Rajan Thomas v. United India Insurance Co. Ltd. (Divisional Manager) and Sreedevi Amma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 25TH DAY OF OCTOBER 2017/3RD KARTHIKA, 1939** **MACA.No. 1926 of 2017 ()** **------------------------AGAINST THE AWARD IN OPMV 136/2009 of M.A.C.T.,PUNALUR DATED 25-06-2014** **APPELLANT(S)/1ST RESPONDENTS:** **----------------------------** **RAJAN THOMAS S/O.THOMAS, SUNIL BHAVAN, ELAMADU, KOTTARAKKARA, KOLLAM DISTRICT.** **BY ADV. SRI.ALEXANDER GEORGE** **RESPONDENT(S)/CLAIMANTS/RESPONDENTS 3:** **---------------------------------------** **1. THE DIVISIONAL MANAGER** **UNITED INDIA INSURANCE CO.LTD., 2ND FLOOR, KOLLAM-691001.** **2. SREEDEVI AMMA** **AGED 50 YEARS, S/O.SARASWATHI AMMA, THEKKEVIAL VEEDU, KAVILKKAPACHA, THEVANNOOR, P.O., AYOOR, KOLLAM-691533.** **R1 BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT R2 BY ADV. SRI.G.UNNIKRISHNAN R2 BY ADV. SRI.M.JAYAKRISHNAN R BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D.RAJAN, J.** ---------------------------------M.A.C.A.No.1926 of 2017 ---------------------------------Dated this the 25[th] day of October, 2017 ## **JUDGMENT** This appeal is preferred against the award in O.P.(MV)No.136/2009 of the Motor Accidents Claims Tribunal (for short 'MACT'), Punalur by the insured. The 2[nd] respondent in this case sustained injuries in a motor accident on 10.1.2009 at 3.30 p.m. at Thevannoor junction and the tribunal awarded a sum of Rs.46,385/- with interest and costs as compensation and directed the insurer to satisfy the award and reimburse the amount from the appellant. Being aggrieved by that, the owner of the vehicle preferred this appeal. 2. The appellant contended that the appellant was riding Honda Activa scooter and was holding valid learner's licence at the time of accident. The insurer contended that, since the pillion rider was not carried in the vehicle, there is violation of policy condition, which was approved by the M.A.C.A.No.1926/2017 2 learned tribunal. Hence, the finding of the tribunal is not correct. The appellant relied the decision of this Court in _**Oriental Insurance Co. Ltd.**_ v. _**Baby**_ [2005(3) KLT 121]. 3. The 2[nd] respondent's case in the tribunal was that while she was walking along Ayoor-Kottarakara public road from north to south and reaching at Thevanoor junction, Honda Activa scooter KL 2W 8466 driven by the appellant in a rash and negligent manner knocked her down, as a result she sustained serious injuries. Immediately, she was removed to hospital. The injured did not adduce any oral evidence, but her documents were marked as Exts.A1 to A14. In the written statement, the insurer contended that the rider of the scooter was not holding valid driving licence and there is violation of policy condition. The question of valid learner's licence has been considered by the Apex Court in _**National Insurance Co. Ltd**_ v. _**Swaran Singh and others**_ [2004 (3) SCC 297], in which it was held as follows: “It is now a well-settled principle of law that rules M.A.C.A.No.1926/2017 3 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. The provisions contained in the said Act provide also for the grant of a driving licence which is otherwise a learner's licence. Learner's licences are granted under the rules framed by the Central Government or the State Governments in exercise of their are rule-making power. Conditions attached to the learner's licence granted in terms of the statute. A person holding learner's licence 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 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 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. 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.” Sub Section 2(a)(ii) of Section 149 of the M.V. Act, 1988 reads as follows: M.A.C.A.No.1926/2017 4 “(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the of such bringing any proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:- xxxx xxxxx (a) xxxx xxxxx (i) xxxx xxxx (a) xxxx xxxx (b) xxxx xxxx (c) xxxx xxxx (d) (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 ..” ## Section 2(10) of the M.V. Act, 1988 reads as follows: 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.” ## Section 2 (19) of the M.V. Act, 1988 reads as follows: “2(19) “learner's licence” means the licence issued by a competent authority under Chapter II M.A.C.A.No.1926/2017 5 authorising the person specified therein to drive as a learner, a motor vehicle or a motor vehicle of any specified class or description.” 4. I have considered the argument advanced by the appellant. As per the Act, holding of a valid driving licence is one of the conditions of the contract of insurance. The driving of a motor vehicle without valid driving licence amounts to violation of policy condition. According to Section 3 of the M.V. Act, 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 3 of the M.V. Act reads as follows: “ **3. Necessity for driving licence** .- (1) no person shall 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.” M.A.C.A.No.1926/2017 6 Therefore, it is the responsibility of the owner of the vehicle to obey the provisions of Section 3 of the M.V. Act. If the person, who drives the vehicle, is not holding valid driving licence, it amounts to violation of the policy condition as stated under Section 149(2)(a)(ii) of the M.V. Act. Hence, the owner of the vehicle is bound to obey the directions issued under Section 5 of the M.V. Act and to see that no vehicle is driven except by a person having valid driving licence satisfying the provisions of Sections 3 or 4 of the Act. Considering the evidence in this case, it is found that the contract of insurance empowers a person holding learner's licence to drive the vehicle . If that be the position, a person holding learner's licence can drive the vehicle and there is no violation of policy condition. Therefore, the insurance company is liable to satisfy the award. In view of the above discussion, I am of the view that the learned tribunal failed to appreciate that law settled by the Apex Court in _**Swaran Singh's case (supra**_ ), hence the M.A.C.A.No.1926/2017 7 direction of the tribunal to reimburse the amount from the owner is liable to be set aside. Accordingly, that portion of the direction is set aside and the 1[st] respondent insurance company is directed to satisfy the award within thirty days from the date of receipt of a copy of this judgment. M.A.C.A. is disposed of as above. **P.D.RAJAN, JUDGE** acd