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2004 DIGILAW 739 (MP)

National Insurance Co. Ltd. v. Shankarlal

2004-09-03

S.P.KHARE, UMA NATH SINGH

body2004
JUDGMENT This is an appeal under Clause 10 of the Letters Patent against the order dated 11.8.1999 in M.A. No. 328 of 1999 by which the appeal of the Insurance Company under section 173 of the Motor Vehicles Act, 1988 (hereinafter to be referred to as 'the Act') has been dismissed. The Claims Tribunal held that respondent No. 2 Rajendra was the owner and driver of Tempo No. MP-14-G-3775 on 18.3.1996, he drove it rashly and negligently causing grievous injuries to respondent No. 1 Shankarlal and this vehicle was insured with appellant National Insurance Company Limited. An amount of Rs. 23,000/- has been awarded as compensation to the claimant. The Insurance Company has also been held liable to pay this amount. On appeal by the Insurance Company the Single Bench Upheld the view taken by the Tribunal. Respondent No. 1 Rajendra was having the licence to drive 'light motor vehicle' but he was driving the tempo which is a 'transport vehicle' when the accident took place. Reliance has been placed upon the Division Bench decision in Mohd. Karim Khan v. Shamsher Khan, 1999 (2) Vidhi Bhasvar 8 = 1999 (1) MPLJ 549 in which it has been held that the definition of the 'light motor vehicle' includes a transport vehicle and therefore the Insurance Company cannot escape the liability on the plea that there was no endorsement on the licence authorising the driver to drive transport vehicle as required by Section 3 of the Act. It is pointed out that Section 10 does not speak of any endorsement. The learned counsel for the appellant cited the orders dated 6.10.1999 in M.A. No. 818 of 1997 and dated 12.10.1999 in Mahesh Kumar v. Hari Shankar, M.A. No. 314 of 1999 ( 2001 ACJ 2071 ) in which it has been held that as per latter part of Section 3 no person can drive a transport vehicle 'unless his driving licence specifically entitles him to do so' and therefore there is breach of the condition of the Insurance Policy and argued that in such a situation no liability can be fastened on the insurance company to satisfy the award. On the other hand the counsel for the respondents has placed reliance upon the decision of the Supreme Court in Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., AIR 1999 SC 3181 . On the other hand the counsel for the respondents has placed reliance upon the decision of the Supreme Court in Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., AIR 1999 SC 3181 . In this case the driver had the licence to drive 'light motor vehicle' in Form No.6. There was no endorsement on his driving licence authorising him to drive transport vehicle. The Insurance Company was held liable as there is no statutory requirement to have specific authorisation on the licence of the driver. Recently in New India Assurance Company Ltd. v. Smt. Rekha, 2004 (3) MPLJ 291 (August issue) both the views have been considered. In that case a jeep was being used as a Taxi and the driver had the licence to drive the 'light motor vehicle' without the endorsement authorising him to drive transport vehicle. It has been held that it is clear that vehicle in question was a Jeep, which is admittedly a 'light motor vehicle'. It was used as a taxi at the relevant time. No different tests have been prescribed for driving the private light motor vehicle or motor vehicle used for carrying passengers. The transport vehicle itself covers private service vehicle and public service vehicle both in its ambit as defined in section 2 (47) of the Motor Vehicles Act. Driver possessed a valid driving licence and considering the definition of Light Motor Vehicle and transport vehicle, driver had the licence to drive the vehicle, which he was driving. It is clear that driver could carry the persons in his vehicle as per licence possessed. Whether those persons had paid the fare is wholly irrelevant for determining the validity of the licence possessed by the driver. No different tests are preacribed for driving the vehicle. It is not the case of goods vehicle being plied as passengers vehicle or passenger vehicle being plied as goods vehicle. There is no breach. Insurer liable to pay compensation. The decision in Mahesh Kumar's case (supra) has been held to be no longer good law in view of the Supreme Court case referred above. In the three-judge Supreme Court decision in National Insurance Co. There is no breach. Insurer liable to pay compensation. The decision in Mahesh Kumar's case (supra) has been held to be no longer good law in view of the Supreme Court case referred above. In the three-judge Supreme Court decision in National Insurance Co. Ltd. v. Swaran Singh 2005 (1) JLJ 85 = 2004 ACJ 1 = AIR 2004 SC 1531 it has been observed in para 36 : "We may also take note of the fact that whereas in section 3 the words used are 'effective licence', it has been differently worded in section 149 (2), i.e., 'duly licensed', If a person does not hold an effective licence as on the date of the accident, he may be liable for prosecution in terms of section 181 of the Act but section 149 pertains to insurance as regard third party risks." Again in para 38 it is said: ''The words 'effective licence' used in section 3, therefore, in our opinion, cannot be imported for sub-section (2) of section 149 of Motor Vehicles Act. We must also notice that the words 'duly licensed' used in sub-section (2) of section 149 are used in past tense." In para 81 it has been held: "Section 10 of the Act provides for forms and contents of licences to drive. The licence has to be granted in the prescribed form. Thus, a licence to drive a light motor vehicle would entitle the holder to drive the vehicle falling within that class or description." In para 102 the "summary of finding' has been recorded. As per clause (vi) of this summary: 'Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insurer under section 149 (2) of the Act. The Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insurer under section 149 (2) of the Act. In view of the above discussion the correct legal position is that a person holding a licence to drive 'light motor vehicle' as defined in Section 2 (21) has the authority to drive a transport vehicle of the description given in Section 2 (21). Any person who has the licence under section 10 to drive the light motor vehicle would be deemed to have the authority to drive, transport vehicle not exceeding 7,500 Kgs. in weight. Such a transport vehicle can also be a public service vehicle as defined in Section 2 (35). The Insurance Company would not be exonerated from its liability under section 149 (2) (a) merely because the licence does not bear the endorsement required by the latter part of Section 3 of the Act. There would be no breach of the condition specified in Section 149 (2) (a) (ii) and at any rate that would not amount to 'fundamental breach' within the meaning of the words used in para 102 (vi) in Swaran Singh's case. Lack of the endorsement on the licence would not render the person holding a valid licence as 'person who is not duly licensed. The impugned order is unassailable. The appeal is dismissed.