JUDGMENT V.G. Munshi, J.
1. First Appeal No. 14 of 1999 is directed by the appellant (original respondent No. 2) United India Insurance Co. Ltd., being aggrieved by the award passed by the District Judge, Jalgaon, on 7.9.1998 in Motor Accident Claim Petition No. 50 of 1992, thereby granting total compensation of Rs. 2,05,200 together with interest and both the owner and insurer, were jointly and severally made liable to pay the amount of compensation. The respondent No. 1 (original claimant) Lilabai Marathe is the widow and the respondent Nos. 2 to 5 (original claimant Nos. 2 to 5) are the children of one Ramesh Marathe (deceased), who was serving as Education Development Officer at Jalgaon. Scooter (No. MVD 6455) was owned by respondent Ramesh Chindu Patil, who was friend of deceased Ramesh Marathe. They both on 17.2.1989 were riding on the scooter, which was owned and driven by Ramesh Patil, respondent No. 1. Deceased Ramesh Marathe was the pillion rider. At about 3 p.m. the alleged accident occurred at 8 km away on Jalgaon-Shirsoli Road while the respondent Ramesh Patil had driven the scooter rashly and negligently and, when he was negotiating with the curve on the road, the scooter dashed against a guard-stone. Both the riders of the scooter were thrown away from the scooter. Ramesh Marathe did sustain head injuries and later on in Civil Hospital, Jalgaon, he succumbed to the said head injuries. Therefore, the respondents (claimants) have filed petition for compensation before the Tribunal.
2. Both the respondents, owner and insurer of the scooter, by filing their written statements, which are placed at Exhs. 34 and 31, respectively, denied the claim in the petition mainly on the ground that the scooter was not driven rashly and negligently. Secondly, the respondents (claimants) failed to establish the exact age and monthly income of the deceased. Appellant insurance company denied their liability to pay the amount of compensation on the ground that the said vehicle was driven in breach of mandatory provisions of law and the terms and conditions of the policy.
3. Learned Member took the trial, heard the parties and accordingly awarded compensation to the respondents (claimants). The appellant insurance company, feeling aggrieved by the said award, preferred this appeal mainly on the grounds that, firstly, the learned Member did not properly appreciate oral and documentary evidence adduced on record and, therefore, arrived at wrong conclusion. Secondly, the learned Member should have held that the original respondent No. 1, who is the owner of the vehicle and, who had driven the vehicle, did hold learner's driving licence within the meaning of Section 2(5-A) of Motor Vehicles Act, 1939. Thirdly, the learned Member was wrong in holding that original respondent No. 1, owner and driver, held valid driving licence. Lastly, the order passed by learned Member is not only contrary to the principles of law but against the facts and circumstances brought on record.
4. May it be noted that the facts mentioned hereinafter are not disputed by the other side or may safely be taken as proved by the evidence on record:
(i) That the respondents (claimants) Nos. 1 to 5 are the legal representatives of Ramesh Marathe and the relationship is not in dispute.
(ii) The scooter (No. MVD 6455) was owned by Ramesh Patil, respondent No. 1.
(iii) On 17.2.1989 at about 3 p.m. the said scooter was driven by Ramesh Patil, respondent No. 1 and it met with an accident.
(iv) Deceased (pillion rider) Ramesh Marathe did sustain head injuries in the accident and later on, he succumbed to the head injuries in the hospital on the same day.
(v) During relevant time, respondent Ramesh Patil held learner's driving licence.
(vi) The pillion rider did not hold any learner's driving licence or a regular driving licence.
Now, let us proceed further with this admitted position.
5. There is ample evidence on record, which will indicate that the said accident occurred only because the scooter was driven in great speed by Ramesh Patil, original respondent No. 1. As he could not control the vehicle on the curved road, it dashed against the guardstone and accident occurred. The learned Member was right in holding that the accident occurred only because of rash and negligent driving of the vehicle by the driver. Learned Member also rightly held that there was loss of dependency to the widow and children (claimant Nos. 1 to 5), because of sudden death of the sole breadwinner of the family, Ramesh Marathe and rightly awarded the amount of compensation.
