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Judgment
S. Sujatha, J.—These appeals arise out of the common judgment and award passed by the MACT, Gangavathi in MVC Nos. 176 to 180 of 2008.
The facts in brief are:
On 28.07.2007 at about 9.00 a.m. on Kampli-Bellary main road, the claimants being the passengers in Auto bearing No. KA-35/9787, met with an accident due to rash and negligent driving of its driver, as a result, the inmates of the Auto sustained injuries. It transpires that, immediately, they were moved to PHC, Kampli for treatment. Further, after getting treatment, they were advised to take follow up treatment. The claimants who are passengers in the said Auto filed claim petitions before the Tribunal, which were resisted by the insurance company. The primary defence of the insurance company was that the driver of the offending vehicle was aged about 19 years as per FIR, he was holding a learner''s license, not authorized to drive a transport vehicle, authorized to drive light motor vehicle (LMV-non transport), the offending vehicle being transport vehicle, there was breach of terms of the policy, the insurer was exonerated from the liability. The Tribunal after considering the rival submissions made by the parties, in the light of the evidence placed on record, fixed the liability on the insurance company holding that the defence of the insurance company is contrary to the judgment reported in Ramjan Khan and Another Vs. Khuman and Others, , wherein, it is held that the learners license is nothing but holding the valid driving license. Being dissatisfied with the said judgment, the insurance company is before this Court challenging the said common judgment mainly on the ground of liability.
Heard the learned counsel appearing for the insurance company. Though respondents are served, no representation on behalf of the respondents.
The learned counsel appearing for the appellant mainly contends that Section 3(1) of the Motor Vehicle Act, 1988 (hereinafter referred to as ''the Act'' for short) postulates that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising 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.
However, learned counsel placed reliance on Section 4 of the Act to contend that, no person under the age of 20 years shall drive the transport vehicle in any public place. It is further contended that the driver of the vehicle had the learner''s license as provided under Rule 3 of the Central Motor Vehicles, Rules 1989.
In view of these specific provisions of the Act, the driver of the offending vehicle was authorized to drive only LMV (non-transport). As per the Notification issued by the Government of India, the vehicle involved at the time of accident was Autocab, which is a transport vehicle. As per the said Notification dated 05.11.2004, published in the Gazette of India, Extra-Ordinary, Part II, three wheeled vehicles for transport of passengers/goods comes within the ambit of transport vehicle. As such, the driver had no valid and effective license at the time of occurrence of the accident to drive the transport vehicle, which squarely attracts the provisions of Section 149(2) of the Act and the defence of breach of the terms of the policy, is available to the insurer, which is not properly appreciated by the Tribunal.
On hearing the learned counsel appearing for the appellant and perusing the records, it is clear that the offending vehicle involved in the accident is an Autocab, it is a light motor vehicle. However, the license issued by the authorities under the Act clearly specifies that the driver was authorized to drive non-transport light motor vehicle, which was evidenced from Ex. P6. The Notification dated 05.11.2004 issued by the Central Government for the purposes of Section 41(4) of the Act specifies that, three wheeled vehicles for transport of passenger/goods falls under the category of transport vehicle. As per FIR at Ex. P1, the age of the driver was clearly mentioned as 19 years. Analyzing all these exhibits along with a conjoint reading of Sections 3 and 4 of the Act read with Rule 3 of the Rules, it is clear that the driver aged 19 years at the time of occurrence of the accident was not authorized to drive a transport light motor vehicle involved in the accident. As such, Section 149(2) of the Act comes into operation and it is rightly contended by the learned counsel for the appellant that, in view of the driver of the offending vehicle not holding a valid and effective driving license at the time of occurrence of the accident, the insurer is not liable to indemnify the owner for breach of the terms of the insurance policy. In the circumstances, the Tribunal, fastening the liability on the insurer holding that the learner''s license is on par with the driving license, is unsustainable.
Accordingly, the appeals are allowed exonerating the insurer from the liability. However, as per the judgment of this Court in MFA No. 21080/2009 and connected matters disposed of on 05.01.2015, the appellant insurer is bound to satisfy the award and proceed against the insured for recovery of the amount, as there has been a clear violation of a condition of the insurance policy.
The statutory amount in deposit, if any, shall be transmitted to the Tribunal concerned and the claimants are at liberty to withdraw the same.