c'r Ig. THE HIGH CQURT OF JUDlC^EUaE, ATBILASPURtC-G-l MJL{C) No^£.X2. OF 2010 {APPEAL VALUEX) AT Rs.4.25.000 / 4 l8¥S§! APPEAL UJNTDER SECTION 173 OF THE MOTOR VEHICIES ACT- 1988. u' APPELLANT ^w«<'' fNON-APPLICANT N0.3) A^ ^ ^•^^' • ...'%^ ..o- (APPUCANTNO.l) (APPLICANTN0.21 (APPLICANT N0.3) (APPLICANT N0.4) (APPLICANT N0.51 {APPLICANT N0.6) (APPLICANTN0.71 fAPPLICANTNO.8) ^l. ^' ^- f^ :4. :5. /• United Tndia Insurance Company Ltd, Through: Its Branch Manager, Branch- OfBce, Near Bam- Mandir Ambikapur, P.S. & Tah.- Ainbikapur, Distt- Siirguja (&&). VERSUS Smt. Kalesari, W/O-Late Gulab, Aged-35 years- Vishwanath S/O-Late Gulab, Aged-16 years. Leela D/O-Late Aged-15 years. Gulab, a^ Sheela D/O-Late Gulab, Aged-13years. Urmila D/O-Late Gulab, Aged-11 Years. Neha D/O-Late Gulab, Aged-9 years. Vishal S/O-Late Gulab, Aged-6 Years. Shradha D/O-Late Gulab, Aged-28El/2 yeara. Respondent no.2 to 8 are minor, throu^i th.eir Mother, .Kalesari W/o late Gulab(Respondfint no.1). AU are R/0- ViU.- Kot - Chitkahipara, P.S. & TahsU (A LICANTN0.9l - Siira^pur, (C.G.) DistL Surgiya •S. 'Sukhmen, Wd/Q-Late /'' C-tiandiu-am, aged-75 years, OccupatiorL-HouseWife, Caste-Paruka, Ji/0-ViIL-Jsot, P.S. & Tahsil- Sur^pur, Distt- Siugiya (C-G.j. 'ON-APPLICANT N0.1) ^ (NJ0N-APPLICANT N0.2) :II. Sikandar S/o-Late Pawan Sai, aged-30years, R/0- VilL-Lanchi, P.S.& Tahsil- Sur^'pur, Distt.-Sur^uj'a (C.G.). Ratanlal -Agrawal S/o-Late Mulchand Agrawal, aged- 70years, -R/0-Sur^'pur, P.S.& Tahsil-Surajpur, Distt.-Smguja (C-G-). c^- .y 's- ^.^ ,:y 'i issyil I.. "3s5y-...J'i ^^ vaf^f 'a». f. HIGH COURT OF CHHATTISGARH : BILASPUR M.A. (Q No. 1059 of 2010 Appellant United India Insurance Company Ltd. Versus Respondents Smt. Kalesari 8s others MISC. APPEAL UNDER SECTIQN 173_QETHEJtlQTOR VEHICLES ACT,1988 DB: Hon'ble Shri I. M. Quddusi & Hon'ble Shri G. Minhajuddin, JJ Shri Dashrath Gupta, Advocate for the appellant. Shri Tarun Dadsena, Advocate for the respondents No. 1 to 3. Shri Vikrara Dbcit, Advocate for the respondent No. 11. None for the other respondents. ORDER (Oral) ( Passed on this 2 1st day of July, 2011 ) Per I. M. Quddusi J. 1. The instant appeal, filed by the appellarit/Insurance Company arises from the award dated 9.7.2010, passed by the First Additional Motor Accident Claims Tribunal, Soorajpur in Claim Case No. 34/2007, awarding a sum of Rs. 4,25,000/-along with interest at the rate of 12% p.a. 2. The ground of challenge in this appeal is so far as the Tribunal has fastened the liability upon the appellant/Insurance Company to pay the compensation. 3. The facts, in brief, are that on 15.6.2006 deceased Gulab, as an occupant of the truck, bearing registration No. C.G. 15-ZC/0228 was going to unload the' articles loaded in the said truck. On the way, near Lanchi dam due to rash and negligent driving of the non-applicant No. 1 (Sikender) the vehicle turned turtle. In this accident Gulab received grievous injuries and during treatinent he succumbed to those injuries.- on 17.6.2006. 4. The legal heirs of the deceased filed a claim case under Section 166 of the Motor Vehicles Act, 1988 for award of a total coinpensation of Rs. 29,06,000/- under various heads. Learned Claims Tribunal having regard to the facts situation and the evidence on record awarded a suin of Rs. 4,25,000/- as compensation along with interest @ 12% per annum. 5. We have heard learned counsel appearing for the parties and perused the lower Court's record. 6. Learned counsel appearing for the appellant/lnsurance Company submits that the driver of the offending vehicle was having only the learners licence and he was not authorized to drive the vehicle but to our opinion a person holding the learner's licence can drive the vehicle subject to the conditions mentioned in Rule 3 of the Central Motor Vehicles Rules, 1989 and in the licence itself. 7. In Learner's Licence it is mentioned that the person is licenced to drive the vehicle of the specified descripdon, throughout India, as a learner subject to the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989; 8. Rule 3 of Chapter II of The Central Motor Vehicles Rules, 1989 reads as under: "3. General-The provisions of sub-section (1) ofsection 3 shall not ' apply to a person while receiving instructions or gaining experience in driving with the object of presenting himself for a test of competence to drive, so long as - (a.) . such person is the holder of an effective learner's licence issued to him in Form 3 to drive the vehicle: (b) such person is accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle; and .??