KKiai'?B'-:;2z 'TK i^|»j '10. 671 Versus &IVISIONAL tMNAGEK. THE ORIENTAL INSURAWE CO. LT&. SURESH KUMAR SHIVHARE n Sd/- hirendraMishra Judge h- 1 &IVISIONAL AAANA6ER, 1 THEORIENTAL INSURANCE ICO. LTD. (MAHARASHTRA), THROU6H | ORI! CO. LTD. COURT B] INSURAhCE OPPOSITE HI6H (C.6.) iT< i I : SURESH KUteAR SHIVHARE ?E ABOUT 35 YRS., S/ SHIVHARE, RESIWNT OF 1 TAKHATPUR, DISTT.- | BILASPURC.&. (CLAIAAANT) ABOU' 22 YRS. A6E s/o RE5IDENT SAVLI, THANA &I5TT-E (DRIVER) i I <t ^•* B~ ) c.s. SHRI MANOHAR 5/0 SHRI VEW,A, RESI&ENT OF CHAKARBHATHA BILASPUR, C.6. (OWNER OF SAI Bt M..H. 27-A-C us 'resent: ,r, Sudhir lAgrawai, Advocate for the cppeliant/insurer. Mr. Sameer Singh, Advocate for respondent None for respondent No. 2, though served. Mr. P.K. Tulsiy'Qn, Advocate for respondent (Delivered o»t\.f/07/20075 Vshra, J 1~he appeitant, insurance against the award dated 15 Se 20/04 whsreby learned Addi company, has preferred this appeal 2006 oassed in Cioim Case No. Motor Accident Cbims Tribuna! €7 (FTC), Bilaspur hos awarded a sum of Rs.1,00,000/- with interest at the rate of 9% per annum from the date of cpplication i.e. 16,3.2004 to the respondent No.l/claimant for the injuries sustained by him in the motor vehicle accident dated 23.6.2003 involving Bus No. AA.H. 27-A/9167, owned by respondent No.3, driven by respondenf No.2 and insurea' by the appellant for the relevant period and has heid the appellant/insurer also jointly and severally liable for sotisfying the irnpugned aword. 2, Srievance of the appelbnt/insurer is that respondent No. 2 was having driving licence to drive L.M.V. (Light Motor Vehic!e) at the time of accident and he was driving possenger bus of H.&.V, (Heovy 6oods Vehicls) category, thus the owner dellberateiy allowed respondent No. 2 who was not having valid and effective driving iicence to drive the vehicle at the tiiTie of accident and as such, committed a breach of )o!icy condition. 3. Reiiance is piaced on the judgments in the matters of Ishwar" 'g 1 and others re 3 4. On submitted respondent No.Z/driver at the time of accident was holding licence to drive light motor vehicle, he was entitied to drive light-motor vehicle having a weight not exceeding 7,500 kg. There is no evidence that the vehicle invoived in the accia'ent u'eighed more than 7,500 kg and since there is no evjdence as to u/eiqht of the minibus, it cannot be said thot there was any breach of conditions of the insurance policy. 5. Reliance is placed on the Judgment of Division Bench of the M.P. High Court in the matter of United India Insvrancs Co. Ltd. Vs. irs reDorted in 21 6. I have heard learnsd counsel for the respecti perused the.materiol avaiiable on recorc) as aisothe impi. 7. Respondent No. 1/cl aver'ment that on 23.6.2003 the negligently driven by respondent against him r'esulting in permarient driven by a driver having valid dri' with the appeltant and with these claimed under various heads towards ireferred claim petition with offending bus being rashiy No. 2 on the wrong sicie dcshed discbility. The vehicie wos ig licence and the same was ii eadings, a sum of Rs.8,91,250/- compensation. of ra; sustai as cia was ir espondents No. 2 &3 'm their joint repiy denied the allegations negligent driving as also the averment that the claimant permanent disobility and was entitled for the compensation ed in the petltion. However, it was contended that the vehicle by the appellant and compensation, if any, shall be payable ipeilant/insur'ance company. 9. The appeilant in its reply denied the aliegation of rash negligent driving resuiting in accident causing permanent disability to the ciaimant and stated that the driver did not hcve valid and effective driving licence Qt the tlme of accident to drive passenger bus, therefore, the poiice after investigation has filed charge sheet against driver Nanchu @ Nanku under Section 3/181 of the Motor Vehicles Act, 1988 (for brevity 'the Act') for driving the bus without having valid licence and in these circumstances, no !iabiiity can be fastened upon the insursnce company as the bus wo.s being driven by a person who did not possess valid and effective driving licence. 10. On the basis of pleadings of the respective parties, issues were framed and the ciairn petition was allowed and impugned award wos passed with the finding that the accident occurred because of rash and negiigent driving by respondent No,2 resulting in grievous injuries to the respondent No.l/claimant who sustained permanent disability to ^ the extent of 10%, However, the issue whether respondents No. 2 <& 3 have committed a breach of policy condition regarding driving licence, has been answered m negative and ths oppellant along with respondents No. 2 & 3 has been Joint!y and severally heid iiabie for satisfying the 11. It is not in dispute that the bus involved in the accident is a transport vehide which was insured by the appellant for the relevant period vide insurance policy of Ex. N.A.