IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 MACA.No. 1053 of 2004(C) ----------------------- OPMV.2002/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): APPELLANT/IST RESPONDENT. --------------------------------------- K.T.JOHNSON, S/O.THOMAS, KARIMALLEKKAL HOUSE, MISSION QUARTERS, THRICHUR DISTRICT. BY ADV. SRI.T.A.SHAJI SRI.M.A.ASIF T.K. PRASEEDA RESPONDENT(S): PETITIONER & RESPONDENTS 2 7 3. ---------------------------------------------- 1. JOSE, S/O.MOSA, PONNUR HOUSE P.O.LALOOR, TRICHUR DISTRICT. 2. BIJU, S/O.JOSE, CHEERAN VEETTIL HOUSE, P.O.ANCHERY, OLLUR, TRICHUR DISTRICT. 3. THE NEW INDIA ASSURANCE COMPANY LTD. BRANCH II FLOOR, KOLANNUR BUILDINGS, PALACE ROAD, TRICHUR. ADV. SRI.P.G.GANAPPAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. NO: 1053 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd Day of August, 2009. JUDGMENT K. M. Joseph J. The appellant is the first respondent in a petition filed under Section 166 of Motor Vehicles Act. He was proceeded against on the allegation that the vehicle, which was driven negligently by the second respondent causing accident in question, belonged to him. He is aggrieved by the fact that the Tribunal has permitted the 3rd respondent, Insurance Company, to pay and recover from him the amount of compensation. 2. Heard the learned counsel for the appellant and the learned counsel appearing on behalf of the 3rd respondent. M.A.C.A . NO : 1053 OF 2004 :2: 3. The Learned counsel for the appellant would submit that the driver of the vehicle possessed a learner's license and therefore he must be treated as a person who is possessed of the license under Rule 3 of the Central Motor Vehicle Rules, 1989. 4. In this connection, the counsel drew our attention to the judgment of the Apex Court reported in National Insurance Co. Ltd. V. Swaran Singh (2004(1) KLT 781 (SC), therein the Apex Court inter-alia has held as follows: “Motor Vehilces Act, 1988 provides for grant of learner's license. S.7(2), S.10(2) and S.14. A learner's license is, thus, also a license within the meaning of the provisions of the Act. It cannot, therefore, be said that a vehicle when being driven by a learner subject to the conditions mentioned in the license, he would not be a person who is not duly licensed resulting in conferring a right on the insurer to avoid the claim of the third party. It cannot be said that a person holding a learner's license is not entitled to drive the vehicle. Even if there exists a condition in the contract of insurance that the vehicle cannot be driven by a person holding a learner's license, the same would run counter to the provisions of S.149(2) of the Act. The provisions contained in the said Act provide also for grant of driving license which is otherwise a learner's license. Ss.3(2) and 6 of the Act provides for the restriction in the matter of grant of driving license. M.A.C.A . NO : 1053 OF 2004 :3: S.7 deals with such restrictions on granting of learner's license. Ss8 and 9 provide for the manner and conditions for grant of driving license. S.15 provides for renewal of driving license. Learner's licenses are granted under the rules framed by the Central Government or the State Government in exercise of their rule making power. Conditions are attached to the learner's licenses granted in terms of the statute. A person holding learner's license would, thus, also come within the purview of 'duly licensed' as such a license is also granted in terms of the provisions of the Act and the rules framed thereunder. It is now a well settled principle of law that 7 rules validly framed become part of the statute. Such rules are, therefore, required to be read as a part of main enactment. It is also well settled principle of law that for the interpretation of statute an attempt must be made to give effect to all provisions under the rule. No provision should be considered as surplusage.” 5. He also drew our attention to the summary of findings at Part 8, therein the Apex Court held as follows: “If the vehicle at that time was driven by a person having a Learner's license, the Insurance Company would be liable to satisfy the decree.” 6. Therefore in this case, in so far as the second respondent is concerned, he possessed a learner's license and the Tribunal ought to have only directed the Insurance Company to pay the M.A.C.A . NO : 1053 OF 2004 :4: amount and there is no warrant in permitting the recovery of amount from the owner of the vehicle, it is contended. 7. Per contra, learned counsel for the Insurance Company would refer to us the decision of the Apex Court reported in Oriental Insurance Co. Ltd., Vs. Meena Variyil and Others (2007(5) SCC 428). Therein the Apex Court held as follows: “We shall now examine the decision in Swaran Singh on which practically the whole of the arguments on behalf of the claimants were rested. On examining the facts, it is found that, that was a case which related to a claim by a third party. In claims by a third party, there cannot be much doubt that once the liability of the owner is found, the Insurance Company is liable to indemnify the owner, subject of course, to any defence that may be available to is under Section 149(2) of the Act. In a case where the liability is satisfied by the Insurance Company in the first instance, it may have recourse to the owner in respect of a claim available in that behalf. Swaran Singh was a case where the Insurance Company raised a defence that the owner had permitted the vehicle to