ORIENTAL INSURANCE CO. LTD v. AMUDHA — 1999 DIGILAW 528 (MAD)

Judgment : KARPAGAVINAYAGAM, J. ( 1 ) THE Oriental insurance Co. Ltd. is the appellant herein. This appeal is directed against the award and the decree dated 28. 2. 1991 made in m. C. O. P. No. 500 of 1988 on the file of motor Accidents Claims Tribunal (Chief judge, Court of Small Causes), Madras directing the appellant to pay compensation of Rs. 2,42,000 to the respondent Nos. 1 to 4, as against the total compensation of Rs. 2,70,000 claimed. ( 2 ) THE facts leading to the filing of this appeal could be summarised as follows: on 16. 12. 1987 at about 9. 00 p. m. , the deceased Senthilkumar was riding on his motor cycle bearing registration No. TMS 3433 along with his friend in Erukkan-chery High Road from south to north near ramalingaswamy Temple. At that point of time, a van bearing registration No. TMJ 3645 belonging to the Aringar Anna drivers Co-operative Society Ltd. , the respondent No. 5 herein, driven by its driver in a rash and negligent manner, was coming from the opposite direction on wrong side and dashed against the motor cycle and caused grievous injuries to the deceased and the pillion rider. The injured persons were taken to the hospital. Senthilkumar thereafter died at the hospital. The wife and children of the deceased filed a petition in M. C. O. P. No. 500 of 1988 before the Tribunal against the Aringar anna Drivers Co-operative Society Ltd. and the Oriental Insurance Co. Ltd. who is the insurer of the vehicle claiming compensation of Rs. 2,70,000. ( 3 ) THE Aringar Anna Drivers Cooperative Society Ltd. , the respondent No. 1 in the main petition did not choose to be present and, therefore, it was set ex pane. The said claim petition was contested only by the respondent No. 2 insurance company, the appellant herein. ( 4 ) ON behalf of the claimants, three witnesses were examined and Exhs. P-l to p-5 were marked. On behalf of the insurance company, one witness was examined through whom Exhs. R-l to R-4 were marked. After consideration of the materials, the Tribunal concluded that the claimants were entitled to compensation and directed the respondent No. 5 and the appellant to pay jointly or severally the compensation of Rs. 2,42,000. P-l to p-5 were marked. On behalf of the insurance company, one witness was examined through whom Exhs. R-l to R-4 were marked. After consideration of the materials, the Tribunal concluded that the claimants were entitled to compensation and directed the respondent No. 5 and the appellant to pay jointly or severally the compensation of Rs. 2,42,000. ( 5 ) THE insurance company, who is the respondent No. 2 in the main petition, challenging the said award has filed this appeal. The main argument that was advanced by the insurance company before the Tribunal as well as before this court, is that the driver of the van belonging to the Aringar Anna Drivers Co-operative society Ltd. was holding the licence only to drive the autorickshaw and in the absence of any endorsement authorising its driver to drive the van during the relevant period, it cannot be said that the driver was having the licence to drive the vehicle involved in the accident and as such, the insurance company is not liable to pay any compensation. It is also pointed out that the appellant had discharged its burden of proof by examining RW 1 through whom exhs. R-l to R-4 were marked and that the driver was having the licence only to drive the autorickshaw. ( 6 ) ON the other hand, the learned counsel for the respondent Nos. 1 to 4 claimants, in support of the impugned award of the Tribunal, would contend that the insurance company cannot escape from its liability in making payment of the compensation by simply examining its own officer and by merely marking the xerox copy of the licence of the van driver for proving that the driver was not duly licensed to drive the van, in the absence of production of any document from the R. T. O. and as such, the insurance company had not discharged its burden and that the reasonings given by the Tribunal for ordering the compensation directing the insurance company to pay the compensation are perfectly valid. ( 7 ) I have given my careful consideration to the submissions made on either side. ( 8 ) AT the outset, I shall point out the contradictory stands taken by the appellant at two different stages. ( 7 ) I have given my careful consideration to the submissions made on either side. ( 8 ) AT the outset, I shall point out the contradictory stands taken by the appellant at two different stages. In the counter filed by the insurance company before the tribunal in M. C. O. P. No. 500 of 1988, it is stated that the driver of the van was authorised to drive only autorickshaw, which falls under the light motor vehicle and the van is a medium motor vehicle and the said driver had no licence to drive the medium motor vehicle. The following is the relevant para in the counter: "it is submitted that the driver of the respondent No. 1 who drove the van tmj 3645 was not having a valid driving licence on the