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Rajasthan High Court · body

2011 DIGILAW 2617 (RAJ)

Shakuntla v. Ram Swaroop

2011-11-29

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal is directed against the award dated 2.8.1999 passed by the Motor Accident Claims Tribunal, Baran whereby, learned Tribunal awarded a sum of Rs.1,53,600/- holding respondents No.1 and 2 driver & owner jointly & severally liable to pay the said sum however exonerated the Oriental Insurance Co.Ltd., Baran – respondent No.3 from its liability to pay compensation. 2. Contention of the learned counsel for the claimant-appellant is that the controversy raised in the present appeal is squarely covered by the judgment of Supreme Court in National Insurance Co. Ltd. vs. Swaran Singh and Others : (2004) 3 SCC 297 , wherein their lordships held that even driver held a learner's license, the insurance company would still be liable to fulfill the statutory obligations in terms of Section 149(2)(a)(ii) and 3 of the Motor Vehicles Act, 1988. Learned counsel for the appellant argued that award in the present case was delivered on 2.8.1999 and the judgment of Supreme Court in the aforesaid case in which the that proposition of law has been settled was rendered in 2004 therefore appeal be allowed, the impugned award be set-aside and the respondent-insurance company be held liable to pay compensation to the claimant. 3. Learned counsel for the respondent-insurance company has opposed the appeal and argued that the judgment of Supreme Court in Swaran Singh supra is not applicable in the facts of the present case because in this judgment, provisions of Section 2(10) of the Motor Vehicles Act, 1988 (for short, the "Act of 1988") have not been taken note of, wherein it has been clearly stated that driving license means the license issued by a competent authority under chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle. Learned counsel in this connection has cited the judgment of Supreme Court in New India Assurance Co.Ltd. vs. Mandar Madhav Tambe and others : (1996) 2 SCC 328 . Learned counsel in this connection has cited the judgment of Supreme Court in New India Assurance Co.Ltd. vs. Mandar Madhav Tambe and others : (1996) 2 SCC 328 . Learned counsel also argued that Rule 3(b)(c) of the Central Motor Vehicles Rules, 1989 (for short, the "Rules of 1989") has also not been considered by the Supreme Court in Swaran Singh supra, which inter-alia provides that 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- (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. Learned counsel argued that in the present case, there was no proof that driver was accompanied by instructor holding an effective driving license. There was thus violation of Section 3 of the Motor Vehicles Act, 1988, which requires that the driver should possess an effective driving licence, which condition was inserted in the policy of the insurance company. In support of his argument, learned counsel cited the judgment of this Court in Bhanwar Lal vs. Gorkha Ram & Ors. : 2000 DNJ (Raj.) 459 and another judgment of Himachal Pradesh High Court in National Insurance Co.Ltd. vs. Smt.Vidya Devi and others : 1998(1) T.A.C. 586 (H.P.). 4. I have given my anxious consideration to the rival submission and perused the material on record. 5. Supreme Court in Swaran Singh supra has straightway considered all the issues, which have been raised in the present matter. The question with regard to the satisfaction of requirement of Section 3 of the Act of 1988 is concerned, if the driver had learner's licence viz. the liability of insurance company to fulfill the statutory obligation under Section 149(2)(a)(ii) and 3 of the Act of 1988 was considered in detail. The question with regard to the satisfaction of requirement of Section 3 of the Act of 1988 is concerned, if the driver had learner's licence viz. the liability of insurance company to fulfill the statutory obligation under Section 149(2)(a)(ii) and 3 of the Act of 1988 was considered in detail. In opening words of para 94 of the report, it was very much considered by the Supreme Court that the provisions contained in the said Act provide also for grant of driving licence which is otherwise a learner's licence. It was noted that learner's licences are granted under the Rules framed by the Central Government or the State Government in exercise of their rule-making power. Conditions are attached to the learner's licence granted in terms of the statute. A person holding learner's licence would, thus, also come within the purview of "duly licensed" as such a licence is also granted in terms of the provisions of the Act and the Rules framed thereunder. Their lordships held that rules validly framed become part of the statute and such rules are therefore required to be read as a part of the main enactment. Supreme Court reiterated in Mandar Madhav Tambe supra in which case, their existed an exclusion clause in the insurance policy, wherein it was made clear that the insurance company, in the event of an accident, would be liable only if the vehicle was being driven by a person holding a valid driving licence or a permanent driving license "other than a learner's license". Their lordships held that question as to whether such a clause would be valid or not did not arise for consideration before the Court in the said case in which the decision was rendered in the peculiar fact situation obtaining therein and it was held that "a driving license" as defined in the Act is different from a learner's licence issued under Rule 16 of the Motor Vehicles Rules, 1939. Supreme Court distinguished the judgment of Mandar Madhav Tambe supra holding that question which has arisen for consideration now did not arise there. Neither was the same argued at the bar nor were the binding precedents considered. It was therefore held that Mandar Madhav Tambe supra does not create any binding precedent. 6. Supreme Court distinguished the judgment of Mandar Madhav Tambe supra holding that question which has arisen for consideration now did not arise there. Neither was the same argued at the bar nor were the binding precedents considered. It was therefore held that Mandar Madhav Tambe supra does not create any binding precedent. 6. Supreme Court in Mandar Madhav Tambe supra has made a specific reference to the definition clause of 'driving license' in Section 2(5-A) of the Old Act of 1939, which is in pari materia with Section 2 of the New Act but the Supreme Court in Swaran Singh supra was very much cognizant of that aspect, which is evident from the last two lines of para 95 of the report, which was noted with reference to Mandar Madhav Tambe supra that "a driving license" as defined in the Act is different from a learner's licence issued under Rule 16 of the Motor Vehicles Rules, 1939". It was held that since the Central Motor Vehicles Rules, 1939 are validly framed and become part of the statute, as such, rules are required to be read as a part of the main enactment and holders of the vehicle were therefore held to be having a valid & effective driving license in terms of Section 3 of the Act binding insurance company to fulfill their statutory obligations. What has been incorporated in the condition of the insurance policy of the insurance company is that driver must possess an effective driving licence in terms of Section 3 of the Act and therefore driver in the present case must be held to possess a valid license moreover, in the present case, the argument that has been advanced by the learned counsel for the insurance company on the basis of Rule 3 of the Rules of 1989 would also not be available to him because evidence has proved that motorcycle was being driven by rider Ram Swaroop on the date of accident having valid and effective driving licence. 7. In view of above discussion, this appeal deserves to be succeeded. 8. In the result, the appeal is allowed. 7. In view of above discussion, this appeal deserves to be succeeded. 8. In the result, the appeal is allowed. The award passed by the Motor Accident Claims Tribunal, Baran dated 2.8.1999 is set-aside and the Oriental Insurance Co.Ltd., Baran – respondent No.3 is held liable to pay compensation in terms of the direction of the Tribunal to the claimant-appellant within a period of two months from the date, certified copy of this order is produced before the Tribunal.