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2011 DIGILAW 2367 (HP)

NEW INDIA ASSURANCE COMPANY LTD. v. URJA GALE @ URJA BAHADUR

2011-08-04

DEEPAK GUPTA

body2011
JUDGMENT : Deepak Gupta, J. This appeal by the Insurance Company is directed against the award of the learned Motor Accident Claims Tribunal, Kullu dated 31.5.2007, whereby he held the Insurance Company liable to pay the compensation. The main appeal of the Insurance Company is that the driver of the vehicle did not have a valid driving licence to drive the same. 2. The undisputed facts are that the vehicle in question is registered as a Light Goods Vehicle vide registration number Ex. RA. Therefore, it is a transport vehicle. The vehicle is a Mahindra goods vehicle. In the endorsement made on the license, it is mentioned "valid for tractor only". However, thereafter, there is another line added "+ LTV also". The learned Tribunal held that the license was valid for light transport vehicle also. The learned Tribunal also came to the conclusion that since the vehicle was a light motor vehicle, the Insurance Company had to be liable to pay the compensation. 3. The question that arises is whether the words "+LTV" on the driving licence have been incorporated by way of forgery or not. RW-1 Mohar Singh is the Licensing Clerk from the Office of the SDM, Kullu. According to him, the licence issued in favour of the driver, i.e. licence No. 21640K was issued on 27.9.2003 and was issued only for driving a tractor. It was valid for a period of three years only. According to him, the endorsement that 'valid for tractor and LTV only' has not been written by their office. However, in his cross examination, he admitted that in Ex. RC the words 'valid for tractor' were written in his hand, but stated that the words ' +LTV' were not written by him. Neither the owner nor the driver stepped into the witness box. The statement of RW-1 clearly shows that the words ' +LTV' were not written by him. They appear to have been incorporated later on. Once the witness has stated that he had not made the endorsement, the driver should have appeared in the witness box to explain how this endorsement was made. Therefore, it is apparent that the license of the driver did not have a valid endorsement permitting him to drive a transport vehicle. 4. They appear to have been incorporated later on. Once the witness has stated that he had not made the endorsement, the driver should have appeared in the witness box to explain how this endorsement was made. Therefore, it is apparent that the license of the driver did not have a valid endorsement permitting him to drive a transport vehicle. 4. The question whether a person holding a licence to drive a Light Motor Vehicle is entitled or not entitled to drive a transport vehicle has been the subject matter of a number of decisions. 5. A Full Bench of this Court dealt with a similar question and disposed of the reference in view of the judgments of the Apex Court rendered in National Insurance Co. Ltd. Vs. Kusum Rai and Others, (2006) 4 SCC 250 , & National Insurance Company Ltd. Vs. Annappa Irappa Nesaria and Others, (2008) 3 SCC 464 . 6. It is contended by Mr. Sanjeev Sood, Advocate that the present case is squarely covered by the judgment rendered in Annappa Irappa's case. On the other hand the contention of Mr. B.S. Attri and Mr. V.S. Chauhan, Advocates, is that the case is squarely covered by Kusum Rai's case. 7. In Kusum Rai's case (supra) the Apex Court was dealing with the question as to whether the Insurance Company could be held liable in a case where the driver driving the taxi, a commercial vehicle, did not hold a driving licence entitling him to drive a commercial vehicle. In para 11, the Apex Court held as follows: 11. It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefor. Ram Lal who allegedly was driving the said vehicle at the relevant time, as noticed hereinbefore, was holder of a licence to drive a Light Motor Vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The Appellant, therefore, could raise the said defence. 8. Thereafter, the Apex Court in New India Assurance Company Ltd. v. Prabhu Lal (2008) 1 SCC 696 , also took a similar view. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The Appellant, therefore, could raise the said defence. 8. Thereafter, the Apex Court in New India Assurance Company Ltd. v. Prabhu Lal (2008) 1 SCC 696 , also took a similar view. However, it would be pertinent to mention that, that this case arose out of proceedings under the Consumer Protection Act. The Apex Court in that case held as follows: 33. In our considered view, the State Commission was wrong in reversing the finding recorded by the District Forum. So far as Ashok Gangadhar is concerned, we will deal with the said decision little later but from the documentary evidence on record and particularly, from the permit issued by the Transport Authority, it is amply clear that the vehicle was a 'goods carrier' [Section 2(14)]. If it is so, obviously, it was a 'transport vehicle' falling under Clause (47) of Section 2 of the Act. The District Forum was, therefore, right in considering the question of liability of the Insurance Company on the basis that Tata 709 which met with an accident was 'transport vehicle'. xxx xxx xxx 38. We find considerable force in the submission of the learned Counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under Clause (47) of Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To us, therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle in question. xxx xxx xxx 41. In our judgment, Ashok Gangadhar did not lay down that the driver holding licence to drive a Light Motor Vehicle need not have an endorsement to drive transport vehicle and yet he can drive such vehicle. xxx xxx xxx 41. In our judgment, Ashok Gangadhar did not lay down that the driver holding licence to drive a Light Motor Vehicle need not have an endorsement to drive transport vehicle and yet he can drive such vehicle. It was on the peculiar facts of the case, as the Insurance Company neither pleaded nor proved that the vehicle was transport vehicle by placing on record the permit issued by the Transport Authority that the Insurance Company was held liable. 