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2021 DIGILAW 1114 (KER)

Shaju S/o Ramakrishnan v. Purushothaman

2021-12-06

A.BADHARUDEEN

body2021
JUDGMENT : A. BADHARUDEEN, J. 1. M.A.C.A. No. 1645/2013 is an appeal filed by the 1st respondent in O.P. (MV) No. 1357 of 2007 on the file of the Motor Accident Claims Tribunal, Irinjalakuda challenging award dated 06.11.2012 in the above case. The original petitioner has filed M.A.C.A. No. 112 of 2013 for getting enhanced compensation. 2. Heard the learned counsel for the appellants and the contesting respondents in appeal. 3. Short facts: The petitioner would contend that on 8.8.2007 at about 1 p.m. while he was riding his motorcycle bearing Reg. No. KL-45-7166 through Amballur-Pudukkad NH road, he was hit down by another motorcycle bearing Reg. No. KL-8/R-7612, driven by the 2nd respondent in a rash and negligent manner. Accordingly, the petitioner filed an application under Section 166 of the Motor Vehicles Act and canvassed compensation to the tune of Rs. 1,00,000/-. Respondents 1 to 3 are the owner, driver and insurer of the vehicle bearing Reg. No. KL-8/R-7612. 4. I will refer the parties in these matters as petitioner and respondents herein. 5. 1st and 2nd respondents were set ex-parte before the Tribunal. The 3rd respondent filed written statement. Issuance of valid policy to vehicle KL-8/R-7612 was admitted. Breach of violation of policy conditions alleged on the ground that the 2nd respondent was not having an effective and valid driving licence at the time of the accident and as such the insurer sought for complete exoneration. Despite that, claims under various heads were opposed. 6. The Tribunal examined PWs. 1 and 2 and marked Exts.A1 to A10 on the side of the petitioner. No evidence let in by the respondents including the insurance company. 7. The Tribunal appraised the evidence and finally granted Rs. 58,682/- in favour of the petitioner with direction to the 3rd respondent to deposit the same. Further the Tribunal granted recovery right of the said sum to the insurance company from the 1st respondent, the owner of the vehicle. 8. First of all, I would like to venture on the question as to whether the contention raised by the petitioner to get enhanced compensation is sustainable, if so, to what extent. It is submitted by the learned counsel for the petitioner that though Rs. 5,000/- was claimed as the monthly income of the petitioner, who was aged 37 years doing the job of a Conductor, the Tribunal marginally reduced the same to Rs. It is submitted by the learned counsel for the petitioner that though Rs. 5,000/- was claimed as the monthly income of the petitioner, who was aged 37 years doing the job of a Conductor, the Tribunal marginally reduced the same to Rs. 2,000/- and the same is not justified. According to the learned counsel, Rs. 5,000/- as such ought to have been accepted following the ratio in Ramachandrappa vs. Manager, Royal Sundaram Alliance, AIR 2014 SC 1052 : (2014) 2 SCC 735 , wherein Rs. 4,500/- was fixed as the monthly income of a coolie during 2004. This aspect is not in dispute. Therefore, for the purpose of re-fixation of loss of earning as well as loss of disability income, Rs. 5,000/- is fixed as the monthly income in this case, where the accident was during 2007. According to the learned counsel for the petitioner, the petitioner is entitled to get enhanced amount in other heads also. 9. On perusal of the evidence, fracture left fibula is the diagnosis and that could be gathered from Ext.A4 discharge certificate issued from St. James Hospital, Chalakkudy, supported by Ext.A3 wound certificate, prepared soon after the accident. The Tribunal granted Rs. 4,000/- alone towards loss of earnings @ Rs. 2,000/- for 2 months. Considering seriousness of the fracture and the consequential treatment, I am inclined to grant loss of earnings for 4 months. This would come to Rs. 20,000/- [5000 x 4] out of which Rs. 4,000/- granted by the Tribunal and hence Rs. 16,000/- more is granted under this head. Coming to disability, the multiplier and the percentage of disability fixed by the Tribunal based on Ext.A5 is not in dispute. However, the disability income required to be recalculated on the basis of Rs. 5,000/- as the monthly income which would come to: 5000 x 12 x 15 x 9.52 = 85,680/- out of which Rs. 34,272/- was granted. Hence Rs. 51,408/- more is granted under the head disability income. 10. The learned counsel for the petitioner canvassed increase under the heads pain and suffering and loss of amenities, though the learned counsel for the respondent opposed this contention pointing out that the injured sustained only one fracture. It appears that Rs. 34,272/- was granted. Hence Rs. 51,408/- more is granted under the head disability income. 