimants sustaining injuries. They were initially treated at Sindhnoor Government Hospital and subsequently at VIMS Hospital, Ballari. Claimants filed three individual claim petitions. Six witnesses were examined and 70 documents were marked on behalf of the claimants. One Mr. Anil Kabadi, an official of insurance company was examined as RW-1 in all three petitions. The insurance policy was produced as Ex. R-1 in all three petitions. On consideration of the material on record, the Tribunal awarded compensation and held insurer liable to satisfy the award. Hence, these appeals by the claimants as well as the insurer, challenging the quantum and liability.
Heard Sri G.N. Raichur, learned counsel for the insurer and Sri Hanumathreddy Sahukar, learned counsel for the claimants.
Learned counsel for the insurer submits that prima facie claim petitions were not maintainable qua the insurer because the driver of the lorry did not possess a valid driving license. He draws the attention of this Court to Ex. P-51 and points out that the driver of the lorry Venkatesh s/o. Nagappa was authorised to drive only light motor vehicle as per license No. 2744/03/04 issued on 17.03.2004 valid till 17.06.2012.
Learned counsel for the claimants submits that notwithstanding the fact that the driver of the lorry was possessing a license authorised to drive only a light motor vehicle, in view of various pronouncements of the Hon''ble Supreme Court and this Court, the insurer cannot escape from the liability to satisfy the award. In support of his submissions, he relies upon the judgment of the Supreme Court in the case of S. Iyyapan Vs. United India Insurance Company Ltd. and Another, (2013) 5 ABR 385 : (2013) 3 ACC 19 : (2013) ACJ 1944 : (2013) 7 AD 202 : AIR 2013 SC 2262 : (2013) 10 JT 85 : (2013) 172 PLR 409 : (2013) 3 RCR(Civil) 654 : (2013) 7 SCALE 637 : (2013) 7 SCC 62 , an unreported judgment of Division Bench of this Court dated 26.11.2013 in M.F.A. No. 24320/2011 c/w. M.F.A. No. 24322/2011 and another unreported judgment dated 15.03.2011 in M.F.A. Crob. No. 21/2005 c/w. M.F.A. No. 8091/2003 and reiterates that a person who is authorised to drive a light motor vehicle is also authorised to drive a goods vehicle.
In reply, the learned counsel for the insurer places reliance on a full Bench judgment of this Court dated 08.09.2011 in M.F.A. No. 12579/2007 and draws the attention at paragraph No. 34 onwards to contend that the issue with regard to the driving license is no more res integra. An insurer can defend an action under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988, if the driver of the vehicle was not holding a valid license as classified in Section 10 of the Act.
Following points are for consideration in these appeals.
(i) "Whether the driver of the offending vehicle was holding a valid license which shall decide the liability qua the insurer?"
(ii) Whether the insurer is liable when the driver holding a licence authorised to drive a light motor vehicle, was driving a mini lorry?
Re: Point (i)
Perusal of Ex. P-51 shows that the licence was issued on 17.03.2004 but period of validity is from 17.03.2003 to 17.06.2012. The accident has occurred on 28.05.2006. In any event, as on the date of accident, the license produced at Ex. P-51 was valid and driver was authorised to drive a light motor vehicle. Section 10 of the Motor Vehicle Act post amendment contains classification of vehicles as under:
Section 10. Form and contents of licences to drive.--
(1) xxx
(2) A learner''s licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:--
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) transport vehicle;
(i) road-roller;
(j) motor vehicle of a specified description
Therefore, I have no hesitation to hold that the driver did not possess a valid license to drive the vehicle in question.
Re: Point (ii)
Learned counsel for the claimants has relied upon the judgments referred supra. In S. Iyyappan case, the Hon''ble Supreme Court has held as follows:
"18. Reading the provisions of sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer''s right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under section 149 of the Motor Vehicles Act, the insurer can defend the action, inter alia, on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. it is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.
In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra maxicab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra maxicab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay the compensation because the driver was not holding the licence to drive a commercial vehicle. The impugned judgment is, therefore, liable to be set aside."
In the said case, the Hon''ble Supreme Court was considering a case in which the driver was holding a light motor vehicle license and driving a Maxi Cab. In M.F.A. No. 24320/2011, this Court after considering the judgment of the Hon''ble Supreme Court in the case of National Insurance Company has held as follows:
There is no need to reiterate the preposition as enunciated by the Apex Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, (2004) 1 ACC 1 : (2004) ACJ 1 : AIR 2004 SC 1531 : (2004) 118 CompCas 396 : (2004) 1 JT 109 : (2004) 136 PLR 510 : (2004) 1 SCALE 180 : (2004) 3 SCC 297 : (2004) 1 SCR 180 : (2004) AIRSCW 663 : (2004) 1 Supreme 243 on which reliance is placed in S.IYYAPPAN''S case referred to supra. The law laid down by the Apex Court in SWARAN SINGH''S case has since been reiterated in S.IYYAPPAN''S case. Thus we have no hesitation to hold that even if it is shown the driver of the offending vehicle was licensed to drive light motor vehicle, but he was driving vehicle which was goods carriage, yet the liability of Insurance Company to discharge award passed by the learned Member of the Tribunal in favour of third person cannot be absolved unless it establishes that the driver is not having proper licence was the primary cause of the accident.
