Rajasthan High Court - Jodhpur
Gajendra Kumar vs Mahesh And Ors. (2024:Rj-Jd:41281) on 8 October, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:41281]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Misc. Appeal No. 709/2017
Gajendra Kumar S/o Sohan Lal Pahad Brahmin, R/o Opposite
Gandhi Ashram, Dungarpur.
----Appellant
Versus
1. Mahesh S/o Punji Lal, R/o Vikash Nagar, Tehsil Jhonthari,
District Dungarpur. Claimant
2. Jabir Hussain S/o Ismile, Shah Musalman, R/o Lalpura,
Chandpole, Dungarpur. Driver
3. National Insurance Company Limited, Regd. and Head
Office Chennai, Divisional Office 6, Bapu Bajar, Udaipur.
Insurer
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 705/2017
Gajendra Kumar S/o Sohan Lal Pahad Brahmin, R/o Opposite
Gandhi Ashram, Dungarpur.
----Appellant
Versus
1. Smt. Huraj W/o Kurnath,
2. Babu Lal S/o Kurnath,
3. Shanti Lal S/o Kurnath,
4. Smt. Babli W/o Amra,
5. Amra S/o Gomnath,
Respondent No. 1 to 5 are R/o Padli Gujreshwar, Tehsil
Jhonthari, District Dungarpur. Claimants
6. Jabir Hussain S/o Ismile, Shah Musalman, R/o Lalpura,
Chandpole, Dungarpur. Driver
7. National Insurance Company Limited, Regd. and Head
Office Chennai, Divisional Office 6, Bapu Bajar, Udaipur.
Insurer
----Respondents
S.B. Civil Misc. Appeal No. 706/2017
(Downloaded on 15/10/2024 at 09:23:55 PM)
[2024:RJ-JD:41281] (2 of 14) [CMA-709/2017]
Gajendra Kumar S/o Sohan Lal Pahad Brahmin, R/o Opposite
Gandhi Ashram, Dungarpur.
----Appellant
Versus
1. Gatu S/o Kana Nath, R/o Padli Gujreshwar, Vikash Nagar,
Tehsil Jhonthari, District Dungarpur. Claimant
2. Jabir Hussain S/o Ismile, Shah Musalman, R/o Lalpura,
Chandpole, Dungarpur. Driver
3. National Insurance Company Limited, Regd. and Head
Office Chennai, Divisional Office 6, Bapu Bajar, Udaipur.
Insurer
----Respondents
For Appellant(s) : Mr. G.S. Rathore.
For Respondent(s) : Mr. Digvijay Singh on behalf of
Mr. Anuj Sehlot, (for claimant/s).
Mr. Vipul Singhvi, R- NIC Ltd. through
video conferencing.
None present for respondent/driver
despite service.
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment
08/10/2024
1. The appellant/owner of the offending vehicle has preferred
these misc. appeals under Section 173 of the Motor Vehicles Act,
1988 challenging the judgment and award dated 11.11.2016
passed by learned Judge, Motor Accident Claims Tribunal,
Dungarpur (hereinafter as 'the learned Tribunal') in MAC Cases
No.250/2015, 251/2015 and 252/2015, whereby the learned
Tribunal partly allowed the claim petitions filed by the respective
claimant(s) and awarded compensation of Rs.62,080/-,
Rs.11,000/- and Rs.7,53,4808/- respectively along with interest @
9% p.a. from the date of filing claim petitions. The learned
(Downloaded on 15/10/2024 at 09:23:55 PM)
[2024:RJ-JD:41281] (3 of 14) [CMA-709/2017]
Tribunal fastened the liability to satisfy the award upon all the
non-claimants, however, the learned Tribunal granted liberty to
the insurance company to first pay the compensation amount and
thereafter recover the same from the appellant/owner and
respondent no.2/driver. As these appeals arise from the respective
claim petitions (arising out of the same accident) that were
decided by the learned Tribunal vide a common judgment and
award, the facts of S.B. Civil Misc. Appeal No. 709/2017 are being
taken for the sake of convenience.
2. Briefly stated, the facts of the case are that the claimants
filed claim petitions under Section 166/140 of the M.V. Act, 1988
claiming compensation for the injuries suffered by them in the
accident, which took place on 30.04.2015 and on account of death
of Kurnath. In the claim petitions, it was inter-alia stated that on
30.04.2015 the claimants, namely, Mahesh, Gattu and Kurnath
(now deceased) were going in marriage procession in Bus bearing
registration number RJ-21-PA-2142(hereinafter as 'the vehicle').
