IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 442 of 2008 Date of decision : 1.11.2011. National Insurance Co. Ltd. … Appellant. Versus Hem Raj and others …Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. For the Appellant.: Ms. Seema Sood, Advocate. For the Respondents No.1 & 2: Mr. Pawan Gautam, Advocate. For the respondent No.3: Mr. N.S.Chandel, Advocate. Deepak Gupta, J.(Oral) 1. This appeal by the Insurance Company is directed against the award dated 10th April, 2008 passed by the learned Motor Accident Claims Tribunal, Fast Track Court, Una whereby he awarded a sum of Rs.1,60,000/- in favour of the claimants on account of the damages suffered by them due to the loss of their goats in a motor vehicle accident. 2. The undisputed facts are that on 23.3.2003 bus No. HP-55A-7474, which is owned by Haryana Roadways, driven by respondent Dharam Pal and insured with the appellant Insurance Company met with 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 an accident. The claimants, who are shepherds (Gaddis), take their goats for grazing from place to place, were at a place near Dhussara Bazar. Bus No. HP-55A-7474 came from Una side at a high speed and hit the goats. 40 goats died at the spot and 9 were injured and these goats died later. The claimants filed a claim petition. 3. As far as negligence is concerned there can be no manner of doubt that this is a case of rash and negligent driving. The facts speak for themselves. 49 goats could not have been run over if the bus was being plied at a slow or reasonable speed. The mere fact that 49 goats were run over itself clearly indicates that the driver was driving the vehicle at a high speed in a rash and negligent manner. 4. As far as quantum is concerned, the amount of Rs.1,60,000/- is just and reasonable and calls for no interference. The only question is whether the Insurance Company could have been held liable since the driver did not have a valid driving license at the time when the accident took place. 5. The facts which stand proved on record and from the statement of driver Shri Dharam Pal, who appeared as RW-1 it is apparent that initially a license was issued in his favour in the year 1999, which was valid upto 20th 3 October, 2002. He has admitted that he did not get this renewed and the same was got renewed only on 31.3.2003 after the accident had taken place. Therefore, there was no license between 20.10.2002 and 31.3.2003. The accident in question took place on 23.3.2003 and the only question is whether the driver had a valid driving license or not. 6. Section 14 of the Motor Vehicles Act deals with the currency of license to drive motor vehicles. It provides different time periods for which different licenses for different classes of vehicles shall be valid. In the present case, the license issued was valid only up to 20.10.2002 and admittedly the accident took place on 23.3.2003. The proviso to this Section reads as follows: “Provided that every driving licence shall, notwithstanding its expiry under this sub-section, continue to be effective for a period of thirty days from such expiry.” 7. Section 15 of the Motor Vehicles Act provides for renewal of driving licenses. Section 15(1), insofar as it is relevant to the present case, reads as follows: “15(1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry: Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal.” 4 8. In the present case the license had expired on 20.10.2002 and even if benefit of proviso to Section 14 is given the license would be valid only for a period of 30 days from such expiry i.e. upto 20.11.2002. 9. Ms. Seema Sood, learned counsel appearing on behalf of the Insurance Company, contends that if the renewal is not done within 30 days then thereafter the license holder holds no driving license and it cannot be said that he either holds an effective driving license or that he is duly licensed to drive the vehicle. She submits that, in fact, the driver holds no license at all after the expiry of 30 days and the renewal of license after 30 days can be effective only from the date the license is renewed. 10. On the other hand counsel for the respondents submit that even though the driving licence may have expired on the date of the accident the Insurance Company is liable in view of the provisions of Sections 14 and 15 of the Motor Vehicles Act. According to them once the licence is renewed it shall relate back to the date of expiry. 11. The observations of the Apex Court in National Insurance Co. Ltd. versus Swaran Singh and others (2004) 3 Supreme Court Cases 297 on this issue are very relevant. In para- 4, the Apex Court has 5 clearly held that one of the questions raised before it was of cases where although license was granted to the driver concerned but on expiry thereof the same had not been renewed. The relevant observations of the Apex Court relatable to the present case are in paras- 41, 45 and 46. The same read as follows: “41. However, clause (a) opens with the words “that there has been a breach of a specified condition of the policy”, implying that the insurer’s defence of the action would depend upon the terms of the policy. The said sub- clause contains three conditions of disjunctive character, namely, the insurer can get away from the liability when (a) a named person drives the vehicle; (b) it was being driven by a person who did not have a duly granted licence; and (c) driver is a person disqualified for holding or obtaining a driving licence. XXXX XXXX XXXXX XXXXX 45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefore. Proviso appended to Section 14 in unequivocal terms states that the licence remains valid for a period of thirty days from the day of its expiry. 46. Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving licence has lapsed, as in the meantime the provisions for disqualification of the driver contained in 6 Sections 19, 20, 21, 22, 23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry.” 12. From a perusal of the bare provisions of the Motor Vehicles Act as well as the judgments of the various Courts and especially the observations of the Apex Court in Swaran Singh’s case (supra), it is clear that the Insurance Company can defend an action on the ground that the petitioner was not duly licensed on the date of the accident. Can a person whose license has expired and not renewed within thirty days of its expiry, as provided under Sections 14 and 15 of the Motor Vehicles Act, be considered to be duly licensed on the date of the accident? In my humble opinion, the answer to this question has to be in the negative. 