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2004 DIGILAW 248 (JK)

National Insurance Co. Ltd. v. Tsering Dorjey

2004-08-26

R.C.GANDHI

body2004
Per R.C. Gandhi, J. These appeals have been filed against the common judgment and award dated 29.10.2003 passed by the Motor Accident Claims Tribunal Leh/ Ladakh (hereinafter referred to as "the Tribunal") in twenty claim petitions arising out of the same accident, wherein while allowing the claim petitions, compensation has been awarded to the claimants. The appeals have been consolidated and are being disposed of by this common order having involved common questions for adjudication. 2. On 26.6.2001 an accident took place at Khardanglo Leh near Indian Gate. The vehicle involved in the accident was 42 seats passenger bus bearing No. JK01-A 7387. Respondent No. 4 Lob Zang Zangpo was driving the bus at the time of the accident. The owner of the bus is Tashi Rigzin, respondent No. 3. The vehicle involved in the accident was insured with the National Insurance Company, the appellant. The claim petitions were filed on the ground that accident was caused due to the rash and negligent driving of respondent No. 4 On perusal of the pleadings of the parties, the following issues were framed 1. Whether the accident of the bus No. JK01-A 7387 a transport vehicle was caused due to the rash and negligent driving of the respondent No. 3 leading to the death of "deceased" on 27.6.2001 at Khardongla Leh. ? ... O.P.P. 2. Whether the petitioners are entitled to the payment of compensation, how much and from whom? O.P.P 3. Whether respondent No. 3 was not holding the valid driving license to drive a passenger bus on the date of accident, if so what is its effect? ... O.P.R. 1 4. Whether the vehicle No. JK01-A 7387 on the date of accident was being plied in violation of terms of insurance policy and conditions of the route permit as the bus was over loaded? ... O.P.R. 1 5. In case issue No. 4 is proved whether insurance company is not liable to pay any compensation to the petitioners?... O.P.R. 1 6. Relief. 3. Issue No. 1 and 2 have been decided by the Tribunal in favour of the claimants. Issue No. 3 has been decided holding that the driver was not having the valid license. O.P.R. 1 5. In case issue No. 4 is proved whether insurance company is not liable to pay any compensation to the petitioners?... O.P.R. 1 6. Relief. 3. Issue No. 1 and 2 have been decided by the Tribunal in favour of the claimants. Issue No. 3 has been decided holding that the driver was not having the valid license. Issue No. 4 and 5 have not been decided by the Tribunal on the ground that the liberty has been reserved to the appellants to file a separate case against the owner of the vehicle for recovery of the amount from them. 4. Aggrieved of the order of the Tribunal, the appellants have filed the appeal on two grounds viz (i) that the driver of the vehicle was not having an endorsement on the Driving Licence to ply the Passenger Service Vehicle, therefore, was not authorized in law to ply the vehicle involved in the accident and the appellants, therefore, cannot made liable to indemnify the claim and (ii) that the Tribunal is not justified after recording finding that the driver was not having a valid license and the appellant is at liberty to file a separate proceedings for recovery of the compensation paid to the third party by the appellant. It is stated that the Tribunal would have proceeded to recover the amount from the owner and the driver. 5. I have heard learned counsel for the parties and have perused the record. Mr. Kawoosa, learned counsel appearing on behalf of the appellant has drawn attention of the court on the finding recorded by the Tribunal with regard to issue No. 3. It is seen from the record that on appreciation of the evidence, the Tribunal has observed that the licence of the driver in the present case should contain(PSV) endorsement. While deciding the issue, the Tribunal observed that from the evidence adduced by the respondent it becomes clear that respondent No. 4 had no valid driving licence to ply the offending vehicle at the time of the accident. 6. The question as to whether PSV endorsement is required to be recorded on the driving licence, was an issue before this Court in a batch of CIMAs including CIMA No. 47/1998 which have been decided vide Judgment dated 10.6.2004. 6. The question as to whether PSV endorsement is required to be recorded on the driving licence, was an issue before this Court in a batch of CIMAs including CIMA No. 47/1998 which have been decided vide Judgment dated 10.6.2004. On appreciation of this issue, the court observed as under: "...The specific plea urged is that unless the Licensing Authority records an endorsement on the Driving License issued authorizing to ply Light Motor Vehicle or Heavy Motor Vehicle, to the extent to ply the Public Service Vehicle, the Driver, being not authorized, cannot ply Public Service Vehicle and for such action of the Driver and the owner, the appellant is not liable to indemnify the claim. 7. Mr. J. A. Kawoosa, learned counsel for the appellant, relying on Rule 4(l) (a) of the Jammu and Kashmir Motor Vehicle Rules, 1991 framed under the Motor Vehicle Act, 1998, has submitted that the driver having a light motor vehicle license or heavy transport vehicle license is not authorized to drive Public Service Vehicle without having any endorsement recorded by the competent authority on the said license to drive Public Service Vehicle which carries the passengers. The respondents to controvert this plea has relied upon the judgment of the Supreme Court reported in AIR 1999 SC 3181 with a view to impress upon the Court that it is not the license but the weight of the vehicle which determines the nature of the vehicle and, therefore, the driver having light motor vehicle license has not to meet the requirement of an endorsement as pleaded by the appellant. 