IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.642 of 1994 Date of decision: 28 .07.2010 The New India Assurance Company Limited ....Appellant versus Kasturi Devi and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Inderjeet Sharma, Advocate, for the appellant. None for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. 1. The Insurance Company is in appeal denying liability on the ground that the insurer's vehicle namely, the scooter, was not involved and that further the scooterist, who was said to have caused the accident, did not have a valid driving licence. He had only licence to drive a heavy motor vehicle and there was no licence for driving a two-wheeler, scooter. At the trial, the scooterist wanted to contend that he had not struck the motorcyclist and he was not at the scene of the accident. The deceased, who was riding motorcycle, had been hit at the middle of the motorbike and he had fallen down, suffering fatal injuries. It was in evidence that the scooterist also fell and he had also been admitted along with the deceased at PGI. Both of them had been transported in a police FAO No.642 of 1994 - 2 - gypsy car. At the time of admission, the scooterist's thumb impression had been taken but the scooterist had managed to escape from the hospital without the permission of the hospital authorities. The trial Court found on appreciation of all the evidence relating to the admission of the scooterist and his subsequent act of bolting from the hospital without authority as an instance to show that he was setting up a false case. I affirm the finding that the scooterist was responsible for the accident and the liability was to be therefore borne by the insurer of the scooter. 2. The extent of liability still survives for consideration, having regard to the fact that the copy of the licence produced by the scooterist showed that it had only an endorsement to drive a heavy motor vehicle. He gave evidence to the effect that he had lost his original and that original had been issued from Ranchi but subsequent renewals were all made at Ambala. A Clerk from the Licensing Authority at Ambala gave evidence that the licence had not been issued at Ambala and he also denied that the entries were fabricated. The Tribunal still found that the person, who held the licence alone, would know where it had been issued from and when it was in evidence that the original issuing authority was Ranchi, the failure of insurer to secure documents from Ranchi would not enable an insurer to contend that it had effectively discharged the burden. In my view, the Tribunal did not address the issue correctly. Even if it had been issued at Ranchi, there was evidence that the renewals found in the copy produced by the driver were not borne out by corresponding entries in the register maintained by the office at Ambala. FAO No.642 of 1994 - 3 - The Tribunal ought to have also noticed that the licence produced by the driver was a licence only for a heavy motor vehicle. Section 10 of the Act specifically provides for various categories and the driver is required to hold the particular category of licence regarding the vehicle which was involved in the accident at the time when he was driving. The Tribunal has observed that no rule was brought to his knowledge that the person holding a licence from a higher category cannot drive the vehicle of a lower category of vehicle. No “rule” is necessary for what it has to be seen is that Section 10 provides distinct categories and Section 149(2) refers to issue of violation of terms of policy by a driver not possessing a driving licence for the category of vehicle which he was driving. The language used under Section 149(2)(a)(ii) a condition excluding “driving by a named person or persons or by any person who is not duly licensed, by or any person, who has been disqualified for holding or obtaining a driving licence during the period of disqualification.” The expression “duly licenced” must be seen in the context of how Section 10 refers to the form and contents of licence to drive. Section 3 refers to “an effective driving licence” and it does not refer to the expression “duly licensed”. Duly licensed should therefore be understood only as in the normal dictionary sense and the person ought to have the licence that was necessary for the category of vehicle that he was driving at that time and which is found expressed in section 10 of the Act. It is also held by the Rajasthan High Court in Qazi Atta Mohd. Versus Syed Fazel Ali- (2004) 2 ACJ 1012, that the licence to drive a heavy vehicle cannot be taken as a licence to drive a light motor vehicle or a jeep. I am in FAO No.642 of 1994 - 4 - agreement with the line of approach taken by the Rajasthan High Court and would find that therefore the scooterist was not duly licensed and he had committed a breach of terms of the policy. 3. Under the circumstances, the Insurance Company will be liable only to satisfy the claimants and it will have a right of recovery against its insured. 4. The appeal is allowed to the above terms. (K.KANNAN) JUDGE 28.07.2010 sanjeev