C&Cr vs Marjem Hossain @ Marjem Sekh & Ors
2023 Latest Caselaw 2166 Cal

31.03.2023           IN THE HIGH COURT AT CALCUTTA
Item No.66              CIVIL APPELLATE JURISDICTION
Ct. No. 654                    APPELLATE SIDE
Aloke

                              F.M.A. 225 of 2019

                 I.C.I.C.I Lombard General Insurance Co. Ltd.
                                            C&CR




                                      versus
                    Marjem Hossain @ Marjem Sekh & Ors.


              Mr. Parimal Kumar Pahari
                          ... for the appellant-Insurance Company

              Mr. Jayanta Kumar Mandal
                         ... for the respondent nos. 1 to 7

Mr. Prosenjit Mukherjee Ms. Poulami Dutta ... for the respondent no. 8

This appeal is preferred against the

judgment and award dated 11th September 2018

passed by learned Additional District Judge-cum-

Judge, Motor Accident Claims Tribunal, Rampurhat,

Birbhum, granting compensation of Rs.5,00,000/-

(Rupees Five Lakhs) only in favour of the claimants

together with interest under Section 163A of the

Motor Vehicles Act, 1988.

The brief fact of the case is that on 20th April,

2014 at about 16.00 hours the victim was proceeding

towards her residence at Dantura Mallikpur keeping

the left side of the Mitrapur-Kushmore pucca road

and when she reached in front of Hazi Jarshed Saheb

House under P.S-Murari the offending vehicle bearing

Model No.M&MG10, Passenger BS-3, Engine No.

13L9188461, Chassis No.MAILU2FWTDSM38343

driven in a rash and negligent manner dashed the

victim from behind. As a result of which the victim

sustained grievous injuries all over her body and was

immediately shifted to Jangipur S.D. Hospital,

Murshidabad by the local people. Subsequent thereto,

she was referred to NRS Medical College and Hospital,

Kolkata for better treatment, where she was admitted

on 22nd April, 2014. But unfortunately, she

succumbed to her injuries and died on 29th April,

2014. On account of sudden demise of the victim, the

claimants being the husband, sons and daughters

filed application for compensation of Rs.2,71,000/-

(Rupees Two Lakhs Seventy-One Thousand) only

together with interest under Section 163A of the

Motor Vehicles Act, 1988.

The claimants in order to establish their case

examined one witness and produced documents

which have been marked as Exhibits 1 to 8

respectively.

The Insurance Company also adduced the

evidence of two witnesses and produced documents

which have been marked as Exhibits A and B

respectively.

The respondent no. 8, owner of the offending

vehicle did not adduce any evidence.

Upon considering the materials on record

and the evidence adduced on behalf of the respective

parties, the learned Tribunal granted compensation of

Rs.5,00,000/- (Rupees Five Lakhs) only together with

interest in favour of the claimants under Section

163A of the Motor Vehicles Act, 1988.

Being aggrieved by and dissatisfied with the

impugned judgment and award the Insurance

Company has preferred the present appeal.

Mr Parimal Kumar Pahari, learned advocate

appearing for the appellant-Insurance Company

submits that the driver of the offending vehicle on the

relevant date was not holding valid and effective

driving licence to drive the vehicle inasmuch as on

the relevant date the driver had learner's licence.

Referring to Rule 3 of Central Motor Vehicles Rules,

1989 he submits that the holder of a learner's licence

can drive vehicle on condition that such person is

accompanied by an instructor holding effective driving

licence to drive the vehicle and such instructor

should sit in such a position to control or stop the

vehicle. However, from the evidence on record the

owner of the offending, who was driving the vehicle on

the relevant date holding a learner's licence, has

neither pleaded nor produced any evidence to show

that on the relevant date he was accompanied by an

instructor in terms of the Central Motor Vehicles

Rules, 1989. Furthermore, he submits that the

learner's licence issued in favour of the driver

prohibits him from driving any motor vehicle unless

he has besides him a person duly licensed to drive the

vehicle. Since from the materials on record it is

evident that the driver holding a learner's licence was

not accompanied by an instructor or person holding

valid licence on the relevant date in contravention of

Rules hence there is breach of condition of insurance

policy. Therefore, the Insurance Company in event of

such breach may be given liberty to recover the

amount of compensation to be paid to the claimants

from the driver and the owner. To buttress his

contentions, he relies on the decision of the Hon'ble

Supreme Court in National Insurance Co. Ltd. Vs.

Swaran Singh & Ors. reported in (2004) 3 SCC

297. In light of his aforesaid submissions, he prays

for modification of the impugned judgment and

award.

Mr. Jayanta Kumar Mandal, learned

advocate for the respondent-claimants submits that

as per settled proposition in the event of any breach

of condition of insurance policy the principle of pay

and recovery should be applied.