10. The learned counsel for the petitioner canvassed increase under the heads pain and suffering and loss of amenities, though the learned counsel for the respondent opposed this contention pointing out that the injured sustained only one fracture. It appears that Rs. 10,000/- alone was granted by the Tribunal under the head pain and sufferings though the petitioner sustained comminuted fracture left fibula and nothing was granted under the head loss of amenities. Therefore, Rs. 6,000/- more is granted under the head pain and sufferings and Rs. 10,000/- is granted under the head loss of amenities. 11. The crucial issue to be decided in this matter, in view of the specific contention raised by the appellant/original 1st respondent in M.A.C.A. No. 1645 of 2013, is that whether the Tribunal is justified in granting recovery right on the finding that the 2nd respondent did not possess a valid driving licence at the time of accident. On perusal of the written statement filed by the 3rd respondent, it is discernible that the 3rd respondent raised specific contention that the 2nd respondent did not possess valid and effective driving licence at the relevant time of accident and therefore the insurer was not liable to pay compensation to the petitioner by indemnifying the insured, the 1st respondent. Perusing the award, the 3rd respondent not taken any steps to cause production of the driving licence, if any, possessed by the 2nd respondent at the time of accident. Merely based on assertions in the written statement filed by the insurer, the Tribunal granted recovery right. In fact, the said order is incorrect since the contention was not proved at all. However, the 1st respondent filed I.A. No. 1 of 2021 to receive copy of learner's driving licence in the name of the 1st respondent issued for the period 05.06.2007 to 04.12.2007 in this case where the accident was on 08.08.2007. The learned counsel for the 2nd respondent also supported by the learned counsel for the 1st respondent, the rider of the vehicle, and both categorically asserted that learner's licence is akin to original licence in the case of 2 wheelers and therefore the same is not a fundamental breach so that recovery right cannot be granted. The learned counsel for the 2nd respondent also supported by the learned counsel for the 1st respondent, the rider of the vehicle, and both categorically asserted that learner's licence is akin to original licence in the case of 2 wheelers and therefore the same is not a fundamental breach so that recovery right cannot be granted. Accordingly, they submitted that the recovery right granted by the Tribunal is erroneous and is liable to be set aside. 12. Per contra, the learned counsel for the insurance company vehemently opposed this contention and submitted that under Section 3(1) of the Motor Vehicles Act, 1988 and Rule 3 of the Central Motor Vehicles Rules, 1989 it is mandatory for a person holding a learner's licence to be accompanied by an instructor holding an effective driving licence to drive the vehicle. In this case, the 1st or 2nd respondent did not raise any contention before the Tribunal and no evidence in this regard also was adduced, despite their failure to file any written statement. It is in this context I am inclined to accept and mark the certified copy of the learner's driving licence produced by the 1st respondent along with I.A. No. 1/2021. Thus I.A. is allowed and the copy of driving licence is marked as Exhibit-B1. 13. While analysing the nature of learner's licence it is apposite to refer Section 3 of the Central Motor Vehicles Act and Section 3(1) of the Central Motor Vehicles Rules. Section 3 provides as under: “3. Necessity for driving licence: (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle and no person shall so drive a transport vehicle [other than (a motor cab or motor cycle) hired for his own use or rented under any scheme made under sub-section (2) of Section 75] unless his driving licence specifically entitles him so to do. (2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.” Section 3(1) of the Central Motor Vehicles Rules, 1989 provides as under: “3. (2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.” Section 3(1) of the Central Motor Vehicles Rules, 1989 provides as under: “3. General: 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 or competence to drive, so long as: (a) such person is the holder of an effective learner's licence issued to him in Form 3 to drive the vehicle. (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. (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 as under: “L” Even on a cursory reading of Rule 3 of the Act and Section 3(1) of the Rules, it could be gathered that an effective driving licence issued by a competent transport authority is necessary to drive a motor vehicle in any public place and sub section (2) of Section 3 of the Act gives an exception to a