M.M. JOSEPH v. YOONUS, SHIBIT C., and M/S UNITED INDIA INSURANCE COMPANY LIMITED

MACA 2736 of 2018 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 19TH DAY OF SEPTEMBER 2019 / 28TH BHADRA, 1941** ## **MACA.No.2736 OF 2018** **(AGAINST THE AWARD DATED 24.5.2017 IN O.P.(MV) NO.593 OF 2014 ON THE FILES OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY)** ## **APPELLANT/FIRST RESPONDENT:** **M.M.JOSEPH AGED 57 YEARS S/O.MATHAI, MUTHANATTU HOUSE, PONNIAM WEST P.O., THALASSERY, KANNUR DISTRICT.** **BY ADVS. SRI.JOBY JACOB PULICKEKUDY SRI.ANIL GEORGE SRI.K.S.SUMEESH SRI.T.ANCY SMT.NIVYA VALSAN SMT.N.B.FATHIMA SULFATH SRI.DINIC J.COYCARA** ## **RESPONDENTS/PETITIONER & RESPONDENTS 2 & 3 :** **1 YOONUS, AGED 38 YEARS, MANCHERIPARAMBIL HOUSE, MURAYUR P.O., MURAYUR, MALAPPURAM DISTRICT-673 642 2 SHIBIT C. AGED 34 YEARS S/O.RAJAN, KOMBALAM KANDIYIL HOUSE, VATTOLI P.O., VADAKARA, PIN-67350** **3 M/S.UNITED INDIA INSURANCE COMPANY LIMITED ASHIQUE TOWERS, NARANGAPURAM, THALASSERY, KANNUR-670 101.** ADV.SRI.JOHN JOSEPH VETTIKAD.(R3) MACA 2736 of 2018 2 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA 2736 of 2018 3 **C.R.** ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **M.A.C.A.No.2736 of 2018** ## **-----------------------------------------------** ## **Dated 19[th] September, 2019.** ## **J U D G M E N T** The owner of a vehicle involved in an accident which was the subject matter of a proceedings for compensation before Motor Accidents Claims Tribunal has come up in this appeal challenging the decision of the Tribunal in directing him to pay compensation to the victim of the accident, even while the vehicle was covered by a policy of insurance. 2. The first respondent who sustained injuries in a motor accident took place on 2.12.2010 involving a stage carriage owned by the appellant, has instituted the proceedings for realisation of compensation from the appellant, the second respondent who was driving the vehicle at the time of accident and the third respondent, the insurer of the vehicle. The third respondent contested the proceedings, contending that the second respondent was not duly MACA 2736 of 2018 4 licensed to drive the vehicle involved in the accident and they are, therefore, entitled to realise the compensation, if any, found payable to the first respondent from the appellant. The Tribunal accepted the contention taken by the third respondent and passed an award permitting them to realise the compensation directed to be paid to the first respondent from the appellant. The appellant is aggrieved by the said decision of the Tribunal. Hence, this appeal. 3. Heard the learned counsel for the appellant as also the learned counsel for the third respondent. 4. The second respondent did not contest the proceedings before the Tribunal. Despite the specific stand taken by the third respondent that the second respondent was not duly licensed to drive the vehicle involved in the accident, the appellant did not take steps to cause the production of the driving licence particulars of the second respondent. The final report filed by the police in the case registered in connection with the accident revealed that the second respondent was prosecuted for having driven the vehicle without licence at the time of accident. It is in the said circumstances that the Tribunal has accepted the contention raised by the third respondent and passed the impugned award. 5. It is seen that the appellant has produced in this MACA 2736 of 2018 5 appeal the driving licence particulars of the second respondent as made available to him by the Motor Vehicles Department. It is revealed from the said particulars that the second respondent was holding licence to drive the vehicle involved in the accident from 27.2.2009. It is beyond dispute that in addition, the vehicle involved in the accident being a transport vehicle, the second respondent was required to hold the authorisation to drive transport vehicle also for driving the vehicle involved in the accident, in terms of Section 3 of the Motor Vehicles Act, 1988 (the Act). The driving licence particulars of the second respondent reveal that though the second respondent had obtained the authorisation to drive transport vehicle earlier on 1.10.2007, it expired on 30.9.2010 and the same was renewed only on 20.12.2010. In other words, the second respondent was not holding the authorisation to drive transport vehicle on 2.12.2010, when the accident took place. 6. The learned counsel for the appellant, placing reliance on the decision of the Full Bench of this court in **National Insurance Co. Ltd. v. Jisha** [2015(1) KLT 1], contended that the omission on the part of the second respondent in renewing the authorisation to drive transport vehicle on the expiry of its term was purely technical and the same cannot be said to be a fundamental breach of the condition in MACA 2736 of 2018 6 the policy that the vehicle should be driven only by a person who is duly licensed. According to the learned counsel, in the light of the said decision, in the absence of any materials indicating that the absence of the authorisation was the cause of the accident, the insurer is not entitled to realise the compensation from the appellant. 