9. If the matter had ended here the case could have been decided very easily but the Apex court in National Insurance Company Ltd. Vs. Annappa Irappa Nesaria and Others, (2008) 3 SCC 464 , has not only considered these points but also considered the effect of the amendment made in the Motor Vehicles Act. After considering the entire law the Apex Court held as follows: 20. From what has been noticed hereinbefore, it is evident that 'transport vehicle' has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time, to cover both, 'light passenger carriage vehicle' and 'light goods carriage vehicle'. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well. 21. The amendments carried out in the Rules having a prospective operation, the licence held by the driver of the vehicle in question cannot be said to be invalid in law. 10. The Apex Court therefore held that w.e.f. 28.3.2001 a specific endorsement to drive a transport vehicle is necessary but prior to that date such endorsement was not necessary since a light motor vehicle in its definition as it existed prior to said date included a light transport vehicle. It is thus obvious that the endorsement is required only after 28.3.2001. 11. In Oriental Insurance Co. Ltd. Vs. Angad Kol and Others, (2009) 11 SCC 356 , the Apex Court again held that when a driver is given a licence to drive a Light Motor Vehicle (LMV) it would include in its ambit both transport and non-transport vehicles. The Apex Court further went on to hold that for the licence to be effective it should be expressly stated or it should be clearly implied that the licence is valid to drive a transport or non-transport vehicle. The Apex Court further went on to hold that for the licence to be effective it should be expressly stated or it should be clearly implied that the licence is valid to drive a transport or non-transport vehicle. In that case, the licence had been issued for LMV only and was valid for 20 years. The Apex Court held that this means that the licence had been issued for a non-transport vehicle since a licence for a transport vehicle could only be issued for only three years at a time. It, therefore, went on to hold that the driver did not hold a valid and effective driving licence to drive a transport vehicle. 12. Therefore, following the decision of the Apex Court in National Insurance Company Ltd. Vs. Annappa Irappa Nesaria and Others, (2008) 3 SCC 464 , it is held that the Insurance Company is not liable to indemnify the insured and is not liable to pay the amount of compensation since the accident in the present case occurred after 29.3.2001. 13. The second question raised before me is whether the insurance company should be asked to satisfy the award and recover the amount from the insured. 14. Mr. B.S. Attri, learned Counsel for the claimants, has placed reliance on the judgment of the Apex Court in Kusum Lata and Others Vs. Satbir and Others, (2011) 3 SCC 646 , relevant portion of which reads as follows : x x x 13. In respect of the dispute about licence, the Tribunal has held and, in our view rightly, that the Insurance Company has to pay and then may recover it from the owner of the vehicle. This Court is affirming that direction in view of the principles laid down by a three-Judge Bench of this Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, (2004) 3 SCC 297 . 14. The appeal is, therefore, allowed. The judgments of the Tribunal and the High Court are set aside. The Insurance Company is to pay the aforesaid amount in the form of a bank draft in the name of Appellant No. 1 with interest as aforesaid within a period of six weeks from date and deposit the same in the Tribunal. This direction should be strictly complied with by the Insurance Company. x x x 15. On the other hand Mr. This direction should be strictly complied with by the Insurance Company. x x x 15. On the other hand Mr. Sanjeev Sood, learned Counsel for the Appellant has relied upon a judgment delivered by this Court itself in The Oriental Insurance Company Ltd. v. Smt. Meera and Ors. Latest HLJ 2010 (HP) 156 wherein this Court held that this Court cannot direct the insurance company to satisfy the award once it has not been held liable. The reasoning given by this Court was based on the judgment of the apex Court in Civil Appeal arising out of SLP (C) No. 10694. 16. In the aforesaid case the Apex Court had set aside the similar directions of this Court directing the insurance company to satisfy the award on the ground that the Apex Court had given directions in various cases in exercise of its powers under Article 142 of the Constitution and such powers are not vested in the High Court. 17. Now, the Apex Court in Kusum Lata and Others Vs. Satbir and Others, (2011) 3 SCC 646 , has clearly held that in case where there is violation of the driving licence, then the insurance company can be asked to satisfy the award with liberty reserve to it to recover the amount from the owner of the vehicle. Following the ratio of the Apex Court, the insurance company is directed to satisfy the award but it shall be at liberty to recover the same from the owner. It is clarified that the insurance company will not have to file separate suit or proceedings to recover the amount and can recover the amount from the owner by filing execution proceedings. 18. In view of the aforesaid discussion, the appeal stands disposed of. No. costs.