person receiving instructions in driving a motor vehicle. As per Section 3, the exception as per Section 3(2) of the Act is more vividly explained providing that sub section (1) of Section 3 of the Act shall not apply to a person while receiving instructions or gaining experience in driving with the object of presenting himself for a test or competence to drive subject to conditions (a) to (c) as extracted above. Condition (b) is so specific on the point that a person learning or receiving instructions of driving to be accompanied by an instructor holding an effective licence to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle.” 14. Condition (b) is so specific on the point that a person learning or receiving instructions of driving to be accompanied by an instructor holding an effective licence to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle.” 14. According to respondents 1 and 2, in the decision reported in Radhika Devi vs. Vasantha, 2004 (2) KLT 954 , a Division Bench while deciding the legality of learner's licence it was held that the insurance company cannot avoid liability to third party on the ground that the driver of the insured vehicle has got only a learner's licence at the time of accident and it cannot be stated that the owner has also committed breach of policy condition. 15. Another decision reported in Oriental Insurance Co. Ltd. vs. Baby, 2015 (3) KLT 121 also has been placed in support of this contention. 16. In fact, in the decision reported in Baby's case (supra), a Division Bench of this Court quoted the observation in paragraphs 93 and 94 of the decision reported in National Insurance Company Ltd. vs. Swaran Singh and Others, 2004 (1) KLT 781 (SC): “93. The Motor Vehicles Act, 1988, provides for grant of learner's licence. [See Section 4(3), Section 7(2), Section 10(3) and Section 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 when a vehicle is 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. 94. The provisions contained in the said Act provide also for grant of driving licence which is otherwise a learner's licence. Section 3(2) and 6 of the Act provide for restriction in the matter of grant of driving licence. Section 7 deals with such restrictions on granting of learner's licence. 94. The provisions contained in the said Act provide also for grant of driving licence which is otherwise a learner's licence. Section 3(2) and 6 of the Act provide for restriction in the matter of grant of driving licence. Section 7 deals with such restrictions on granting of learner's licence. Sections 8 and 9 provide for the manner and conditions for grant of driving licence. Section 15 provides for renewal of driving licence. Learner's licence are granted under the Rules framed by the Central Government or the State Governments 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 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. It is now a well-settled principle of law that rules validly framed become part of the Statute. Such Rules are, therefore required to be read as a part of the main enactment. It is also a well-settled principle of law that for the interpretation of Statute an attempt must be made to give effect to all provisions under the Rule. No provision should be considered as surplusage.” In the above Division Bench judgments, the decision reported in New India Assurance Company Ltd. vs. Mandar Madhav Tambe, AIR 1996 SC 1150 has been referred which dealt with the validity of insurance under Section 96 (2)(b) of the Motor Vehicles Act, 1939. However, the learned counsel for the insurance company placed another Division Bench decision of this Court reported in Abdul Gafoor K.P. vs. New India Assurance Co. Ltd. 2017 (1) KHC 942 : 2017 (2) KLT SN 10 : 2017 (2) KLJ 27 , wherein this Court considered the sanctity of learner's licence and it was held that in Ext.B1 certificate of insurance, it is specifically mentioned that persons holding an effective learner's licence can also drive (sic: driver) the vehicle provided such a person satisfies with the requirements of R.3 of the Rules. R.3 of the Rules, as extracted above, would reveal the requirements thereunder and indisputably, the appellant had not satisfied such requirements under S.3(2) of the MV Act and R.3(b) of the Rules by riding the motorcycle in public road without an effective driving licence, but only on the strength of an effective learner's licence, without an instructor holding an effective driving licence sitting on the vehicle in such a position as contemplated under R.3(b) of the Rules hardly within ten days of its issuance. In such circumstances, it is evident that there occurred violation not only of specific conditions of policy and licence, but also of R.3(b) of the Rules and S.3(2) of the MV Act. Above all, the finding of the Tribunal is to the effect that the