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Judgment
A.N. Venugopala Gowda
Appellant filed claim petition under S.22 of Workmen''s Compensation Act, 1923 (for short ''the Act'') against the respondents before the Commissioner for Workmen''s Compensation (''CWC'' for short), Bangalore, contending that, he was the driver of an autorickshaw bearing registration No.KA-02-A-8120, which belonged to 1st respondent and on 22.09.2004, an accident occurred, he sustained injury, which arose out of and during the course of employment. Contending that there is permanent disability and loss of earning capacity, compensation of `6.00,000/- with interest was claimed from the respondents.
The 1st respondent fifed statement of objections denying the employment of the appellant as a driver to drive the said autorickshaw and the payment of wages. The occurrence of the accident was also denied. The 2nd respondent-insurance company fried its statement of objections and opposed the claim petition.
The CWC raised the issues. During enquiry, the appellant deposed and examined a qualified medical practitioner, Exs.P-1 to P-6 were marked. For the respondent, its authorized Officer deposed. Appreciating the evidence on record, the claim petition was allowed in part and the compensation payable was assessed at `3,31,506/-, which was ordered to be paid with interest at 12% from 29.06.2004 by the 1st respondent/owner of the autorickshaw. The 2nd respondent-insurance company was exonerated of the liability, on the ground that the petitioner did not possess a valid and effective driving licence. Feeling aggrieved, the petitioner has filed this appeal.
Sri Suresh M. Latur, learned advocate appearing for the appellant, contended that, the CWC erred in exonerating the insurance company from the liability to pay compensation. Though enhancement of compensation has also been claimed in the appeal memorandum, was not pressed by the learned counsel. The argument was confined to liability or otherwise of the insurance company to pay the assessed compensation. Learned counsel placed reliance on the following decisions:
The New Indian Insurance Company Vs. Darshana Devi and Others,
Oriental Insurance Co. Ltd., vs. Brij Mohan & Others - 2007(3) TAG 20 (SC)
National Insurance Co. Ltd. Vs. Swaran Singh and Others,
National Insurance Co. Ltd., vs. Tulna Devi & Others - 2009 ACJ 581 (SC)
United India Insurance Company Limited Vs. Yusuf Hasansab Gokak and Others,
Sri S.V.Hegde Mulkhand, learned advocate appearing for the 2nd respondent, contended that, the appellant did not possess a valid and effective driving licence to drive the autorickshaw at the time of occurrence of the accident and hence, there being breach of Insurance policy conditions, the CWC is justified in exonerating the insurance company from payment of compensation. Reliance was placed on the decision in the case of National Insurance Co. Ltd. Vs. Vidhyadhar Mahariwala and Others, .
The CWC by appreciating Ex.P-3 and Ex.R-1 and having found that the claimant did not possess a valid and effective driving licence despite the vehicle having had insurance coverage, exonerated the insurance company from liability to pay the compensation on account of breach of conditions of the policy by the insured, in allowing the claimant, who did not possess a valid and effective driving licence to drive the vehicle in question at the time of occurrence of the accident.
In view of the rival contentions and the record of the case, which I have perused, the question for determination is:
Whether the CWC is justified in holding that there is breach of insurance policy conditions by the insured and in exonerating the 2nd respondent-insurance company from the liability to pay the assessed compensation amount?
Ex.P-3 is the driving licence. It was valid for the period 03.01.1985 to 02.01.1988. The accident in question occurred on 22.09.2004. There was no renewal of the Licence - Ex.P-3 as on 22.09.2004. Ex.R-1 is the extract of driving licence, which shows that, the appellant was authorized to drive autorickshaw and the licence having been issued on 03.01.1985 was valid upto 02.01.1988. Sri Suresh M. Lautur does not dispute the fact that, as on the date of occurrence of the accident, the appellant did not possess a valid and effective driving licence. The contention of learned counsel is that, the owner of the vehicle had permitted the appellant to drive the autorickshaw, which had the coverage of insurance policy as at Ex.R-2, valid for the period 12.01.2004 to 11.01.2005 and hence, the 2nd respondent ought to have-been fastened with the liability to pay first and then recover from the employer/insured.
