IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE THIRD DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.Nos.1035 & 1058 OF 2009 M.A.C.M.A.No.1035 OF 2009 Between:- Bajaj Allianz General Insurance Company Limited, Rep. by its Branch Manager, Hyderabad. …Appellant A n d Maddi Rami Reddy and another …Respondents M.A.C.M.A.No.1058 OF 2009 Bajaj Allianz General Insurance Company Limited, Rep. by its Branch Manager, Hyderabad. …Appellant A n d Maddi Chandra Sekhar Reddy and another …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.Nos.1035 & 1058 OF 2009 COMMON JUDGMENT: These appeals arise out of the judgment dated 09-01-2009 in O.P.No.536 & 535 of 2007 respectively, on the file of the Chairman, Motor Accidents Claims Tribunal- cum-District Judge, Khammam (for short ‘the tribunal’), wherein the said claim applications filed by the claimants, first respondent herein, were allowed-in-part, awarding compensation of Rs.60,000/- and Rs.52,000/- respectively with interest at 7.5% per annum from the date of petition till realization. 2. As both the appeals arise out of the same accident and involve the same question of law, they are heard together and are being disposed of by this common judgment, though they arise from different awards. 3. Arguments of the learned counsel for the appellant-insurer and the learned counsel for the first respondent-claimants in both the appeals are heard. Perused the records. 4. The claimants in both the cases filed the claim applications seeking compensation of Rs.1,50,000/- and Rs.1,00,000/- respectively for the injuries sustained by them in a motor vehicle accident that occurred on 09-09-2006. On that day, both the claimants were returning to their village on motorcycle bearing No.AP 20 N 0437 from Khammam and when they reached Koyachalaka village, at about 10-00 p.m., a trolley auto bearing No.AP 20 V 5888, driven by its driver in a rash and negligent manner, dashed against the motorcycle, as a result of which, both the claimants fell down from the motorcycle and sustained injuries. A case in Cr.No.198 of 2006 was registered against the driver of the trolley auto. The claimants were shifted to Surya Orthopaedic Accident and Trauma Care Hospital, Khammam where they underwent treatment for the fracture injuries sustained by them. It is pleaded that both the claimants were agriculturists and on account of the injuries sustained by them, they suffered loss of earning capacity. 5. The owner of the trolley auto remained ex parte before the tribunal. The appellant-insurer filed a counter opposing the claim and denying their liability to pay the compensation, contending inter alia that they do not admit that the driver of the trolley auto was having a valid driving licence at the time of the accident. 6. On the strength of the pleadings, the tribunal framed the following issues in both the O.Ps: i) Whether the accident took place due to rash and negligent driving of the accident vehicle, trolley auto bearing No.AP 20 V 5888 by its driver? ii) Whether the petitioner is entitled to claim any compensation? if so, to what amount and from which of the respondents? iii) To what relief? 7. During enquiry, the claimants in each O.P were examined as P.W.1 and one Dr.K.Mahendra Kumar was examined as P.W.2 and Exs.A-1 to A-9 were marked on their behalf. One Ch.Pavan, Deputy Manager (Legal) of the insurer, was examined as R.W.1 and Ch.Satyanarayana Murthy, Additional Licencing Authority of RTA, Khammam, was examined as R.W.2 in both the cases and Exs.B-1 to B-4 were marked on their behalf. 8. On a consideration of the evidence available on record, the tribunal awarded compensation of Rs.60,000/- in O.P.No.536 of 2007 and Rs.52,000/- in O.P.No.535 of 2007 with interest at 7.5% per annum. Aggrieved by the same, the present appeals are filed by the insurer. 9. The finding of the tribunal holding the driver of the trolley auto responsible for the accident and the quantum of compensation awarded by the tribunal, are not seriously disputed. The main contention of the learned counsel for the appellant is that the driver of the trolley auto was not having a valid driving licence on the date of accident and thus there has been breach of conditions of the policy and, therefore, the appellant- insurer is not liable to pay the compensation. 10. In support of their case, the appellant-insurer examined R.W.1, Deputy Manager of the Insurance Company and R.W.2 Additional Licencing Authority of RTA, Khammam and marked Exs.B-1 to B-4. According to them, as per the driving licence extract, the driver of the trolley auto was not holding any type of driving licence and knowing the same fully well, the owner allowed him to drive the auto and thereby violated the terms and conditions of the policy. According to R.W.2, as per the driving licence extract Ex.B-2 issued by their office, the driver G.Seethaiah was authorized to drive motorcycle with gear w.e.f 30-10-1986 and on 02-11-1992 he obtained a separate tractor licence and again on 03-11- 1995 he obtained a tractor trailer transport licence. R.W.2 further deposed that under Ex.B-2, the driver was not competent to drive auto with trolley. As on the date of accident i.e., 09-09-2006, except having licence to drive two-wheeler, he has no other licence. The tribunal also recorded a finding to the effect that in view of the evidence of R.W.2, coupled with Ex.B-2, the driver was incompetent to drive the auto trolley. The policy Ex.B-1 contains a stipulation that the vehicle can be driven by any person including the insured provided that a person driving holds an effective driving licence at the time of accident and is not disqualified from holding or obtaining such a licence. Thus, according to the terms of the policy, the vehicle ought to be driven by a person having effective driving licence. 