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2000 DIGILAW 536 (KAR)

M. KUTTUPPAN v. K. P. RADHA

2000-07-28

H.N.TILHARI, T.N.VALLINAYAGAM

body2000
TILHARI, J. ( 1 ) THIS appeal arises from the judgment and award dated 21. 1. 1994 delivered by the Motor Accidents Claims tribunal, Kolar (Principal District Judge, kolar) whereby the Tribunal has awarded compensation to the tune of Rs. 2,49,016 less interim relief, with interest at the rate of 9 per cent per annum from the date of petition till the date of deposit. The Tribunal further found that the insurance company is not liable for payment of compensation amount. Feeling aggrieved from the judgment and award of the Tribunal, the owner of the vehicle, namely, vehicle bearing No. CKN 4730 has come up in appeal. ( 2 ) THE facts of the case in nutshell are that on the fateful day, i. e. , 8,9. 1990 at about 8 p. m. , the deceased and the appellant were moving on the scooter in question and according to the claimants' case, the deceased was the pillion rider and the present appellant, who was respondent No. 1 before the Tribunal, was the driver of the scooter. According to the claimants' case, the present appellant, i. e. , respondent No. 1 before the Tribunal was driving the scooter in a rash and negligent manner and as a result thereof, he lost control of the vehicle and the vehicle turned upside down. As a result of which, the pillion rider sustained fatal head injury and he was shifted to BEML Hospital and thereafter he was shifted to Civil Hospital, KGF and was given the first aid and thereafter he was shifted to NIMHANS Hospital. But, in spite of all these treatments, C. V. Gopalan nambiyar (the deceased) breathed his last on 15. 9. 1990 and died an untimely death. The claimants asserted that the accident had taken place on account of rash and negligent driving of the scooter by the respondent No. 1 before the Tribunal, i. e. , present appellant. The claimants, therefore, claimed a sum of Rs. 3,60,000 with interest at the rate of 12 per cent per annum and costs. ( 3 ) THE written statement was filed on behalf of the present appellant as well as by the insurance company. They denied the case alleged in the claim petition and according to the case of the present appellant, who was respondent No. 1 before the tribunal, the claim petition was not maintainable. ( 3 ) THE written statement was filed on behalf of the present appellant as well as by the insurance company. They denied the case alleged in the claim petition and according to the case of the present appellant, who was respondent No. 1 before the tribunal, the claim petition was not maintainable. It was further asserted that the vehicle in question was being driven by the deceased and the accident, no doubt, did take place because the deceased had driven the vehicle in a rash and negligent manner. No doubt, it was admitted by the respondent No. 1 that after the deceased got injured, he was referred to NIMHANS hospital. The respondent No. 1 further alleged that the claim which was made was excessive and that the deceased who, according to the case of the respondents, had driven the scooter in question was under the influence of alcohol. The respondent No. 2, insurance company, also filed its objections and the respondent No. 2 took a plea that the insurance policy did not cover the risk of pillion rider. It was further alleged that the scooter was not insured on the date of accident and that the rider had no valid driving licence. The respondents also alleged that the claim of compensation was excessive and exorbitant and the petition should be dismissed. ( 4 ) ON the basis of the pleadings of the parties, the Tribunal framed the following issues: (1) Whether the petitioners prove that they are the legal representatives of c. V. Gopalan Nambiyar, who died as a result of injuries in a motor vehicle accident? (2) Do they further prove that the said gopalan Nambiyar met with a motor accident on 8. 9. 1990 at about 8 p. m. at beml Nagar, KGF, due to rash and negligent driving of the driver of the scooter No. CKN 4730 on which the deceased was a pillion rider? (3) Whether the respondent No. 1 proves it was the deceased who was riding the scooter in question and was responsible for the accident? (4) Whether the respondent No. 2 proves that it is not liable to pay any compensation as per the terms and conditions of the policy as contended at para 2 of the written statement? (5) What order? (4) Whether the respondent No. 2 proves that it is not liable to pay any compensation as per the terms and conditions of the policy as contended at para 2 of the written statement? (5) What order? ( 5 ) THE Tribunal held that the claimant before it was none else but wife of the deceased and so she is entitled to maintain the petition. It further found that at the material time and on the date concerned, the vehicle in question