date of the accident to drive a van. According to the driving licence of A. Kumar the person who drove the van bearing registration No. TMJ 3645 the holder of the licence was authorised to drive only an autorickshaw which falls under the light motor vehicle. A van is a medium motor vehicle and the said A. Kumar had no valid licence to drive a medium motor vehicle. Hence, this respondent submits that as per the terms and conditions of the policy at the relevant time when the van is said to have been involved in a motor accident the driver of the vehicle not being one having a valid licence, this respondents liability is not attracted at all. It is, therefore, submitted that the claim petition against this respondent be dismissed with costs. " ( 9 ) THUS it is clear that the appellant had taken a stand that since the driver of the van was having a licence to drive an autorickshaw, i. e. , light motor vehicle, he cannot drive the van which is the medium motor vehicle for which he had no valid licence and as such, the insurance company was not liable. ( 10 ) IN the grounds mentioned in-the appeal presented before this court, it is stated by the appellant that in Exh. R-4, the xerox copy of the licence, there is no endorsement authorising the driver to drive the heavy vehicle. The following is the ground: "the learned Tribunal has failed to appreciate Exh. ( 10 ) IN the grounds mentioned in-the appeal presented before this court, it is stated by the appellant that in Exh. R-4, the xerox copy of the licence, there is no endorsement authorising the driver to drive the heavy vehicle. The following is the ground: "the learned Tribunal has failed to appreciate Exh. R-4 copy of the licence in which there is no endorsement authorising the driver to drive a heavy vehicle during the year 1987, and if the licence was renewed or the authorities have permitted the driver to drive any other type of vehicle, then the endorsement would have been made in the licence, and the absence of such an endorsement indicates that the driver was not duly licensed to drive the vehicle involved in the accident. " ( 11 ) SO, from this ground, it is clear that the stand taken by the appellant in this appeal is that the van involved in the accident is a heavy vehicle for which there is no driving licence. ( 12 ) HOWEVER, it is now argued by the counsel appearing for the appellant insurance company, on the strength of Exh. R-4 which is the xerox copy of the driving licence, that the driver of the van was having only driving licence for driving the autorickshaw and there was no licence for driving the van. ( 13 ) IN the light of the different stand taken by the appellant insurance company, now let us go into the question to be answered in this case. ( 14 ) ). In order to resolve the controversy, it is necessary to extract the relevant provisions of the Motor Vehicles Act. Clause (13) of section 2 of the Act defines the light motor vehicle which runs as under: " light motor vehicle means a transport vehicle or omnibus the registered laden weight of which, or a motor car or tractor the unladen weight of which, does not exceed 4,000 kilograms. " clause (14) of section 2 of the Act defines medium goods vehicle which reads as under: " medium goods vehicle means any goods vehicle, other than a light motor vehicle, heavy goods vehicle or road-roller. " clause (14) of section 2 of the Act defines medium goods vehicle which reads as under: " medium goods vehicle means any goods vehicle, other than a light motor vehicle, heavy goods vehicle or road-roller. " clause (9) of section 2 of the Act defines heavy goods vehicle which reads as under: " heavy goods vehicle means any goods vehicle the registered laden weight of which, or a tractor the unladen weight of which, exceeds 11,000 kilograms. " ( 15 ) ). Therefore, there is a clear distinction between light motor vehicle, medium goods vehicle and the heavy goods vehicle. ( 16 ) ). Admittedly, in the instant case, nothing has been brought out before the tribunal or before this court to indicate that the unladen weight of the van in question was more than 4,000 kilograms so as to attract the provision of clause (14) of section 2 of the Act. ( 17 ) ). As indicated earlier, in the counter filed in the main petition before the Tribunal, the stand taken by the appellant is that autorickshaw is a light motor vehicle, whereas the van is a medium goods vehicle. In the grounds filed before this court, it is mentioned that the van is a heavy vehicle. ( 18 ) ). But now, the submission made by the learned counsel for the appellant before this court is that there is no licence for driving the van. This argument, in my view, is basically wrong, especially when there is specific classification as per the provisions of the Act, as amended by Act 47 of 1982. ( 19 ) ). Furthermore, in Exh. R-3, it is specifically mentioned that the original licence was issued to drive a light motor vehicle in the year 1977 which has been periodically renewed thereafter. When such is the case, it cannot be stated that there is no licence