claimant, who was then a pedestrian, was knocked down solely due to the negligence of the appellant in riding the motorcycle and as noticed hereinbefore, the said finding is not seriously disputed. Thus the ratio in Abdul Gafoor's case (supra) is that a person, who is issued with a learner's driving licence, can also drive a vehicle in a public place, but subject to the specific provisions under the Act and the Rules. In Swaran Singh's case (supra) also it has been categorically held that “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.” This is the context in which the ratio of the decision reported in Oriental Insurance Co. Ltd. vs. Felix Correa and Others, 2003 KHC 1984 (SC) to be looked into. In fact, either in Radhika Devi's case (supra) or in Baby's case (supra), the decision reported in Felix Correa's case (supra) was not considered. In Felix Correa's case (supra), the Apex Court after referring the specific clause in the insurance policy to the effect that a person driving vehicle must hold a valid driving licence other than learner's licence, the insurance company was absolved from liability. 17. Here the copy of policy pertaining to the vehicle has been placed by the learned counsel for the insurance company on the submission that the same will be filed before the office. 17. Here the copy of policy pertaining to the vehicle has been placed by the learned counsel for the insurance company on the submission that the same will be filed before the office. There is no dispute as to the policy issued in the name of Purushothaman. In the policy, it has been specifically mentioned under the heading persons or classes of persons entitled to drive as follows: “Any person including Insured provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective Learner's Licence may also drive the vehicle and such a person satisfies the requirements of Rule 3 of Central Motor Vehicle Rule, 1989.” 18. That apart, in the copy of learner's licence produced from the side of the 1st respondent marked as Ext.B1, it is specifically provided as under: “The Attention of the holder of this licence is drawn to the Central Motor vehicle Rules, 1989 which prohibits him from driving any motor vehicle unless he has besides him a Person duly licensed to drive the vehicle and in every case the vehicle carries “L” plates both in the front and in the rear of the vehicle.” 19. On a conjoint reading of the extracted portions in the policy and the learner's driving licence what could be culled out is that the insurance company insisted compliance of Rule 3 of Central Motor Vehicles Rules, 1989 in the case of learner's licence apart from such condition imposed in the learner's licence as well. 20. As I have already extracted in Swaran Singh's case (supra), the Apex Court held that when a vehicle is being driven by a learner subject to the conditions mentioned in the licence, he would be a person who is not “duly licensed.” 21. In the subsequent decision in Ishwar Chandra vs. Oriental Insurance Co. Ltd. 2007 KHC 4326 : AIR 2007 SC 1445 : 2007 (10) SCC 650 : 2007 (3) All L.J. 374 : 2007 (52) AIC 61 the driving licence of the driver expired on 27/08/1994 and the accident occurred on 28.04.1995 and till that date no application for renewal was made. The Hon'ble Apex Court held that insurer is not liable to indemnify the appellant owner of the vehicle involved in the accident. The Hon'ble Apex Court held that insurer is not liable to indemnify the appellant owner of the vehicle involved in the accident. In United India Insurance Co. Ltd. vs. Kunta Devi, AIR 2009 NOC 1407 the driver's driving licence remained unrenewed on the date of the accident. It was held that the subsequent renewal would not relate back to the date of expiry and hence, the insurance company would not be liable to indemnify the owner. In Ram Babu Tiwari vs. United India Insurance Company, 2008 KHC 4820 : 2008 (8) SCC 165 : 2008 (11) SCALE 85 : 2008 (3) SCC (Cri) 442 : 2008 (69) AIC 99 : 2008 (106) Cut. L.T. 700 : 2009 (1) GLR 545 : 2009 (1) MPLJ 292 : 2009 (1) Mah. L.J. 566 also the same position was restated. As stated earlier, those decisions were rendered by the Hon'ble Apex Court after referring to Swaran Singh's case (supra). In all those cases, it was held that the ground that the driver was not having a valid driving licence would not be available to the insurer against the third party, but certainly it would be available against the insured owner, especially when the insured owner failed to discharge the statutory liability under S.5 of the MV Act and in such circumstances, the Hon'ble Court upheld the order for pay and recovery. In the decision of the Apex Court in Mukund Dewangan vs. Oriental Insurance Company Limited, AIR 2017 SC 3668 : 2017 (3) KLT 1000 : 2017 (4) KHC 648 , it was held that badge is required to drive a transport vehicle, unladen weight of which does not exceed 7500 kg. In the said case also pay and recovery was ordered by the 3 Bench decision of the Apex Court. 