£yyiSs?s;:.s5^% s%'ai 4. The legal heirs of the deceased filed a claira case under Section 166 of the Motor Vehicles Act, 1988 for. award of a total compensation of Rs. 29,06,000/- under various heads. Leamed Claiins Tribunal having regard to the facts situation and the evidence on record awarded a sum of Rs. 4,25,000/- as compensation along with interest @ 12% per annum. 5. We have heard leamed counsel appearing for the parties and perused the lower Court's record. -6. Learned counsel appearing for the appellant/Insurance Company submits that the driver of the offending vehicle was having only the learners licence and he was not authorized to drive the vehicle but to our opinion a person holding the learner's licence can drive the vehicle subject to the conditions inentioned in Rule 3 of the Central Motor Vehicles Rules, 1989 and in the licence itself. 7. In Learner's Licence it is mendoned that the person is licenced to drive the vehicle of the specified description, throughout India, as a learner subject to the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989. 8. Rule 3 of Chapter II of The Central Motor Vehicles Rules, 1989 reads as under: "3. General - The provisions of sub-section (1) of section 3 shall not ' apply to a person while receiving instxnctions or gaining experience in driving with the object of presenting himself for a test of competence to drive, so long as - (a) such person is the holder of an effective learner's licence issued to him in Form 3 to drive the vehicle: (b) such person is accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle; and \ '•'"VK:^ \ teu.: (c) there is painted, in the front and the rear of the vehicle or on a plate or card affixed to the front and the rear, the letter "L" in read on a white background as under: Note. - The painting on the vehicle or on the plate or card shall not be less than 18 centimeters squares and the letter °L" shall not be less than 10 centimeters high, 2 centimeters thick and 9 centimeters wide at the bottom: Provided that a person, while receiving instructions or gaining experience in driving a motorcycle (with or without a side-car attached), shall not carry any other person on the motorcycle except for the purpose and in the manner referred to in clause (b). " A three HonTsle Judges Bench of Hon'ble Supreme Court in the case of National Insurance Company Vs. Swarn Singh & others1 about the learner's licence has held as under: "Learner's Licence. 93. The Motor Vehicles Act, 1988 provides for grant of learner's licence. {See Section 4(3), Section 7(2), Section 10(3) and Section 14}. A learner's licence is, thus, also a licence within the meaning of the provisions of the said Act. It cannot, therefore, be said that when a vehicle is being driven by a leamer subject to the conditions mentioned in the licence, he would not be a person who is not "duly licensed" resulting in conferring a right on the insurer to avoid the claim of the third party. It cannot be said that a " person holding a leamer's licence is not entitled to drive the vehicle. Even if there exists a condition in the contract of insurance that the yehicle cannot be driven by a person holding a learner's licence, the same would run counter to the provisions of Section l49(2) ofthesaidAct." (2004) 3 SCC 297 10. In the Insurance Police itself it is mentioned as under: "Persons or classes ofPersons entitled to dfive: Any person including Insured provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective Learner's Licence may also drive the vehicle and such a person &atisfies the requirements of Rule 3 ofCentral Motor Vehicle Rules, 1989°. 11. Therefore the person holding a learners licence may drive the vehicle subject to the conditions mentioned in the licence, the Rules and the . statute for the time being in forc'e. 12. We feel that no issue was framed by the Tribunal in the above regard that whether the driver holding a leamer's licence was driving the vehicle following the provisions of the Rules and the Conditions mentioned in the leamer's licence. 13. For the reasons stated hereinabove, we allow this appeal in part, set- aside the impugned award dated 9.7.2010 and remit back the matter to the Tribunal for decision afresh in view of the observadons made hereinabove. No order as to costs. 14. Needless to mention that the parties shall be allowed to amend their pleadings, adduce further evidence again in support of their pleadings and may file further documents and get the documents verified etc. 15. Parties shall appear before the Claims Tribunal on 17th August, 2011. 1.6. The amount, if any, deposited by the appellant shall remain in deposit till a fresh decision is taken by the Claims Tribunal. 17. The lower Courts record shall be sent back forthwith. _——— Sdi- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge 'r Thakur