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Rajasthan High Court · body

2012 DIGILAW 1649 (RAJ)

Oriental Insurance Co. Ltd. v. Laxman Lal

2012-07-30

NIRMALJIT KAUR

body2012
JUDGMENT 1. - The present appeal has been filed against the judgment and order dated 3.3.2011 passed by the learned Judge, MACT, Banswara to the extent vide which the insurance company is made liable. While praying for-setting aside the impugned award to the extent of the liability of the insurance company, learned counsel for the appellant submitted that at the time of accident, the driver of the offending vehicle Shiv Singh was having licence only up to 14.2.2000. After the date of the accident, the driver has got renewed his licence on 9.9.2005 to 8.9.2008. Thus, the driver did not have licence on the date of the accident. As such, the appellant insurance company deserves to be exonerated. 2. Learned counsel for the respondents did not dispute the factual position but submitted that Section 149 imposes duty on the insurer. Sub-section (2) of Section 149 gives the right to the insurance company in case there is breach of the condition of policy. The sub-clause (ii) of sub-section (2) of Section 149 which reads (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving license during the period of disqualification;", shows that the absence of the driving licence itself is not sufficient. The driver should be found to be disqualified to drive. Since, in the present case, the driver was not disqualified, the insurance company cannot escape from its liability.Heard. 3. It is an admitted position that on the date of the accident, the driver of the offending vehicle did not have the licence. His licence stood cancelled way back on 14.2.2000. The accident took place on 17.8.2005. The driver got his license renewed much after the date of the accident i.e. with effect from 9.9.2005 to 8.9.2008. 4. The issue is squarely covered by the judgment rendered in Ram Babu Tiwari v. United India Insurance Co. Ltd. & Ors. reported in MACD 2008 (SC) 351. The Apex Court in the case of Ram Babu Tiwari (supra) relied on the judgment rendered in the case of National Insurance Co. Ltd. v. Swaran Singh & Ors. reported in AIR 2004 SC 1531 , while dealing with the question as to what would constitute a breach of condition of the contract of the insurance. The Apex Court in the case of Ram Babu Tiwari (supra) relied on the judgment rendered in the case of National Insurance Co. Ltd. v. Swaran Singh & Ors. reported in AIR 2004 SC 1531 , while dealing with the question as to what would constitute a breach of condition of the contract of the insurance. The judgment rendered in the case of Swaran Singh (supra) laid down guidelines and general principle qua the effect of not having valid license in various situations. 5. However, the question as to what would be the effect of not having license for a long period or the effect of not having it renewed for a long period as in the present case was dealt in detail. In the said judgment Section 15 of the Motor Vehicles Act provided for renewal of the driving license. Sub-section (4) of Section 15 of the Act provides that wherein the application for renewal of a driving license is made after more than 30 days it expiry the same would be renewed automatically but in case it is moved after a long time, the renewal may not always be from the date of its expiry, and the driver may be required to give fresh test. Para 18 of the judgment rendered in the case of Ram Babu Tiwari (supra) clarifies the same as under: "18. It is beyond any doubt or dispute that only in the event an application for renewal of license is filed within a period 30 days from the date of expiry thereof, the same would be renewed automatically which means that even if an accident had taken place within the aforementioned period, the driver may be held to be possessing a valid license. The proviso appended to sub-section (1) of Section 15, however, clearly states that the driving license shall be renewed with effect from the date of its renewal in the event the application for renewal of a license is made more than 30 days after the date of its expiry. It is, therefore, evident that as on renewal of the license on such terms, the -driver of the vehicle cannot be said to be holding a valid license, the insurer would not be liable to indemnify the insured. The second proviso appended to sub-section (4) of Section 15 is of no assistance to the appellant. It is, therefore, evident that as on renewal of the license on such terms, the -driver of the vehicle cannot be said to be holding a valid license, the insurer would not be liable to indemnify the insured. The second proviso appended to sub-section (4) of Section 15 is of no assistance to the appellant. It merely enables the licensing authority to take a further test of competent driving and passing thereof to its satisfaction within the meaning of sub-section (3) of Section 9. It does not say that the renewal would be automatic. It is, therefore, a case where a breach of the contract of insurance is established " 6. The facts in Ram Babu Tiwari's case (supra) are almost identical to the facts of the present case which are mentioned in para 7 of the said judgment and thereafter the finding has been held in paras 19 and 20. Paras 7, 19 and 20 as under: "7. By reason of an award dated 6.10.1999, the learned Tribunal held that the driver Ram Prakash was having valid license only for the period 11.2.1990 and 10.2.1993 and again from 7.2.1996 to 7.2.1.999. Indisputably, therefore, the driver Ram Prakash did not hold any license during the period 11.2.1993 to 6.2.1996. The learned Tribunal held: "Therefore, in United India Insurance Co. v. Sherali, 1999(1) MPWN 90 , it was laid down that if the driver was having driving license but the same was not got renewed at the time of the accident, then insurance company cannot be exonerated from its liability. In this case as well, non-applicant No. 1 was having license and for this reason driving of the tractor in violation of the terms of the insurance policy is not proved and non-applicant No. 2 cannot escape from its liability. Therefore, issue No. 6 is being decided negatively." "19. The principle laid down in Kusum Rai (supra) has been reiterated in Ishwar Chandra & Ors. v. Oriental Insurance Co. Ltd. & Ors., (2007) 10 SCC 650 , referring to sub-section (1) of Section 15 of the Act, this Court stated the law, thus: "9. From a bare perusal of the said provision, it would appear that the license is renewed it terms of the said Act and the rules framed thereunder. v. Oriental Insurance Co. Ltd. & Ors., (2007) 10 SCC 650 , referring to sub-section (1) of Section 15 of the Act, this Court stated the law, thus: "9. From a bare perusal of the said provision, it would appear that the license is renewed it terms of the said Act and the rules framed thereunder. The proviso appended to Section 15(1) of the Act in no uncertain terms states that whereas the original license granted despite expiry remains valid for a period of 30 days from the date of expiry, if any application for renewal thereof is filed thereafter, the same would be renewed from the date of its renewals. The accident took place 28.4.1995. As on the said date, the renewal application had not been filed, the driver did not have a valid license on the date when the vehicle met with the accident." "20. For the reasons aforementioned, there is no infirmity in the impugned judgment. The appeals are therefore, dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs." 7. Applying the test to the facts of present case, the driver did not have valid license. The license had expired way back on 14.2.2000. The accident took place on 7.8.2005 whereas, the license was renewed much after the accident i.e. from 9.9.2005 onwards. It was not renewed from the date of the expiry. Therefore, the driver did not have a valid license on the said date. 8. In view of the above, the present appeal is allowed. The impugned award is-set aside to the extent vide which the insurance company has been held liable. However, the claimants are entitled to recover the said amount form the driver and the owner of the offending vehicle.Appeal allowed. *******