The said Bus was being driven by its driver i.e. respondent no.2,
namely, Jabir Hussain and at about 01:00 pm, when the said Bus
reached near Shaktawaon Ka Guda - Pipla Bhatda, the driver plied
the vehicle negligently and climbed the Bus on the stones, as a
result of which the injured and deceased, fell down from the Bus
and sustained injuries. During the course of treatment, Kurnath
expired. The claimants thus filed claim petitions claiming
compensation from the non-claimants.
3. The non-claimants No.1 and 2, i.e. driver and owner of the
offending vehicle, filed their reply to the claim petitions while
(Downloaded on 15/10/2024 at 09:23:55 PM)
[2024:RJ-JD:41281] (4 of 14) [CMA-709/2017]
denying the facts averred in the claim petition and pleaded that
there was fault on the part of respondent no.2/driver.
4. On behalf of non-claimant No.3, National Insurance Co. Ltd.
reply to claim petition was filed while refuting the averments and
claim laid by the claimants. It was stated that at the time of
accident, the driver of the offending vehicle was not having valid
and effective driving licence to ply the vehicle, which was in utter
violation of the conditions of the policy. It was thus prayed that
claim petitions be rejected.
5. On the basis of pleadings of the parties, the learned Tribunal
framed 4 consolidated issues for its determination. In support of
their claim, the claimants examined AW.1 Smt. Harji, AW.2
Mahesh and AW.3 Gatu and in documentary evidence, the
claimants exhibited 39 documents. On behalf of non-claimant No.3
i.e. Insurance Company, NAW.1 Harish Kumar was examined.
6. The learned Tribunal thereafter heard final arguments and
after scrutiny of the evidence led by the parties, the learned
Tribunal vide impugned judgment and award dated
11.11.2016(hereinafter as 'the impugned award') proceeded to
partly allow the claim petitions and awarded compensation in
favour of respective claimants.
7. The instant appeals were admitted by a Coordinate Bench of
this Court vide order dated 18.04.2017 thereafter the recovery
from the appellant/owner was stayed vide order dated 01.06.2017
and the aforesaid interim protection was later on extended till
further orders vide order dated 11.10.2017.
8. Learned counsel appearing for the appellant/owner submits
that the driving licence (Ex.11) issued in favour of respondent
(Downloaded on 15/10/2024 at 09:23:55 PM)
[2024:RJ-JD:41281] (5 of 14) [CMA-709/2017]
no.2/driver was valid from 09.03.1993 to 30.04.2018 and there
was no endorsement on the driving licence, for which period, the
same was not effective and valid and the respondent no.2/driver
was not disqualified to ply the vehicle. Learned counsel for the
appellant/owner further submits that the learned Tribunal has
erred in granting the insurance company liberty to recover the
amount of compensation from the appellant/owner and
respondent no.2/driver after satisfy the award in the first
instance. Learned counsel for the appellant/owner submits that
the learned Tribunal while deciding the Issue No.2 has relied upon
the testimony of NAW.1, Harish Kumar and the reports of District
Transport Office (hereinafter as 'DTO') (Ex.A/2 and A/4). Learned
counsel for the appellant/owner submits that the DTO reports
produced by the Insurance Company were not proved as the
concerned officer of the DTO was not examined. Learned counsel
for the appellant/owner submits that the reports of DTO (Ex. A/2
and A/4) mentions that only the Driving Licence for plying Non-
Transport vehicle was not valid from 19.01.2015 to 30.04.2015,
as the said period is mentioned only in respect of the driving
license for the non-transport vehicles. He further submits that the
driving licence for transport vehicle was valid, therefore, there was
no violation of the conditions of the policy. Learned counsel for the
appellant/owner further submits that respondent no.2/driver of
the offending vehicle though was holding the driving licence, and
even if he was not having a renewed driving licence with him at
the time of accident i.e. on 30.04.2015, his driving licence was
renewed by the competent authority on 01.05.2015, thus, he can
be treated to be a person holding a driving licence not renewed,
(Downloaded on 15/10/2024 at 09:23:55 PM)
[2024:RJ-JD:41281] (6 of 14) [CMA-709/2017]
but he cannot be said to be a person, who has never been issued
licence to ply the vehicle on road by the competent authority
under the Act of 1988. Learned counsel for the appellant submits
that the licence was renewed very next day of the accident and
the licensing authority has issued it in continuation from issuing
date and no such endorsement is on the driving licence that
during such period, the driving licence in question was not valid.
