IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE THIRTIETH (30TH) DAY OF SEPTEMBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.1572 of 2010 Between: Bajaj Allianz General Insurance Co.Ltd. … Appellant And: Shaik Mab Basha & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.1572 of 2010 JUDGMENT: This appeal is directed against the order dated 19.06.2010 in OP No.70 of 2007 on the file of the MACT cum V Additional District Judge, Nandyal, wherein the said claim application filed by the first respondent herein under Section 166 of the Motor Vehicles Act, was allowed in part, awarding compensation of Rs.2,89,500/- with interest at 6% per annum from the date of petition, directing the respondents therein to deposit the amount within one month and in default of deposit, with interest at 7.5% per annum. 2. Heard the learned counsel for the appellant and the learned counsel for the first respondent. Perused the record. 3. The first respondent herein filed claim application seeking compensation of Rs.3 lakhs for the death of his mother Shaik Malan Bi, who died in a motor vehicle accident that occurred on 16.11.2006. According to the claimant, on that day, himself, his wife and his deceased mother-Malan Bi and others were returning from Sirvel to Nandyal in an auto bearing No.AP 21 W 1596 and when the said auto reached near Deebaguntla Meta on NH-18, on account of the rash and negligent driving of the auto by its driver, the vehicle over turned and the deceased Malan Bi, received grievous injuries and she died while being shifted to Government Hospital, Nandyal. The deceased was stated to be 30 years and earning Rs.100/- per day from collie work. 4. The 2nd respondent herein-owner of the vehicle remained exparte and the appellant-insurer filed counter, opposing the claim and denying their liability to pay the compensation, inter-alia on the ground that the driver of the auto was not having valid and effective driving licence at the time of the accident, which amounted to violation of policy conditions. 5. Before the Tribunal, the claimant was examined as PW.1 and Exs.A.1 to A.6 were marked on his behalf. On behalf of the respondents RWs.1 and 2 were examined and Exs.B.1 to B.4 were marked. 6. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the auto by its driver. The said finding is not seriously challenged in the present appeal. The Tribunal further held that the claimant is entitled for a total compensation of Rs.2,89,500/-. The Tribunal fastened joint and several liability on the owner of the vehicle and the appellant-insurer, holding that the driver of the vehicle was having valid driving licence. Accordingly, the award was passed for the said amount with interest at 6% per annum. Aggrieved by the same, the insurer filed the present appeal. 6. The appellant-insurer has not seriously disputed about the amount awarded by the Tribunal for the death of the deceased in the accident. The main contention of the learned counsel for the appellant is that the driver of the vehicle was holding licence to drive light motor vehicle (non-transport) and was not authorized to drive the auto, which is light motor vehicle (transport vehicle) and therefore, the owner of the vehicle committed breach of terms and conditions of the policy Ex.B.1. RW.1-Asistant Manager of their office, produced Ex.B.1 copy of the policy and Ex.B.2 copy of the driving licence. The appellant examined RW.2 Senior Assistant in RTO’s office, Nandyal, who testified that Ex.B.2 licence was issued to one K.Venkata Narasimhulu of Tamadapalle, to drive LMV non-transport vehicle and with that licence, the licensee cannot drive the auto, which is transport vehicle. In the cross- examination, he admitted that the gross weight of the auto is 725 KGs and up to 6000 KGs weight, the vehicle falls under the category of Light Motor Vehicle. Ex.B.2 shows that the licence was issued in respect of LMV non transport vehicle. Ex.B.1 policy stipulates that the vehicle shall be driven by any person, including insured, the person having effective driving licence and is not disqualified from holding or obtaining such licence. 7. Section 2(21) of the Motor Vehicles Act, defines ‘light motor vehicle’ as meaning 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 7,500 kilograms. Section 2(47) defines ‘transport vehicle’ as meaning public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Section 2(14) defines ‘goods carriage’ as meaning any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. Section 2(35) defines ‘public service vehicle’ as meaning any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxi cab, a motor cab, contract carriage, and stage carriage. 8. In the present case, the auto, which was carrying passengers for hire, is a public service vehicle and therefore, a transport vehicle and thus, a light motor vehicle. Even a goods carriage vehicle is also transport vehicle and so is a light motor vehicle when the gross vehicle weight does not exceeds 7,500 KGs. The driver of the crime vehicle was having light motor vehicle-non-transport vehicle, but the appellant herein has not produced any evidence to show that with that licence he was incapable of driving the auto and therefore, caused the accident. 9. Learned counsel for the appellant relies upon the decision in ‘National Insurance Corporation Ltd. V. Kanti Devi[1]’, wherein 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.” 10. Even 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 and the effect of the evidence in this regard has to be considered by the Tribunal. 11. 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 ‘National Insurance Co. Ltd. Vs. Swaran Singh[2]’ 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." 12. In the present case, there is nothing on record to show that the accident was caused solely because the driver was not having licence to drive the light motor vehicle (transport vehicle) and that there was any nexus between the accident and the driver not possessing the requisite type of licence. When that is so, the insurer cannot avoid its liability, even if there is any technical breach of conditions concerning the driving licence as held by the apex court in Swaran Singh’s case (supra). 