Oriental Insurance Company Ltd. v. Sampatlal & Ors.

DIVISION BENCH: HOrBL®SHRI V.K. SHRIVASTJ HON»BLE SHRI DHIRENDRA MIS&IRA. JJ. IVA fis 12/OS/2006. Shri Abhishek Siaha, Couns| 'l for tlie appellailt None for the respondeut. Heard pn adinission aiid on This appeal under Section IVI.C.P.NO. 184/2006. P.73 of tlie Motor Vehicles Act, 1988 (for short, "tiie Acf) 09/12/2004 passed by tlie Raigarh in Claiin Case No. 54^| Tribunal has allowed the petition under Section 166 of fhe Act 1,17.000/ - agamst the appeUao.t/ d|rected agaio.st fhe award dated IIijd Additional Clamis Tribunal, 12003 vide which tlie leanied (51ed by respondents No. 1 aiid 2 awarded compensation of Rs. ai-iH |respondents No. 3 aiid 4. Respondents No. 1 aad 2 lej^ ^' of deceased Ku. Gayatd filed a ^ Act, claimnig eompensation on tli{ Gayatri aged about 18 .years- i|s gal representatives bein.g pareiits 'tition under Section 166 of the grouud fhat their daughter Kii. let wifh a motor accident on 14/02/2003.

Ku. Gayatri sus^ amed severe injuries and as a result of tliose iajuries, duriiig tl^ to fliat on 27/02/2003. Responijl m.eclical treatoient suceum.bed ant No.3 drivuig Truck beariiig registi'ation No. CG-13ZC/0141 caused tlie ·accide.nt. The -owner by rash aad negligent meiiiier >ftlie vehicle is respdndent No.4 ancl at the relevaiit tmie vehicle ^as iasyred witti appeUaiit, The + ^ T XI-HC-22 ^-^ ^I^Sd^, ^Tll^^Ko, [®i<r<«^^< STi^T "q^? -HWCTT ^^gl^ •^^s' •M 200 ^TI^T^T R,Tii<^ ^nt^T 5h<-li<=b 'Hfia ^TT^T'^TT^R'^T -2-' chl^fcn^ll HFRTf ^ 'fe^ <p3l-^l< ^ ^Tf^FT ^^ claim was oppdsed by appeUaiit and 4. AppeUant/ Insuraiice |as weU as by respondents No. 3 Co^paiiy also took a defence that at ^" •^' the relevant tiiiie the vehicle wifhout valid driviag Hcence, ^Tas driven by respondent No.3 is not Uable to pay the tt|erefore, conipensation. Leamed Tribunal after duel appreciation of the evidence lield fhat the driver had valid liceiicl but only fault on his part is renewed for 14/02/2003.

The ttie Insiiraac^ proved. Therefore, Uability to pay fhe conipensaticj Uability on Insuraiice Coinpan.y ^ for drivnig heavy goods vehicle, t^iat lie could not get his Ucence t)reach of conditiou has not been ;^. Conipaziy cannot escape from its tn, hence/ vide isiipugned award h|as also been fastened for paynieut of coiiipensation am-ouiit, The defeiice available.to I{asuraiice Conipaiiy towards Uability to pay tlie compensatic available under Section 149 of ^n aiisiag out of aii accident is flie Act. So far as defence ofvaUid and effective diiving licence is o ^noeraed, relevaiit part of S€ction 149 (2) of fhe Act reads as below: s 149(2) No sum sliall &e| sub-secfion (1) in respe^t unless^ before ihe copnm^ which ihe jiidg?nent or a\ payable by an insurer under o/ mzy Judgineni or award >m^meni of ihe proc^edifzgs in '^ard is gn^en the insurer had XI-HC-22 "^T ^Nld<4, ^tl1^<l<o, PB«y11^ll< '^^? 3ffi^r 'W^I'^II 5bN8<^ "^iE^r •M 200 3^1'^T r<-<i<=b ^^\ 5^^icn <-if^^ ^STT^T ^CTWHftn \—1^ chl^fd4ir1 'RTTOT'? 'fe^ '^3ti^TH3TI^T <r3l^« notice ihrough ihe Coifert or, as the case ?nay be, Claiins Tribunal of ihe respect ofsuchjudgfne^ mnging of ifie proceedings, or in it or aiuard so long as exeaiiion is.stayed thereon pend^ng ivhojn notice of ihe bri^ so given shall be enii^et and 1o defend the a{ grounds, nmnefy- (a)ma(u) a condition or persons or by ang f^ej or by any person i^fio ^ or obtaining a dmHfidt an appeal, and an uwurer to ging ofany such proc^edings is ed to be fnade a paHy thereio ^tion an any of the foUowing excli^ding dmm^g by a namedperson \erson zuho is not duly licensed, ^as been discfualified for holding licenc^ during the period of discyialifiaiiign; or Leamed couusel for the rendered by Hou^ble the Apex ^peUaats relyuig on tiie judgment Court m Xati@aal C^ Ltd^ VB. in 2004 SCW'663 contended tliat on tt t|ie date of accident, driver had 110 vaMd and effective drivuig licei^ 'e, to drive heav}/' niotor vehicles, therefore, appellaiit/ Insuraiice | com.pensation, Hon'ble fhe Ape^ Co., is not liable to pay tlie Court held that; . ^It i^ beyond u?ider.