be driven by a driver who really had no license and the driving license produced by him was a fake one. Their Lordships discussed the position and held ultimately that a defence under Section 149(2)(a) (ii) of the Act was available to an insurer when a claim is filed either under Section 163A or under Section 166 of the Act. The breach of a policy condition has to be provided to have been committed M.A.C.A . NO : 1053 OF 2004 :5: by the insured for avoiding liability by the insurer. Mere absence of or production of fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insurer or the third party. The Insurance company to avoid liability, must not only establish the available defence raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the Insurance Company. Whether such a burden had been discharged, would depended upon the facts and circumstances of each case. Even when the insurer is able to prove breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of conditions is so fundamental as to be found to have contributed to the cause of the accident. The question whether the owner has taken reasonable care to find out whether the driving license produced by the driver was fake or not, will have to be determined in each case. If the vehicle at the time of the accident was driven by a person having a learner's license, the Insurance Company would be liable to satisfy the award. The amount that may be awarded to the Insurance company against the insurer in an appropriate case could be recovered even by way of the enforcement of the very award. The insurance company had to satisfy the claim of the insured in cases where a defence under Section 149(2) had been established by the company in terms of a fake license or the learner's license. Their Lordships distinguished Malla Prakasarao V. Malla Janaki wherein it was held that the Insurance Company had no liability to pay any compensation M.A.C.A . NO : 1053 OF 2004 :6: where an accident result by a vehicle being driven by a driver without a driving license. In other words, a distinction between a case of no license and a case of license which turned out to be fake or deficient was drawn and the liability was held to stand on different footings.” 8. Based on the said decision, the learned counsel for the appellant would make the following statements. He would submit that the decision in Swaran Singh's case was rendered by a Bench of three judges, while the later decision relied on by the learned counsel for the Insurance Company was passed by a Bench of two judges. Therefore, he would contend that in so far as the issue is concerned, namely, whether the insurance company is liable to pay the compensation when the driver is admittedly in possession of learner's license the dictum in Swaran Singh's case governs. 9. The fact that the second respondent was having a valid learner's license is not in dispute. If that is so, under the relevant rule two conditions are to be fulfilled. He must be accompanied by a person having a valid license. Secondly, the vehicle should M.A.C.A . NO : 1053 OF 2004 :7: have on it a sign showing that it is being driven by a person having learner's license. In substance these are the requirements of the rule. 10. He would submit that going by the dicta, it is for the insurer to prove the case. In this case, it is submitted that the Insurance Company has failed to discharge its burden. He also points out that it is noted by the Tribunal that the charge sheet would show that the person who accompanied the second respondent was having a valid license. 11. A perusal of the judgment of the Apex Court in Swaran Singh's case would clearly show that as far as the issue relating to the liability of the Insurance Company is concerned, in relation to the vehicle driven by a person having a learner's license, the issue is squarely covered in favour of the party and that the Insurance Company is liable. This is apparently on the reasoning that the learner's license is also a license or in other words, a person having a learner's license must be treated as a person who is duly licensed. No doubt, in the subsequent decision, the Apex Court M.A.C.A . NO : 1053 OF 2004 :8: has taken the view that in the case of learner's license, it is for the Insurance Company to pay and recover the amount. We would think that in the light of the aforesaid pronouncement of the Apex Court, in Swaran Singh's case with regard to the fact that a person being in possession of the learner's license, unless the Insurance Company discharges its burden and shows that there is violation of any of the conditions which are embedded in Rule 3 of the Central Motor vehicle Act, the Insurance Company cannot be given recovery rights. As we have already noted that there was a learner's license in favour of the second respondent. Going by the indication given in the charge, we can also infer that the person who accompanied the second respondent was duly licensed. 12. We are inclined to take the view that the Insurance Company has not discharged its burden. In such a situation and in the face of fulfillment of two conditions, we think that this is a case where the Tribunal ought not to have permitted recovery of the amount by the third respondent, Insurance Company. M.A.C.A . NO : 1053 OF 2004 :9: 13. Accordingly, we allow this appeal and delete the right given to the third respondent Insurance Company to recover the amount to be paid to the claimants. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/