9. Learned counsel for the appellant/owner relied upon
following case laws:
1. Rishi Pal Singh v. New India Assurance Co. Ltd. & Ors. :
2023 (1) RAR 12 (SC).
2. United India Insurance Company Ltd. v. Rafiq Khan & Ors. :
2007 RAR 341 (Raj.)
3. Manohar Das & Anr. v. Mishiri & Ors. : 2011 RAR 399 (Raj.)
4. Nagappa @ Nagaraja v. Ravi Kupaluru : Misc. First Appeal
No.103680/2015 decided on 08.02.2019 by Karnataka High
Court (Dharwad Bench).
10. Per contra, learned counsel appearing for the respondent
No.3- Insurance Company submits that on the date of accident
i.e. 30.04.2015, the respondent no.2/driver of the offending
vehicle was not having valid and effective licence and the same is
evident from the bare perusal of the DTO reports(Ex.A2 and
Ex.A4) wherein it is clearly mentioned that during the period from
19.01.2015 to 30.04.2015 the driving license of the respondent
no.2/driver was not valid. He further submits that the licence was
renewed on 01.05.2015, a day after the accident took place and in
between, nothing has been brought on record by the driver or the
owner to show that the respondent no.2/driver was holding valid
and effective driving license at the time of the accident (i.e., on
(Downloaded on 15/10/2024 at 09:23:55 PM)
[2024:RJ-JD:41281] (7 of 14) [CMA-709/2017]
30.04.2015). Learned counsel for the respondent No.3 further
submits that a person once given a licence to drive a vehicle on
road can get the renewal of the licence under Section 15 and as
per sub-Clause (1) of Section 15, in case a licence is renewed
within a period of thirty days, then the renewal should be made
from the date of expiry of the licence. However, the proviso
provides that in case application for renewal of a licence is
submitted after more than thirty days, then the licence shall be
renewed with effect from the date of its renewal. Learned counsel
for the respondent Insurance Company submits that in the case in
hand, since the driver obtained the renewal of licence after expiry
of thirty days from the validity period of licence, his licence
became effective from the date of renewal only and thus, the
respondent no.2/driver was not holding valid and effective driving
license at the time of the accident, which is clearly a breach of the
conditions of the insurance policy.
11. Learned counsel appearing for the respondents/claimants
also opposed the submissions made by counsel for the
appellant/owner.
12. I have considered the submissions made by counsel for the
parties and have perused the material available on record.
13. This Court finds that while deciding the Issue No.2, the
learned Tribunal has considered the DTO reports (Ex. A/2 and
A/4), according to which, from 19.01.2015 to 30.04.2015 the
licence issued in favour of driver was not valid and the same was
renewed only on 01.05.2015 i.e. a day after date of the accident
i.e. 30.04.2015. The relevant findings arrived at by learned
Tribunal while deciding the Issue No.2 reads as under:-
(Downloaded on 15/10/2024 at 09:23:55 PM)
[2024:RJ-JD:41281] (8 of 14) [CMA-709/2017]
"vr% bu lHkh ifjfLFkfr;ksa esa ;g rks izrhr gksrk gS fd
pkyd ds ikl nq?kZVuk ls iwoZ vkSj i'pkr~ oS/k vkSj izHkkoh vuqKk
i= Fkk ijUrq nq?kZVuk ds le; mDr MªkbZfoax yk;lsUl fjU;w ugha
gks ldk FkkA vr% bu lHkh ifjfLFkfr;ksa esa izkFkhZ }kjk izLrqr
uthjksa ds lknj voysdu ls ;g rks chek 'krksZa dk mYya?ku ekuk
tk ldrk gS ijUrq /kkjk 149 eksVj okgu vf/kfu;e ds izko/kkuks ds
vuqlkj rFkk Pay and Recover fl)kUr ds vuqlkj pkyd ds
ikl nq?kZVuk ls iwoZ vkSj i'pkr oS/k vuqKk i= gksus ds dkj.k
{kfriwfrZ vnk;xh dh ftEesnkjh chek daiuh ekuh tk ldrh gS rFkk
{kfriwfrZ jkf'k dk Hkqxrku gks tkus ds mijkUr chek daiuh mDr
{kfriwfrZ dh jkf'k okgu Lokeh ls fu;ekuqlkj fjdoj dj ldrh
gSA vr% bl izdkj mijksDrkuqlkj ;g fook|d vizkFkhZ la[;k 3
chek daiuh ds i{k esa r; fd;k tkrk gSA"
14. This Court finds that in the case in hand, the appellant/owner
has nowhere pleaded, either before the learned Tribunal or before
this Court, that it was not known to him that the driving licence of
respondent no.2/driver had expired on 19.01.2015 and despite for
a period of more than three months, the respondent No.2/driver
was plying the vehicle without having an effective driving licence.