was being driven by respondent No. 1 in the claim petition, namely, M. Kuttuppan, present appellant. It held that the defendant, i. e. , the respondent No. 1 before the Tribunal, namely, the present appellant failed to prove that the deceased was the driver of the scooter in question or that he was responsible for the accident. After having recorded these findings, the Tribunal assessed the compensation under various heads and awarded compensation in total to the tune of rs. 2,49,016 with costs and interest at 9 per cent. The Tribunal found that the pillion rider was not covered by the insurance policy on the date of accident and the respondent No. 1 M. Kuttuppan had no valid driving licence and as such, it exonerated the respondent No. 2 before it, i. e. , the insurance company from the liability to pay the compensation. It ordered that compensation is payable only by the owner of the scooter, i. e. , the present appellant. Feeling aggrieved and dissatisfied with the award as mentioned, the owner of the vehicle has come up in appeal. ( 6 ) WE have heard Mr. K. Suman assisted by Ms. Annapurna, learned counsel for the appellant, as well as Mr. A. M. Venkatesh, learned counsel for respondent No. 5 and Mrs. Suguna, learned counsel for respondent Nos. 1 to 4. ( 7 ) THE learned counsel for the appellant raised two contentions. Firstly, the learned counsel for the appellant contended that the Tribunal has erred in fastening the liability for payment of compensation on the appellant and in not fastening the liability for payment of compensation on the insurance company. The learned counsel contended that there is no dispute that the vehicle in question was insured and, therefore, liability should have been fastened on the insurance company. The learned counsel contended that it is wrong to say that the appellant had no driving licence. The learned counsel contended that there is no dispute that the vehicle in question was insured and, therefore, liability should have been fastened on the insurance company. The learned counsel contended that it is wrong to say that the appellant had no driving licence. No doubt a driving licence had been tried to be filed here in this court along with an application under Order 41, rule 27. Even if we allow that application, that licence will be of no help or assistance to the applicant as that licence had been issued on 4. 10. 1990 and had been valid up to 3. 10. 1995. The accident in question in the present case had taken place on 8. 9. 1990. It means the accident had taken place earlier to issuing of the driving licence. The learned counsel contended that there is evidence that the appellant had licence, namely, the learner's licence. The learned counsel invited our attention to the statement of RW 1 made in the course of cross-examination. We accept that statement that the appellant had the learner's licence. The question before the court is, whether the learner's licence can be deemed and considered to be a driving licence and whether a learner is entitled to carry on any person as a pillion rider? Their Lordships of the Supreme Court in the case of new India Assurance Co. Ltd. v. Mandar madhav Tambe, 1996 ACJ 253 (SC), have been pleased to lay down that a learner's licence may not be taken to be permanent or temporary driving licence because in chapter 2 under which the driving licence is issued does not make any mention of a learner's licence except section 21 of the old Act. The court, therefore, opined that the learner's licence which is issued is not a driving licence. We may quote section 8 of the Act. "section 8. The court, therefore, opined that the learner's licence which is issued is not a driving licence. We may quote section 8 of the Act. "section 8. Grant of learner's licence, (1) Any person who is not disqualified under section 4 for driving a motor vehicle and who is not for the time being disqualified for holding or obtaining a driving licence may, subject to the provisions of section 7, apply to the licensing authority having jurisdiction in the area (i) in which he ordinarily resides or carries on business, or (ii) in which the school or establishment referred to in section 12 from where he intends to receive instruction in driving a motor vehicle is situate, for the issue to him of a learner's licence. (2) Every application under sub-section (1) shall be in such form and shall be accompanied by such documents and with such fee as may be prescribed by the Central Government. (3) Every application under sub-section (1) shall be accompanied by a medical certificate in such form as may be prescribed by the Central Government and signed by such registered medical practitioner, as the State Government or any person authorized in this behalf by the state Government may, by notification in the Official Gazette, appoint for this purpose: (Provided that no such medical certificate