Archana and Vijayakumaran Nair v George and Oriental Insurance Co. Ltd., MACA No. 2687 of 2017, High Court of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 3RD DAY OF JANUARY 2018 / 13TH POUSHA, 1939** **MACA.NO. 2687 OF 2017** **AGAINST THE AWARD IN O.P.(M.V.) NO.1089/2009 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED 07-01-2014** **----------------------** **APPELLANT(S)/RESPONDENTS 1 & 2 :** **------------------------------** **1.ARCHANA,AGED 52 YEARS, W/O.VIJAYAKUMARAN NAIR, HOUSE NO.10/762, 'RAMAVILASOM', KEEZHAROOR, ARYANCODE, THIRUVANANTHAPURAM.** **2.VIJAYAKUMARAN NAIR, AGED 62 YEARS, HOUSE NO.10/762, 'RAMAVILASOM', KEEZHAROOR, ARYANCODE, THIRUVANANTHAPURAM.** **BY ADVS.SRI.G.SUDHEER** **SMT.N.P.ASHA** ## **RESPONDENT(S)/PETITIONER & 3RD RESPONDENT :** **---------------------------------------** **1. GEORGE,AGED 62 YEARS, S/O.ARUMUGHAN, PUDUKAD VETTIVILA HOUSE, MARATHAMPILLIKKARA DESOM, KODAKARA P.O., KODAKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680684.** **2. THE ORIENTAL INSURANCE CO. LTD., 'PADMASREE', NEAR KSRTC BUS STAND, NEYYATTINKARA P.O., THIRUVANANTHAPURAM-695121.** **R2 BY ADV. SMT.K.S SANTHI (B/O NO MEMO)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **---------------------------M.A.C.A. No.2687 of 2017 -----------------------------------Dated this the 3[rd] day of January, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.1089 of 2009 of the Motor Accidents Claims Tribunal, Irinjalakuda by the owner and driver of the vehicle KL-3/B-8620. On 21.02.2009 at 6.45 p.m., the vehicle met with an accident while plying along Chalakkudy-Thrissur N.H road. When it reached in front of Vrindavan Theatre at Kodakara, the vehicle knocked down one George who sustained serious injuries. The learned tribunal awarded an amount of Rs.82,881/- with 7.5% interest and proportionate cost as compensation. The insurer was directed to satisfy the award and reimburse the amount from the driver and owner of the vehicle. Being aggrieved by that, they preferred this appeal. 2. Learned counsel appearing for the appellant contended that there was no violation of the policy conditions since the renewal application was pending ## M.A.C.A. No.2687 of 2017 2 before the Regional Transport Authorities for getting fresh licence. Subsequently, the above licence was renewed and the direction to reimburse the amount from the driver and owner is illegal. 3. According to Section 3 of the Motor Vehicles Act, 1988, no person shall drive a motor vehicle in any public place unless he holds of an effective driving licence issued to him authorizing 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. According to Section 4, no person under the age of eighteen years shall drive a motor vehicle in a public place and no person under the age of twenty years shall drive a transport vehicle in any public place. Section 5 of the Motor Vehicles Act says about the Responsibility of owners of motor vehicles for contravention of sections 3 and 4 which reads as; “ No owner or person in charge of a motor vehicle shall cause or permit any person who ## M.A.C.A. No.2687 of 2017 3 does not satisfy the provisions of section 3 or section 4 to drive the vehicle. If that be the position, it is the primary responsibility of the owner of the vehicle to satisfy the conditions of driving licence before entrusting the vehicle to a person. 4. In **National Insurance Co. Ltd. v. Swaran Singh (2004) 3 SCC 297: 2004 SCC (Cri.) 733:AIR 2004 SC 1531** , the Apex Court has held that the owner of the motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Sections 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle, admittedly, did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. 5. Section 15 of the Motor Vehicles Act reads as follows: **Renewal of driving licences.** (1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect ## M.A.C.A. No.2687 of 2017 4 from the date of its expiry: Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal: Provided further that where the application is for the renewal of a licence to drive a transport vehicle or where in any other case the applicant has attained the age of forty years, the same shall be accompanied by a medical certificate in the same form and in the same manner as is referred to in sub-section(3) of section 8, and the provisions of sub section (4) of section 8 shall, so far as may be, apply in relation to every such case as they apply in relation to a learner's licence. (2) An application for the renewal of a driving licence shall be made in such form and accompanied by such documents as may be prescribed by the Central Government. (3) Where an application for the renewal of a driving licence is made previous to, or not more than thirty days after the date of its expiry, the fee payable for such renewal