The Oriental Insurance Co. Ltd. vs Tabreez Ahmed

Ravi V. Malimath, J.—Aggrieved by the order of the Tribunal in granting compensation to the claimants, fixing the liability on the insurer to settle the claim, the insurer has filed this appeal.

The 1st contention of the learned Counsel appearing for the appellant is that the tribunal committed an error in misreading the material evidence on record. That the driver of the vehicle possessed licence to drive the four wheeler, that the vehicle involved was a two wheeler. The class of vehicle is different. Therefore there is violation of terms of the policy which would absolve the insurer from satisfying the award. The second contention is that the tribunal misread the Judgment relied upon by the insurer in the case of Oriental Insurance Co. Ltd. Vs. Zaharulnisha and Others, . That rather than reading the relevant paragraph the tribunal considering the Head Notes and misread the dicta of the Hon''ble Supreme Court. Hence she pleads that the appeal be allowed and to absolve the insurer from his liability.

On the other hand, the learned counsel for the claimant disputes the claim. While admitting the fact that the driver of the vehicle did not possess a licence he placed reliance on para-18 of the Judgment in the case of S. Iyyapan Vs. United India Insurance Company Ltd. and Another, and contends that even if there was no licence, the insurer should be asked to make the payment and thereafter recover it from the owner.

Sri Bapugowda Siddapa, the learned counsel for respondent No. 2-the owner of the vehicle contends that there is no evidence let-in by the insurer in order to show the existence or the non-existence of the licence namely, the officer of the RTO has not been examined. Therefore such a contention cannot be accepted.

Heard learned counsels.

The undisputed facts are that the driver of the vehicle possessed a licence to drive a four wheeler in terms of Ex. R-2. I have considered Ex. R-2. The licence is granted to drive a Light Motor Vehicle (non-transport) as well as to drive a heavy transport vehicle. Therefore there is no licence to drive a two wheeler. The classification of Light Motor Vehicle or Heavy Motor Vehicle is of no consequence for the disposal of this case, in view of the fact that the vehicle involved is a two wheeler. Apparently there is no licence to ride a two wheeler. The same would therefore amount to a violation of the terms of the policy entitling the insurer to seek a defence on that ground. Consequently, the Judgment that has been considered by the tribunal is wholly erroneous. The law laid down by the Supreme Court is not what is narrated by the Tribunal vide Head Note ''B''. The law declared by the Hon''ble Supreme Court is in para-18 of the Judgment in S. Iyyapan Vs. United India Insurance Company Ltd. and Another, which reads as follows:-.

"18.......Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence."

Here too, the driver did not possess the licence to drive a two wheeler but only a four wheeler. These are two different classes of vehicle. Therefore it amounts to violation of Section 149(2) of the Motor Vehicles Act. The same would absolve the insurer from any liability. The contention of the claimant placing reliance on the judgment of Iyyappan is also misplaced. Para-18 would clearly narrate that u/s 149 of the Motor Vehicles Act the insurer can contend inter alia that the vehicle was not driven by a person who was not having a duly granted licence. In the instant case, the driver of the vehicle did not have a duly granted licence. Therefore this is the defence that can be taken. What has been narrated in paragraph-18 namely, is where an endorsement would not find a place in the driving licence. It is only in those cases the insurer was directed to make the payment and thereafter recover it from the insurer. Unfortunately, the facts in this case are different. This is not a case of absence of a proper endorsement. This is a case of absence of the licence itself. Therefore, that is the defence u/s 149 that the insurer can take. Therefore, the reliance placed by the claimant at para-18 In Iyyapan''s case would not come to his aid.

The contention of the owner with regard to the fact that such a plea was not taken, also holds no water. The Tribunal has considered the plea and has taken into account the fact that the specific case of the respondent insurer was absence of a licence to drive the two wheeler. Therefore to state that only because, the officer of the RTO was not examined the contention should fail, is unacceptable. There is no necessity for examination of the official of the RTO. In the present case the admitted facts are that the driver possessed a licence to drive the four wheeler vehicle and the vehicle involved was two wheeler and thereafter the absence of the evidence of the RTO is inconsequential.

For the aforesaid reasons, the appeal is allowed. The Judgment & award of the Tribunal is modified. The appellant insurer is absolved of his liability to satisfy the award. The claimant is at liberty to proceed and recover from the owner.

The amount in-deposit be refunded to the appellant.