11. The learned counsel for the appellant-insurer would invite attention to the definition of the expression ‘driving licence’ contained in Section 2(10) of the Motor Vehicles Act (for short ‘the Act’) wherein ‘driving licence’ means the licence issued by a competent authority under Chapter II authorizing the person specified therein to drive, otherwise than as a learner, a motorcycle or a motor vehicle of any specified class or description. Section 3(1) of the Act states that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle. 12. The learned counsel for the appellant-insurer would rely on a decision in VIKRAM GREENTECH INDIA LIMITED v. NEW INDIA ASSURANCE COMPANY LIMITED[1], wherein the Apex Court held as follows: “An insurance contract is a species of commercial transactions and must be construed like any other contract to its own terms and by itself. In a contract of insurance, there is requirement of uberrima fides i.e good faith on the part of the insured. Except that, in other respects, there is no difference between a contract of insurance and any other contract.” It was further held as under: “The endeavour of the court must always be to interpret the words in which the contract is expressed by the parties. The court while construing the terms of policy is not expected to venture into extra liberalism that may result in rewriting the contract or substituting the terms which were not intended by the parties. The insured cannot claim anything more than what is covered by the insurance policy.” 13. It is to be noted that the above decision was rendered in a case arising under the Consumer Protection Act, 1986 relating to comprehensive floriculture insurance policy. The contention of the insurance company in the above case was that the claim on account of damages to polyhouses 7, 8-A and 8-B was not admissible as they were not covered under the policy and in respect of other polyhouses 1 to 6, the company admitted that the claim in respect of them was covered by the policy. The National Commission held that the complainant was entitled to damages in respect of polyhouses 1 to 6 that were damaged in a storm/cyclone. Aggrieved by the dismissal of the complaint with regard to claim for loss to other poly houses, 7, 8-A and 8-B, the insured filed the appeal. The policy was found to mention clearly that the number of polyhouses covered were six. In that context, it was held that the endeavour of the court must always be to interpret the words in which the contract is expressed by the parties and the terms of contract cannot be rewritten or substituted and the insured cannot claim anything more than what is covered by the insurance policy. The above proposition cannot be disputed, but the same cannot be imported to the facts of the present case wherein the claim is made under the provisions of the Act, which is a beneficial piece of legislation. 14. The learned counsel for the respondent/claimant would contend that the claimant being a third party and the policy duly covering the risk of a third party, the appellant-insurer cannot seek to avoid liability on the ground that there has been violation of the terms and conditions of the policy, unless it is established that the owner of the vehicle willfully or deliberately violated the terms and conditions of the policy. There is no evidence on record to show that the owner of the vehicle in spite of having knowledge that the driver had no valid driving licence, entrusted the vehicle to him. It is not a case where the driver had no licence at all to drive any vehicle. Even as per Ex.B-2 and evidence of R.W.2, the driver was having licence to drive three different types of vehicles, but he was not having licence to drive the trolley auto. 15. The learned counsel for the respondent/claimant relied on a decision in NATIONAL INSURANCE COMPANY LIMITED v. SWARAN SINGH AND OTHERS[2] wherein it was held that to avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licenced driver or one who was not disqualified to drive at the relevant time. He also relied on a decision i n LALCHAND V. ORIENTAL INSURANCE COMPANY LIMITED[3] wherein it was held that the insurer has to prove that the owner is guilty of negligence and failed to exercise reasonable care in the matter regarding use of vehicles by duly licenced driver and failure of the insurer to prove the same does not absolve them of liability. In the present case, the owner of the vehicle remained ex parte. The driver of the vehicle was not impleaded. No steps were taken by the insurer to get the owner or driver summoned for giving evidence so as to establish that there has been negligence or failure on the part of the owner to exercise reasonable care in entrusting the vehicle. In Swaran Singh’s case (2 supra), the Apex Court held that where the driver of the vehicle admittedly did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid its liability. In the present case, there is no such evidence on record to show that the owner of the vehicle consciously allowed the vehicle to be driven by the driver, having no driving licence. 16. In NATIONAL INSURANCE COMPANY LIMITED v. BALJIT KAUR AND OTHER[4], the Apex Court while holding that the insurance company was not liable to pay the compensation in respect of an unauthorized passenger in a goods vehicle, however, directed the insurance company to satisfy the award and recover the amount from the owner in execution proceedings without any need to file a separate suit. 17. In the present case, even according to the appellant-insurer, there is coverage under the policy in respect of third party risk, but the only complaint is that there has been violation of the terms and conditions of the policy, as the driver was not having valid driving licence at the time of accident to drive the auto trolley. The tribunal, while holding that the driver was not competent to drive the trolley auto, however, fastened joint liability on the appellant-insurer also for payment of the amount awarded. As there has been violation of the terms and conditions of the policy and there being no evidence to the effect that the owner indulged in deliberate or conscious violation of the terms and conditions of the policy on account of negligence or failure to exercise reasonable care, it is considered that the claimant, who is a third party and whose risk is duly covered by the policy, cannot be deprived of the benefits of social welfare legislation, like the Motor Vehicles Act. It is, therefore, considered that the ends of justice would be met by directing the appellant-insurer to pay the amount awarded by the tribunal to the claimant at the first instance and then recover the same from the owner of the vehicle in terms of ORIENTAL INSURANCE COMPANY LIMITED v. NANJAPPAN[5]. The impugned award passed by the tribunal is modified accordingly incorporating the above direction. 18. In the result, the appeals are disposed of as stated above. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 03rd September, 2010. Lrkm. [1] (2009) 5 SCC 599 [2] 2004 SC 1531 [3] 2006(7) LC [4] 2004 ACJ 428 (SC) [5] 2004 ACJ 721 (SC)