Moreover, when a specific query was made by the Court from the
counsel for the appellant, as to when the driving licence of
respondent No.2 got expired, he categorically stated that the
driving licence in question got expired on 19.01.2015 and only got
renewed from 01.05.2015. Thus, it is not a case where the
appellant/owner disputes that he was not aware about the fact
that the respondent no.2/driver was not having a valid and
effective driving license as on the date of the accident and thus,
even when this fact was known to the appellant/owner, then too
he permitted the respondent no.2/driver to ply the vehicle.
15. Now, at this stage this Court deems it appropriate to refer to
the relevant provisions of the M.V. Act (the unamended Act as the
(Downloaded on 15/10/2024 at 09:23:55 PM)
[2024:RJ-JD:41281] (9 of 14) [CMA-709/2017]
accident took place on 30.04.2015 and the same are being
reproduced as under:
"Section 14:
Section 14. Currency of licences to drive motor
vehicles.--(1) A learner's licence issued under this
Act shall, subject to the other provisions of this Act,
be effective for a period of six months from the date
of issue of the licence.
(2) A driving licence issued or renewed under this Act
shall,--
(a) in the case of a licence to drive a transport
vehicle, be effective for a period of three years:
....
(b)....
Section 15:
Section 15. Renewal of driving licences.--(1) Any
licensing authority may, on application made to it,
renew a driving licence issued under the provisions of
this Act with effect from the date of its expiry:
Provided that in any case where the application
for the renewal of a licence is made more than thirty
days after the date of its expiry, the driving licence
shall be renewed with effect from the date of its
renewal:
...
(2)...
(3)...
(4)...
(5)...
(6)...
Section 149:
Section 149. Duty of insurers to satisfy
judgments and awards against persons insured
in respect of third party risks.--
(1)...
(2) No sum shall be payable by an insurer under sub-
section (1) in respect of any judgment or award
unless, before the commencement of the proceedings
in which the judgment or award is given the insurer
had notice through the Court or, as the case may be,
the Claims Tribunal of the bringing of the
[2024:RJ-JD:41281] (10 of 14) [CMA-709/2017]
proceedings, or in respect of such judgment or award
so long as execution is stayed thereon pending an
appeal; and an insurer to whom notice of the
bringing of any such proceedings is so given shall be
entitled to be made a party thereto and to defend the
action on any of the following grounds, namely:--
(a) that there has been a breach of a specified
condition of the policy, being one of the following
conditions, namely:--
(i)...
(ii) a condition excluding driving by a named
person or persons or by any person who is not duly
licensed, or by any person who has been disqualified
for holding or obtaining a driving licence during the
period of disqualification; or
(iii)...
(b)...
XXX"
Thus, it is clear from the bare perusal of the aforementioned
provisions that under Section 14 of the Act, different time periods
have been provided for different licenses for different classes of
vehicles, during which period the driving license would be effective
and for the transport vehicles this period is 3 years from the date
of the issuance or renewal of the driving license. Further, Section
15(1) of the Act provides for the renewal of the driving license and
it is stipulated therein that on an application made to the licensing
authority, it may renew a driving license issued under the Act with
effect from the date of its expiry. However, the proviso attached
to Sub-Section 1 of Section 15 of the Act stipulates that in case
the application for the renewal of a licence is made more than
thirty days after the date of its expiry, the driving licence shall be
renewed with effect from the date of its renewal. Thus, it is
evident that in cases where an application is made after the expiry
of the said period of thirty days, the same will get renewed only
from the date of its renewal and not from the date of its expiry.
[2024:RJ-JD:41281] (11 of 14) [CMA-709/2017]
Further, it is evident from the perusal of Section 149 of the Act
that under Section 149(2)(b)(ii), the insurer can avoid its liability
if there has been a breach of the condition of the policy i.e., the
driver of the insured vehicle was being driven by a person was not
duly licensed.
15. This Court, after perusing the contents of the insurance
policy(Ex. A1), finds that the conditions of policy clearly mentions
that only the persons who hold an effective driving license at the
time of the accident and are not disqualified from holding or
obtaining such a licence are entitled to drive the isured vehicle.