shall be such as may be prescribed by Central Government in this behalf. (4) Where an application for the renewal of a driving licence is made more than thirty days after the date of its expiry, the fee payable for such renewal shall be such amount as may be prescribed by the Central Government. Provided that the fee referred to in sub-section (3) may be accepted by the licensing authority in respect of an application for the renewal of a driving licence made under this sub-section if it is satisfied that the applicant was prevented by good and sufficient cause from applying ## M.A.C.A. No.2687 of 2017 5 within the time specified in sub-section(3): Provided further that if the application is made more than five years after the driving licence has ceased to be effective, the licensing authority may refuse to renew the driving licence, unless the applicant undergoes and passes to its satisfaction the test of competence to drive referred to in sub-section (3) of section 9. (5) Where the application for renewal has been rejected the fee paid shall be refunded to such extent and in such manner as may be prescribed by the Central Government. (6) Where the authority renewing the driving licence is not the authority which issued the driving licence it shall intimate the fact of renewal to the authority which issued the driving licence. 5. Apex Court in National Insurance Co. Ltd. v. Kusum Rai (2006) 4 SCC 250 : (2006) 2 SCC (Cri) 214 holding: (SCC p.254, para 11) held as follows: “ 11. It has not been disputed before us that the vehicle was being used as a taxi. It was therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefor. Ram Lal who allegedly was driving the said vehicle at the relevant time, as noticed herein before, was holder of a licence to drive a light motor vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The appellant, therefore, could raise the said defence.” ## The principle laid in **Kusum Rai (2006) 4 SCC 250 :** M.A.C.A. No.2687 of 2017 6 **(2006) 2 SCC (Cri) 214** has been reiterated in **Ishwar Chandra v. Oriental Insurance Co. Ltd (2007) 10 SCC 650: (2008) 1 SCC (Cri) 591.** Referring to subsection (1) of Section 15 of the Act, this Court stated the law; thus: (SCC p.652,para 9). “9. From a bare perusal of the said provision, it would appear that the licence is renewed in terms of the said Act and the rules framed thereunder. The proviso appended to Section 15(1) of the Act in no uncertain terms states that whereas the original licence granted despite expiry remains valid for a period of 30 days from the date of expiry, if any application for renewal thereof is filed thereafter, the same would be renewed from the date of its renewal. The accident took place 28-4-1995. As on the said date, the renewal application had not been filed, the driver did not have a valid licence on the date when the vehicle met with the accident.” 6. The date of accident in this case was on 21.2.2009. It is submitted that an application for obtaining fresh driving licence was pending before the Regional Transport Authority, but no documents were produced before the tribunal or before this court to substantiate that contention. Therefore, that contention is unsustainable in law. M.A.C.A. No.2687 of 2017 7 11. Section 147 of the Act mandates obtaining of compulsory insurance in relation to a third party by the owners of the motor vehicles. Section 149 imposes a duty on the insurer to satisfy the judgments and awards against the insured in respect of third-party risks. Sub-section (2) of Section 149 however postulates that insurance company would have a right to defend the action, inter alia, on a ground that there has been a breach of specified condition of the policy as specified in various sub-clauses; subclause (ii) thereof being as under: “149. (2) (a) (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or * * * 12. In view of the aforementioned provisions, in the event a defence on the part of the insurance company that the vehicle involved in the accident was not being driven by a driver having valid driving licence would be a valid one. 15. The question as to whether the owner of a vehicle had taken care to inform himself as to whether the driver entrusted to drive the vehicle was having a licence or not is essentially a question of fact. However, in this case, it stands admitted that as on the date of accident, namely, on 27.01.1996, the driver did not hold any licence. Furthermore, it is beyond dispute that he had a licence M.A.C.A. No.2687 of 2017 8 only for one year and for about 3 years thereafter, he failed and neglected to renew his licence. His licence was renewed only on and from 7-2-1996. What would be the effect of not having a licence for such a long period is the question. 