Refuting such contentions raised by the

insurance company, Mr. Prosenjit Mukherjee, learned

advocate for the respondent no. 8-owner of the

offending vehicle submits that as per Section 10(2) of

the Motor Vehicles Act, a driver having learner's

licence is entitled to drive the following classes of

vehicle, namely, motorcycle without gear, motorcycle

with gear, invalid carriage, light motor vehicle,

transport vehicle, road roller, motor vehicle of a

specified descriptions and thus, the vehicle being a

light motor vehicle the driver was entitled to drive

such vehicle in spite of holding a learner's licence on

the relevant date. Further referring to the decision of

Swaran Singh (supra) he submits that a driver holding

learner's licence cannot be said to be not duly

licensed since the provisions of the Motor Vehicles

Act, 1988 entitles such driver to drive the vehicle,

even if there be a condition in the contract of

insurance company that the vehicle cannot be driven

by person holding a learner's licence. Accordingly, the

driver of the offending vehicle was holding valid and

effective driving licence to drive such vehicle and,

therefore, the order passed by the learned Tribunal

directing the insurance company to compensate

should be affirmed and the principle of pay and

recovery should not be applied to the facts and

circumstances of this case.

Having heard the learned advocates for the

respective parties, it is found that the only question

that has fallen for consideration in the appeal is

whether a driver holding a learner's licence is duly

authorized to drive vehicle or such act would lead to

breach of condition of insurance policy.

It is the specific case of appellant-insurance

company that the driver of the offending vehicle on

the relevant date did not have proper driving licence.

Admittedly, on the date of accident the driver-cum-

owner of the offending vehicle was driving such

vehicle by holding a learner's licence. Mr Pahari,

learned advocate for the appellant-Insurance

Company has raised the issue that the driver holding

learner's licence on the relevant date was not

accompanied by any instructor or driver holding the

effective licence which amounts to breach. In order to

appreciate such argument advanced on behalf of the

appellant-Insurance Company, it would be apposite to

reproduce Section 3(1) of Motor Vehicle Act, 1988,

Rule 3 of Chapter II of Central Motor Vehicles Rules,

1989 and Form 3 which is as follows.

"CHAPTER II

LICENSING OF DRIVERS OF MOTOR VEHICLES

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 authorizing 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........................................................................"

" Chapter II LICENSING OF DRIVERS OF MOTOR VEHICLES General

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 of 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; and.........".

"                      FORM 3
               [See rules 3(a) and 13]
                LEARNER'S LICENCE

Licence No...................... Date.......................... Name to be written across the photograph Specimen signature/thumb impression of the holder of the licence.

Signature and seal of the licensing authority

1. Name ...............................

2. Son/wife/daughter of ...................................

3. Date of birth ....................................

4. Optional ....................................... Blood Group

RH factor .......................................

5. Present/Permanent/ ...................................... Temporary/Official (if any) address

6. Mark(s) of identification .................................

(1) ................................... (2) ................................... is licenced to drive throughout India as a learner subject to the provisions of rule 3 of the Central Motor Vehicles Rules,1989, a motor vehicle of the following description:- The holder of the licence has passed the medical test under rule 5 and the preliminary test referred to in rule 11(1) of the Central Motor Vehicles Rules, 1989. The holder of the licence is exempted from the medical test under rule 6 and from preliminary test under rule 11(2) of the Central Motor Vehicles Rules, 1989. This licence is valid from....................to...................... "Strike out whichever is inapplicable.

Signature and designation for The Licensing Authority Warning:- The attention of the holder of this licence is drawn to rule 3 of the Central Motor Vehicles 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 front and in the rear of the vehicle".

Thus, Section 3 (1) of the Act clearly provides

that no person shall drive a motor vehicle in any

public place unless he holds an effective driving

licence issued to him authorizing him to drive the

vehicle. Section 10 (2) of the Act provides that 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 class of vehicle namely motorcycle without

gear, motorcycle with gear, invalid carriage, light

motor vehicle, transport vehicle, road roller, motor

vehicle of a specified descriptions. Thus, Section

10(2) of the Act entitles a person holding learner's

licence to drive aforesaid class of vehicles. It is never

in dispute that the offending vehicle falls under the

class of vehicle covered under Section 10 (2) of the

Act. Therefore, the driver holding a learner's licence

was authorised to drive such vehicle on the relevant

date. Be that as it may, going through Rule 3 of

Central Motor Vehicles Rules, 1989 it manifest that

such authority to drive certain class of vehicle

holding learner's licence is subjected to certain

conditions.

In Swaran Singh's Case (supra) the Hon'ble

Court observed as follows in paragraph 93 and 94.

"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 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.

