IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 220 of 2010 I.C.I.C.I. Lombard General Insurance Company Ltd. … Appellant. Versus Smt. Tabassum Bee and five others. … Respondents. Mr. Ramji Srivastava, Advocate, learned counsel for the appellant. Mr. Hari Mohan Bhatia, Advocate, learned counsel for the Claimant-Respondent Nos. 1 to 4. Mr. S.K.Mandal, Advocate, learned counsel for the respondent no.5-owner of vehicle. WITH A.O. No. 155 of 2010 Narendra Singh. … Appellant. Versus I.C.I.C.I. Lombard General Insurance Company Ltd. and others. … Respondents. Mr. S.K.Mandal, Advocate, learned counsel for the appellant-owner of the vehicle. Mr. Ramji Srivastava, Advocate, learned counsel for the respondent no.1-insurer. Mr. Hari Mohan Bhatia, Advocate, learned counsel for the Claimant-Respondent Nos. 3 to 6. Date July 21, 2011. Hon’ble B.S.Verma, J. Since both the appeals under Section 173 of the Motor Vehicles Act 1988 (for short the Act) have arisen out of the same motor accident and both of them are directed against the one and the same award dated 1-4-2010 passed by the Motor Accident Claims Tribunal/District Judge, Udham Singh Nagar (for short the Tribunal) in Claim Petition No. 384 of 2007 and as the controversy involved in these appeals is similar, therefore, for the sake of convenience, both the appeals are being decided by this common judgment. 2. Briefly stated, the facts giving rise to the present appeals are one Tabrej Alam (deceased), husband of Smt. Tabassum Bee, who has been arrayed as respondent No. 1 in A.O. No. 220 of 2010 lost his life in a motor vehicle accident, which occurred on 31-7-2007, involving Motor Cycle No. UA-6G- 2 5553. The claim petition for compensation was filed by the legal representatives and dependents of the deceased under Sections 140/166 of the Act alleging therein that on the fateful day, the deceased was standing near Anupam Sweet House along with his uncle Imtiaz Navi and in the meantime, the offending vehicle being driven rashly and negligently by its driver suddenly came from the side of Kichha and dashed the deceased from back side with the result Tabrej Alam suffered grievous injuries on his head and other parts of body. The injured was taken to Keshlata Hospital Bareilly but considering the critical condition of the injured, he was referred to Lucknow Hospital, but the injured succumbed to his injuries while he was being taken to Lucknow. The First Information Report of the accident was lodged with police station Sitarganj. Panchnama of the dead body was prepared after appointing Panch, but autopsy of dead body was not conducted. The claimants have pleaded that the deceased was aged about 28 years and was earning Rs. 20,000/- per month from contract work etc. The claimants have claimed compensation worth Rs. 25,00,000/- on account of death of the deceased against the opposite parties. Opposite Party No. 1- Narendran Singh is the owner of the offending motor cycle, while opposite party no. 3-I.C.I.C.I. Lombard General Insurance Co. Ltd. is the insurer of the same and opposite party no. 2 Arvinder Singh is the driver of the vehicle in question. 3. All the opposite parties contested the claim petition by filing their separate written statements. O.P. No. 1-owner of the vehicle in his written statement has asserted that on the fateful day, the motor cycle in question was duly insured with the opposite party no. 3 and the driver Arvinder Singh was having a valid driving licence on the date of accident. The driver was driving the motor cycle in moderate speed and in the right direction and that the driver of the vehicle is not responsible for the motor accident, rather the accident occurred due to own negligence of the deceased. The liability if any to pay the compensation rests with the Insurance Company. 3 4. The O.P.No.2-driver of the vehicle in his written statement has asserted that the accident in question did not occur due to the negligence of the motor-cyclist but the deceased was at fault; that the drigver of the motor cycle was having driving licence and the motor-cylist was driving the motor cycle at moderate speed and in correct direction. The motor cycle was duly insured with the opposite party no. 3. 5. The insurer-O.P.No. 3 in its written statement has asserted that the insurance company was not intimated about the accident and that on the date of accident, the motor-cyclist was not having a valid and effective driving licence. The insurance company also questioned the accident in question on the point of negligence on the part of the motor-cyclist but the accident occurred due to own negligence of the deceased. 6. The learned Tribunal on the pleadings of the parties framed the following issues:- ISSUES 1. Whether Tabrej Alam died as a result of the injuries sustained by him in the accident involving Motor Cycle No. U.A.- 06G-5553, which was being driven rashly and negligently by its driver on 31-7-2007 at about 2-00 p.m. in front of Anupam Sweet House on Kichha Road Sitarganj, P.S.Sitarganj, district Udham Singh Nagar? If so, its effect? 2. Whether on the date of accident, the driver of the motor cycle in question was not having a valid and effective driving licence? If so, its effect? 3. Whether the claimants are entitled to any compensation? If so, to what amount and from which party? 7. Before the learned Tribunal, the claimants filed documentary evidence including driving licence, insurance cover note, copy of the charge-sheet against Arvinder Singh etc. and they 4 have examined P.W.1 Tabassum Bee, P.W. 2- Babu and P.W. 3 Irshad Navi in oral evidence. The opposite parties did not file any documentary evidence but examined D.W. 1- Great Walia in oral evidence. 