22. In a subsequent decision reported in Bajaj Alliance General Insurance Co. Ltd. vs. Rambha Devi and Others, 2019 KHC 7367 the ratio in Mukund Dewangan's case (supra) was doubted and the matter referred to a larger Bench and the said reference is still pending. Subsequently, in another decision reported in Bhati M.S. vs. National Insurance Co. Ltd. 2019 KHC 4627 (decided on 29.03.2013) the Apex Court followed Mukund Dewangan's case (supra) to assert the point that a transport vehicle whose gross weight was less than 7500 kg. Subsequently, in another decision reported in Bhati M.S. vs. National Insurance Co. Ltd. 2019 KHC 4627 (decided on 29.03.2013) the Apex Court followed Mukund Dewangan's case (supra) to assert the point that a transport vehicle whose gross weight was less than 7500 kg. which covers the definition of light motor vehicle under Section 2(21) of the Motor Vehicles Act, 1988, does not require a badge. So, the legal position settled in Mukund Dewangan's case (supra) still holds the field. 23. Before the conclusion, I am inclined to observe that the licence generally classified into learner's licence and licence. If learner's licence is akin to licence, the legislature in its wisdom never would categorise licence under the above 2 categories. In such circumstances, a learner's licence cannot be a substitute for licence even after learning driving. Therefore, a learner's licence holder, to be held as a person having licence at the time of accident, must comply Rue 3(b) of the Central Motor Vehicles Rules, 1989 and conditions of learner's licence. An insured also must satisfy the said conditions along with the conditions mentioned in the contract of insurance. To put it otherwise, if learner's licence holder also can drive or ride a vehicle without satisfying the mandate of the rules, if accepted as a thumb rule, then every person holding a learner's licence would drive or ride the vehicle without applying the rules and the outcome will be threat to the life and security of the public at large, apart from harming the driver or rider himself. Therefore, it cannot be held that a person, who obtained a learner's licence, can also drive or ride a vehicle as done by a `duly licensed' person and such a proposition is dangerous to the whole society. 24. Thus the legal position emerges from the above discussion is that, a person, who drives or rides a vehicle after obtaining a learner's licence, to be held as “duly licensed” only if the learner drives the vehicle subject to the conditions mentioned in the licence and subject to the conditions mentioned in the contract of insurance. 24. Thus the legal position emerges from the above discussion is that, a person, who drives or rides a vehicle after obtaining a learner's licence, to be held as “duly licensed” only if the learner drives the vehicle subject to the conditions mentioned in the licence and subject to the conditions mentioned in the contract of insurance. Any person drives or rides a vehicle without satisfying the conditions in the learner's licence in compliance of Rule 3 (b) of the Central Motor Vehicles Rules, 1989 without accompanying an instructor holding an effective driving licence to drive the vehicle, cannot be held as a person “duly licensed.” That apart, the insured by entrusting vehicle to a person in gross violation of the policy conditions as regards to compliance of the mandate under Section 3(b) of the Central Motor Vehicles Rules, 1989 to be adjudged as an insured who violated the policy conditions specifically dealt in Felix Correa's case (supra). 25. To sum up, it is held that the 1st respondent/appellant in M.A.C.A. No. 1643/2013 being the insured, who violated the policy conditions, is bound to pay the compensation. The Tribunal ordered the insurer to deposit the same initially and recover the same from the insured. The said finding only to be confirmed extending the said right in the matter of recovery to the tune of Rs. 83,408/- granted as additional compensation in the connected appeal M.A.C.A. No. 112 of 2013. 26. Therefore, the insurance company is directed to deposit the entire amount and recover the same from the insured the amount deposited along with accrued interest thereof from the date of deposit to the date of realisation. 27. In the Result: (i) M.A.C.A. No. 1645/2013 stands dismissed. (ii) M.A.C.A. No. 112 of 2013 stands allowed in part. It is held that the appellant/petitioner is entitled to get Rs. 83,408/- (Rupees Eighty three thousand four hundred and eight only) as enhanced compensation and the award impugned is modified as above with the same rate of interest granted by the Tribunal from the date of petition till the date of deposit or realisation.