7. Per contra, the learned counsel for the third respondent contended that the requirement to hold the authorisation to drive transport vehicle being a requirement in terms of Section 3 of the Act, in so far as it is admitted that the second respondent was not holding the authorisation to drive transport vehicle at the time of accident, it has to be taken that he was not duly licensed to drive the vehicle involved in the accident. According to the learned counsel, if that be so, the third respondent is certainly entitled to realise the compensation directed to be paid to the claimant from the appellant. As regards the decision of the Full Bench in **Jisha,** the learned counsel submitted that the said decision is no longer good law in the light of the decision of the Apex Court in **Mukund Dewangan v. Oriental Insurance Company Limited** [2017 (3) KLT 1000]. It was pointed out by the learned counsel that the said aspect has been clarified by another Full Bench of this Court in **Shaji v. Pradeesh** [2018 (2) KLT 136] on a reference by a Division Bench doubting the correctness of MACA 2736 of 2018 7 ## **Jisha.** 8. I have bestowed my anxious consideration to the submissions made by the learned counsel appearing for the parties on either side. ## 9. Section 3 of the Act dealing with the necessity for driving licence reads thus: 3. Necessity for driving licence :- (1) 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; 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. (2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government. As evident from Section 3 of the Act extracted above that authorisation to drive a transport vehicle is a requirement under the latter part of sub section (1) of Section 3 itself. If that be so, infraction of the said statutory requirement would certainly lead to the inference that a person who is driving a transport vehicle without the authorisation is not holding an effective driving licence. The question, however, is as to MACA 2736 of 2018 8 whether the infraction of the said statutory provision is sufficient for the insurer to claim reimbursement of the compensation paid to the claimant. In **National Insurance Company Limited v. Swaran Singh** (2004(1) KLT 781), the Apex Court took the view that the concept of “effective licence” contained in Section 3 of the Act cannot be imported into Section 149(2) of the Act dealing with the condition excluding driving of the vehicle by a person who is not duly licensed. It was held in the said case that mere absence of driving licence at the time of accident is not by itself a defence available to the insurer against either the insured or third parties and in order to avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicle by a duly licensed driver. It was also held by the Apex Court in the said case that even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver, the insurer would not be allowed to avoid its liability towards insured unless the said breach is so fundamental as is found to have contributed to the cause of the accident. It is seen that placing reliance on the said decision of the Apex Court, the Full Bench of this court has held in **Jisha** that the omission to apply for and MACA 2736 of 2018 9 obtain the authorisation to drive a transport vehicle cannot be said to be a fundamental breach of the condition mentioned in Section 149(2) (a)(ii) of the Act so as to enable the insurer to avoid its liability towards the insured, unless the said breach is found to have contributed to the cause of the accident. In the light of the Full Bench decision of this court in **Jisha** , the third respondent cannot be heard to contend that the second respondent was not duly licenced so as to enable them to realise the compensation directed to be paid to the claimant from the appellant. 10. That apart, the scheme of the Act, as revealed from the provisions therein and the Rules made thereunder, is that the statutory requirement to have the authorisation to drive transport vehicle, has nothing to do with the driving proficiency of the person concerned. The provisions in the Kerala Motor Vehicles Rules, 1989 (the Rules) dealing with the authorisation to drive transport vehicle do not require any additional driving proficiency test for obtaining the authorisation. Instead, the Rules provide only for an oral test to ascertain whether the applicant is conversant with the duties, responsibilities etc. of the driver of a transport vehicle. Rules 6, 7, 9, 11 and 46 of the Rules which demonstrate the said statutory scheme read thus : MACA 2736 of 2018 10 ## **-- Rule 6: Authorisation to drive transport vehicles. Application for.--** An application for the grant of an authorisation to drive transport vehicles shall be made to the Licensing Authority in Form "LTA" and shall be accompanied by the driving licence and an adult First Aid Certificate obtained from the St.John Ambulance Association (India) or a Certificate of competence of the applicant in first aid work in Form "FA" issued by a Medical Officer in Government service not below the rank of an Assistant Surgeon: Provided that no authorisation to drive a transport vehicle shall be granted unless the applicant satisfies the Licensing Authority concerned that he has passed standard IV as his minimum educational qualification: Provided further that the minimum educational qualification specified in this rule shall not apply in the case of- (i) grant of such authorisation after renewal of a driving licence to drive a transport vehicle, obtained prior to the 10th day of April, 2007; or (ii) grant of such authorisation after addition of another class of transport vehicle to such a driving licence held prior to the 10th day of April, 2007. Provided also that if the applicant is the holder of a driving licence authorising him to drive only a light motor vehicle, no such authorisation shall be granted unless he satisfies the licensing authority that he has had one year's experience in driving light motor vehicles: Provided also that experience for a period of one year shall not be necessary in the case of an applicant for authorisation to drive an autorickshaw or a motorised cycle rickshaw. ## **Rule 7: Conduct Certificate.