IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 MACA.No. 834 of 2006() ---------------------- OPMV.980/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): APPELLANT/3RD RESPONDENT: --------------------------------------- THE ORIENTAL INSURANCE CO.LTD., TRIVANDRUM, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS/ CLAIMANTS & FIRST RESPONDENT ------------------------- 1. ABDUL KAREEM, ALIGAR MANZIL, PALLIVETTA, PANDADIKALAM, ARYANAD P.O., NEDUMANGADU, THIRUVANANTHAPURAM. 2. HALEEL REHMAN, ALIGAR MANZIL, PALLIVETTA, PANDADIKALAM, ARYANAD P.O., NEDUMANGADU, THIRUVANANTHAPURAM. 3. ASILAM, ALIGAR MANZIL, PALLIVETTA, PANDADIKALAM, ARYANAD P.O., NEDUMANGADU, THIRUVANANTHAPURAM. 4. A.A. HASHIM, KARIMS, PALLIVETTA, ARYANADU P.O., THIRUVANANTHAPURAM. ADV. SRI.NAGARAJ NARAYANAN FOR R1-3 SRI.SAIJO HASSAN FOR R1-3 SRI.A.S.SABU FOR R1-3 SRI.RAJAN VELLOTH FOR R1-3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2011, THE COURT ON 30/06/2011 PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.834 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of June , 2011 JUDGMENT Barkath Ali, J. The short question which arises for consideration in this appeal filed under Section 173 of the Motor Vehicles Act, 1998 by the Insurance Company is whether the Insurance Company would be liable to satisfy the award if the vehicle involved in the accident was driven by a person holding a learner's licence at the time of accident. 2. The facts in brief are these. On August 30, 2000 while the deceased Subaida Beevi was riding pillion on the motor cycle bearing registration No.KL-01 S7054 from Pezhumoodu-Poovachal public road and when she reached at Alamukku in Pezhumoodu-Poovachal public road, she fell down from the motor cycle as it fell into a gutter on the road. She sustained serious injuries and she succumbed to the injuries sustained while undergoing treatment in the Medical College Hospital, Thiruvananthapuram. The deceased was a lady aged 38 at the time of accident and MACA No.834/2006 -2- earning Rs.3,000/- per month. Alleging negligence against the driver of the offending motor cycle the claimants who are husband and two children of the deceased Subaida Beevi filed the OP before the Tribunal under Section 163 (A) of the Motor Vehicles Act claiming a compensation of Rs.5,00,000/-. 3. The 1st respondent, the owner of the offending motor cycle filed a written statement admitting the accident but denied the liability. The 2nd respondent, the alleged rider of the offending motor cycle remained absent before the Tribunal. The 3rd respondent, the insurer filed a written statement admitting the policy of the vehicle but contending that at the time of the accident scooter was ridden by 1st respondent who had only a learner's licence with him and that therefore this respondent is not liable to indemnify the 1st respondent. 4. Exhibits A1 to A4 were marked on the side of the claimants before the Tribunal. Ext.B4 was marked on the side of the third respondent before the Tribunal. On an appreciation of evidence, the Tribunal found that at the time MACA No.834/2006 -3- of accident scooter was ridden by the 1st respondent and awarded a compensation of Rs.2,49,500/- with interest @ 9% per annum from the date of petition till realisation. The Tribunal also found that though first respondent was having only a learner's licence at the time of accident, the Insurance Company is bound to satisfy the award. The Insurance Company has come up in appeal challenging the said finding of the Tribunal. Appellant has also contended that the compensation awarded is excessive. 5. Heard the counsel for the Insurance Company and the counsel for the claimants. 6. The finding of the Tribunal that offending motor cycle was ridden by the 1st respondent at the time of accident is not challenged in this appeal. It is also not disputed that he was holding a learner's licence at the time of accident. Therefore, the first question for consideration would be whether he can be considered as a person holding an effective and valid driving licence at the time of accident and whether the finding of the Tribunal that the appellant Insurance Company should satisfy the award can be MACA No.834/2006 -4- sustained. 7. Sri.George Cherian, the learned counsel for the appellant Insurance Company argued that in the present case the first respondent who was riding the motor cycle was not accompanied by an Instructor as contemplated under Clause (b) of Rule 3 of Central Motor Vehicles Rules which is a clear violation of conditions of the policy and that therefore appellant is not bound to indemnify the owner, first respondent. The counsel for the claimant on the other hand supported the impugned award of the Tribunal. 8. Clause 10 of Section 2 of the Motor Vehicles Act, 1988 defines the expression 'driving licence' thus : Driving licence means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description. Thus the definition of driving licence excludes from its scope a learner's licence. 9. Learner's licence has been defined under Clause 19 of Section 2 of the Motor Vehicles Act, 1988 thus: Learner's licence' means the licence MACA No.834/2006 -5- issued by a competent authority under Chapter II authorising the person specified therein to drive as a learner, a motor vehicle or a motor vehicle of any specified class or description. 