-1. F"om perusal of the policy, it is evident that the insurance was done for passenger corrying commsrcial vehicle bearin9 registration No. M.K 27/A-9167 of Tatc make wlth the carrying capacity of exceeding 18 passengers but not exceeding 36 pcssengers with a sitting capacity of 25 passengers. As per the document of Ex.N.A.-Z, a memo addressed by Regionai Transport Office to the investigator' of the appellant/insurer, drivini licence N-2256/02 belongs to respondent No.2 Nonku Prasad and the same is for driving private light motor vehicle and it was valid for the reievant period. From the document of Ex.N.A.-3, a motor cloim form submitted by insured M.K. Verma before the appellant which hns been sroved by Ani! Sao, Sr. Assistant of the appeijant/insurer, the vehicl was a passenger bus, the saine was being driven by Nanku Prnsad havinc drivinq licence No, 2256/02 who had the licence to drive H.6.V. Witness Ani! Sao (N.A.-3) examined by the appellant has categorically stated that driver of the vehicle did not have vaiid drivinQ licence for dr'iving the transport vehicie as he wcs holding licence only to drive it motor vehicl®and a charge sheet has been filed against the driver for the offence of driving the vehicle without volid drivinq licence. The information regarding driving licence of respondent No.Z/drive" is document N.A.-2 which was received by them from R.T.O. and owner of the vehic.ie had submitted duly filled in motor ciaim form vide Ex.N.A.-3 before the appejlant/insurer. This witness has been cross-exeainined by the respondent No.l/ciaimant and in paragraph-10 of his statement he has cateqorically stated thot in form of Ex. N.A.-3, the ou/ner has given inforination that driver had 1-1,6.V. iicence. The above version of this witness hcs .not been challenged by respondents No.2 A 3 , therefore, from the stoternent of this witness it is established that respondent No.2 - driver Nanku Prasad had driving licence to drive private L.M.V. thouqh the owner in the document of Ex.N.A.-3 hac) claimsd that he had 'icence to drive K6.V. 12, It is settled law thot the insurance connpany is required to prove that there has been a brea.ch of poiicy condition on the part of insured in allowing the vehicle to be driven by a person who did not have valid effective drivina !ii 13. The first question respondent No. 2/driver iicence at the time of acci in this aDDeai is - whether having vaiid and effective driving drive the offendincj Dassenqer bus? 14, From stntement of the witness J ^.t , A^ s ssTQDiisnei qht motor vehicie snd a; me he was drivino the ipacity' of 25 pcssengers. ;el for respondent No.3 and documents of ExN.A.-2 and N.A.-3, it Nanku was holding licence to drive private li aiready stated above, at the relevant ti commerciai transport' bus with a carrying ca| Now cominQ to the submisslon of lecrned that there is no evidence availab!e on record was in fact not a light motor vehicSe. -15. Sub-section 21 of Section 2 of the Act defines "!i vehicle or omnibus the gross vehicle motor car or tractor or road-roller does not exceed 7,500 kilograms. icie" as a Transi ;n or .-c eiTner o eiqht of uniaden of ony o The driving licence has been defined in Sub-section 10 of Section f the Act, as the "driving licence" means the licence issued by a ipetent authority under Chapter II authorizing the person spscified ^7) therein to drive, otherwise than as a tearner, a motor vehicle or a motor vehicl.e of any SDecified class or descriDtion. 17. Sub-section 33 of Section 2 of the Act envisages that "private service vehicle" means a motor vehicie constructed or adaDted to CGSTV more than six persons excluding the driver and the ordinariiy used by or on behoif of the owner of such vehicle for the purpose of carrying lersons for, or in connection with, his trade or business otherwise than or hire or reward but does not include a motor vehicle used for Tor lurposes. iS oer 51 any rnotor vehicle used or lasssnqers for hire or reward, contract carriage, and stage carriage ection 2 "Dubiic service vehicl ed to be used for the inc'udes a maxicab, a motorcab, 19. Transport vehicle has a!so been defined in Sub-section 47 of Section 2 of the Act, as a public service vehicle, n goods carrioge, on educational institution bus or s Drivote service vehicie. !0. Section 3 of the Act provides for necessity for driving licence vh'sch is being reproduced hereinunder: ing Iicanc®.