Delhi High Court
The Oriental Insurance Co. Ltd. vs Smt. Rajindri & Ors. on 2 September, 2008
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
MAC App. No.189/2008
% Judgment reserved on:21st August, 2008
Judgment delivered on:2 ndSeptember, 2008
The Oriental Insurance Co. Ltd.
Through its Manager
D.O.-25, G-8, Hauz Khas Market
New Delhi-110016
Through its Deputy Manager
Oriental Insurance Company Ltd.
RO-1, 86-88, Janpath
New Delhi-110001 ....Appellant
Through: Mr. Madhurendra
Kumar, Adv.
Versus
1. Smt. Rajindri
W/o. Late Sh. Beer Singh
2. Km. Sonwati
D/o. Late Sh. Beer Singh
3. Kamal
S/o. Late Sh. Beer Singh
4. Km. Neha
D/o. Late Sh. Beer Singh
5. Naveen
S/o. Late Sh. Beer Singh
(Appellant Nos. 2 to 5 are
represented through Appellant No.1)
MAC App. No.189/2008 Page 1 of 16
All R/o. A-2, Asola
Fatehpur Beri
New Delhi-110030
6. Surya Bahadur Thapa
S/o. Sh. Prem Bahadur Thapa
R/o. House of Ram Kumar
Neb Sarai
New Delhi-110068
7. Sh. Joginder Kumar
S/o. Late Sh. Nathu Singh
R/o. Village Neb Sarai
New Delhi-110068 ....Respondents
Through: None for R-1 to 5.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
This is an appeal under Section 173 of the Motor
Vehicles Act, 1988 (for short as the „Act‟) against the
award dated 11.12.07 passed by Sh. J.P.S. Malik,
Judge, Motor Accident Claims Tribunal (for short as
the „Tribunal‟), New Delhi.
2. Brief facts of the case are that on 1.8.99 deceased
Beer Singh @ Billoo was coming from his farm house
on two wheeler scooter and at about 1.40 pm, when he
reached at Sant Yoga Ashram, Fatehpur Beri, Delhi, he
was hit by tempo no. DL-1L-C-9634 which was being
driven by respondent no.6 herein, in a rash and
negligent manner, came from the side at Sant Yoga
Ashram. It is alleged that deceased fell down on the
road because of the impact and sustained grievous
injuries. He was removed to AIIMS Hospital, where he
was diagnosed having suffered fracture of left tibia
severe head injuries.
3. It is further stated that deceased was again
admitted at Vimhans Hospital, Nehru Nagar, New
Delhi where he remained admitted up to 09.08.99 and
treatment continued even after discharge of the
deceased from the hospital and he ultimately
succumbed to the injuries on 17.07.2000.
4. The claimants filed the claim petition against the
respondent no. 6 herein being the driver of the
offending vehicle, respondent no. 7 herein, being the
owner of the offending vehicle and appellant herein, as
the offending vehicle is insured with them.
5. Notice of the petition was issued to all three i.e.
respondent no.6, respondent no.7 and the appellant.
6. After appearing once, respondent nos. 6 & 7
stopped attending the proceedings and were
proceeded ex parte on 11th July, 2002.
7. Appellant in its written statement took the
preliminary objection that the driver who is alleged to
be on the wheels at the time of accident was not
possessing an effective driving licence for the type of
vehicle alleged to have been involved in the accident.
On merits, all the allegations made in the petition were
denied. However, the factum of insurance has been
admitted.
8. Vide impugned judgment, the Tribunal awarded
compensation of Rs.4,45,703/- along with the interest
@ 9% per annum from the date of filing of the petition
i.e. 30.09.2000 till its realization in favour of the
claimants.
9. On 23.04.08, this appeal was listed for hearing
and in the meanwhile, a caveat has been filed on behalf
of respondent nos. 1 to 5 and the matter was
adjourned for 21.08.08.
10. On 21.08.08, counsel for the appellant was
present but none was present on behalf of respondent
nos. 1 to 5.
11. The matter was passed over once. On the second
call, none was present on behalf of respondent nos. 1
to 5.
12. Arguments advanced by learned counsel for the
appellant were heard.
13. It is contended by learned counsel for the
appellant that the driver of the offending vehicle did
not have a valid and effective driving licence to drive
LTV and there was no endorsement in the said driving
licence to that effect. The word "LTV" was added to
the licence of the driver/respondent no.6 on 23.08.99
after the accident took place on 01.08.99. Thus, the
driver did not possess a valid driving licence to drive a
LTV on the day of the accident which clearly
exonerates the insurer from any liability.
