New India Assurance Co. Ltd. v. Prem Lata And Others

The Judgment of the Court was delivered by

Kamlesh Sharma, J.:— The appellant insurance company is aggrieved by the award dated 27.7.1993 passed by Motor Accidents Claims Tribunal, Solan, whereby the claim petition of the respondents-claimants was allowed and compensation of Rs. 1,43,000 was awarded to them to be paid by the appellant insurance company with interest at the rate of 12 per cent per annum from the date of filing the petition till the date of payment if the award amount is not paid within 45 days from the date of order. The only ground for denying its liability to pay the amount of compensation is that the driver of the scooter respondent No. 4 Bhuvan Chand Tiwari was not holding driving licence, more specifically, that his driving licence was for light motor vehicle only and not for scooter independently or by way of endorsement.

2. We have heard learned counsel for the parties and gone through the record. We find that in the reply to the claim petition the appellant insurance company took number of preliminary objections and preliminary objection No. 9 was, “That the scooter driver did not possess a valid driving licence at the time of alleged accident. So, on this ground alone the present claim petition is liable to be dismissed”. However, no issue was framed in respect of this preliminary objection. In fact, the main defence of the appellant insurance company was that the scooter in question was not insured with it, on the basis of which issue No. 3 was framed that, “Whether the scooter in question was not insured with the New India Assurance Co. Ltd., respondent No. 2, on the date of accident, if so, its effect? OPR-2”. This issue was answered in negative as the insurance policy in respect of the scooter in question was placed on record as Exh. R-3. Had the appellant insurance company pressed its preliminary objection that the driver of the scooter was not holding valid licence, the Tribunal would have framed an issue in this regard. It appears that the driver of the scooter was aware of the stand of the appellant insurance company that if he failed to prove that he had valid licence to drive the scooter at the time of accident, the appellant insurance company might be absolved of its liability, that is why on his behalf the driving licence Exh. R-5 and a copy of registration certificate Exh. R-6 were placed on record. On the other hand, the appellant insurance company has examined Markande Parshad, RW 1, Senior Clerk of R.T.O Office, Varanasi, U.P, who on the basis of original record of the licence of the driver of the scooter has stated that it was for light motor vehicle and was not valid for scooter, as licence for scooter was to be obtained separately because it is two-wheeler vehicle. He has placed on record a copy of the entries of the driving licence register Exh. R-1 and the driving licence Exh. R-2. In the cross-examination on behalf of the driver of the scooter he has reiterated that a person holding L.M.V licence cannot drive a scooter, however, he can drive other vehicles. He has further denied that scooter falls in the category of light motor vehicles.

3. In view of these facts and circumstances on record we have permitted the learned counsel for appellant insurance company to raise the point that driver of the scooter was not holding valid driving licence, as his licence was not for driving the scooter, even in the absence of specific pleadings and issue in this regard. Moreover, on the admitted case of the driver of the scooter that he was having licence only for light motor vehicle and was not having licence for the scooter independently or by way of endorsement, it is only the interpretation of the provisions of the Motor Vehicles Act (hereinafter called ‘the Act’) and the Rules to decide whether a person holding driving licence for light motor vehicle can drive scooter without having licence for it either independently or endorsement thereon. The relevant provisions of the Act are sub-sections (10), (11), (26), (27) and (28) of section 2, section 3, sub-sections (1) to (3) of section 9, sections 10 and 11 of the Act. These are:

“2. Definitions.—In this Act, unless the context otherwise requires,—

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(10) ‘driving licence’ means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description;

(11) ‘educational institution bus’ means an omnibus, which is owned by a college, school or other educational institution and used solely for the purpose of transporting students or staff of the educational institution in connection with any of its activities;

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(26) ‘motor car’ means any motor vehicle other than a transport vehicle, omnibus, road-roller, tractor, motor cycle or invalid carriage;

(27) ‘motor cycle’ means a two-wheeled motor vehicle, inclusive of any detachable side-car having an extra wheel, attached to the motor vehicle;

(28) ‘motor vehicle’ or ‘vehicle’ means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty-five cubic centimetres;

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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.

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9. Grant of driving licence.—(1) Any person who is not for the time being disqualified for holding or obtaining a driving licence may apply to the licensing authority having jurisdiction in the area—

(i) in which he ordinarily resides or carries on business, or

(ii) in which the school or establishment referred to in section 12 from where he is receiving or has received instruction in driving a motor vehicle is situated, for the issue to him of a driving licence.

(2) Every application under sub-section (1) shall be in such form and shall be accompanied by such fee and such documents as may be prescribed by the Central Government.

(3) If the applicant passes such test as may be prescribed by the Central Government, he shall be issued the driving licence: Provided that no such test shall be necessary where the applicant produces proof to show that—

(a)(i) the applicant has previously held a driving licence to drive such class of vehicle and that the period between the date of expiry of that licence and the date of the application does not exceed five years, or

(ii) the applicant holds or has previously held a driving licence to drive such class of vehicle issued under section 18, or (iii) the applicant holds a driving licence to drive such class of vehicle issued by a competent authority of any country outside India, subject to the condition that the applicant complies with the provisions of sub-section (3) of section 8,

(b) the applicant is not suffering from any disability which is likely to cause the driving by him to be a source of danger to the public; and the licensing authority may, for that purpose, require the applicant to produce a medical cer tificate in the same form and in the same manner as is referred to in sub-section (3) of section 8:

Provided further that where the application is for a driving licence to drive a motor vehicle (not being a transport vehicle), the licensing authority may exempt the applicant from the test of competence to drive a vehicle prescribed under this sub-section, if the applicant possesses a driving certificate issued by any institution recognised in this behalf by the State Government.