8. Before dealing with these submissions it will be apt to advert to the relevant provisions of law. Section 2(10), 5.3 of Motor Vehicle Act and Rule 4(l)(a) of 1991 Rules relevant for the purposes are extracted below: "2(10) "Driving License" means the license issued by a competent authority under Chapter II authorizing the person specified therein to drive, otherwise obtain as a learner, motor vehicle or motor vehicle of any specified class or description." Sec. 3. Section 2(10), 5.3 of Motor Vehicle Act and Rule 4(l)(a) of 1991 Rules relevant for the purposes are extracted below: "2(10) "Driving License" means the license issued by a competent authority under Chapter II authorizing the person specified therein to drive, otherwise obtain as a learner, motor vehicle or motor vehicle of any specified class or description." Sec. 3. Necessity for driving license-(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him authorizing him to drive the vehicle; he holds an effective driving license issued to him authorizing and no person shall so drive a transport vehicle other than a motor cab or a motor cycle hired for his own use or rented under any scheme made under sub-section(2) of Sec. 75 unless his driving license specifically entitled him so to do. Rule 4. "Authorization to drive public service vehicle" (i)(a) No person shall drive a public service vehicle unless an authorization in the form aforesaid by the Central Government has been granted or countersigned by a licensing authority in the State." 9. The licensing authority under the Motor Vehicle Act has the jurisdiction to issue light motor vehicle and heavy motor vehicle license which are in issue in these appeals. Claimants are the victims of an accident wherein plying public service vehicle driven by a Driver possessed of a License to drive Light Motor Vehicle is involved. 10. The point for consideration is as to whether the driver possessing light motor vehicle license or heavy motor vehicle license/ heavy transport vehicle license can drive public service vehicle, also without any endorsement recorded on the license by the licensing authority, as stipulated by Rule 4(i)(a) of the Rules. While dealing with such a plea, the Supreme Court in case Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd. reported in AIR 1999 SC 3181 observed as under: "In the present case, the insurer alleged that the appellant had committed breach of the terms of the insurance policy and had violated the provisions of the Act by entrusting a "transport vehicle" to a person who did not hold a valid license and the insurer was, not liable to indemnify appellant. Under the policy firstly light motor vehicle meant the gross weight of which did not exceed 6,000 kilograms and secondly against the column "driver" the policy stated. Under the policy firstly light motor vehicle meant the gross weight of which did not exceed 6,000 kilograms and secondly against the column "driver" the policy stated. Drivers clause":- Persons or classes of persons entitled to drive- any person including the insured. "Provided that a person driving holding an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license. Provided also that if a person holding an effective learners license may also drive the vehicle when not used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicle Rules, 1999" 11. Now the vehicle in the present case weighed 5,920 kilograms and the driver had the driving license to drive alight motor vehicle. It is not that, therefore, that insurance policy covered a transport vehicle which meant a goods carriage. The whole case of the insurer has been built on a wrong premise. It is itself the case of the insurer that in the case of the light motor vehicle which is a non transport vehicle, there was no statutory requirement to have specific authorization on the license of the driver under form 6 under the Rules. It had, therefore, to be held that Jadhav was holding effective valid license on the date of accident to drive light motor vehicle bearing registration No. KA-38-567." 12. The Himachal Pradesh High Court while dealing with such a plea did not hold the appellant liable to indemnify the claim where the license does not contain the endorsement of authorizing him to drive public service vehicle. The court in case New India Assurance C. Ltd. v. Suraj Prakash, reported in AIR 2000 HP 91 held as: "Section 3(l) of the Motor Vehicles Act, 1988 stipulated that no person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him to drive the vehicle and that no person shall 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 section 75(2) of the Act, unless his driving license specifically entitled him so to do. Section 2(47) defines transport vehicle to mean a public service vehicle, a goods carriage, an educational institutions bus or a private service vehicle. Therefore, the vehicle in question answer the description of public service vehicle even on the materials disclosed on record. The conclusion of the Tribunal below to the contra is indicative of non application of mind to a valid and relevant piece of material on record. In as much as EX.R-1 driving license does not contain any specific endorsement to drive a transport vehicle, the driver who drove the vehicle at the time of accident must be held to be no possessed of a valid and effective driving license. The mandatory requirement of Sec. 3(l) having not been satisfied by the driver, in not holding a license to drive with a specific endorsement to drive the transport vehicle (public Service vehicle) such a conclusion has become inevitable on the facts of the case. The reliance placed upon the decision reported in AIR 1999 SC 3181 (1999) 6 SCC 620 (supra) by the respondents is of no avail. Their Lordships of the Apex Court in that case arrived at the conclusion to hold the Insurance Company liable only on account of the peculiar facts of the case- in that there was neither any evidence therein nor was there any claim for the insurer that the vehicle concerned therein was having a permit for goods carriage or that it had a permit or authorization for plying the vehicle as a transport vehicle." 