-(l) No person sha!l drive a motor- vehicle in any public place uniess he holds an effective driving licence issued to him authorizing him to drive the vehicie; and no person shni! so drive-a transport vehicle [other than [a motor cab or motor cycle] hired for his own use or rented under any scheme made under sub- section (2) of section 75] uniess his driving licence specifically entitles him so to do,. (2) The conditions subject to which sub-section (1) shn!! not apply to a person receiving instructions in driving a motor vehicle shall be such as mcy be prescribed by the 'l. Section 10 deals with form and contents of licences to drlve. /hich is reproduced hereunder: ^7^- driving licence, except c dri' section 18, shnll be in sueh form shcll contain such ii the Centra! 6overnment. (2) A learner's Hcence or, as the case may be, driving licence shall aiso be expressed as entitling the hoider to drive a motor" vehicle of one or more of the •foilowing cbsses, namely;- (a) motor cyc!e (b) motor cycle with gear; (c) invaiid carriage.: [(e) trarisport vehic!e;1 motor vehicle of a specified description. 22. Sec licence to ion 11 of the Act envisages that any person holding a drivinc •ive ony ciass or description of motor vehicies, who is not bein9 disqualified for holing or obtaining a driving iicence other class or description of motor vehicles, rnay apply to authority in such form with such fee as may be prescribed by the CentraS Sovernment for the addition of such other class or of motor vehicies to the iicence. to drive the licer 23. In the Instnnt case, it is not in dispute that the bus in question was used for carr'ying passengers for hire and as such public transport yehicle. As per Sub-section 2(e) of Section 10 of the Act "transport vehicle" is a separate class of vehicle and driving licence mcy be given entitting the holder to drive a inotor vehicle which may' be a light motor vehicie or transport vehicle as per Section 10(25(d)A(e) of the Act, respectively. Thus, from the conjoint reading of Sections 10 A 11 of the Act, it is manifestly clear that the licensing authorities Issue driving licences for drivina liaht motor vehicle and transDort vehicle under different for'ms and as such, the !ight rnotor vehicle an( transport vehicie are different class for the purposes of drivin; licence and it is open to the holder of one class of driving licence (L.AA.V. in the present case) to apply for the addition to driving licence of another .class or description of motor vehicles (transport vehictfi) under Section 11 of the Act ofter depositing prescribed fee. There is no dispute !n the instant case that the vehicle in question was a pubiic service vehicle as defined under- Section 2(35) of the Act as the same was used for cornmercin! purposes of carryin< passengers whereas the endorsement in Ex,N.A.-2, the driving iicence of respondent No.2, clecrly mentions that he was having a ilcence for L.M.V. to drive private vehicle, Therefore, from the evidence available on record this Court is sotisfied t'nat responderit No,2/driver did not have valid and effective driving iicence to drive commerciai passenger bus at the time of accident. 25. I am fortified in my view wi.th the principles of Saw laid down by the Hon'ble Supreme Court in the matter of National Insurunc® Co. Rai and others (supra) wherein the driver of the vehic!e offending jeep was holding driving licence to drive light motor vehi and was driving ajeep which was being plied os a corrimercial vehicle in these cir condition of possess vali insuronce owner bv es, it has was aiven ii&ei a breacii oT by the insured as the driver did not drive commercicl vshicte to recover the amount pai •e the executing Court. 26. Hon'bie Supreme Court in the rnatter of Ishwar Chandra & Ors (supra) has nlso referred the Judghient rendered in the matter of Kusum Rai with ai 27. second suestion for consideration is - whether the aoDe!!ant can avoid its liabiiity of payment against the award soiely on thi thot driver of the offendlng vehicle N/as possessing driving licence one category and was drjving the vehicle of another category? This question hos been dealt with by the Hon'ble Supreme court in the ^ reDorted in speciTicaiiy deals "aph-89 of the above judgment is reproducsd as under: Section 3 of the Act casts an ob!igation on a driver to hold an effective driving ticence for the type of vehicle u/hich he intends to drive. Section 10 of the Act enables the Centra! Sovernment