10. Form and contents of licences to drive.—(1) Every learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such informa tion as may be prescribed by the Central Government.

(2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely: motor cycle without gear;

(a) motor cycle with gear;

(b) invalid carriage;

(c) light motor vehicle;

(d) transport vehicle;

(i) road-roller;

(j) motor vehicle of a specified description.

11. Additions to driving licence.—(1) Any person holding a driving licence to drive any class or description of motor vehicles, who is not for the time being disqualified for holding or obtaining a driving licence to drive any other class or description of motor vehicles, may apply to the licensing authority having jurisdiction in the area in which he re sides or carries on his business in such form and accompanied by such docu ments and with such fees as may be prescribed by the Central Government for the addition of such other class or description of motor vehicles to the licence.

(2) Subject to such rules as may be prescribed by the Central Government, the provisions of section 9 shall apply to an application under this section as if the said application was for the grant of a licence under that section to drive the class or description of motor vehicles which the applicant desires to be added to his licence.”

4. The perusal of these provisions shows that by driving licence a person is authorised to drive a motor vehicle of any class as specified therein. Scooter falls in a class of motor vehicles having two wheels and engine capacity of not exceeding 25 (Sic. 150) cc. as per the definitions of motor car, motor cycle and motor vehicle. It cannot be driven in any public place unless its driver holds an effective driving licence issued to him authorising him to drive the vehicle as provided under section 3 of the Act. Form and contents of the licence to drive are given under section 10. Under sub-section (2) of section 10, list of classes of motor vehicles is given for which licence is issued either for one or for more classes of vehicles. The perusal of this list clearly shows that motor cycle without gear and motor cycle with gear are two separate classes than the light motor vehicle. Therefore, the licence for light motor vehicle does not include the licence for motor cycle without there being any endorsement in this regard, for which the licence holder must apply as provided under section 11 of the Act. The application for driving licence is given under rule 14 of the Central Motor Vehicles Rules, 1989. Rule 15 provides for driving test, which is required to be qualified as prescribed under sub-section (3) of section 9 of the Act. From rule 17 it is clear that for addition to driving licence one has to apply in Form 8 to the licensing authority and for granting the same further test is required to be qualified under sub-section (3) of section 9 of the Act.

5. After the perusal of the relevant provisions of the Act and the Rules we have no hesitation to hold that a person holding driving licence for light motor vehicle, which has four wheels, is not entitled to drive a motor vehicle having two wheels, i.e, motor cycle or the scooter, for which either separate licence or endorsement on the licence already obtained by him for another class of motor vehicle is required. As in the case in hand, the driver of the scooter did not have a separate licence for the scooter in question or endorsement on the licence of light motor vehicle held by him, he was not entitled to drive the said scooter and the condition of the insurance policy, Exh. R-3, that a person driving the insured vehicle should hold driving licence is violated absolving the insurance company from the liability of payment of the amount of compensation.

6. The learned counsel for the appellant insurance company has relied upon the judgment of Andhra Pradesh High Court in M. Sammamma v. Syed Kaja Maunuddin, 1992 ACJ 375 (AP), wherein the insurance company was absolved of its liability for the reason that the driver of the heavy motor vehicle in question was having a licence to drive a light motor vehicle. He has also relied upon a judgment of the Supreme Court in New India Assurance Co. Ltd. v. Mandar Madhav Tambe, 1996 ACJ 253 (SC), wherein it was held that a person holding learner's licence would not be regarded as duly licensed. Both these authorities have no direct bearing except the observations in New India Assurance Co. Ltd. v. Mandar Madhav Tambe, that a person is regarded duly licensed only if he obtains licence under Chapter 2 of the Act.

7. On the other hand, learned counsel for the respondents have referred to the judgments in Narcinva V. Kamat v. Alfredo Antonio Doe Martins, 1985 ACJ 397 (SC); Suresh Mohan Chopra v. Lakhi Prabhu Dayal, 1991 ACJ 1 (SC); Saroj Dhir… v. Vijay Kumar Sharma…, 1999 ACJ 28 (P & H) and Rukmani v. New India Assurance Co. Ltd., 1999 ACJ 171 (SC), to urge that the appellant insurance company has not been able to discharge its burden of establishing that the driver of the scooter had no valid licence to exonerate itself from its liability.

8. But in view of the detailed discussion made hereinabove this argument is not attracted in the present case. The judgment of Madras High Court in Maduraiveeran v. Subburaj, 1998 ACJ 765 (Madras), is not relevant in the present case as in that case as per the learned Judges the driver having the licence to drive the bus was fit to drive goods vehicle as the percentage of ability, capacity and responsibility to drive the bus is much more than driving a goods vehicle.

9. In a recent judgment of the Supreme Court in Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd.., 2000 ACJ 319 (SC), the learned Judges after referring to the provisions of the Act including section 3 and the Rules including rule 16 have held that since the offending vehicle was light motor vehicle as it weighed 5,920 kilograms and the driver having licence for light motor vehicle was authorised to drive it, the contention of the insurance company was rejected that it was not a transport vehicle for which a specific en dorsement was required in the licence in the absence of any such condition in the insurance policy.

10. The result of above discussion is that there is merit in the present appeal and it is allowed and the impugned award dated 27.7.1993 passed by Motor Accidents Claims Tribunal, Solan, is modified to the extent that the insurance company is not liable to pay the amount of compensation. However, it is for the owner and driver of the scooter to pay the amount of com pensation as awarded. There is no order as to costs.

11. Appeal allowed.