Insurance company appealed against Motor Accident Claims Tribunal award compensating heirs of a pedestrian killed by a learner licence holder. Court dismissed appeal holding learner licence valid and technical breach insufficient to absolve liability of insurer.
Insurance company liable; appeal dismissed; costs borne by parties.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH FRIDAY, THE 19TH DAY OF JUNE 2015/29TH JYAISHTA, 1937
MACA.No. 1760 of 2010 ( ) --------------------------
AGAINST THE AWARD IN OP(M.V)No. 1682/2007 of M.A.C.T.,KOZHIKODE DATED 26.12.2009
APPELLANT/RESPONDENT:
THE ORIENTAL INSURANCE CO. LTD. DIVISIONAL OFFICE, KOZHIKODE, REP. BY THE AUTHORIZED SIGNATORY, ASST. MANAGER, THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, ERNAKULAM METRO PALACE, ERNAKULAM NORTH, KOCHI-18.
BY ADV. SRI.A.R.GEORGE
RESPONDENTS/CLAIMANTS:
1. BABY E., W/O.VELAYUDHAN, UNNIYALINGAL HOUSE, P.O.FEROKE COLLEGE KOZHIKODE-673632. 2. PRADEEPKUMAR, S/O.VELAYUDHAN, DO. DO. - 673632. 3. PREETHA, W/O.GANESHAN, DO. DO. - 673632. 4. PRAVEEN, S/O.VELAYUDHAN, DO. DO. - 673632. 5. SAKEENA T., W/O.USSANKUTTY, 1/215, PULLANADATH, JASHEERA KARUVANTHURUTHI, P.O.FEROKE, KOZHIKODE-673631. 6. JAISAL, S/O.HUSSAIN, DO. DO. - 673631.
R5 & R6 BY ADV. SRI.SUNIL V.MOHAMMED
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 9-06-2015, THE COURT ON 19.6.2015 DELIVERED THE FOLLOWING:
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T.R.RAMACHANDRAN NAIR & C.R.
K.P.JYOTHINDRANATH, JJ.
M.A.C.A. No. 1760 of 2010
Dated this the 19th day of June, 2015
JUDGMENT
K.P.Jyothindranath, J.
This appeal is preferred by the Insurance Company.
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learner's licence, a duly licensed person should be on pillion, then only it can be treated as a licensed driver. It is also submitted that, this aspect is categorically stated in the policy issued and if not complied with, there is contravention of the policy condition and the statutory defence available to the insurer in terms of Section 149(2) (a) of the Motor Vehicles Act will be available. This aspect is not considered by the tribunal and the Insurance Company is to be absolved from the liability. 7. The learned counsel appearing for the respondents/claimants submitted before us that it is a settled law that learner's licence is an effective licence for the purpose of insurance coverage. It is the submission that the law is settled by the Swaran Singh's case (supra) which is also relied upon by the appellants' counsel. Since it is a settled position, the tribunal had not adverted to elaboration in this respect.
2 (10) “Driving licence” means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive; otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description;
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xx xx
(19) “Learner's licence” means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive as a learner, a motor vehicle or a motor vehicle of any specified class or description;
Thus, it can be seen that the only difference is that the driving licence is issued for the purpose “otherwise than as a learner” whereas the learner's licence is to drive as a learner. The paragraphs which are banked by the appellants in the decision in National Insurance Company Ltd. v. Swaran Singh and others (supra) are 93 and 94. It is stated therein as follows:
“ 93. The Motor Vehicles Act, 1988, provides for grant of learner's licence. [See Section 4(3), Section 7(2), Section 10(3) and Section 14]. A learner's licence is, thus, also a licence within the meaning of the provisions of the said Act. It cannot, therefore, be said that when a vehicle is being driven by a learner subject to the conditions mentioned in the licence, he would not be a person who is not “duly licensed” resulting in conferring a right on the insurer to avoid the claim of the third party. It cannot be said that a person holding a learner's licence is not entitled to drive the vehicle. Even if there exists a condition in the contract of insurance that the
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vehicle cannot be driven by a person holding a learner's licence, the same would run counter to the provisions of Section 149(2) of the said Act. 94. The provisions contained in the said Act provide also for grant of driving licence which is otherwise a learner's licence. Section 3(2) and 6 of the Act provide for restriction in the matter of grant of driving licence. Section 7 deals with such restrictions on granting of learner's licence. Sections 8 and 9 provide for the manner and conditions for grant of driving licence. Section 15 provides for renewal of driving licence. Learner's licence are granted under the Rules framed by the Central Government or the State Governments in exercise of their rule-making power. Conditions are attached to the learner's licence granted in terms of the statute. A person holding learner's would, thus, also come within the purview of “duly licensed” as such a licence is also granted in terms of the provisions of the Act and the Rules framed thereunder. It is now a well-settled principle of law that rules validly framed become part of the statute. Such rules are, therefore required to be read as a part of the main enactment. It is also a well-settled principle of law that for the interpretation of statute an attempt must be made to give effect to all provisions under the rule. No provision should be considered as surplusage”.