S. 1^9(. whojn notice j^ny doubt or dispu^e that 'P of the Act an i^zsurer, |qf , ihe of any bringing I- R^"-::.:: -:^ .i: ;^^-±SM"w"a XI-HC-22 ^^ ^i^sd^, '^frcm^, ftcns^y ^c ffl^mT^TRI^ •M 200 CT^T-^T f^?W3Tj^T ^)^ich <lf^ci '3TT^T '^rfT^R: 'Hf^T - ^u chl<Lir<rt<Ml<1 ^TR^Tf ^ ^S <P?|<^|< ^^Tf^R 3TT^T 'ihat perspn spefpified jpmpensation has been gii^en, proceeding for d^ can defend the ^ction on any of the younds mentioned ther^ ^in. Howeifer, Ci (a) opens imth tfie wordS^ ifzere fzas been a condition of the policy,' breach ofa ^ie nwurer's defence of the implying that ^pend upon the terms of the action woufd d^ Idsiib-clause contains ihree policy. The saf conditions of d^ ^sjiznctive d^aracter, narnely, the insurer cari get away fro?n the Uability when (a) a nani^ ^edperson drives the vehicle; (b) it was being\ \dri^en by a person who did \ly granted Hcence; and (c) not have a di^ discjualified for holding or driver is a \ing licence.

Note of the fact obtaining a dm fs also to be (a| lcen that whereas in S.3 the 'effeciive lic^noe\ ivords used ai it has [e been dijferentl\j worded in SJ^9(2} i.e., 'duly Ucenced'. \If a person does not holdan ejfective licend^ as on tlie date of ihe m4y acddent he \y be liablefor prosecution in 'pftheAct but S.1^9 penains terms ofS:141 to in^urance cs^ regard ihird party risks. A statiite which is provision of a penal in nature ins-d-v^ a provt^ion zvhich is beneficent a third party must be t<^ zrently. inferpreted diff^i It is also ivell-knoivn ?iwis coniained in differeni the provu e}(presszons construed word 'ejfective licence' used differently. Tfz^ in S.3, therefor^ winnot be imporiedfor sub- section^2) qf S\ /149 of ihe Motor Vehicles 'duly licenced' used in sub- Act The zuord^ section (2) of ^ 249 are used in pasi tense. The Irzsurmzce\ Compames are, however, imth a view to avoid their liability must not establisf^ defencefs) raised in the sc^i id proceedingB but niust also ordinarily available XI-HC-22 ^^ ^i^fKn^, ^xii^^ [®s<n«^^< aff^r "q^^ WR^IT^W^ •^ 200 f^T^T* 31^T^T 'f^N'^^^r 5^^icti ^f^a ^TT^T ^TcTT^T'^TfiTT -•b- ^FFrf^pft:T TTPPF^ff ^ 1^:?l> <f^l^l< ^T ^rf^R ^TT^T establish 'breach the vehicle; thetn. ivould be on down any criiei would be discha^ged, depend drcumstance of insurer is able to the irzsured cond regarding holdim driver or his quai relevant period, alloiDed to az^oid unless the said of d| condition a^ fi^ndamental contributed to thd^ Tribunals in inte^ zoould apply {the\ the concept of ^ the defences S. 1^9 (2) of th4 whether the owi care to find out licence produced\ othenmse), reqizirenients of detennined in ea{ on the pa/1 of the owner of \burden of proof wherefor The Coufi cannot lay fta cis to how sa?d burden inasmuch as the same .and iachcase.