13. The decision in ‘New India Assurance Co. Ltd. Vs. Prabhu Lal[3]’ cited by the learned counsel for the appellant, is not applicable to the facts of the present case, as the said decision related to a case where the driver having licence to drive light motor vehicle, was found driving a heavy motor vehicle. Further, the insurance company in the above case was exonerated on the basis of the evidence adduced by the insurance company in that case. 14. Similarly, the decision in ‘Sardari v. Sushil Kumar[4]’ also relied upon by the learned counsel for the appellant is not applicable to the facts of the present case, as it relates to a case where the driver was not having a licence at all. In the above case, the driver of the crime vehicle-tractor was examined and he admitted that he does not know how to drive the vehicle and he never even tried to learn driving of the tractor and he never possessed any driving licence and he never applied for the same and ultimately, he admitted that he did not hold a driving licence. In the above decision, a reference was made to the decision in Swaran Singh’s case, wherein it was held as follows: “….The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid licence or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence.” 15. Learned counsel for the appellant also relies upon the decision in ‘Oriental Insurance Co. Ltd. V. Angad Kol[5]’, wherein the apex Court held as follows: “….The distinction between a 'light motor vehicle' and a 'transport vehicle' is, therefore, evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct licence is required to be obtained. The distinction between a 'transport vehicle' and a 'passenger vehicle' can also be noticed from Section 14 of the Act. Sub- section (2) of Section 14 provides for duration of a period of three years in case of an effective licence to drive a 'transport vehicle' whereas in case of any other licence, it may remain effective for a period of 20 years.” 16. On evidence, it was held in the above case that the driver was not having valid and effective driving licence for driving a goods vehicle. 17. Learned counsel for the first respondent relied upon the decision in ‘Oriental Insurance Co. Ltd. V. Mamidi Radha[6]’, wherein, this Court while dealing with the case of an auto and the driver having driving licence to drive light motor vehicle and auto rickshaw, noticing that the expression ‘auto-rickshaw’ is not defined in the Act or in the Rules and referring to the Rules 268 and 269 of the A.P. Motor Vehicles Rules 1989, relating to the auto-rickshaws, held that the auto-rickshaw can carry passengers and therefore a person having licence to drive auto-rickshaws only without having a licence to drive the light motor vehicles, also can drive the auto-rickshaw carrying passengers. It is further observed that the driver was having licence to drive the light motor vehicle also and so, the question whether the auto rickshaw becomes a transport vehicle within the meaning of section 2(47) of the Act or not may not be of much consequence because ‘light motor vehicle’ also is a transport vehicle. After referring to the definitions of various relevant expressions, this Court held that the driver of the auto, who had driving licence to drive the light motor vehicle-auto rickshaw earlier, can even drive the public service vehicle, goods carriage, educational institutions buses and public services buses also from 29.04.1999 when he was given licence to drive the transport vehicle also. It was therefore, held that the owner by entrusting the auto to the driver, who caused the accident cannot be said to have violated the terms and conditions of the policy, as it cannot be said that he permitted the person, who is not having a valid driving licence to drive the auto. The order of the Tribunal holding the insurer also jointly liable, was therefore confirmed. 18. In the present case also, there is nothing on record to show that the owner of the vehicle willfully or consciously violated the terms and conditions of the policy by entrusting the vehicle to a person, having no valid driving licence. Having regard to the fact that the Act is a beneficial piece of legislation and the provisions relating to payment of compensation are having purpose and objective of providing succor and support to innocent victims of the accident, breach of terms and conditions of the policy on the part of the owner cannot be readily inferred, in the absence of evidence to that effect by the party, namely insurer alleging such breach and violation so as to exonerate the insurer from liability to pay the compensation and thereby defeat the claim of the victims. It is true that the nature of the obligation of the insurer to indemnify the insured is contractual and is guided by the terms and conditions of the contract, namely policy. When the insurer seeks to avoid its liability on the ground that there has been violation of the terms and conditions of the policy, the same has to be specifically pleaded and proved as held by the apex Court in the case of Swaran Singh (supra). It is only when the insurer is able to establish that there has been a conscious violation of the terms and conditions of the policy on the part of the owner, the insurer can seek to avoid its liability but not otherwise. 19. In the present case also there being nothing on record to show that there has been conscious violation of the terms and conditions of the policy Ex.B.1 on the part of the owner of the vehicle, the appellant-insurer cannot seek to avoid its liability to pay the compensation. The award passed by the Tribunal holding the appellant-insurer also jointly and severally liable to pay the compensation does not therefore call for any interference. 20. In the result, the appeal is dismissed. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 30.09.2011 bss [1] 2005(3) ALT 35 (SC) [2] (2004) 3 SCC 297 [3] 2008 ACJ 627 [4] 2008 ACJ 1307 [5] 2009 ACJ 1411 [6] 2008(6) ALD 562