16. Section 15 of the Motor Vehicles Act provides for renewal of a driving licence. Sub-section (1) of Section 15 and the first proviso appended thereto read as under: “15. Renewal of driving licences.-(1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry: Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal: Provided further that where the application is for the renewal of a licence to drive a transport vehicle or where in any other case the applicant has attained the age of forty years, the same shall be accompanied by a medical certificate in the same form and in the same manner as is referred to in sub-section (3) of Section 8, and the provisions of sub-section (4) of Section 8 shall, so far as may be, apply in relation to every such case as they apply in relation to a learner's licence.” 17. Sub-section (4) of Section 15 of the Act provides that where an application for the renewal of a driving licence is made more than M.A.C.A. No.2687 of 2017 9 30 days after the date of its expiry, the fee payable for such renewal shall be such amount as may be prescribed by the Central Government. The second proviso appended thereto whereupon strong reliance has been placed by Mr. Gupt reads as under: “Provided further that if the application is made more than five years after the driving licence has ceased to be effective, the licensing authority may refuse to renew the driving licence, unless the applicant undergoes and passes to its satisfaction the test of competence to drive referred to in sub-section (3) of Section 9. 7. Renewal of driving licence is mentioned under Section 15 of the Motor Vehicles Act, 1988. According to the above section, any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry. The proviso says that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal. In the absence of such documentary evidence, the learned tribunal rightly directed the insurer to satisfy the award and reimburse the amount from the appellants. Similar situation was considered by the Apex ## M.A.C.A. No.2687 of 2017 10 ## Court in **Ram Babu Tiwari** v. **United India Insurance** ## **Company Ltd. And Others (2008) 8 Supreme Court** **Cases 165** in which paragraphs 11,12 and 15 read as follows: 11. Section 147 of the Act mandates obtaining of compulsory insurance in relation to a third party by the owners of the motor vehicles. Section 149 imposes a duty on the insurer to satisfy the judgments and awards against the insured in respect of third-party risks. Subsection (2) of Section 149 however postulates that insurance company would have a right to defend the action, inter alia, on a ground that there has been a breach of specified condition of the policy as specified in various sub-clauses; sub-clause (ii) thereof being as under: “149. (2) (a) (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or * * * 12. In view of the aforementioned provisions, in the event a defence on the part of the insurance company that the vehicle involved in the accident was not being driven by a driver having valid driving licence would be a valid one. 15. The question as to whether the owner of a vehicle had taken care to inform himself as to whether the driver entrusted to drive the vehicle was having a licence or not is essentially a question of fact. However, in this case, it stands admitted that as on the date of accident, namely, on 27.01.1996, the driver did not hold any licence. Furthermore, it is beyond dispute that he had a licence only for one year and for about 3 years thereafter, he failed and neglected to renew his licence. His licence was renewed only on and from 7-2-1996. What would be the effect of not having a licence for such a long period is the question. ## 8. Therefore it is clear that the question would constitute the breach of contract of insurance and the ## M.A.C.A. No.2687 of 2017 11 insurer has a right to defend the case on the ground of violation of the policy condition. From the bare perusal of the provisions, it would appear that the licence should be renewed in terms of the Motor Vehicles Act and the Rules framed thereunder. Proviso to Section 15(1) says that the driving licence granted remains valid for a period of 30 days from the date of expiry and if any application for renewal is filed thereafter, the same shall be renewed from the date of its renewal. Here, the accident was on 21.02.2009. No evidence has been produced here to show that proper application was filed before the competent authority for renewal of the licence. In the absence of such evidence, it would be presumed that the driver was not holding a valid driving licence on the date when the vehicle met with the accident. If that be the position, I find no infirmity in the reasoning of the tribunal and this appeal is dismissed accordingly. ## Sd/- ## **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge NS