10. Validity of learner's licence has been considered by the Apex Court in National Insurance Company Ltd. V. Swaran Singh (2004 (1) KLT 781 (SC)). In paragraph 86 and 87 thus: “86. Motor Vehicles Act, 1988 provides for grant of learner's licence. (See S.4(4), S. 7 (2), S. 10 (2) and S.14). A learner's licence is, thus, also a licence within the meaning of the provisions of the said Act. It cannot, therefore, be said that a vehicle when being driven by a learner subject to the conditions mentioned in the licence, 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 licence 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 licence, the same would run counter to the provisions to S.149 (2) of the Act. 87. The provisions contained in the said Act provide also for grant of driving licence which is otherwise a learner's licence. Sections 3 (2) and 6 of the Act provides for the restriction in the matter of grant of driving licence. Section 7 deals with such restrictions on granting of learner's licence. Sections 8 and 9 MACA No.834/2006 -6- provide for the manner and conditions for grant of driving licence. Section 15 provides for renewal of driving licence. Learner's licences are granted under the rules framed by the Central Government or the State Governments in exercise of their rule making power. Conditions are attached to the learner's licences granted in terms of the statute. A person holding learner's licence would, thus, also come within the purview of 'duly licenced' as such a licence 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 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.” 11. It is clear from the the principles laid down in the above case that holder of learner's licence is a duly licensed person authorised to drive a vehicle. Clause (b) of Rule 3 of Central Motor Vehicles Rules,1989 provides thus: “(b). Such person is accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor is sitting in such a position as to control or stop the vehicle.” 12. The specific case of the appellant Insurance Company is that the deceased has driven the motor cycle MACA No.834/2006 -7- which is in violation of the above rule which is also a violation of the condition of the policy and that therefore Insurance Company is not liable to indemnify the 1st respondent, the owner of the offending motor vehicle. The counsel for the appellant brought to the notice the following specific clause in the policy which reads thus: “Drivers Clause : Persons or classes of persons entitled to drive :- Any person including the insured provided that the person driving holds an effective and valid driving license to drive the category of vehicle insured hereunder, at the time of accident and is not disqualified from holding or obtaining such a license. Provided also that a person holding an effective and valid Learner's License to drive the category of vehicle insured hereunder may also drive the vehicle and that the person satisfies the requirements of Rule 3 of Motor Vehicle Rules, 1989.” 13. We find no merit in the above contention of the counsel for the appellant. Only if the vehicle is driven by a person who is not duly authorised or disqualified from holding a driving licence can be termed as breach of conditions of policy. The policy itself empowers driving of the vehicle holding a learner's licence. Only condition is that MACA No.834/2006 -8- he must have been accompanied by an Instructor holding effective driving licence. In Swaran Singh's case (supra) the Apex Court has held thus: “We have construed and determined the scope of sub-cl.(ii) of sub-s. (2) (a) of Section 149 of the Act. Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been direct cause of the accident, would be treated as minor breaches or inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties. 14. In the light of the principles laid down in Swaran Singh's case (supra) as mentioned above the mere absence of an Instructor accompanying a holder of a learner's licence driving the vehicle can only be considered inconsequential or minor deviation with regard to licence conditions which cannot be construed as a sufficient ground to deny the benefit of coverage of Insurance to the third party. 15. Therefore, we are of the view that though there is minor breach of condition of policy in this case the Insurance Company cannot be exonerated from liability and MACA No.834/2006 -9- the Tribunal is perfectly justified in ordering 3rd respondent Insurance Company to satisfy the award. 16. There is another aspect in this case. The Counsel for the appellant Insurance Company argued that the Insurance Company should be allowed to recover the amount awarded by the Tribunal from the 1st respondent, the owner of the offending vehicle as there is breach of conditions of policy. There is no merit in the above contention. We have already found that minor and inconsequential deviations with regard to licensing conditions which are not direct cause of the accident cannot be construed as a ground to deny the benefit of coverage of insurance policy to third party. In the present case the above mentioned violation of Rule 3 of Central Motor Vehicles Act was not found to be the direct cause of the accident. Therefore, the Insurance Company is not entitled to recover the compensation amount from the 1st respondent, owner of the offending vehicle. 17. Next question to be considered is whether the compensation awarded by the Tribunal is excessive. The MACA No.834/2006 -10- Tribunal awarded a total compensation of Rs.2,49,500/-. The deceased was a lady aged 38. The claimants are her husband and two children. For assessing loss of dependency the Tribunal took the monthly income of the deceased as Rs.2,000/-. In the circumstances of the case, we feel that compensation awarded by the Tribunal is just and reasonable and not excessive. 18. In view of our above findings, we find that the appeal is devoid of any merit and the same has to be dismissed. In the result the appeal is dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE SV