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2017 DIGILAW 209 (GUJ)

Yakubbhai v. Pushpaben Yakubbhai

2017-01-27

M.R.SHAH

body2017
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal, Navsari (hereinafter referred to as "the learned tribunal") dated 14/06/2005 in MACP No. 236/2003 by which the learned tribunal has exonerated respondent No. 2 - original opponent No. 3 - Oriental Insurance Company from paying the compensation to the original claimant, the owner of the Motorcycle involved in the accident has preferred the present First Appeal. 2. At the outset, it is required to be noted and it is not in dispute that at the time of the accident, Motorcycle, bearing No. GCJ-6789, owned by the appellant herein was insured with original opponent No. 3 - Oriental Insurance Company. At the time of the accident, the aforesaid Motorcycle was being driven by the appellant herein. In the said accident, minor son of the appellant died because of the fact that the appellant lost control over his vehicle and the vehicle slipped as a result of which his minor son, Vaibhav died. Mother of the minor son Vaibhav filed the Claim Petition before the learned tribunal claiming compensation for the death of the deceased minor. By the impugned judgment and award, the learned tribunal has awarded a total sum of Rs. 75,000/- to the original claimant towards compensation for the death of the deceased - minor Vaibhav. However, the learned tribunal has exonerated original opponent No. 3 - Oriental Insurance Company from paying the compensation on the ground that at the time of the accident the appellant herein - original opponents Nos. 1 and 2 - driver cum owner of the Motorcycle was having learner's licence, which was not considered to be effective valid licence. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned tribunal in exonerating original opponent No. 3 - Oriental Insurance company from making payment of compensation, appellant herein - original opponents Nos. 1 and 2 - owner cum driver of the Motorcycle has preferred the present First Appeal. 3. Today, when the present Appeal is taken up for final hearing, Shri Rutul Desai, learned advocate appearing for Shri Amit Thakkar, learned advocate appearing on behalf of the appellant has vehemently submitted that the aforesaid is now not res integra in view of the decision of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. 3. Today, when the present Appeal is taken up for final hearing, Shri Rutul Desai, learned advocate appearing for Shri Amit Thakkar, learned advocate appearing on behalf of the appellant has vehemently submitted that the aforesaid is now not res integra in view of the decision of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Swaran Singh reported in 2004 (3) SCC 297 . It is submitted that in paragraph Nos. 92 to 109 the Hon'ble Supreme Court has specifically observed and held that if a vehicle at the time of the accident was driven by a person having learner's licence, the Insurance Companies would be liable to satisfy the decree. It is submitted that in the aforesaid decision three Judges Bench of the Hon'ble Supreme considered the earlier decision of the Hon'ble Supreme Court in the case of New India Assurance Co. Ltd. Vs. Mandar Madhav Tambe and Ors reported in AIR 1996 SC 1150 . 4. Ms. Lilu Bhaya, learned advocate appearing on behalf of respondent No. 2 - Oriental Insurance Company has submitted that at the relevant time and by passing the impugned judgment and award, the learned tribunal has considered the decision of the Hon'ble Supreme Court in the case of Mandar Madhav Tambe and Ors (Supra). It is submitted that therefore the learned tribunal cannot be said to have committed any error in exonerating original opponent No. 3 - Oriental Insurance Company. 5. Heard the learned advocates appearing on behalf of the respective parties at length. By the impugned judgment and award the learned tribunal has exonerated original opponent No. 3 - Oriental Insurance Company of the Motorcycle involved in the accident from payment of compensation to the original claimant solely on the ground that the appellant herein– original opponents Nos. 1 and 2 - owner cum driver of the Motorcycle involved in the accident was having learner's licence and thereby not having any effective valid licence. Identical question came to be considered by the Hon'ble Supreme Court in the case of Swaran Singh (Supra). In paragraph 92 Hon'ble Supreme Court has observed and held as under; "92. Motor Vehicles Act, 1988 provides for grant of learner's licence. [See Sec. 4(3), Sec. 7(2), Sec. 10(3) and Sec. 14]. A learner's licence is, thus, also a licence within the meaning of the provisions of the said Act. In paragraph 92 Hon'ble Supreme Court has observed and held as under; "92. Motor Vehicles Act, 1988 provides for grant of learner's licence. [See Sec. 4(3), Sec. 7(2), Sec. 10(3) and Sec. 14]. A learner's licence is, thus, also a licence within the meaning of the provisions of the said Act. It cannot, therefore, be said that a vehicle when being driven by a learner subject to the conditions mentioned in the licence, he would not be a person who is not duly licensed resulting in conferring a right on the insurer to avoid the claim of the third party. It cannot be said that a person holding a learner's licence is not entitled to drive the vehicle. Even if there exists a condition in the contract of insurance that the vehicle cannot be driven by a person holding a learner's licence, the same would run counter to the provisions of Section 149(2) of the said Act." 5.1 Thereafter in the concluding paragraph Hon'ble Supreme Court has observed in paragraph 109 (viii) as under; "If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree" 5.2 In view of the above decision of the Hon'ble Supreme Court, the impugned judgment and award passed by the learned tribunal exonerating original opponent No. 3 - Oriental Insurance Company cannot be sustained. 6. In view of the above and for the reasons stated hereinabove, the present Appeal succeeds. The impugned judgment and award passed by the learned tribunal in MACP No. 236/2003 is hereby modified to the aforesaid extent and it is held that original opponent No. 3 - Oriental Insurance Company is also liable to pay the compensation to the original claimant as awarded by the learned tribunal. The present Appeal is partly allowed to the aforesaid extent. No order as to costs.