13. The Apex Court in Swaran Singh’s case (supra) in paras-45 & 46 quoted above has clearly laid down that the license remains valid only for a period of thirty days from the date of its expiry. The question as to what happens if the license is not renewed within thirty days has not been answered in this judgment. From the bare reading of Sections 14 & 15 of the Act as well as the interpretation given by the Hon’ble Supreme Court there can be no manner of doubt that after thirty days of the 7 expiry of the licence there is no valid driving license. The driver has neither an effective driving license nor can he be said to be duly licensed. It would run counter to the very provisions of the Motor Vehicles Act if it is held that though the license had expired and had not been renewed even within the time allowed in law, the driver is duly licensed. A driver, who permits his license to expire and does not get it renewed till after the accident, cannot claim that it should be deemed that the license is renewed retrospectively. The proviso to Section 15 of the Motor Vehicles Act clearly provides that if the license is not renewed within thirty days of its expiry, the driving license shall be renewed with effect from the date of its renewal. This renewal can never be retrospective. Therefore, it has to be held that if the driving license is not renewed within thirty days it will only be a valid driving license from the date of its renewal. The driver cannot be deemed to be duly licensed on the date of accident if thirty days have already expired from the date of expiry of his license and the same has not been renewed within thirty days. 14. The other contention of Mr. N.S. Chandel, learned counsel for respondent No.3 is that the Insurance Company must not only prove that the driver was not duly licensed but must also prove that he was 8 disqualified from holding such a license. This contention cannot be accepted. The policy condition in the present case is very clear. According to it, the person must hold a valid driving license and should also not be disqualified from holding or obtaining such a driving license. If either of the conditions is not satisfied the Insurance Company can defend the action on the ground that there is violation of the terms of the policy and the provisions of the Motor Vehicles Act. The Apex Court in Swaran Singh’s case (supra) has clearly held that Clause (a) of Section 149(2) is disjunctive in nature. The Insurance Company can avoid its liability either by showing that a named person was driving the vehicle or that it was being driven by a person who did not have a duly granted license or that the driver is a person disqualified for holding or obtaining a driving license. Reading both the policy and the Motor Vehicles Act conjointly the only reasonable interpretation is that the Insurance Company could avoid its liability if it could prove any one or more of these three conditions. 15. In view of the above discussion, it is abundantly clear that the arguments raised by the Insurance Company have to be accepted. In order to enforce the award against the Insurance Company the Court must be satisfied that the driver was duly licensed on the 9 date of accident. Even if he is duly licensed, it is open to the Insurance Company to establish by leading appropriate evidence that he was either disqualified from obtaining such license or that he has been disqualified for retaining such a license due to physical or legal disability. To hold otherwise would amount to giving premium to persons who do not follow the Rule of Law. 16. The next submission made is that since the Motor Vehicles Act is a beneficial piece of legislation it must be construed in favour of the claimants. There can be no doubt that in case two interpretations are possible the one which is in favour of the claimants should be given. However, it would be too much to hold that violence should be done to the clear and plain language of the statute. The Court can protect the rights of the claimants by asking the Insurance Company to deposit the amount and recover it from the insured. However, there can be no sympathy with the owner or driver who violates the law. Sympathy can only be with the victims of the accident. It is their rights which have to be protected and not the rights of the owners of vehicles. If the contention of the learned counsel is accepted then people will feel free to drive vehicles without any license. 10 17. The last contention raised on behalf of respondent No.3 is that since the driver had at one time held a valid driving license, therefore, there is no breach of policy on the part of the insured. Reliance is placed upon the judgment of the Apex Court in Skandia Insurance Co. Ltd. versus Kokilaben Chandravadan, 1987 ACJ 411 (SC); Sohan Lal Passi versus P. Sesh Reddy, 1996 ACJ 1044 (SC); and Swaran Singh’s case (supra). No doubt, the law is well settled that the Insurance Company must prove that the insured is guilty of breach of policy. How and in what manner the breach is to be proved is a matter to be decided on the facts and circumstances of each case. The Apex Court in Swaran Singh’s case (supra) while holding that the breach has to be proved by the Insurance Company also held as follows: “(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish ‘breach’ on the part of the owner of the vehicle, the burden of proof wherefor would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case. XXXX XXXX XXXX XXXX (vii) 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.” 11 18. When an employer employees a driver, it is his duty to check that the driver is duly licensed to drive the vehicle. Section-5 of the Motor Vehicles Act provides that no owner or person incharge of a motor vehicle shall cause or permit any person to drive the vehicle if he does not fulfill the requirements of Section 3 and 4 of the Motor Vehicles Act. The owner must show that he has verified the license. He must also take reasonable care to see that his employee gets his license renewed within time. In my opinion, it is no defence for the owner to plead that he forgot that the driving license of his employee had to be renewed. A person when he hands his motor vehicle to a driver owes some responsibility to society at large. Lives of innocent people are put to risk in case the vehicle is handed over to a person not duly licensed. Therefore, there must be some evidence to show that the owner had either checked the driving license or had given instructions to his driver to get his driving license renewed on expiry thereof. In the present case, no such evidence has been led. In view of the above discussion, I am clearly of the view that there was a breach of the terms of the policy and the Insurance Company could not have been held liable to satisfy the claim. 12 19. In view of the above discussion, the appeal of the Insurance Company is partly allowed and it is held that the Insurance Company is not liable to satisfy the award. In the present case the Insurance Company has already deposited the amount which has been ordered to be released to the claimants. It is, therefore, directed that the Insurance Company shall be at liberty to recover the awarded amount deposited by it alongwith interest at the rate as awarded by the Motor Accidents Claims Tribunal from the owner i.e. Haryana Roadways. It is made clear that the Insurance Company shall not have to file separate proceedings to recover the amount and can recover the same by filing execution proceedings before the learned Tribunal. The appeal is disposed of in the aforesaid terms. No order as to costs. 1st November, 2011 ( Deepak Gupta ) ™ Judge