IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5569 of 2009 (O&M) Date of decision:21.12.2010 National Insurance Company Limited ....Appellant versus Roshan Lal and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. D.P.Gupta, Advocate, for the appellant. Mr. R.S.Longia, Advocate, for respondent No.1. ----- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J.(Oral) 1. The appeal by the Insurance Company is on the ground of liability that the driver was not duly licensed. The vehicle involved in the accident was a three-wheeler which had been registered with the registering authority as a “loading vehicle” in column No.19 of the registration certificate. The policy of insurance also shows that it was insured as a goods carriage. The driver had a licence to drive a light motor vehicle (LMV) and the contention that had been taken at the trial was that the three-wheeler itself fall under the category of LMV and hence, the driver must be taken as duly licensed. FAO No.5569 of 2009 (O&M) - 2 - 2. The learned counsel for the claimant would support the plea taken on behalf of the driver/owner and wants to contend that a transport vehicle endorsement which is necessary under Section 3 will not apply in cases of motor cab and the three-wheeler is a motor cab. The motor cab is defined under Section 2(25) as follows: "Motor Cab" means any motor vehicle constructed or adapted to carry not more than six passengers excluding the driver for hire or reward” A motor cab is, therefore, understood as a passenger carrying vehicle and which does not carry more than 6 passengers. 3. It must be noticed that we are not dealing with a passenger carrying vehicle but a vehicle which is registered as a goods carriage and the insurance that had taken place as a goods carriage. It cannot, therefore, be that it is not a motor vehicle to which the provisions of Section 3 would not be applicable. 4. Learned counsel for the claimant would also contend that this would not constitute a fundamental breach as contemplated by the Hon'ble Supreme Court in National Insurance Company Limited Versus Swaran Singh (2004) 3 SCC 279. The fundamental breach which the Hon'ble Supreme Court was referring to in the said judgment was in relation to a situation where the possession of driving licence itself would be irrelevant, namely, of an accident took place through a mechanical defect or an act of God. The Hon'ble Supreme Court was not adverting to a situation making any exemption possible even when there are statutory requirements through a specific Section. A requirement of a specific endorsement for driving a transport vehicle comes through FAO No.5569 of 2009 (O&M) - 3 - Section 3 and there can be no suggestion or inference from the judgment in Swaran Singh's case that this was an exempted situation and the insurer would still be liable. 5. This ought to be merely an academic interest for person appearing for the claimant for he cannot come to any harm and the Insurance Company shall be liable for answering the claim of a third party and for violation of terms of policy for the insured/owner in allowing the vehicle to be driven by a person, who was duly licensed, the Insurance Company shall still be liable but will have only a right of recovery against the owner/insured. 6. The award of the Tribunal is modified and the appeal of the Insurance Company is allowed to the extent of making the insurer liable for the claim and recover the same against the insured/owner. (K.KANNAN) JUDGE 21.12.2010 sanjeev