is required for licence to drive a vehicle other than a transport vehicle ). (4) If, from the application or from the medical certificate referred to in subsection (3), it appears that the applicant is suffering from any disease or disability which is likely to cause the driving by him of a motor vehicle of the class which he would be authorised by the learner's licence applied for to drive to be a source of danger to the public or to the passengers, the licensing authority shall refuse to issue the learner's licence: provided that a learner's licence limited to driving an invalid carriage may be issued to the applicant, if the licensing authority is satisfied that he is fit to drive such a carriage. (5) No learner's licence shall be issued to any applicant unless he passes to the satisfaction of the licensing authority such test as may be prescribed by the central Government. (5) No learner's licence shall be issued to any applicant unless he passes to the satisfaction of the licensing authority such test as may be prescribed by the central Government. (6) When an application has been duly made to the appropriate licensing authority and the applicant has satisfied such authority of his physical fitness under sub-section (3) and has passed to the satisfaction of the licensing authority the test referred to in sub-section (5), the licensing authority shall, subject to the provisions of section 7, issue the applicant a learner's licence unless the applicant is disqualified under section 4 for driving a motor vehicle or is for the time being disqualified for holding or obtaining a licence to drive a motor vehicle: provided that a licensing authority may issue a learner's licence to drive a motor cycle or a light motor vehicle notwithstanding that it is not the appropriate licensing authority, if such authority is satisfied that there is good reason for the applicant's inability to apply to the appropriate licensing authority. (7) Where the Central Government is satisfied that it is necessary or expedient so to do, it may, by rules made in this behalf, exempt generally, either absolutely or subject to such conditions as may be specified in the rules, any class of persons from the provisions of sub-section (3), or sub-section (5), or both. (8) Any learner's licence for driving a motor cycle in force immediately before the commencement of this Act shall, after such commencement, be deemed to be effective for driving a motor cycle with or without gear. " section 8 provides for grant of learner's licence. The learner's licence is granted under section 8 of the Motor Vehicles Act, 1988 while the provisions of section 9 of the Motor Vehicles Act, 1988 provide for grant of driving licence. Under the new act, the definition of driving licence has been given vide section 2 (10): "section 2 (10 ). 'driving licence' means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner a motor vehicle or a motor vehicle of any specified class or description. " (Emphasis added) a reading of section 2 (10) in the light of sections 8 and 9 clearly reveals that a learner's licence cannot be deemed nor be considered to be a driving licence. " (Emphasis added) a reading of section 2 (10) in the light of sections 8 and 9 clearly reveals that a learner's licence cannot be deemed nor be considered to be a driving licence. The question is what rights a learner gets when a learner's licence is issued to him? Issuance of learner's licence is no doubt subject to the provisions of the Act and the rules. Chapter II of Central Motor Vehicles Rules deals with licensing of driver of motor vehicles. Rule 3 of Central Motor vehicles Rules, 1989 reads as under: "rule 3. General. The provisions of sub-section (1) of section 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 (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 red on a white background as under (omitted) note. The painting on the vehicle or on the plate or card shall not be less than 18 centimetres square and the letter 'l' shall not be less than 10 centimetres high, 2 centimetres thick and 9 centimetres wide at the bottom: provided that a person while receiving instructions or gaining experience in driving a motor cycle (with or without a side-car attached) shall not carry any other person on the motor cycle except for the purpose and in the manner referred to in clause (b ). " a perusal of proviso to rule 3 very clearly provides that a person receiving instructions or gaining experience in driving a motor cycle, with or without a side-car attached, he shall not carry any other person on the motor cycle except for the purpose and in the manner referred to in clause (b) of rule 3, and rule 3 (b) only permits that such person who is holding a learner's licence, can be accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor should sit in such a position as to control and stop the vehicle. A