THE HON’BLE SRI JUSTICE G.V. SEETHAPATHY M.A.C.M.A. No. 4776 of 2008 JUDGMENT: This appeal is directed against the order dated 08.08.2008 in O.P.No.1277 of 2005, on the file of Motor Accident Claims Tribunal-cum-Principal District Judge, East Godavari, Rajahmundry wherein the said claim application filed by the petitioners herein, claiming compensation of Rs.3,00,000/-, was allowed, awarding compensation of Rs.2,93,000/- with interest at 6% per annum from the date of petition, only against the respondents 3 and 4, who are the legal heirs of 1st respondent-the owner of the vehicle, and dismissing the claim as against the 2nd respondent-the insurer. Heard the learned counsel for the appellants and learned counsel for the respondents. Perused the record. The petitioners filed claim application under Section 166 of the Motor Vehicles Act, seeking compensation of Rs.3,00,000/- for the death of their father who died in a motor vehicle accident that occurred on 22.05.2005. According to the claimants, on that day, the deceased was driving the car from Hyderabad to Rajahmundry and when it reached near Dowleswaram, the deceased lost control over the vehicle due to sudden leakage of air from the right wheel of the car and the car dashed against the IOC company wall, resulting in the death of the deceased. A case in Crime No.43 of 2005 was registered at Dowleswaram Police Station. The 2nd respondent-insurer filed a counter opposing the claim and denying their liability to pay the compensation. During enquiry, PW1 was examined and Exs.A1 to A5 were marked on behalf of the claimants and RWs.1 and 2 were examined and Exs.B1 and B2 were marked on behalf of the insurer. On consideration of the evidence available on record, the Tribunal recorded a finding that the accident occurred due to rash and negligent driving of the car by its driver who was none else than the deceased himself. The said finding is not challenged by the insurer, as no appeal is filed by them. The Tribunal estimated the total compensation payable at Rs.2,93,000/- and the same is also not under challenge. The present appeal is filed by the claimants, aggrieved by the dismissal of the claim as against the 2nd respondent-insurer. The Tribunal observed that the 1st respondent is the owner of the vehicle and the same was insured with the 2nd respondent and Ex.B1 also covered the risk in respect of the driver of the vehicle. Ex.B2 is the copy of the driving licence which shows that the licence was issued to drive light motor vehicle. The Tribunal, however, exonerated the 2nd respondent-insurer from liability to pay the compensation without specifying the grounds on which the 2nd respondent is not liable to pay the compensation. Presumably, the Tribunal exonerated the insurer from liability on the premise that there was breach of terms of policy. The Tribunal referred to the judgment in NATIONAL INSURANCE COMPANY LIMITED V. SWARAN SINGH AND OTHERS[1], wherein the Apex Court held as follows: “Mere absence of fake or invalid driving licence or disqualification of the driver for driving at the relevant time are not themselves defences available to the insurer against either the insured or third parties, to avoid its liability towards insured. The insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of the policy regarding use of vehicles by a duly licenced driver or one who was not disqualified to drive at the relevant time.” In NATIONAL INSURANCE CORPORATION LTD. V. KANTI DEVI[2], the Apex Court held as follows: “Obviously, defence can be raised by the insurer about the licence being fake. By analogy, the insurer can also take a defence that the driver did not have the requisite driving licence to drive a particular type of vehicle. Such defence can be raised and it will be for the insurer to prove that the insured did not take adequate care and caution to verify genuineness or otherwise of the licence held by the driver. The effect of the evidence in this regard has to be considered by the concerned Tribunal.” As per the above decision, it is for the insurer to prove that the insured did not take adequate care and caution to verify genuineness or otherwise of the licence held by the driver. In the present case, there is absolutely no evidence on record to show that the insured failed to take adequate care and caution and consciously violated the terms and conditions of the policy by entrusting the vehicle to a person, having no valid and effective driving licence. The above decision makes reference to the decision of the Apex Court in Swaran Singh’s case (1 supra) wherein it was held as follows: “..