8. The learned Tribunal after hearing both the parties, took up Issue no. 1 for decision. The learned Tribunal has observed that the claimants have examined P.W.2-Babu, who has given eye witness account of the accident in question in the affidavit filed by him and has stated that the accident in question occurred due to rash and negligent driving by the motor-cylist, who hit the deceased from back side on the date, time and place as alleged by the claimants. The learned Tribunal has also observed that after the investigation, the police charge-sheeted the driver of the motor cycle for criminal offence and has held that the accident in question occurred due to rash and negligent driving by the motor-cyclist. 9. The learned Tribunal on Issue No.2, which was framed on the point of holding of valid and effective driving licence by the motor-cyclist, has observed that the driving licence paper no. 6-C/3 is on record and that the motor-cyclist was issued a learner driving licence for the period 13-4-2007 to 12-10-2007. The learned Tribunal on the basis of the statement of P.W.2-Great Walia, who is Senior Assistant of the A.R.T.O. Office Udham Singh Nagar has come to the conclusion that on the date of accident, the motor- cyclist Arvinder Singh was having learner’s driving licence but no person having permant driving licence was sitting behind him on the motor cycle, therefore, the motor cycle was being driven in violation of the policy conditions. The Tribunal therefore held that the motor-cyclist was not having a valid and effective driving licence. The Issue No. 2 was decided accordingly. 10. On Issue No.3, the learned Tribunal has held that the claimants are entitled to compensation of Rs. 15,36,000/- along with interest @ 7% per annum and has ultimately decreed the claim 5 petition holding that the compensation shall be paid by the insurance company and that the Insurance Company would be entitled to recover the entire amount of compensation from the opposite party no.1-Narendra Singh, the owner of the vehicle, as mentioned in the impugned award. 11. Aggrieved by the impugned award dated 1-4-2010, the Insurance Company has preferred the present appeal (A.O. No. 220 of 2010) and the owner of the motor cycle has preferred A.O. No. 155 of 2010. 12. I have heard learned counsel for the parties and perused the record including the impugned award. 13. The grievance of the appellant-Insurance Company is that the finding of the learned Tribunal fastening the liability to pay compensation upon the insurer is perverse because the Tribunal itself has held that the vehicle was being driven in violation of the policy condition and that the motor-cyclist was not having a valid and effective licence. 14. The appellant of A.O. No. 155 of 2010-owner of the vehicle is aggrieved by the finding of the Tribunal mainly on Issue No.2. 15. It has been contended by the learned counsel for the insurer-appellant that it is established before the learned Tribunal that the driver of the offending vehicle was not having a valid and effective driving licence and that the motor-cycle was being driven in violation of the policy conditions. Learned counsel for the Insurance Company has vehemently argued that the motor-cyclist was holding a learner’s driving licence and that no person having permanent driving licence was sitting on the motor cycle at the time of accident, therefore, in view of the finding recorded by the learned Tribunal on Issue No.2 no liability to pay compensation 6 could have been fastened upon the Insurance Company, when it was found that the vehicle was being driven in violation of the policy conditions. 16. Learned counsel for the Insurance Company has vehemently submitted that Arvinder Singh, the motor-cyclist, was not authorized to drive the motor cycle without being accompanied by a person having a permanent driving licence. Learned counsel has drawn the attention of this Court to the provisions of Rule 3 of the Rules framed under the Act, wherein it is provided that a person having learner’s driving licence cannot drive a vehicle without an instructor, having an effective permanent driving licence and that the vehicle must contain Letter ‘L’ on the front and back side of vehicle on its number plate, which would be indicative of the fact that the person driving the vehicle is having a learner’s licence. 17. Learned counsel for the Insurance Company has placed reliance upon the case of National Insurance Co. Ltd. Vs. Swaran Singh and others reported in [(2004) 3, Supreme Court Cases, 297]. Learned counsel for the Insurance Company has also relied upon the case of Oriental Insurance Co. Ltd. Vs. Angad Kol and Others [2009(2) T.A.C. 4 (Supreme Court)] and The Oriental Insurance Company Ltd. Vs. Sri Kesar Singh Bisht & others [ 2009(2)U.D., Page 39]. 18. On the other hand, learned counsel for the owner of the vehicle Narendra Singh has contended that the finding recorded by the learned Tribunal on Issue No. 2 is erroneous and that the learned Tribunal has recorded a perverse finding that the motorcycle was being driven in violation of policy conditions. Learned counsel for the owner has further submitted that the finding of the learned Tribunal that no person having a permanent driving licence was accompanying the motor-cyclist is based on imagination and no such evidence was led by the claimants or the Insurance Company to establish this fact. Learned counsel for the 7 owner of the vehicle has also placed reliance upon the Apex Court verdict in the case of National Insurance Co. Ltd. Vs. Swaran Singh and others (supra). 