The Oriental Insurance Company Limited vs Tameshwar Thakur and another

Hon''ble Mr. N.K Agarwal, J.—This is insurer''s appeal against the award dated 25th November, 2009 passed in Claim Case No. 117/2008 by the Additional Motor Accidents Claims Tribunal. Dantewada. As against the compensation of Rs. 4,00,000/- claimed by respondent No. 1/claimant by filing application u/s 166 of the Motor Vehicles Act, 1988 (for short ''the Act'') for the injuries sustained by him in the motor accident on 10-9-2008, the learned Tribunal has awarded a total sum of Rs. 2,52,075/- as compensation along with interest at 7.5% per annum from the date of application till its actual payment.

The learned Tribunal, on a close scrutiny of the evidence led, held : the accident had occurred due to rash and negligent driving by respondent No. 2, i.e., driver-cum-owner of the offending vehicle, i.e., Commander Jeep bearing registration No. C.G. 18 T-0153; held appellant/Insurance Company liable for payment of compensation as according to the Tribunal, the appellant could not establish breach of policy conditions; assessed and awarded the aforesaid amount of compensation to respondent No. 1/claimant along with interest @ 7.5% per annum from [he date of application till its actual payment.

Shri H.P. Agrawal, learned Counsel appearing for the appellant would submit : the offending vehicle is passenger carrying commercial vehicle, the driver-cum-owner, i.e., respondent No. 2 was not having valid and effective driving licence to drive the above vehicle inasmuch as the endorsement to drive transport vehicle was not there and the learned Tribunal has fallen in error in holding the appellant/ Insurance Company liable for payment of compensation.

On the other hand, Shri Prafulla N. Bharat, Advocate for respondent No. 1 and Shri Parasmani Shrivas. Advocate for respondent No. 2 supported the award impugned and submitted that in the facts and circumstances of the case, the learned Tribunal has rightly fastened the liability upon the Insurance Company and the award does not call for interference.

I have heard learned Counsel for the parties and perused the award impugned including the record of the Tribunal.

The effect of the different terms of licences granted in terms of the provisions of Sections 2 (14) and 2 (47) has been noticed by this Court in the case of New India Assurance Co. Ltd. Vs. Prabhu Lal, wherein the Supreme Court held as under :-

Now, it is the case of the Insurance Company that the vehicle of the complainant which met with an accident was a ''transport vehicle''. It was submitted that the insured vehicle was a ''goods carriage'' and was thus a ''transport vehicle''. The vehicle was driven by Ram Narain, who was authorized to drive Light Motor Vehicle and not a transport vehicle. Since the driver had no licence to drive transport vehicle in absence of necessary endorsement in his licence to that effect, he could not have driven Tata 709 and when that vehicle met with an accident. Insurance Company could not be made liable to pay compensation.

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The argument of the Insurance Company is that at the lime of accident. Ram Narain had no valid and effective licence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive Light Motor Vehicle. The learned Counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having licence to drive Light Motor Vehicle, he cannot drive a transport vehicle unless his driving licence specifically entitles him so to do (Section 3). Clauses (14), (21). (28) and (47) of Section 2 make it clear that if a vehicle is ''Light Motor Vehicle'', but falls under the category of Transport Vehicle, the driving licence has to be duly endorsed u/s 3 of the Act. If it is not done, a person holding driving licence to ply Light Motor Vehicle cannot ply transport vehicle. It is not in dispute that in the instant case, Ram Narain was having licence to drive Light Motor Vehicle. The Licence was not endorsed as required and hence, he could not have driven Tata 709 in absence of requisite endorsement and Insurance Company could not be held liable.

We find considerable force in the submission of the learned Counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under Clause (47) of Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To us. therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle in question.

The period of licence would again suggest that the licence was non-transport vehicle licence. In New Indian Assurance Co. Ltd. Vs. Roshanben Rahemansha Fakir and Another, the Apex Court held that licence having been granted for a period of twenty years, a presumption, therefore, arises that it was meant for the purpose of a vehicle other than a transport vehicle.

The Apex Court in case of Oriental Insurance Co. Ltd. Vs. Angad Kol and Others, has noticed Sections 2(10), (11). (12), (13), (14), (21) and Sections 3, 9, 10, 14 of the Act and Rules 14 and 16 of Central Motor Vehicle Rules, 1989 along with Forms 4 and 6, and after noticing its earlier judgments in the cases of National Insurance Company Ltd. Vs. Annappa Irappa Nesaria and Others, New India Assurance Co. Ltd. Vs. Prablulal (supra). New India Assurance Company Ltd. Vs. prabhulal, (supra) and Ashok Gangadhar Maratha Vs. Oriental Insurance Co. Ltd., has held : "a transport vehicle may be a light motor vehicle but for the purpose of driving the same, a different licence is required to be obtained".

In the instant case, indisputably, the respondent No. 2, i.e., driver-cum-owner was holding driving licence to drive light motor vehicle at the time o accident and was valid for a period of 20 years and there is no endorsement which would entitle him to ply the offending vehicle. By applying the ratio of law laid down by the Supreme Court in the above referred cases, it is crystal clear that driving licence held by respondent No. 2 was not valid and the appellant/Insurance Company has successfully proved its defence.

For the reasons mentioned hereinabove, the appeal is allowed in part. The award against the appellant/the Oriental Insurance Company Limited is set aside. Rest of the conditions of the award shall remain intact. The respondent No. 1/ claimant is entitled for payment of compensation from respondent No. 2, i.e., owner-cum-driver. However, by applying the ratio of law laid down by the Supreme Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, and in the case of Sri Pramod Kumar Agrawal and Another Vs. Smt. Mushtari Begum and Others, direct the appellant/Insurance Company to pay the quantum of compensation fixed by the Tribunal to respondent No. 1/claimant within a period of 3 months from today and then to recover it from respondent No. 2, i.e., owner of the offending vehicle. For the purpose of recovering the same from the owner, the appellant shall not be required to file a suit. It may initiate a proceeding before the Executing Court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimant, owner of the vehicle, i.e., respondent No. 2 shall furnish security for the entire amount which the appellant will pay to the claimant. The offending vehicle shall be attached, as a pail of the security. If necessity arises, [he Executing Court shall take assistance of the Regional Transport Authority concerned. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle, i.e., respondent No. 2 shall make payment to the appellant. In case, there is any default, it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of respondent No. 2, i.e., owner of the offending vehicle. No order as to costs.