…In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence." The decision in SARDARI AND OTHERS v. SUSHIL KUMAR AND OTHERS[3] referred to by the Tribunal is a case where the driver of the offending tractor was examined, and he categorically stated in his evidence that he did not know how to drive a tractor and never even tried to learn driving a tractor and though he had not been possessing any valid licence to drive a tractor and he never applied for it also. Therefore, it is a case where the driver of the offending vehicle was not having at all any licence and he did not apply for it and he did not know how to drive tractor. It was therefore, held that when the driver was not having a valid driving licence, the insurance company was not liable. Observing that it is the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. The said decision referred to by the Tribunal in the impugned order cannot, therefore, be made applicable to the present case, where the deceased driver was having a valid driving licence. According to RW1, the Assistant Branch Manager of the Insurer, the subject vehicle was a passenger vehicle i.e., Maxicab and it is a transport vehicle, but the deceased was having only a Light Motor Vehicle (LMV) Non-Transport vehicle licence, and thus, there was violation of the terms and conditions. RW2, the Senior Assistant in the office of Regional Transport Authority, Rajahmundry, produced Ex.B2-driving licence and stated that the deceased was having licence to drive motor cycle, LMV and Non- transport vehicle. RW2 admitted that in Ex.B2, the word “non- transport” is noted in manuscript in the relevant column pertaining to the ‘type of vehicle’ and the said noting is not there in Ex.A5- xerox copy of the same licence. Though RW2 denied the suggestion that Ex.B2 was fabricated for the purpose of the case, there is no explanation forthcoming as to how the words ‘non- transport’ occurring in Ex.B2 in manuscript are found missing in the Xerox copy-Ex.A5 for the relevant period. RW2 admitted that he has no personal knowledge about the driving licence of the deceased. Section 2(21) of the Motor Vehicles Act, 1988, defines ‘light motor vehicle’ as a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road- roller, the unladen weight of any of which, does not exceed 7500 kilograms. As per the above definition, any transport vehicle or omnibus or a motorcycle or a tractor or a road-roller, whose gross vehicle weight or unladen weight, as the case may be, does not exceed 7500 kilograms, would be a light motor vehicle. In the present case, there is absolutely nothing on record to show that the unladen weight or the gross vehicle weight of the vehicle involved is exceeding 7500 kilograms. The subject vehicle is a transport vehicle and is, therefore, answering the description of ‘light motor vehicle’ under Section 2(21) of the Motor Vehicles Act. The deceased was, admittedly, having a licence to drive a light motor vehicle. In a decision in NATIONAL INSURANCE CO. LTD. v. ANNAPPA IRAPPA NESARIA AND OTHERS[4], the Apex Court held that a driver who had a valid licence to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well, as the light motor vehicle covers both light passenger carriage vehicle and light goods carriage vehicle. The learned counsel for the respondent sought to rely upon a decision of the Apex Court in NEW INDIA INSURANCE COMPANY v. DARSHANA DEVI AND OTHERS[5], wherein it was held that where the driver has no licence to drive a particular category of motor vehicle, the insurance company would not be liable. In the above case, the vehicle i.e., tractor was driven by the son of the owner who was not having any licence to drive the same. The said decision is not applicable to the facts and circumstances of the present case wherein the deceased was admittedly having a licence to drive a light motor vehicle, and the subject vehicle was also a light motor vehicle, and the risk in respect of the driver is duly covered by the policy-Ex.B1, as the requisite premium of Rs.100/- was paid under ‘Compulsory PA to owner-driver’. In the circumstances, it is held that the 2nd respondent- insurer is jointly and severally liable to pay the compensation along with respondents 3 and 4, the legal heirs of the deceased 1st respondent, and the exoneration of the 2nd respondent from such liability by the Tribunal is unsustainable. The impugned order is accordingly modified directing respondents 2 to 4 to jointly and severally pay the amount awarded by the Tribunal. In the result, the appeal is allowed, accordingly. There shall be no order as to costs. _______________________ G.V. SEETHAPATHY, J 02nd November, 2011 KSM [1] AIR 2005 SC 2850 [2] 2005(3) ALT 35 (SC) [3] 2008 (4) CPR 170 (SC) = 2008(3) ALT 26 [4] 2008 ACJ 721 [5] 2008(2) SCJ 647