to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence fo" one or more of them are; (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) !ight motor ve'nicie, (e) transport vehicie, (f) road roller, and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various CQtegories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are "goods carriage", "heavy goods vehicle", "hecvy presenger motor vehicle", "invalid carriage", "light motor vehicie", "maxi-cab", "medium goods vehicle", "liiedium passenger motor vehicle", "motor-cab", "rnotorcycle", "omnibus", "private service vehicle , "semi-trailer", tourist vshicle", '^ractor-", "trailer", and 'l-rnnsport vehicle". In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribuna! as a person possessin< a driving licence for "motorcycle w/ithout gear", [si'c may be driving a vehicle] for- which he hns no licence. Cnses may aiso arise where a holder of driving iicence for "light motor vehicle" is found to be driving a "maxi-cab", "motor-cab" or "omnibus" for which he has no licence. Ih each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing iicence for one type of vehicle but found driving another type of vehicle, was the mo.in or contributory cause of accident, If on fact, it is found thaf the accident was cesused solely because of some other unforeseen or intervening causes like mechonica! failures and similar other causes having no nexus with the drive" not possessing requisite type of licence, the insurer wW not be allowed to avoid its linbility mer'ely for technicai breach of conditions concerning driving licence. l^iS^iii^!!1^-;^^!!';^ ^^ 28. If we exwn'me facts of the present co.se in the light of above !aw laid down by the Hon'bie Supreme Court, it is observed that there is unrebutted evidence available on record to show that the occident occurred because of rash and negiigent driving of the vehicle by respondent No.2 and the accident occurred at a seciuded place when the injured was going by his bicycle on correct side and stopped his cycle when the offending bus being driven rashly and neg!igent!y ccme frorn wrong side and dashed against him. hk) evidence has been odduced by the owner o" the driver that the accident was caused because of some other unforeseen or intervenino causes like mechanical faiiur'es and similar other causes hoving no nexus with the dr-iver not lossessing requisite type of licence. On the contrary, from the evidence avaiiabie on record, it is established that the accident occurred because of rash and negligent driving by respondent No. 2, who was not havina. vaiid and effective driving licence to drive the said vehicle at the time of acci 29. In the iight of sforesaid discussions csnd princip!es of iaw iaid down by the Hon'ble Supreme Court in the matter of Kusvm Ral (supra), the ratio of law propounded in the judgment of the division bench of AA.P. High Court delivered in the matter of Unitsd India Insyr9ncs_Ca, '.rs (si is of no help to respondent No.S/owner, considering that the provisions of licensini er-II +; 10 & 11 of the Act, has not been dealt with in the aforesaid Judgment. 30. In the result, the oppeai is allowed. Accordingly, the impugned award passed by the Tribunal is set aside so far as the appeliant/insurer has been held jointly and severally liable to satisfy the award abng with respondents No. 2 <& 3 and the appeiiant/insurer is exonerated from the liabiiity of paying compensation against the irnpugned award. However, in the facts and circumstances of the case, we direct thnt the appellant/insurer shall pay quantum of compensation <-~7?fc fixed by' the claims Tribunal, about u/hich there was no dispute raised, to respondent No.l/claimont within three months from today. For the purpose of recovering the same from the insured, the insurer shaii not be required to fiie a suit, It may initiate a procesding before the concerned executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided aqainst the owner and in favour of the insurer. The offending vehicle shoil be attached, as a part of the security. If necessity arises the executing court shall take assistance of the concerned Regional Transport Authority. The executing court shali pass appropriate orders in accordance with law as to the manner in w/hich the insured, owner of the vehicie shall make poyrnent to the insurer. In case there is any defau!t it shall be opsn to the executing court to direct realization by disposal of the securities to be furnlshed or from any other property' or properties of the owner of vehicle, the insured. No order as to coasts, ,; 1 '' •;--—~- Sd/- Dhirendra Mishra Judge