Even where the ^>rove breach on ihe part of ^nnng the policy co^zdition ofa tfalid licence by tfie ^fication to drive during the \the insizrer zuould not be |fe liability toivards insured ^reach or breaches on the is/are so ^iinng cause ofthe accident The ^preting the policy condiiion mle of mnin purpose/ and hdafnental breach' io allow to the irzsured under The qiiestion as to her /zas taken reasonable \as to whether the driving by the driver, (a fake one fiilfill or not iinll have to be licsnce are^ found av(Mlable yzcase" Act / Here, m. the iastant case.,| driver had Uceuce to drive Ught motor vehicles from 20/12/ 1990| to 12/07/2006. Undisputedly he was also aufhorized to drive heai^y to 11/02/1996 tliereafter drive| 19/08/2002. Leanied Tribunal| goods vehicle from 20/12/1990 got his Ucence renewed up to held fhat the driver had a valid ± drivuig Ucence to drive heavy go4d ds vehicle but his liceuce was not Kf XI-HC-22 ^^ ^i^ld4, ^Ti1<H^l(o, T®l<r<wy ^. ':w ^IH^Il ^W^ "1^^87' •^ 200 ^TT^T^T f^w^n^T 9h^ii<^. <if^a 3TI^T ^ff^R ^TT -^- chi^f<n41ri ^i^oii ^ fe^t <p3i^i< ^ ^Tf^FT ^3TT^I renewed for 14/02/2003 i.e., fnidmg oftlie Tribunalpn 14/q2/2003 [the date of occurrence.

As per S, driver had a licence, but was uot effective for waat of its r^newal. Sectiou 15 ofthe Act eiiv]|sages tliat aiiy Ucensiiig authority inay, on appUcation made to L, reiicw a driviiig llcence isszied uncler fhe provisions of this A< expiry; provided tiiat io. aay a reiiewal of a liceuce is made nio4 |t with efFect from. fhe^date of its ise where the application for the e than thirty days after fhe date of its expny, tlie driving Iicence. be renewed wifh efFect froni fhe date of its renewal. Fiirther, i^ Biade niore thmi five years aftei be efFectwe, the Ucensiag driviag licence, luiless fhe app] satisfactioii the test of conipet^ section (3) of section 9. Therefc^r been made within 30 days fromj is provided that if appUcation is fhe driviag Ucence has ceasecl to autljiority refuse to reuew the ^caiit uxidergoes and passes to its pnce tp drive refeiTed to ni sub- if appUcation for reuewal has |re, fhe date of its expiiy, the reiiewal shall take effective from. the da1 Le ofits expiiy aad if appUcation is filed after fhe date of its expiiy, the renewal sliaU be effective from flie date ofits renewal.

Unclis^utedly iitedly, tlie driver had a Uceiice iip to 19/08/2002 to drive the hea^ took place on 14/02/2003. zone of consideration y goods vehicles and flie accident ie renewal of Ucence was within T} aiid if| appUcatbn had been m.ade, Ucence was to be reiiewed. Apj^llaiit did not plead tliat the driver -^r XI-HC-22 -^t ^i^ii^^, ^Til^^Ko, i®i<ni^^< an^r "^ra^. ^iH^ll^HF^ 'l^^r' •^ 200 ' ^qT^T-^T ^rli<=b ^^ s^ui^ ^f^a ^TT^T'^err^R ^rf^r --[ cbi<Lif^i<4i'i '^FT^ff"? ^^s <r^^i< ^T3^FT 371^1 did not file appUcation for rem ^wal with.in fhirty days of its expiry or thereafter before tlie date of l>ccuiTeuce. Here it is not out of plac< Uceiice Le., Ex, D/1 (c ) the p< tlie renewal see fhat 20/08/1999 to 19/08/2004 ^ deposed that his liceilce w^ 20/08/1999 to 19/08/2004. proved tb be a falce or fraudulej correctaess. to expose fhat froni perusal of the >rtioii c to c one caii by his naked jwas granted for the period froni ^ad fhe driver in. his e.vidence also ^.s Therefore, renewed for fhe period froni tiU it is pleaded aiid tit, presumptioii would be that of its Iiisurance Company i.e.; appeUaiit caiinot ^scape froni fhe obtigation to uideBinity fh^ iiisure-d iinless appeUant successfully proves that fhe i^ breach.

Here ia tlie iastaiit c4 by fhe. appeUaiit. Ou the conttaiy. i^aisured is at fault ao.cl is guilty of [.se, no such plea has been taken fhe driviag licence itself, iti'aiy, froni it is appare.nt fliat the driver heavy goods vehicle, eveii entry^ No otlier pouits have be{ Jhas a valid driviiig Uceiice to drive ofrenewalwas upto 19/08/2004. aii raised ui the iastaiit appeal. We are of fhe coiisidered opiaion fjiat the appeal has no merit and it is clevoid ofsubstance. In the. result, the appeal s Uable to be dismissed summadly, therefore, it is dig^iissed_jn Mm^ ImiiiT iie. Raju Sd/- V.K.Shrivastava Judge Sd/- Dhirendra Mishra Judge [Tit^"^fe^