The relevant conditions of the policy is being reproduced as under:
" Persons or Class of Persons entitled to drive:
Any person including the insured Provided that a
person driving holds an effective driving license at
the time of the accident and is not disqualified from
holding or obtaining such a license, Provided also
that the person holding an effective Learner's license
may also drive the vehicle when not used for the
transport of goods at the time of the accident and
that such a person satisfies the requirements of Rule
3 of the Central Motor Vehicles Rules, 1989".
Important Notice: The insured is not indemnified if
the vehicle is used or driven otherwise than in
accordance with this schedule. Any payment made
by the company by the reason of wider terms
appearing in the certificate in order to comply with
the Motor Vehicle Act, 1988 is recoverable from the
Insured. See the clause headed "AVOIDANCE OF
CERTAIN TERMS AND RIGHT OR RECOVERY" "
Thus it is evident from the perusal of the conditions of the policy
in the instant case that any person is entitled to drive the insured
vehicle however the person driving the vehicle must hold effective
driving license at the time of accident. However, in present case
the driver was not holding an effective driving license at the time
[2024:RJ-JD:41281] (12 of 14) [CMA-709/2017]
of the accident (i.e., on 30.04.2015), which is evident from the
perusal of the DTO reports(Ex. A2 and Ex.A4), wherein it is clearly
mentioned that the driving licence of the respondent no.2/driver
was not valid from 19.01.2015 to 30.04.2015, and the same got
renewed on 01.05.2015. Thus, there was a fundamental breach of
the policy condition.
16. Further, the contention raised by the learned counsel on
behalf of the appellant/owner is misconceived that the driving
license was given on 09.03.1993 and having validity till
30.04.2018 as Section 14 clearly stipulates that the time period
during which a driving licence for transport vehicle remains
effective is 3 years from the date of the issuance or renewal of the
driving license. Also, the renewal of the driving licence in question
was done only on 01.05.2015 and as per Section 15, when the
application for renewal of the driving licence is made after thirty
days from the expiry of the driving licence then the same gets
renewed from the date of renewal and not from the date of its
expiry. It is evident that the driving licence for Transport Vehicle
was first issued on 19.12.1996 and lastly renewed from
01.05.2015 whereas if application for the renewal would have
been made within the statutory period of 30 days as stipulated
under Section 15 of the Act, then the driving licence of the
respondent no.2/driver would not have been renewed from
01.05.2015. Further, in the present case the DTO reports (Ex.A2
and Ex.A4) clearly mention that the driving licence in question was
not valid from 19.01.2015 to 30.04.2015, thus the same shows
that no effort was made by the respondent no.2/driver to get it
renewed for almost more than 3 months and the application for
[2024:RJ-JD:41281] (13 of 14) [CMA-709/2017]
the renewal of the driving licence was made after more than 30
days of its expiry. Thus, it cannot be said that the respondent
no.2/driver was having an effective driving licence at the time of
the accident. Further, the appellant/owner as well as the
respondent no.2/driver failed to place on record any evidence
either before the learned Tribunal or this court to show that the
driving licence in question was effective on the date of the
accident and also failed to show that any effort was made by the
respondent no.2/driver to get it renewed during the period it was
not valid. Also, it is not a case where the appellant/owner disputes
that he was unaware of the fact that the driving licence in
question was not effective at the time of the accident, thus, it is a
clear case of wilful breach of the policy conditions and defence
under Section 149(2)(a)(ii) of the Act was available to the
respondent no.3/insurance company. Thus, the learned tribunal
has rightly given the finding that there was breach of the policy
conditions and also rightly granted liberty to the respondent
no.3/insurance company to satisfy the award at the first instance
and then recover the same from the appellant/owner and
respondent no.2/driver.
17. Further, the contention raised by the learned counsel
appellant/owner that the period as mentioned in the DTO
reports(Ex.A2 and Ex.4) during which the driving license in
question was not valid was only with respect to the driving licence
of non-transport vehicle and not with respect to the transport
vehicle, does not have any force and is misconceived as it is
evident from the perusal of the said DTO reports that the period
[2024:RJ-JD:41281] (14 of 14) [CMA-709/2017]
during which the driving licence in question was not valid was with
respect to both classes of vehicles.
18. Therefore, in view of the discussion in the above paragraphs,
instant appeals filed by the appellant/owner are dismissed.
Accordingly, the compensation awarded vide the impugned award
would be payable to the respective claimant(s) in the manner as
directed by the learned tribunal and also the respondent
no.3/insurance company would be at liberty to recover the same
in the manner as directed by the learned tribunal.
19. No order as to the cost.
(DR. NUPUR BHATI),J
71 to 73-DJ/-
Powered by TCPDF (www.tcpdf.org)
