Calcutta High Court (Appellete Side)
National Insurance Co. Ltd vs Raju Sadhukhan & Ors on 7 October, 2024
In The High Court At Calcutta
Civil Appellate Jurisdiction
Appellate Side
Present:-
The Hon'ble Justice Ananya Bandyopadhyay
F.M.A. T.(MV) No. 724 of 2023
National Insurance Co. Ltd.
Versus
Raju Sadhukhan & Ors.
With
COT 96 of 2024
Raju Sadhukhan & Anr.
Vs.
The National Insurance Co. Ltd & Anr.
Ms. Sucharita Paul ...for the Appellant/Insurance Company.
Mr. Amit Ranjan Roy
...for the Respondents/Claimants.
Heard on: 05.09.2024 and 01.10. 2024.
Judgment on: October 07, 2024.
Ananya Bandyopadhyay, J:- Both the Learned Advocates for the
appellant/insurance company and the respondents/claimants are present.
The instant appeal has been filed against the judgment and award
dated 12th July, 2023 passed by the Learned Motor Accident Claims Tribunal,
Additional District Judge, Fast Track, 1st Court, Krishnagar, Nadia in M.A.C.
Case No. 336 of 2016.
The Learned Advocate for the appellant/insurance company submitted
that the Learned Tribunal did not consider the driver of the offending vehicle
to have been granted "learner licence" which could not be construed to be a
valid driving licence issued by the Motor Vehicles Department.
The Learned Advocate for the appellant/insurance company further
referred to "Rule 3 of the Central Motor Vehicles Rules, 1988". The said Rule
is quoted below:
(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
(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"
It was further emphasised that the Learned Tribunal did not grant the
liberty to the appellant/insurance company to recover the compensation
amount payable to the claimants from the owner of the offending vehicle.
The Learned Advocate for the respondents/claimants did not contradict
the submission of the Learned Advocate for the appellant/insurance company
on the ground of compensation amount to be recovered from the owner of the
offending vehicle. The Learned Advocate for the claimants/respondents
submitted that the Learned Tribunal erred in not granting the interest from
the date of filing of the claim application under Section 166 of the Motor
Vehicles Act till its actual realisation contrary to the observation of the
Learned Tribunal with regard to the mode and manner of payment of interest
in the impugned judgment and award.
An application under Section 166 of the Motor Vehicles Act was filed
stating the victim aged 51 years to have incurred an accident on 30.05.2016
at about 12.30 hours near Dakhineswar Island on the Belgharia Express
Highway with the involvement of the offending vehicle bearing registration No.
WB/03C/0800(Tata Ace). The offending vehicle approaching from Nibedita
Bridge hit the victim in a rash and negligent manner who eventually,
sustained injuries and succumbed to the same.
The Learned Advocate for the appellant/insurance company did not
dispute the occurrence of the accident, the involvement of the offending
vehicle, the route permit, the insurance policy, etc.
In National Insurance Co. Ltd. V. Swaran Singh and Ors.1, the
following has been inter alia observed by the Hon'ble Supreme Court as
follows:
"Learner's licence
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
1 (2004) 3 SCC 297
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. Sections
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 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 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.
95.Mandar Madhav Tambe case [(1996) 2 SCC 328 : 1996 SCC
(Cri) 307] , whereupon the learned counsel placed reliance, has no
application to the fact of the matter. There existed an exclusion
clause in the insurance policy wherein it was made clear that the
insurance company, in the event of an accident, would be liable
only if the vehicle was being driven by a person holding a valid
driving licence or a permanent driving licence "other than a
learner's licence". The question as to whether such a clause would
be valid or not did not arise for consideration before the Bench in
the said case. The said decision was rendered in the peculiar fact
situation obtaining therein. Therein it was stated that "a driving
licence" as defined in the Act is different from a learner's licence
issued under Rule 16 of the Motor Vehicles Rules, 1939 having
regard to the factual matrix involved therein.
96. The question which arises for consideration in these petitions
did not arise there. Neither was the same argued at the Bar nor
were the binding precedents considered. Mandar Madhav Tambe
case [(1996) 2 SCC 328 : 1996 SCC (Cri) 307] therefore, has no
application to the facts of these cases nor creates any binding
precedent. The view we have taken is in tune with the judgments
rendered by different High Courts consistently. (See for
example New India Assurance Co. Ltd. v. Latha Jayaraj [1991 ACJ
298 (Ker)] .).....................................