14. It was well established before the Tribunal by the
testimony of the PW-2, Chaman Lal that the deceased,
Beer Singh sustained grievous injuries and died in a
road accident caused due to rash and negligent driving
of Tempo by Respondent No.6.
15. The testimony of PW-2 has not been challenged as
regard the circumstances in which the accident had
taken place and injuries were received by the
deceased.
16. Section 2(47) of the Act defines the term
„transport vehicle‟ as under;
"„transport vehicle‟ means a public
service vehicle, a good carriage, an
educational institution bus or a private
service vehicle;"
17. Section 2(21) of the Act defines the term „light
motor vehicle‟ as under;
"„light motor vehicle‟ means a
transport vehicle or omnibus the
gross vehicle weight of either of
which or a motor car or trator or
road-roller the unladen weight of
any of which, does not exceed 7500
kilograms;"
18. A plain reading of Section 2(21) of the Act shows
that „light motor vehicle‟ includes a „transport vehicle‟
but it nowhere says that „transport vehicle‟ also
includes „light transport vehicle‟. Further, a „transport
vehicle‟ has been defined in Section 2(47) of the Act as
above.
19. Sub-section (10) of Section 2 of the Act defines
'driving licence' as under;
"'driving licence" means the licence
issued by a competent authority
under Chapter II authorizing the
person specified therein to drive,
otherwise than as a learner, a motor
vehicle or a motor vehicle of any
specified class or description;"
20. Section 10 of the Act prescribes form and
contents of licences to drive, which reads as under;
"10. Forms and contents of
licences to drive---
(1) Every learner's license and
driving licence, except a driving
licence issued under Section 18, shall
be in such form and shall contain
such information 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:
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) transport vehicle;
(i) road-roller;
(j) motor vehicle of a specified
description."
21. This provision shows that for driving transport
vehicle a person needs to have a licence of that
category.
22. As per statement of R3W2, Pradeep Kumar, clerk
from the office of SDM, Gurgaon, he has deposed that
driving licence copy of which is Ex. R3W1/6, was
issued on 10.03.98 and was valid up to 09.03.03.
23. The case of the Appellant is that the driver of the
offending vehicle was not in possession of a valid
driving licence. The driving licence issued to the driver
was only for motorcycle/car/scooter/jeep and the word
„LTV‟ was added later.
24. The Tribunal on this point has held as under;
"The only issue is that word „LTV‟ was
added in the licence on 23.8.99,
otherwise it was valid for
motorcycle/car/scooter/jeep. The
vehicle no. DL-1L-C-9634 being driven
by R1 was Tata Tempo 407 but even
before LTV was added to the licence
of R1, the driving licence was valid for
driving motorcycle/car/scooter/jeep
and it can not be said that non-
possession of driving licence to drive
LTV, was in any way responsible for
causing the accident. R1 had the
necessary skill to drive the vehicle in
question and as such, R3/Insurance
company being the insurer cannot
avoid its liability on the basis of
technalities."
25. In National Insurance Co. Ltd. v. Swaran
Singh & Ors., (2004) 3 SCC 297, the Apex Court has
observed as under;
"In each case, on evidence led before
the Tribunal, a decision has to be
taken whether the fact of the driver
possessing licence for one type of
vehicle but found driving another
type of vehicle, was the main or
contributory cause of accident. If on
facts, it is found that the accident
was caused solely because of some
other unforeseen or intervening
causes like mechanical failures and
similar other causes having no nexus
with the driver not possessing
requisite type of licence, the insurer
will not be allowed to avoid its
liability merely for technical breach
of conditions concerning driving
licence."
The Apex Court further in paragraph
47 of the judgment, held that;
"If a person has been given a licence
for a particular type of vehicle as
specified therein, he cannot be said
to have no licence for driving another
type of vehicle which is of the same
category but of different type. As for
example, when a person is granted a
licence for driving a light motor
vehicle, he can drive either a car or a
jeep and it is not necessary that he
must have driving licence both for
car and jeep separately."
In paragraph 48, the Apex court has
observed as under;
"Furthermore, the insurance
company with a view to avoid its
liabilities is not only required to show
that the conditions laid down under
Section 149(2)(a) or (b) are satisfied
but is further required to establish
that there has been a breach on the
part of the insured. By reason of the
provisions contained in the 1988 Act,
a more extensive remedy has been
conferred upon those who have
obtained judgment against the user
of a vehicle and after a certificate of
insurance is delivered in terms of
Section147(3). After a third party has
obtained a judgment against any
person insured by the policy in
respect of a liability required to be
covered by Section 145, the same
must be satisfied by the insurer,
notwithstanding that the insurer may
be entitled to avoid or to cancel the
policy or may in fact have done so.