13. The driver authorized by the licensing authority to drive a particular class of vehicle can drive the said particular vehicle in law. While framing rules under the Act, specific care has been taken in this respect and for this purpose rule 4 has been framed and incorporated in the Rules. Rule 4 is mandatory in character as the word "shall" has been used. It envisages that no person shall drive the public service vehicle unless an authorization has been granted by the Central Government or countersigned by the licensing authority in the State. 14. It qualifies that if an authorization has not been granted, the driver is no authorized to drive Public Service Vehicle. If the finding of the/Tribunal is accepted, the mandate of this law contained in Rule 4 would become redundant. 14. It qualifies that if an authorization has not been granted, the driver is no authorized to drive Public Service Vehicle. If the finding of the/Tribunal is accepted, the mandate of this law contained in Rule 4 would become redundant. License to drive the heavy goods vehicle does not authorize the driver to drive public service vehicle unless there is an endorsement recorded therein in terms of Rule 4 (supra). The driving license has reference to the particular transport vehicle. The finding of the Tribunal when touched on this touch stone of law, cannot be maintained. It is, therefore, held that the driver for plying public service vehicle should hold a license with the authorization recorded on the License either by the /Central Government or by the licensing authority in the State to drive Public Service Vehicle..." 15. The other ground urged by Mr. Kawoosa that the Tribunal after having recorded the finding that the driver was not having the valid license and that the appellant is liable to indemnify the claim to the third party having observed so, the Tribunal should not have directed the appellant to institute a separate case against the owner of the vehicle for recovery of the amount. His submission is that such a direction, is illegal being against law settled by the Supreme Court. In support of his plea he has drawn the attention of the court on the finding recorded by the Tribunal. The Tribunal holding that the driver was not having the valid licence to ply the offending vehicle made the following observation to recover the amount from the owner "From the evidence adduced by the respondent No. 1 it becomes clear that respondent No. 2 had no valid driving licence to ply the offending vehicle at the time of the accident. Finding on this point is accordingly recorded. Now, what has to be its effect on the fate of the claim petition is not to be seen here. Since the respondent No. 1 has been given the liberty to file a separate case against the owner of the vehicle, effect of invalid driving license of the driver of vehicle will be seen in that separate case and not in present case." It has also been proved that the vehicle at the time of accident was carrying 97 passengers whereas it was meant to carry 42 passengers. The over loading not only in the vehicle but also on the roof of the vehicle to this extent can also be a fundamental and negligent factor contributing to the cause of accident, resulting into the death of twenty passengers. 16. The Tribunal after holding that the driving licence was not valid has come to the conclusion that the appellant may file a separate proceedings for recovery of the amount from the owner. This finding of the Tribunal is erroneous and against the law. How the claim money is required to be recovered from the owner in such circumstances, is not res-integra. Dealing with similar proposition of law, the Apex Court pronounced as to what is required to be done by the Tribunal in such case. In case National Insurance Company Ltd. v. Swaran Singh, AIR 2004 SC 1531, the Supreme Court observed in para No. 10 as under:- "Where an adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Sections 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal such determination of the claim by the Tribunal will be enforceable and the money found due to insurer from the insured will be recoverable on the certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue only if, as required by sub section (3) Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal." In case Oriental Insurance Co. Ltd v. Nanjappan reported in AIR 2004 SC 1631, Apex Court in para No. 8 held as under: "Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaurs case (supra) that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondents- claimants within three months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding 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 against the owner and in favour of the insurer. Before release of the amount the insured, owner of the vehicle shall be issued a notice and he shall be required to furnished security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall 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 shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties or the owner of the vehicle, the insured." 17. The observation of the Tribunal in view of the aforesaid settled law cannot be maintained. The Tribunal has to proceed for recovery of the compensation from the owner as pronounced by the Apex Court. The findings to that extent for direction to file a separate case are set aside. The appeals are allowed to that extent directing the Tribunal to proceed in terms of the judgments of the Supreme Court for recovery of the compensation in favour of the appellant. 18. So far as issue No. 4 and 5 are concerned, since the appellant is succeeding on issue No. 3, there is no need to record findings on issue No. 4 and 5. 19. Appeals are accordingly, disposed of.