--** Every application under Rule 6 for authorisation to drive transport MACA 2736 of 2018 11 vehicles shall be accompanied by a conduct certificate from any Member of Parliament or any Member of Legislative Assembly or any Gazetted Officer, or the President, the Chairman or the Mayor of the Local body within whose jurisdiction the applicant resides. x x x x x x ## **-- Rule 9: Summoning of applicant.** (i) The authority to which an application is made under Rule 6 shall, by notice in writing, summon the applicant to appear before it or before any other person duly authorised in this behalf at such time and place as the authority may appoint, for an oral test to ascertain whether the applicant is conversant with the duties, responsibilities, etc., of the driver of transport vehicles: Provided that, if the Licensing Authority has reason to believe that the applicant had no actual driving experience for a period of one year immediately preceding the date of application, the Licensing authority may require the applicant to pass the test of competence also referred to in sub-section (3) of Section 9 of the Act: (ii) **Fee.--** The fee payable by the applicant for the above oral test shall be fifty rupees for each such test: Provided that the fee payable by an applicant for the oral test for an authorisation to drive a motorised cycle-rickshaw shall be five rupees: Provided further that no such fee shall be payable if such oral test is undergone simultaneously with any test referred to in sub-section (3) of Section 9 of the Act. x x x x x x **-- Rule 11: Issue of authorisation to drive transport vehicles.** MACA 2736 of 2018 12 The Licensing Authority granting an authorisation shall,-- (a) issue a driver's badge to the applicant on payment of the prescribed fee, endorse upon the driving licence accordingly and return the driving licence to the holder thereof along with the badge issued; and (b) send intimation in form "LTI" to the Authority by which the driving licence was issued if it is not the authority which issued the licence. x x x x x x ## **-- Rule 46: Conduct of drivers of Transport Vehicles.** Without prejudice to the scope or applicability of the provisions found elsewhere in these rules regarding the conduct, duties and responsibilities of drivers of motor vehicles either generally or specifically, the following provisions shall govern the conduct of drivers of transport vehicles: (1) The driver of a Transport Vehicle while on duty.-- (a) shall on demand by a Police Officer in uniform not below the rank of Sub-Inspector or by any officer of the Motor Vehicles Department not below the rank of Assistant Motor Vehicle Inspector, produce his badge for inspection; (b) shall not lend or transfer his badge to any other person; (c) shall not permit any person to sit on any goods to be placed, on his right side if the vehicle is fitted with right-hand steering control, and on his left side if the vehicle is fitted with left-hand steering control; (d) shall not drive or attempt to drive a transport vehicle in any public place, if he has, in his blood, alcohol in any quantity, howsoever small the quantity may be; and MACA 2736 of 2018 13 (e) shall not drive or attempt to drive a transport vehicle in any public place while under the influence of a drug to such an extent as to make him incapable of exercising proper control over the vehicle. (2) The driver of a Public Service Vehicle while on duty.-- (a) shall as far as may be reasonably possible having regard to his duties, be responsible for the due observance of the provisions of the Act and of these rules; (b) shall behave in a civil and orderly manner to passengers and intending passengers; (c) shall maintain the vehicle in a clean and sanitary condition; (d) shall, subject to any rules or regulations in force prohibiting the taking up or setting down of passengers, at or except at, certain specified places, bring the vehicle to rest for a sufficient period of time in a safe and convenient position on demand or signal by the conductor or by any passenger desiring to alight from the vehicle and unless there is no room in the vehicle, upon demand or signal by any intending passengers; (e) shall, at all times exercise all reasonable care and diligence to maintain his vehicle in a fit and proper condition and shall not knowingly drive the vehicle when it or any brake, tyre or lamp thereof, is in a defective condition likely to endanger any passenger or other person or when there is not sufficient fuel in the tank of the vehicle to enable him to reach the next fuel filling station on the route; (f) shall be responsible for the observance of the duties of the conductor during the conductor's absence or inability