Madras High Court

The Divisional Manager vs Sivalingam on 10 March, 2021

                                                                           C.M.A(MD) No.1398 of 2011


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED: 10.03.2021

                                                      CORAM

                          THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM

                                           C.M.A(MD) No.1398 of 2011
                                                    and
                                             M.P(MD)No.2 of 2011

                      The Divisional Manager,
                      National Insurance Co., Ltd.,
                      Divisional Office,
                      Jerome Buildings,
                      Trichy-2.                             .. Appellant/Respondent No.2

                                                      vs.

                      1.Sivalingam                                 .. Respondent-1/petitioner
                      2.Pon Pandi                           .. Respondent-2/Respondent-1

                      Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
                      Vehicles Act 1988, to set aside the fair and decreetal order, dated
                      28.02.2008 made in MCOP No.2705 of 2000 on the file of the Motor
                      Accidents Claims Tribunal (Fast Track Court-II/Addl.District Judge),
                      Trichy and allow this Civil Miscellaneous Appeal.
                                     For Appellant    : Mr.S.Srinivaraghavan
                                     For R1           : Mr.P.Arun Jayatram
                                     For R2           : No appearance



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                                                                            C.M.A(MD) No.1398 of 2011




                                                   JUDGMENT

This appeal is directed against the award passed by the Motor

Accident Claims Tribunal (Fast Track Court-II/Addl.District Judge)

Trichy in M.C.O.P.No.2705 of 2000, wherein, for the claim of Rs.

3,00,000/- the Tribunal has awarded a sum of Rs.38,650/-.

2. The facts in brief would run thus:-

The first respondent herein filed the claim petition stating that on

29.02.2000 at about 6.30 p.m., when he was proceeding in his Yamaga

Motorcycle bearing registration No.TN-49-A-1458 at Manachanallur

Edamalai road, a motorcycle bearing Registration TN-45-X-7056, which

was driven by its driver in a rash and negligent manner hit against him.

In the accident, he sustained injury and the vehicle was also heavily

damaged. Immediately, he was taken to Chidambaranathan Nursing

Home and after giving first aid he was admitted in Trichy Government

Hospital.

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3.The owner of the offending vehicle remained ex-party and it was

contested by the appellant herein. In their counter, they have disputed

the manner of the accident and the involvement of the vehicle. It is

specifically stated that the vehicle was driven by a person, who was not

having valid and effective driving licence at the time of accident.

4. The Tribunal after analysing the evidence adduced by the

parties, awarded a sum of Rs.38,650/- making the appellant Insurance

Company liable to pay the amount.

5. Mr.S.Srinivasa Raghavan, learned counsel appearing for the

appellant would argue that the Tribunal has failed to appreciate the

defence of the appellant, the evidence of R.Ws.1 & 2 and exhibits R1 to

R3 in proper perspective. According to the learned counsel, the evidence

produced by the appellant would show that the rider of the vehicle was

having licence to drive the light motor vehicle, but no valid and effective

license was issued to drive the two-wheeler. The learned counsel for the

appellant drew the attention of this Court to Section 3 and 10(2) of the

http://www.judis.nic.in C.M.A(MD) No.1398 of 2011

Motor Vehicles Act to show that after the amendment to the Motor

Vehicles Act in the year 1994, seperate licence has to be obtained by the

person, who is driving motorcycle with gear and without gear, LMV and

transport vehicle.

6.Heard the learned counsel appearing for the respondents in this

regard.

7.The Tribunal while deciding the liability of the Insurance

Company, held that a person, who was issued with licence to drive the

LMV can drive a two-wheeler following the decision reported in 2005

ACJ 1509.

8. In this regard, it is useful to refer the Section 10 of the Motor

Vehicles Act, which reads thus:-

“10. Form and contents of Licence to drive.-

(1) Every Learner's Licence and Driving Licence, except a Driving Licence issued under Section 18, shall be in such form and shall contain such information as may be

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prescribed by the Central Government.

(2) A Leaner'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 more of the following classes, namely, -

(a) Motorcycle without Gear;

(b) Motorcycle with Gear;

(c) invalid carriage;

(d) Light Motor Vehicle;

(e) Transport Vehicle;

(i) Road-Roller

(j) Motor Vehicle of a specified description.”

9. A plain reading of the above provision would make it clear that

the above Section was amended in the year 1994 prescribing Forms and

contents of license to drive different category of vehicles. Therefore, a

person, who wants to drive a two wheeler, is required to take a separate

licence of driving a two wheeler. However, the Tribunal overlooking the

amendment brought into the Motor Vehicles Act, held that the person

who is having light motor vehicle, is entitled to drive a two wheeler.

10.An identical issue came up for consideration before the Hon'ble

Apex Court in Oriental Insurance Co. Ltd. vs. Zaharulnisha and

http://www.judis.nic.in C.M.A(MD) No.1398 of 2011

others (AIR 2008 SC 2218), wherein, it has been observed and held that

the Insurance Company cannot be made liable to pay amount of

compensation if the vehicle was driven by the person, who had no valid

and effective licence to drive the vehicle on the date of accident. The

relevant paragraph is extracted hereunder:-

“18. In the light of the above-settled proposition of law, the appellant insurance company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of scooter by Ram Surat who is admittedly had no valid and effective licence to drive the vehicle on the day of accident. The scooterist was possessing driving licence of driving HMV and he was driving totally different class of vehicle which act of his is in violation of Section 10(2) of the MV Act.”

11.In the latest decision of this Court reported in 2019(1) TN

MAC 373 (Chandru vs. Multi Speciality Lab Services Pvt. Ltd.) it

has been held as under:-

14.A person must possess a Driving Licence in

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respect of the class of vehicle which he wants to drive.

From a bare reading of Section 10 of the Act, it is clear that licence for a Motorcycle is for a separate class of vehicle than for an LMV. A person possessing a licence for LMV or even for a Transport Vehicle may not be competent to drive a Two-wheeler. On the strength of a License to drive a Two-wheeler. Therefore, the Tribunal was right in holding that at the time of accident, the Appellant was not in possession of valid Driving Licence to drove a Two-wheeler.”

12.In the present case, indisputably, the driver of the offending

vehicle did not possess a licence to drive motorcycle at that relevant

time, however, he was issued with a licence of driving LMV. In view of

the decisions referred supra, the finding of the Tribunal could not be

affirmed. Hence, it is hereby set aside.

13.Taking note of the fact that admittedly the deceased was a third

party and the Insurance Company has proved that the vehicle was driven

by a person who was not having valid driving license, this Court directs

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the Insurance Company to satisfy the award amount to the claimants and

thereafter, recover the same from the owner of the vehicle. Since the

appellant has not disputed the quantum, it is confirmed.