19. Having heard the submissions advanced on behalf of the appellants in two appeals by the learned counsel for the insurance company as well as learned counsel for the owner, the following question has to be answered in these appeals:- 20. Whether the learned Tribunal has wrongly fastened the liability to pay the compensation on the Insurance Company and whether the finding recorded by the learned Tribunal on Issue No.2 is erroneous and perverse? 21. I have perused the lower court record. 22. In the case at hand, the insurance company in its written statement has stated in paragraph no. 9 that the motor vehicle was not being driven by the alleged driver having valid and effective driving licence, as the said driver was having a learning licence and he was not driving the vehicle under the direction and supervision of an expert, therefore, the insurance company is not legally liable for the claim to the claimants. 23. Admittedly, no documentary evidence was led by the Insurance Company in support of its pleadings raised in the written statement. Issue No. 2 was framed by the learned Tribunal on the pleading of the Insurance Company whether the motor-cyclist was not having an effective and valid driving licence? If so, its effect? The burden to prove this fact was on the shoulders of the Insurance Company. 24. Before the learned Tribunal, the claimants have adduced claimant no.1 as P.W.1, who is not an eye witness of the accident, Babu as P.W.2, the alleged eye witness of the accident 8 and P.W.3, Irshad Navi, who is father of the deceased, who is also not an eye witness of the accident. On the other hand, on behalf of the Insurance Company, D.W.1, Great Walia, a Senior Assistant of the office of A.R.T.O. Udham Singh Nagar was examined. 25. P.W.2, Babu, has filed his affidavit before the Tribunal. He has stated therein that he is the eye witness of the accident in question. He stated that on 31-7-2007, at about 2 p.m. the deceased Tarbej Alam and his uncle Imtiaz Navi were talking near Anupam Sweet House Sitarganj. In the mean time, one motor cycle bearing registration No. UA-06G-5553 being driven rashly and negligently by its driver came from behind and hit the deceased with the result he sustained grievous injuries and died in the course of treatment. He also stated that he witnessed the accident with his own eyes. This witness was cross-examined on behalf of the Insurance Company. In his cross-examination, he stated that the accident occurred at about 2 p.m. and that he was standing on the spot. He further stated that he did not lodge the report of the accident. He also stated that the accident was caused by Hero Honda Splendor bearing registration No. UA 06G-5553. He further stated that at the time of accident, there was no much crowd at the spot. This witness denied the suggestion that he being a relative of the deceased is giving false evidence. 26. Thus, from the evidence of P.W.2, it is evident that no suggestion was given to this witness that no other person was sitting on the motor-cycle besides the motor-cyclist. 27. The Insurance Company has adduced one witness- D.W.1 Great Walia. He has stated that the motor-cyclist Arvinder Singh applied for driving licence in the office of A.R.T.O. Rudrapur and he was granted permanent driving licence on 4-8- 2007, which was valid upon 30-6-2024. This witness admitted that Arvinder Singh was granted learner’s driving licence, which was effective and valid from 13-4-2007 to 12-10-2007 and that after 9 grant of learner’s licence, permanent driving licence can be granted after one month on the application made in that regard. He further stated that on 31-7-2007, Arvinder Singh was not having permanent driving licence but was having learner’s licence. He also stated that a person having learner’s licence cannot drive the vehicle alone and he is required to be accompanied by a person having permanent driving licence. 28. This is all the evidence led by the Insurance Company before the Tribunal. Thus, from a perusal of the entire evidence led by the Insurance Company before the Tribunal, only this much is established that the motor-cyclist was having a learner’s licence and it is not established that at the time of accident, the motor-cyclist was not accompanied by a person holding permanent driving licence or that the motor-cycle was not bearing Letter ‘L’ on the number plate. 29. The learned Tribunal while deciding Issue No. 2 has recorded a finding at page 7 of the judgment that on the date of accident, the motor-cyclist was having a learner’s licence, that no person having permanent driving licence was sitting behind him and it is clear that the motor cycle was being driven by Arvinder Singh in violation of the policy conditions and that he was not having a valid and effective driving licence. 30. From a perusal of the evidence on record, it is crystal clear that neither it is a case of the owner of the offending motor cycle that the motor cycle in question was being driven by the driver Arvinder Singh all alone without being accompanied by a person having permanent driving licence nor that the motor cycle in question was not bearing Letter ‘L’ on its number place showing that the driver of the motor cycle was possessing learner’s licence nor the witness D.W.1-Great Walia, adduced by the insurance company, could have stated anything on the point that the motor- 10 cyclist was all alone and he was not accompanied by a person having permanent driving licence. 