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

provides for the restriction in the matter of grant of driving licence, Section 7 deals with such restrictions on granting of learner's licence. Section 8 and 9 provide for the manner and conditions for grant of driving licence. Section 15 provides for renewal of driving licence. Learner's licences 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 licences granted in terms of the statute. A person holding learner's licence 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 main enactment. It is also 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."

Bearing in mind the aforesaid

observation of Hon'ble Court that a learner's licence is

also a licence within the provisions of the Act and

cannot 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. Therefore, the authority to drive on the basis

of learner's licence is subjected to the conditions

mentioned in the licence. On perusal of the learner's

licence (Exhibit B) issued under Form 3, it appears

that the attention of the holder of the licence has

been drawn to Rule 3 of Central Motor Vehicles Rules,

1989 prohibiting him from driving any motor vehicle

unless he has besides him a person duly licensed to

drive the vehicle. Rule 3 of Central Motor Vehicles

Rules, 1989 provides that provisions of sub-section

(1) of section 3 shall not apply to a person so long as

such person is the holder of an effective learner's

licence issued to him in Form 3 to drive the vehicle

and 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. If Section 3(1) of the Act is

read with the general provisions of Rule 3 of Central

Motor Vehicles Rules, 1989 it manifest that the

person holding a learner's licence can drive such

vehicle on condition that he should be accompanied

by an instructor holding an effective driving licence to

drive the vehicle.

The respondent no. 8 contested the claim

application before the learned Tribunal. No case has

been made out that on the relevant date the driver

cum owner of the offending vehicle was accompanied

by any instructor holding effective driving licence to

drive such vehicle or any evidence was led to satisfy

the compliance of provisions of law. The charge-

sheet (Exhibit 2) submitted also does not reveal that

on the relevant date of accident the driver cum

owner of the offending vehicle was accompanied by

any instructor. That being the position, the driver on

the relevant date though 'duly licenced' has

breached the condition of licence as provided in the

sections, rules and the licence as well discussed

hereinabove by not being accompanied by an

instructor holding an effective driving licence to drive

the vehicle on the relevant date. The condition in the

policy of insurance (Exhibit 5) shows that a person

holding effective learner's licence may also drive the

vehicle provided such a person satisfies

requirements of Rule 3 of Central Motor Vehicles

Rules, 1989. The aforesaid conditions is in

consonance with the existing provisions and rules

pertaining to learner's licence as discussed above.

Now the question arises as to what would be the

consequence of such breach. At this stage it would

be proficient to refer the decision of Hon'ble

Supreme Court passed in Swaran Singh's Case

(supra) wherein it held that where on adjudication of

the claim under the Act the tribunal arrives at a

conclusion that the insurer has satisfactorily proved

its defence in accordance with the provisions of

Section 149 (2) read with sub-section (7), the

tribunal can direct that the insurer is liable to be re-

imbursed by the insured for the compensation and

other amounts which it has been compelled to pay to

the third party under the award of the tribunal. In

the case of Amrit Paul Singh and another versus

TATA AIG General Insurance Company Limited

reported in (2018) 7 SCC 558, the Hon'ble Supreme

Court has applied the principles of pay and recovery

following Swaran Singhs Case (supra) in the event of

breach of condition of insurance policy.

Accordingly, since it is found that there is

breach of condition of licence as well as policy of

insurance, the principles of pay and recovery would

attract in the facts and circumstances of the case.

The quantification of compensation is not in

challenge in the appeal.

The impugned judgment and award of the

learned Tribunal is modified to the extent that the

appellant- Insurance Company shall satisfy the

award by making payment of the compensation

amount to the claimants along with interest as

directed by the learned tribunal and is given liberty

to recover the compensation amount paid from the

owner and driver in accordance with law.

It is informed that the Insurance Company

has deposited a sum of Rs.6,12,433/- vide OD

challan no. 56 dated 09.04.2019 in terms of order of

this Court dated 15th March, 2019 as well as

statutory deposit of Rs.25,000/- vide OD challan no.

2468 dated 3rd January, 2019 with the Registry of

this Court.

The respondents-claimants are directed to

deposit ad valorem court fees, if not already paid.

Learned Registrar General, High Court is

directed to release the aforesaid amounts together

with accrued interest in the same proportion as

directed by the learned Tribunal in favour of the

claimants upon satisfaction of their identity and

payment of ad valorem court fee, if not already paid.

With the aforesaid observations, the appeal

stands allowed. No order as to costs.

Interim order, if any, stands vacated.

All connected applications, if any, stand

disposed of.

Lower Court Records be sent down along

with the copy of this order forthwith.

Urgent Photostat certified copy of this order,

if applied for, be supplied to the parties, upon

compliance with all requisite formalities.

(Bivas Pattanayak, J.)