to perform his duties; (g) shall not cause or allow any person, animal or thing to be placed or to MACA 2736 of 2018 14 be in the space reserved for the driver's seat in accordance with Rule 273(2) or otherwise in such a way as to impede him in having a clear vision of the road or proper control of the vehicle; ## (h) shall not shout in order to attract a passenger; (i) shall not, when bringing his vehicle to rest for the purpose of picking up or setting down any passenger at or near the place where another public service vehicle is at rest for the same purpose, drive the vehicle so as to endanger, cause inconvenience to or interfere with the driver or the conductor of the other vehicle or any person mounting or preparing to mount thereon or alighting therefrom, and shall bring his vehicle to rest behind the other vehicle and on the left-hand side of the road or place; (j) shall not smoke or chew pan or take or be under the influence of any intoxicating drink or drug; (k) shall not solicit custom; (l) shall not interfere with persons mounting or preparing to mount any other vehicle; (m) shall not loiter or unduly delay upon any journey, but shall proceed to his destination with all reasonable despatch adhering to the route and time schedule specified if any; (n) shall not carry in the vehicle any person reasonably suspected to be suffering from any infectious or contagious disease or the corpse of any person; (o) shall not replenish the fuel tank, when passengers are in the vehicle; and (p) shall not demand or collect fares in excess of the rates fixed by Government from time to time. MACA 2736 of 2018 15 (3) The driver of a goods carriage while on duty-- (a) shall not carry in the cab of a goods carriage persons beyond the number permitted and for whom there is seating accommodation as per sub-rule (2) of Rule 303; (b) shall not carry more than six persons in all in addition to the driver in a goods carriage: Provided that no person shall be carried in a goods carriage upon the goods or otherwise in such a manner that such person is in danger of falling from the vehicle or when any part of such person in a sitting position is at a height exceeding 305 centimetres from the surface upon which the vehicle rests: Provided further that a large number of persons may be carried in any motor vehicle registered under Section 60 of the Act or in a goods carriage when specific sanction therefor has been accorded by a Regional Transport Authority or in a goods carriage used for the carriage of troops or police; and (c) shall not carry any person for hire or reward in any goods carriage. It is thus clear that the purpose of the authorisation to drive transport vehicle is only to ensure that a person driving a transport vehicle is conversant with the duties and responsibilities of a driver of the transport vehicle. As it is found that the authorisation to drive the transport vehicle has nothing to do with the driving proficiency of the person concerned, which may have a nexus to the accident giving rise MACA 2736 of 2018 16 to the claim for compensation, infraction of the statutory requirement to have an authorisation would not amount to breach of the condition in the policy excluding driving by a person not duly licensed, falling within the scope of Section 149(2)(a)(ii) of Act. 11. It is evident from the opening paragraph itself of the judgment in **Mukund Dewangan** that the question referred was whether a driver who is having a licence to drive “light motor vehicle” and driving transport vehicle of that class is required additionally to obtain an endorsement to drive a transport vehicle. That question was answered in the negative by the Apex Court in the said case. The question dealt with in **Mukund Dewangan** and the question dealt with in **Jisha** are entirely different. As such, the contention that **Jisha** is no longer good law in the light of **Mukund Dewangan** cannot be accepted. The learned counsel for the third respondent pointed out in this context that in **Mukund Dewangan** , the Apex Court has held categorically that authorization to drive transport vehicle is required to drive all transport vehicles other than those falling under the light motor vehicle class. According to the learned counsel, the said judgment has to be understood as one holding the proposition that want of authorization to drive transport vehicle would lead to the presumption that the person concerned was not duly licensed. I am MACA 2736 of 2018 17 unable to agree. In the light of the question considered in **Mukund Dewangan** referred to above, the proposition aforesaid cannot be inferred therefrom. Further, such a proposition was not inferred by the Full Bench in **Shaji** as well, as argued by the learned counsel for the third respondent. It is seen from the Judges Papers of the said case that the vehicle involved in that case was a light motor vehicle and therefore, the question whether the ratio in **Jisha** is correct was not required to be decided in that case in the light of **Mukund Dewangan** and the reference was accordingly closed without answering the question. In the result, the appeal is allowed and the impugned award is modified, vacating the leave granted to the third respondent to realise the compensation directed to be paid to the first respondent from the appellant. **Sd/-** **P.B.SURESH KUMAR, JUDGE.** ## **tgs**