perusal of section 8 also reveals that rules that relate to learner's licence can be made by Central Government and section 8 (5) clearly provides that no learner's licence shall be issued to any applicant unless he passes to the satisfaction of the licensing authority such test as may be prescribed by Central Government and sub-section (2) also provides that the application for grant of learner's licence shall be in such form and shall be accompanied by documents and with such fee as may be prescribed by the Central government. This reveals that rules in this regard could be made by the Central government. In this view of the matter, rules made by the Central Government, in the light of Motor Vehicles Act, control the grant of learner's licence and it is granted subject to the provisions of rules framed by the Central Government. That being the position, there being a specific prohibition against a learner to take any person as the pillion rider, except the instructor and subject to the purpose and manner specified in rule 3 (b), he cannot carry any other person as a pillion rider. Therefore, the appellant had not been authorised to take or to allow the deceased on his motor vehicle to sit as a pillion rider. That being the position, in terms of the conditions of the policy also, it can be said that it has rightly been held that there has been no liability of the insurance company for payment of compensation. The finding recorded by the Tribunal is correct and the first contention of the appellant's counsel is without force. That being the position, in terms of the conditions of the policy also, it can be said that it has rightly been held that there has been no liability of the insurance company for payment of compensation. The finding recorded by the Tribunal is correct and the first contention of the appellant's counsel is without force. ( 8 ) THE second contention of the appel lant has been that the finding of the Tribunal that the appellant was the rider who had driven the vehicle is erroneous and wrong. The evidence of PW 1 has been relied along with the circumstantial evidence. Learned counsel for the appellant contended that so far as the evidence of pw 1 is only hearsay. She was not present and she only came to know from other sources. The learned counsel for the appellant referred to the statement from line four which reads as under: "i came to know at the time of the accident, he was coming to the house as pillion rider on the scooter of his friend m. Kuttuppan, respondent No. 1. I was told it was coming with high speed and deceased fell down and sustained head injuries. " the learned counsel contended that this was the statement which she had made on the basis of the information. He contended that if one Gopalakrishna had informed her about the accident, then he should have been examined. There might be some force in the contention of the learned counsel for the appellant. But PW 2 who is a witness of the accident had clearly stated that he had seen the accident and statement of PW 2 appears to be reliable. His statement is:"while I was returning, I saw two persons coming on the scooter at a high speed. There is a bus-stop in between 'a' type and 'b' type quarters. After 50 feet I heard a sound. I went near to the spot. I noticed, the scooter had fallen on the ground. I came to know Kuttuppan was driving the vehicle. The pillion rider has fallen on his back sustaining grievous head injuries. "this clearly indicates that the pillion rider was the person who had died and he states that the pillion rider had fallen on his back. Apart from that, if RW 1 and RW 2 were present, they did not lodge any report with the police. The pillion rider has fallen on his back sustaining grievous head injuries. "this clearly indicates that the pillion rider was the person who had died and he states that the pillion rider had fallen on his back. Apart from that, if RW 1 and RW 2 were present, they did not lodge any report with the police. Further the report of the accident was lodged by one R. J. Subramanyam who came to know about the accident. In f. I. R. it has also been clearly mentioned that at the time of accident it was being driven by Kuttuppan. The circumstantial evidence and the material evidence which had been relied upon by the trial court in greater detail really supports the claimants/ respondents' case and clearly disproves the case taken by the defendant/present appellant. In our view, the finding recorded by the trial court on this aspect of the matter appears to be quite justified and it does not call for any interference. No other contention had been raised on behalf of the appellant. The appeal, as such, being devoid of merits, is hereby dismissed with costs. Interlocutory application under Order 41, rule 27 of Civil Procedure Code in view of above observations is rejected. Appeal dismissed. --- *** --- .