to drive the light motor vehicle. As stated earlier, even according to the counter filed by the insurance company before the Tribunal, autorickshaw falls under the category of light motor vehicle. In such circumstances, I do not find any merit in the submissions made by the counsel for the appellant. ( 20 ) ). There is yet another aspect of the matter. As stated earlier, even according to the counter filed by the insurance company before the Tribunal, autorickshaw falls under the category of light motor vehicle. In such circumstances, I do not find any merit in the submissions made by the counsel for the appellant. ( 20 ) ). There is yet another aspect of the matter. The insurance company relies upon the fact that there is a breach of the terms of the policy, inasmuch as the van involved in the accident was driven by the driver who was not authorised to drive the van and that such breach enables it to escape from the liability. ( 21 ) ). It is settled law that as long as it is the insurance company which asserts that there has been a breach of the terms of the policy, it is for it not merely to allege but also to prove that fact like any other fact. In this case, the breach of the terms of the policy relates to the appellants contention that the driver of the vehicle concerned did not have a valid licence to drive such vehicle. ( 22 ) ). In Narcinva V. Kamat v. Alfredo antonio Doe Martins, 1985 ACJ 397 (SC), the Supreme Court has laid down the principle that the onus is on the insurance company to prove that the driver had no licence to escape from its liability. ( 23 ) ). There is another additional feature which goes against the insurance company. The xerox copy of the driving licence, Exh. R-4, was sought to be marked through RW 1, an officer working in the appellant company. The claimants opposed to the marking of the said document on the ground that it was only a copy. ( 24 ) AS a matter of fact, in the cross-examination, a suggestion was put by the claimants as to the genuineness of Exh. R-4. When such an objection was raised, then the appellant insurance company must have taken steps by summoning the original document from the R. T. O. in order to show what kind of licence the driver of the vehicle concerned possesses in order to successfully contend that it had discharged its burden. But, this is not done. ( 25 ) MOREOVER, RW 1, an officer attached with the appellant insurance company, would speak about his investigation report, which has been marked as Exh. But, this is not done. ( 25 ) MOREOVER, RW 1, an officer attached with the appellant insurance company, would speak about his investigation report, which has been marked as Exh. R-l. In the said report, there is no reference about the fact that the driver was not having a driving licence to drive the van and that he was only having the driving licence to drive the autorickshaw. He would simply state in his deposition that he had obtained a statement from the said driver that he was having only driving licence to drive the autorickshaw. Admittedly, the said statement was not marked. No attempt was made by the appellant insurance company to examine the said driver before the Tribunal in order to support his statement. ( 26 ) A Division Bench of this court in new India Assurance Co. Ltd. v. C. B. Shankar, 1986 ACJ 82 (Madras), has ruled out as follows: "there could be no doubt, therefore, that in order to escape liability, not only it should be proved that the driver of the vehicle was not having a licence at the time of the accident, but also the insurance company should prove that the driver was disqualified from holding or obtaining a licence or never had any licence at all. Merely proving that on the date of the accident, the driver did not have a licence and that he pleaded guilty and was convicted in a criminal court itself is not enough to hold that the insurance company is not liable for the claims. The onus of proving that the driver of the vehicle never had a licence or was disqualified from holding a licence is on the insurance company. " ( 27 ) ). In the light of the above principles, I am of the view that the appellant insurance company has miserably failed to discharge its burden to establish that there cannot be any liability for the insurance company. ( 28 ) THE counsel for both the parties would cite very many authorities. But, in my view, those decisions would not apply to the present case, as the issues and facts in those cases are completely different. ( 29 ) IN such circumstances, I am of the considered opinion that there is no valid ground to interfere with the finding of the tribunal and as such, the appeal fails as devoid of merits. But, in my view, those decisions would not apply to the present case, as the issues and facts in those cases are completely different. ( 29 ) IN such circumstances, I am of the considered opinion that there is no valid ground to interfere with the finding of the tribunal and as such, the appeal fails as devoid of merits. ( 30 ) IN the result, the appeal is dismissed. No costs. Appeal dismissed.