Summary of findings
110. The summary of our findings to the various issues as raised
in these petitions is as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing
compulsory insurance of vehicles against third-party risks is a
social welfare legislation to extend relief by compensation to
victims of accidents caused by use of motor vehicles. The
provisions of compulsory insurance coverage of all vehicles are
with this paramount object and the provisions of the Act have to be
so interpreted as to effectuate the said object.
(ii) An insurer is entitled to raise a defence in a claim petition filed
under Section 163-A or Section 166 of the Motor Vehicles Act,
1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g. disqualification of the driver
or invalid driving licence of the driver, as contained in sub-section
(2)(a)(ii) of Section 149, has to be proved to have been committed
by the insured for avoiding liability by the insurer. Mere absence,
fake or invalid driving licence or disqualification of the driver for
driving at the relevant time, are not in themselves defences
available to the insurer against either the insured or the third
parties. To avoid its liability towards the insured, the insurer has
to prove that the insured was guilty of negligence and failed to
exercise reasonable care in the matter of fulfilling the condition of
the policy regarding use of vehicles by a duly licensed driver or
one who was not disqualified to drive at the relevant time.
(iv) Insurance companies, however, with a view to avoid their
liability must not only establish the available defence(s) raised in
the said proceedings but must also establish "breach" on the part
of the owner of the vehicle; the burden of proof wherefor would be
on them.
(v) The court cannot lay down any criteria as to how the said
burden would be discharged, inasmuch as the same would
depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of
the insured concerning the policy condition regarding holding of a
valid licence by the driver or his qualification to drive during the
relevant period, the insurer would not be allowed to avoid its
liability towards the insured unless the said breach or breaches on
the condition of driving licence is/are so fundamental as are found
to have contributed to the cause of the accident. The Tribunals in
interpreting the policy conditions would apply "the rule of main
purpose" and the concept of "fundamental breach" to allow
defences available to the insurer under Section 149(2) of the Act.
(vii) The question, as to whether the owner has taken reasonable
care to find out as to whether the driving licence produced by the
driver (a fake one or otherwise), does not fulfil the requirements of
law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person
having a learner's licence, the insurance companies would be
liable to satisfy the decree......................................"
This Court restricts itself only to the point of the liability of the
insurance company in view of the aforesaid judgment in National Insurance
Co. Ltd. V. Swaran Singh and Ors. to compensate the victim and thereafter
recover the same from the owner of the offending vehicle.
It was further submitted by the Learned Advocate for the appellant/insurance
company that the Appellant/Insurance Company had deposited the entire awarded
amount with an interest of 6 % per annum from the date of filing of the claim
application i.e. 32,89,483/- as per the challan filed by the Learned Advocate for the
Appellant/Insurance company. The respondents/claimants are entitled to receive
the balance amount of Rs. 23,09,849/- at the rate of 6% per cent per annum from
the date of filing of the claim application till the date of actual realization.
The office of the Registrar General, High Court at Calcutta is to deduct the
entire amount inclusive of the awarded amount as aforesaid along with an interest
of 6 % per annum on the same from the date of filing of the claim application till the
date of realization, from the deposited amount in this Court and disburse the same
to the present respondents/claimants in equal proportion as mentioned in the
award passed by the Learned Motor Accident Claims Tribunal, Additional District
Judge, Fast Track, 1st Court, Krishnagar, Nadia in M.A.C. Case No. 336 of 2016 on
proof of proper identification of the respondents/claimants subject to payment of ad
valorem Court's fees and refund the balance amount through a cheque to the
Learned Advocate for the insurance company for the accounts of the insurance
company. The sum of interest accrued on the aforesaid amount is to be disbursed in
favour of the respondents/claimants and the balance sum of interest to be refunded
to the insurance company through distinct account payee cheques.
The instant appeal and COT are disposed of accordingly.
The interim order if any stand vacated.
Copy of the order be sent to the Department as well as the concerned
Tribunal as expeditiously as possible.
(Ananya Bandyopadhyay, J.)