31. Now, it has to be seen whether the case-law National Insurance Co. Ltd. Vs. Swaran Singh (supra), relied upon by the Insurance Company is helpful to the insurer in the facts of the present case. 32. The Apex Court in the case of Swaran Singh (supra) has considered the provisions of various Sections and Rules including Sections 149(2)(a)(ii) and 3 of the Act and has also dealt with Learner’s Licence in paragraph nos. 93, 94 and other paras of the judgment. Paragraph Nos. 93 and 94 thereof are being reproduced hereunder:- “93. The Motor Vehicles Act, 1988 provides for grant of learner’s licence. [See Section 4(3), Section 7(2), Section 10(3) and Section 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 when a vehicle is 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 of Section 149(2) of the said Act. 94. 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 provide for 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 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 11 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 licensed” 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 the main enactment. It is also a 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.” 33. The Apex Court in the summary of findings has held in clause (viii) of paragraph No. 110 as under:- “(viii) If a vehicle at the time of accident was driven by a person having a learner’s licence, the insurance companies would be liable to satisfy the decree.” 34. The Apex Court in the case of Punam Devi and another Vs. Divisional Manager, New India Assurance Co. Ltd. and others [(2004) 3 Supreme Court Cases, 386], while considering the provisions of Sections 149(2) and 147 of the Act has held that “in the present case, the insurer has not led any evidence that the driver of the vehicle had no licence. The burden of proof that the driver had no licence was open to the insurer which it failed to discharge.” Likewise, in the case at hand, it was the burden of the Insurance Company to proof that the motor-cyclist who was having learner’s licence was driving the motor cycle in breach of policy conditions as contained in Section 149(2) of the Act, but the Insurance Company miserably failed to discharge its burden and has not led any such evidence that no person having a permanent driving licence was sitting behind the motor-cyclist at the time of accident. 12 35. In the case at hand, as discussed above, the burden was upon the Insurance Company to establish its case that the motor- cycle was being driven by a person having learner’s licence in violation of the conditions contained in the Act and the Rules, but while cross-examining the sole eye witness P.W.2- Babu, no suggestion was even put to the witness on behalf of the Insurance Company that at the time of accident, the motor-cyclist was driving the motor cycle all alone and that no person having a permanent driving licence was not sitting behind him on the motor cycle. The Insurance Company has, thus, utterly failed to establish that there has been violation of policy conditions. The learned Tribunal appears to have lost sight of these material facts and on the contrary has held on Issue No. 2 that it is clear that no person having permanent driving licence was sitting on the motor cycle along with the driver Arvinder Singh and that the vehicle was being driven in contravention of the policy conditions. I am of the considered view that the finding recorded by the learned Tribunal on Issue No.2 is entirely perverse and not tenable. I therefore hold that the motor- cyclist in the case at hand would come within the purview of “duly licensed” person as held by the Apex Court in the case of Swaran Singh (supra). Consequently, on Issue No. 2 it is held that the motor-cyclist Arvinder Singh was having a valid and effective driving licence at the time of accident and Issue No. 2 is answered in the negative. The case-law relied upon by the Insurance Company does not help it. 36. In the case of Oriental Insurance Co. Ltd. Vs. Angad Kol and others (supra), it was observed by the Apex Court that it was proved that respondent no.6 did not hold a valid and effective driving licence for driving a goods vehicle, hence breach of conditions of the insurance is apparent on the face of records. The Apex Court in that case gave recoverable rights to the insurance company. 13 37. The ratio of the judgment is not disputed, but the case law is not applicable to the facts of the present case. In the case before the Apex Court, the offending vehicle was a goods carriage and the driver of the offending vehicle was having a driving licence meant for a vehicle other than a transport vehicle and the driving licence was also not produced. The Apex Court has held that there is breach of conditions of policy apparent on face of record. The insurance company was directed to deposit balance amount and gave recovery right to the insurance company to recover amount paid from owner and driver of offending vehicle. In the case at hand, the motor-cyclist was having a learner’s licence. The case- law is of no help to the insurance company, the facts of the case at hand being distinguishable. Similarly, in the case The Oriental Insurance Company Ltd. Vs. Sri Kesar Singh Bisht and others (supra), the driver of the offending vehicle was driving a transport vehicle, but was