The same obligation applies in
respect of such a liability, but who
would have been covered if the policy
had covered the liability of all
persons, except that in respect of
liability for death or bodily injury."
The Apex court has observed as
under;
"Under the Motor Vehicles Act,
holding of a valid driving licence is
one of the conditions of contract of
insurance. Driving of a vehicle
without a valid licence is an offence.
However, the question herein is
whether a third party involved in an
accident is entitled to the amount of
compensation granted by the Motor
Accidents Claims Tribunal although
the driver of the vehicle at the
relevant time might not have a valid
driving licence but would be entitled
to recover the same from the owner
or driver thereof.
It is trite that where the insurers,
relying upon the provisions of
violation of law by the assured, take
an exception to pay the assured or a
third party, they must prove a wilful
violation of the law by the assured. In
some cases violation of criminal law,
particularly, violation of the
provisions of the Motor Vehicles Act
may result in absolving the insurers
but, the same may not necessarily
hold good in the case of a third party.
In any event, the exception applies
only to acts done intentionally or "so
recklessly as to denote that the
assured did not care what the
consequences of his act might be".
26. In Hardayan Singh v. Chiranji Lal and Ors., I
(2003) ACC 114, Punjab and Haryana High Court has
observed as under;
"Once, a licence can be granted by
virtue of provisions contained in
Section 10 only with regard to kind of
vehicles or type of vehicle,
enumerated therein, the mere fact that
in the licence of appellant scooter/
motor cycle/ car/ jeep were mentioned,
would be of no consequence. It shall
be considered to be driving licence for
a Light Motor Vehicle and tempo, as
per definition of Light Motor Vehicle,
as contained in Section 2(21) of the
Act of 1988, would be a light motor
Vehicle. The definition of Light Motor
Vehicle apart, it does not sound to
reason even otherwise that a person,
who is issued a valid licence to drive a
car/ jeep, could not drive a tempo.
There is no special training that may
be required to drive a tempo which
may be different in material details for
driving a jeep/ car. The mechanism of
all these vehicles is practically same.
The distinction in driving various kinds
of vehicles and grant of licence thereof
is primarily when such vehicles are
different in mechanism and require
different kind of training."
27. Here, in the present case, the driver was
admittedly holding a valid driving licence for light
motor vehicle.
28. Other argument advanced by learned counsel for
the appellant is that no direct nexus has been
established on record between the deceased‟s death
and the injuries alleged to have been received by him
in a road accident, since accident took place on 1st
August, 1999 whereas deceased died on 17th July,
2000.
29. This plea of the counsel for the appellant is liable
to be rejected at the outset, since this defence was
nowhere pleaded in the written statement filed by the
appellant in the Tribunal.
30. Moreover, it goes to the merit of the case and
appellant/Insurance Company is not entitled to plead
this defence in view of Section 170 of the Act.
31. Admittedly, no application under Section 170 of
the Act was filed by the appellant before the Tribunal.
Further, at the time of filing of this appeal, it has been
mentioned by the appellant that;
"Order under Section 170 of the MV
Act is not required to be filed as we
have not challenged the quantum of
compensation."
32. Nevertheless, the Tribunal has dealt with this
issue also in its judgment while deciding issue No.1
and I do not find any reason to disagree with the
findings of the Tribunal. On this point, it has been held
by the Tribunal that;
"This is clear from Ex.PW2/A-1 to
the effect that no beds were
available in the Neutrotrauma
Department of AIIMS Hospital and
the patient was referred to
Safdarjung Hospital/RML Hospital
but thereafter, deceased was
treated at Vimhans Hospital and
was diagnosed as having suffered
head injuries with fracture of left
tibia with ARDS, as per Ex.PW1/A-4.
In the circumstances, I hold that the
injuries received by the deceased
Beer Singh in the accident on 1st
August, 1999 had ultimately
resulted in his death on 17th July,
2000."
33. In view of the above discussion, I hold that there
is no infirmity or illegality in the impugned judgment
passed by the Tribunal.
34. The present appeal filed by the appellant is
without any merits and the same is hereby dismissed
with costs. Costs are assessed at Rs.5,000/-.
35. Costs be deposited by way of cheque in the name
of Registrar General of this Court within four weeks
from today.
36. List for compliance on 17th October, 2008.
September 02, 2008 V.B.GUPTA, J.
rs
