AI Structured Summary
Not yet generated for this judgment
Judgment
C.L. Pangarkar, J.—The insurance company has preferred this appeal against the award passed by the Tribunal. Facts are as follows:
Deceased Mukunda was on the date of the accident crossing Umred Road in front of the house of one Meshram. It is alleged that while he was so crossing the road one motor cycle Bajaj M-80 bearing No. MH 31-B 7454 came at a high speed and gave dash to deceased Mukunda. He suffered serious injuries. He died on 25.2.1991, four days after the accident. The claimants who are the widow and children of the deceased laid a claim of compensation of Rs. 2,00,000 against the owner/respondent No. 5 and appellant insurance company. Respondent No. 5 resisted the claim but does not dispute the ownership of the vehicle. It is his contention that the said vehicle was insured with the appellant insurance company. It is his contention that since respondent No. 5 was not driving the vehicle he is not liable to pay any compensation.
Insurance company mainly resisted the application on the ground that the person who was driving the said motor cycle did not hold a valid driving licence.
Learned Judge of the Tribunal found that the motor cycle was being driven in a rash and negligent manner. It was insured with respondent No. 2 and claimants were entitled to compensation of Rs. 97,000. Feeling aggrieved by the direction to the insurance company to pay the compensation the insurance company has preferred this appeal.
I have heard the learned counsel for the appellant. None appears for the respondents.
Mr. Kalar, the learned counsel for the appellant, submits that the insurance company challenged the award only on the ground that the driver of the motor cycle did not possess valid and effective driving licence and as such there was a breach of condition of policy. It is the case of the claimant that when deceased was crossing the road he was hit by the motor cycle and the motor cycle was being driven by one Kashinath Sedam. The appellant insurance company has raised the defence that the driver did not hold a valid and effective licence. Mr. Kalar, learned counsel for the appellant, submits that the policy of insurance contained condition that driver must possess a valid and effective licence and he alone is entitled to drive. He submits that the meaning of words ''valid'' and ''effective'' should be considered by the court. He submits that ''effective'' means the person must be authorised by the Transport Officer to drive that kind of vehicle and there ought to be such endorsement on the licence. He also submits that licence must be valid on the date of the accident, i.e., it must not have expired on that day. He brings to my notice section 10 of the Motor Vehicles Act. Section 10 defines the class of vehicles for which licence to drive is issued. The driver in this case was driving a motor cycle with gear, i.e., the vehicle as described in clause (b) of section 10 (2) of the Motor Vehicles Act. Motor cycle has been defined in the Act as follows in section 2 (27):
2 (27) ''motor cycle'' means a two-wheeled motor vehicle, inclusive of any detachable side-car having an extra wheel, attached to the motor vehicle.
Appellant has placed on record the certificate from the R.T.O. showing the kind of licence driver Kashinath Sedam was holding. It shows that driver was authorised to drive an autorickshaw and autorickshaw is not a motor cycle as is clear from the definition. Autorickshaw therefore must fall either in light motor vehicle or motor car which are defined as follows:
Light motor vehicle: ''light motor vehicle'' means a transport vehicle or omnibus the gross vehicle weight or either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms.
Motor car: ''motor car'' means any motor vehicle other than a transport vehicle, omnibus, tractor, motor cycle, road-roller or invalid carriage.
If these definitions are read, it is more than clear that driver did not possess the licence to drive the motor cycle but possessed the licence for different class of vehicle. There is therefore no escape but to hold that he did not possess effective licence to drive the motor cycle. Next question is whether this could be treated as fundamental breach so as to bring an end to the contract of the policy? The policy has been placed on record. It contains a clause that the driver must possess valid and effective driving licence. In this regard it may be mentioned that Apex Court had an occasion to deal with such situation in the following two decisions: Oriental Insurance Co. Ltd. Vs. Zaharulnisha and Others, and Bhuwan Singh Vs. Oriental Insurance Company Ltd. and Another, . In Oriental Insurance Co. Ltd. v. Zaharulnisha, Apex Court observes as follows:
(18) In the light of the above settled proposition of law, 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 admittedly had no valid and effective licence to drive the vehicle on the day of accident. The scooterist was possessing driving licence for driving HMV and he was driving totally different class of vehicle which act of his is in violation of section 10 (2) of the M.V. Act.
(19) In the result, the appeal is allowed to the limited extent and it is directed that the appellant insurance company though not liable to pay the amount of compensation, but in the nature of this case it shall satisfy the award and shall have the right to recover the amount deposited by it along with interest from the owner of the vehicle, viz., respondent No. 8, particularly in view of the fact that no appeal was preferred by him nor has he chosen to appear before this court to contest this appeal. This direction is given in the light of the judgments of this court in National Insurance Co. Ltd. Vs. Baljit Kaur and Others, and Deddappa and Others Vs. The Branch Manager, National Insurance Co. Ltd., .
Supreme Court has clearly held in these decisions that if a person is found driving vehicle of class which he is not authorised to drive, that can be treated as a breach of condition of policy and the insurance company will have to be relieved of its liability to reimburse the insurer. No direction also to the insurance company to reimburse first and recover from the owner can be given in this case by this court. Such direction can be issued by the Supreme Court under Article 142 of the Constitution of India. It was held by this court in a decision in Traders Private Ltd. v. Sunanda, 2010 ACJ 669 (Bombay), that decision as given by the Supreme Court in Baljit Kaur (supra) was one under Article 142 and such direction cannot be given by the High Court. In the circumstances even a direction to recover the amount from the owner by the insurance company cannot be given. In the circumstances the appeal is allowed. Order directing the appellant insurance company to satisfy the award passed by the Tribunal is set aside.
Claimants however are entitled to recover the amount from the owner of the vehicle, i.e., respondent No. 5 herein. No order as to costs.