Section 3(1) of the Motor Vehicles Act, 1988, is with regard to the necessity of driving licence. In terms thereof, 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. Section 5 declares that, no owner or person in charge of the motor vehicle shall cause or permit any person who does not satisfy the provisions of Section 3, to drive the vehicle. Section 15 provides for renewal of driving licence. The proviso under Sub Section(1) thereunder makes it clear that, where an application for renewal of licence is made more than thirty days date of its expiry, the driving licence shall be renewed from the date of its renewal.
Ex.R-2 contains the following clause:
Drivers Clause: Persons or classes of persons entitled to drive:- Any person including the insured provided that the person driving holds an effective and valid driving licence to drive the category of vehicle insured hereunder at the time of accident and is not disqualified from holding or obtaining such a licence. Provided also that a person holding an effective and valid Learners Licence to drive the category of vehicle insured hereunder may also drive the vehicle when not used for transport of passengers at the time of accident and that the person satisfies the requirements of Rule 3 of Motor Vehicle Rule, 1989.
In the limit of liability column, it has been stipulated as follows:
I/We hereby certify that the policy to which the certificate relates as well as the certificate of insurance are issued in accordance with provisions of Chapter X & XI of M.V.Act. 1988.
The insured has been notified by the insurer that, the insured is not indemnified, if, the vehicle is used or driven otherwise than in accordance with the policy conditions.
Indisputedly, the driving licence of the appellant (Ex.P-3), as on the date of occurrence of the accident, had expired and was not renewed and hence, cannot be termed as valid and effective driving licence. In view of the provisions u/s 15 of the Act, if the application is made after more than 30 days of its expiry, the proviso to sub-section (1) of Section 15 is attracted and the licence is renewed only with effect from the date of its renewal, thereby meaning that, in the interregnum i.e., between the date of expiry and the date of its renewal, there is no effective licence in existence.
In view of the clear mandate of Section 3 of the Act, the appellant had no right to drive the insured vehicle in a public place. The 1st respondent has undoubtedly committed the breach of terms of the policy, since he has violated the provisions of Section 5 of the Act by entrusting the vehicle to the appellant, who did not hold a valid and effective driving licence as on the date of accident. The 1st respondent/insured has not entered the witness box. He has not offered any explanation for employing the appellant to drive autorickshaw, despite the non-possessing of valid and effective driving licence In the statement of objections filed, the 1st respondent denied the jural relationship. In the circumstances, the insurance company had no obligation to indemnify the 1st respondent/insured, against the claim of the appellant.
In the case of New India Assurance Co. Ltd. Vs. Suresh Chandra Aggarwal, , it has been held that:
We are fortified in our view by the decision of this Court in Jarnail Singh - (2007) 15 SCC 28, in that case also, the driving licence of the driver, who drove the vehicle which got involved in the accident, had expired on 16-5-1994. The accident took place more than five months thereafter i.e. on 20-10-1994 and the driving licence was renewed only with effect from 28-10-1996. On these facts, it was held that the proviso to sub-section (1) of Section 15 applied; the driver had no licence to drive the vehicle on the date of accident the condition in the policy identical to the one in the present; case was violated and therefore, the insurance company was not liable to pay any amount to the insured.
In the circumstances of the case, the decisions on which Sri Suresh M. Latur placed reliance, have no application to the case on hand. The contention that, the 2nd respondent has to first pay the assessed compensation amount and then recover the same from the insured-1st respondent is not sound, since the claimant is not a third party, but by an employee, who had no driving licence to drive the vehicle in question. The record makes it abundantly clear that, the appellant did not had valid and effective driving licence as on the date of accident and hence, there being fundamental breach of terms of Insurance policy by the insured, the insurer cannot be directed to indemnify the insured. The non-fastening of the liability on the insurance company by the CWC is justified.
In the result, the appeal is devoid of merit and shall stand dismissed.
No costs.