In MFA CROB No. 21/2005, this court after referring to the judgment in the case of National Insurance Company Limited vs. Annappa Irappa Nesaria dismissed the appeal filed by the Insurance Company. It is necessary to note that in the said case, this Court was concerned with M.V.C. No. 1783/2000 which is admittedly prior to 28.3.2001. In Nesaria''s case, the Hon''ble Supreme Court has held that with effect from 28.03.2001, the definition of transport vehicle was substituted for medium goods vehicle and heavy goods vehicle and held that the driver who had a licence to drive a light motor vehicle was authorized to drive a light goods vehicle as well.
In the case on hand, accident has occurred on 28.05.2006. Licence is issued on 17.03.2004. The amendment to Motor Vehicles Act has come into force with effect from 28.03.2001. The Full Bench of this Court after having considered several judgments of the Hon''ble Supreme Court including National Insurance Company Limited vs. Annappa Irappa Nesaria & others has held as follows:
"38. As long as licences refer to classification of vehicles with reference to driving licence, if they come within the fold of vehicles described at section 10 even prior to 28.03.2001, it must be held as valid effective driving licence and the person holding the licence must be held as duly authorised to drive the vehicle. As a matter of fact, the present section 10 deals with less number of classes of vehicles when compared to earlier provisions. In that view of the matter, depending upon the date of issuance of driving licence, the validity of licence, with reference to definition of transport vehicle, ''light motor vehicle, etc. the Courts have to consider in the facts and circumstances of a particular case whether the driver having licence to drive a particular class of vehicle could be allowed to drive another class of vehicle.
Reading of section 10(1) & (2) along with Rule 16 and form No. 6, one has to understand whether the offending vehicle could come under the category of vehicles referred in section 10 and form No. 6 and then examine whether the driver of the offending vehicle was duly authorised to drive that class of vehicle with reference to type of vehicle involved in the accident. For example, if he was holding a licence to drive ''transport vehicle'', one has to see whether the vehicle in question would attract the definition of ''transport vehicle'' as defined at section 2(47) of the Act. If the licence refers to ''light motor vehicle'', then the Tribunal has to examine whether the vehicle involved in the accident would fall under the classification of ''light motor vehicle''. Ultimately, depending upon the facts and circumstances of the case, the Court has to first ascertain the nature of vehicle involved in the accident with reference to the definitions of different types of vehicles enumerated at section 2 of the Act, and then ascertain from the contents of the driving licence whether he has licence to drive a particular class of vehicle and then conclude whether he was duly authorised to drive that particular vehicle involved in the accident. Therefore, ultimately depending upon the nature of licence and the class of vehicle driven, the Tribunal has to see under which definition the vehicle would fit in and then examine whether the licence of the driver would cover that classification of vehicle. As long as the particular type of vehicle involved in the accident comes within the classification of the vehicle for which he holds the licence to drive, then there is no violation of conditions of policy. If the driver is found to be having licence to drive a particular class of vehicle but was found to be driving altogether a different class of vehicle, if that conflicts with the nature of vehicle classified under sub-section (2) of section 10, then one has to conclude that the driver was not duly authorised to drive that particular class of vehicle. This is subject to presumptions available as discussed above."
Thus, it is clear that if the driver of a vehicle was not holding a valid licence in consonance with Section 10 of the Motor Vehicles Act, the insurer can press Section 149 of the Act into service to defend its case. In the instant case, admittedly the driver was holding a licence to drive a light motor vehicle issued on 17.03.2004 i.e., after the date of amendment i.e., 28.3.2001. It is also not in dispute that he was driving a mini lorry which is a transport vehicle. Therefore, the driver did not possess a valid licence to drive a transport vehicle. Hence, the defence taken by the insurer rightly merits consideration. Accordingly, appeals filed by the insurer deserve to be allowed.
Insofar as appeals for enhancement are concerned, learned counsel for the claimants fairly submits that notices to the driver and owner have been dispensed at the instance of the appellants at their risk and accordingly he does not press them.
In the result, I pass the following:
ORDER
(i) Appeals filed by the insurer in MFA. Nos. 20850/2008, 20865/2008 & 20849/2008 stand allowed and the liability against the insurer is set aside.
(ii) Appeals filed by the claimants in MFA Nos. 20721/2008, 20722/2008 & 20723/2008 are dismissed as not pressed.
(iii) Judgment and award of the Tribunal against the owner remains undisturbed.
Registry is directed to refund the statutory deposit to the insurer.
Ordered accordingly.