6. Mr. Upadhye, learned Counsel for the appellant, argued that the driver of the vehicle, Ramesh Patil did not hold a valid driving licence and, secondly, the pillion rider Ramesh Marathe did not at all hold a driving licence. Such grounds are also taken in appeal memo. After pointing out all these things, it was also argued by the learned Counsel, in such circumstances, the appellant insurance company cannot be held liable to pay the amount of compensation. Therefore, we have to consider the case of the appellant insurance company in the light of the grounds taken in appeal memo.
7. Mr. Upadhye, the learned Counsel, argued that the vehicle driver Ramesh Patil did not hold valid driving licence. It was argued by Mr. M.B. Sabnis, learned Counsel for the other side, that respondent Ramesh Patil did hold a learner's driving licence, Exh. 63. Section 3 of the Act makes it obligatory on the part of the driver to hold effective driving licence, for the type of vehicle, which he intends to drive. Central Government, in view of Section 10 of the Act, prescribed forms of driving licence, for various categories of the vehicles. Accordingly, the respondent Ramesh Patil applied for learner's driving licence, in the prescribed form T. Accordingly, he was given learner's driving licence, Exh. 63 and it was issued on 15.11.1988 and it was valid up to 14.5.1989. The accident occurred on 17.2.1989. Thus, respondent Ramesh Patil held valid learner's licence on the date of the accident. After pointing out all these things, it was argued by Mr. Upadhye, learned Counsel, the insurance company can be held liable only when the vehicle in question was driven by a person holding valid driving licence other than learner's licence and in support of his contention he relied on the decision given by the Apex Court in New India Assurance Co. Ltd. v. Mandar Madhav Tambe . It was held that insurance company is not liable for paying the compensation, when the vehicle was driven by a person holding learner's driving licence. Therefore, in the present case also, the respondent Ramesh Patil drove the vehicle contrary to the provisions of Rule 16 framed under the Act and, therefore, appellant insurance company is not liable to pay the amount of compensation. Learned Member did not at all properly consider this aspect.
8. Now, the next question that arises for consideration is, whether deceased Ramesh Marathe, who travelled as a pillion rider, held any driving licence at the time of the accident? Rule 16 prohibits driver of the vehicle, holding learner's driving licence, to drive such vehicle. If the person riding on the pillion seat does not hold valid licence to drive the vehicle. Rule 16(iii) reads as under:
There is besides the driver in the vehicle as instructor a person duly licensed to drive the vehicle and sitting in such a position as to be able to readily stop the vehicle.
There is nothing on record which will indicate that deceased Ramesh Marathe who was driving as a pillion rider held any driving licence. Thus, the vehicle was driven by Ramesh Patil, in contravention of the provisions of the Act and the rules framed thereunder and, therefore, appellant insurance company is not liable to pay the amount of compensation. The Member of the Tribunal did not properly consider this aspect and was wrong in holding the appellant insurance company liable to pay the amount of compensation.
9. The learned Member of the Tribunal was wrong in holding the appellant United India Insurance Co. Ltd. liable to pay the amount of compensation. Therefore, to that extent, it is necessary to interfere in the finding and order recorded by the learned Member. In the result, the appeal partly succeeds. I pass following order:
First Appeal No. 14 of 1999 is partly allowed. The judgment and order passed by the Member, Motor Accidents Claims Tribunal, Jalgaon on 7.9.1998 in M.A.C.P. No. 50 of 1992 is modified and, now, the respondent No. 6 (original respondent No. 1) Ramesh Chindu Patil to pay, compensation of Rs. 2,05,200, inclusive of no fault liability amount, to respondent Nos. 1 to 5 (original claimant Nos. 1 to 5), together with interest at the rate of 12 per cent per annum from the date of claim petition till realisation.
The claim against the appellant (original respondent No. 2) United India Insurance Co. Ltd. is dismissed.
The appellant United India Insurance Co. Ltd. is at liberty to recover the amount of compensation from the owner of the vehicle, if paid under the award.
The First Appeal No. 14 of 1999 is partly allowed accordingly. In the appeal, the parties are directed to bear their own costs.