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“The question which arises for consideration in these petitions did not arise there. Neither was the same argued at the Bar nor were the binding precedents considered. Mandar Madhav Tambe case therefore, has no application to the facts of these cases nor creates any binding precedent. The view we have taken is in tune with the judgments rendered by different High Courts consistently.
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(See for example New India Assurance Co. Ltd. v. Latha Jayaraj)”.
From the above said paragraph it can be seen that the Supreme Court is categorical in that the view the Supreme Court had taken is in tune with the judgments rendered by different High Courts consistently and as example a decision of this Court is highlighted viz., New India Assurance Company Ltd v. Latha Jayaraj (1991 ACJ 298 (Ker) = 1990 (2) KLT 883.
Jayaraj (supra) in paragraph -4- of the said decision, it is categorically held that “holding only a learner's licence was duly licenced to drive the vehicle and that there has not been any violation of the conditions in the policy of insurance”. Thus a person holding a learner's licence is also entitled to drive the vehicle. A licence is issued under the provisions of the Motor Vehicles Rules. The 'Rules' referred in Swaran Singh's case (supra) can only be considered as rules framed for issuance of licence. For all practical purposes, a person holding a learner's licence is a person duly licensed to drive a vehicle. This finding is approved by the Honourable Supreme Court in Swaran Singh's case (supra).
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accident occurred only because there was no licensed driver on the pillion.
Company Ltd. v. Swaran Singh (supra), while concluding, in
paragraph 102(viii), the Apex Court held as follows:
“If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree”.
( National Insurance Co. Limited v. Bhagwani and others
reported in A.I.R. 2004 S.C. 2874). It will be only helpful to quote the judgment herein which states as follows:
“This special leave petition is covered by a judgment of this court in S.L.P. (Civil) 9027/2003, National Insurance Company v. Swaran Singh and others delivered today, where it has been held that the learners licence is also a valid licence. It is accordingly dismissed.
Thus, it can be seen that learner's licence is a valid licence for
the purpose of determining whether the Insurance Company is liable or not.
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Thus, it is found that Insurance Company is liable and there is no merit in the appeal and hence appeal is dismissed. Parties shall bear their costs in the appeal.
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T.R.RAMACHANDRAN NAIR JUDGE
Sd/K.P.JYOTHINDRANATH JUDGE
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/true copy/
P.S. To Judge
3 issues framed by the court
Whether insurance company can be absolved from liability when the vehicle was driven by a person holding only a learner's licence without a licensed instructor.
Whether the absence of a pillion rider with a valid driving licence constitutes a fundamental breach of the policy condition entitling the insurer to avoid liability.
Whether the quantum of compensation awarded by the tribunal was exorbitant.
Colour shows how this judgement treated each authority
National Insurance Company Ltd. v. Swaran Singh and othersApplied¶27
National Insurance Company Ltd. v. Swaran Singh and others 2004(1)KLT 781 (S.C)
New India Assurance Company Ltd. v. M.M.TambeDistinguished¶27
New India Assurance Company Ltd. v. M.M.Tambe 1996 (2) K.L.T. Short Note cases No.59
New India Assurance Company Ltd. v. Latha JayarajReferred¶50
New India Assurance Company Ltd. v. Latha Jayaraj 1991 ACJ 298 (Ker)
National Insurance Company Ltd. v. JishaRelied on¶56
National Insurance Company Ltd. v. Jisha [2015(1) KLT 1 (F.B)]
National Insurance Co. Limited v. Bhagwani and othersRelied on¶65
National Insurance Co. Limited v. Bhagwani and others A.I.R. 2004 S.C. 2874 · Who else cites this
1 provisions across 1 enactments
THE ORIENTAL INSURANCE CO. LTD
BABY E.
PRADEEPKUMAR
PREETHA
PRAVEEN
SAKEENA T.
T.R.RAMACHANDRAN NAIR
K.P.JYOTHINDRANATH
As recorded by the court registry
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