ORDER
N.K. Jain, C.J.
1. These Appeals and accompanying Revision have been referred to the Division Bench by a learned Single Judge of this Court to consider the question as to whether the driver holding licence to drive heavy passenger vehicle can be said to be holding an effective licence to drive a heavy goods vehicle.
2. The fact matrix leading to reference lies in a narrow compass. The Addl. Motor Accident Claims Tribunal, Belgaum, (hereinafter called as the 'Tribunal') by its common judgment and separate awards in M.V.C. No. 250/1992, M.V.C. No. 1404/1991, M.V.C. No. 1736/ 1991 and M.V.C. No. 1405/1992, dated 01.01.1999 held that in a motor accident that occurred on 26.08.1991 due to rash or negligent driving of the Lorry bearing No. KA. 18-364, the KSRTC., Bus bearing No. MEF. 3499 was damaged and the claimants being passengers in the Bus were injured and hence, were entitled to compensation. The Tribunal negatived the contention of the National Insurance Company (hereinafter called as the 'Insurer', which had insured the Lorry) that the driver of the Lorry was only holding licence to drive heavy passenger vehicle and that hence had no effective licence to drive heavy goods vehicle involved in the accident and hence, the Insurance Company was liable to pay compensation awarded to the claimants. Being aggrieved by the finding of the Tribunal holding that the driver of the Lorry had an effective Licence to drive heavy goods vehicle, the Insurance Company has filed the Appeals and Revision contending that the Driver of the Lorry at the time of the accident, had only a licence to drive heavy passenger vehicle and did not hold licence to drive heavy goods vehicle insured by it and involved in the accident and the Tribunal could not have saddled the liability on the Insurer in view of the decision of this Court in UNITED INDIA INSURANCE COMPANY LTD., v. DHANALAKSHMI AND ORS, : ILR1997KAR2564 .
3. The learned Single Judge hearing the appeal felt that the question raised by the insurer in the appeal requires consideration by a Division Bench and accordingly, referred the matter to the Bench.
4. The points involved in all these cases are similar and identical as agreed and they are considered together.
5. Learned Counsel for the respective parties submit that so far as the point that the insurer is bound to pay the compensation to the insured and later it can recover the same from the owner, has already been considered by the Full Bench of this Court in the case of KSRTC AND ORS. v. ARU @ ARAVIND AND ORS., : AIR2004Kant149 (FB) and it is held as under:
'It is well settled that the provisions of the Motor vehicles Act regarding establishment of claims Tribunal to determine Just Compensation to the victim or the legal representatives of the deceased in a Motor vehicle accident is meant to provide speedy and expeditious forum to the claimant and the provisions have been enacted to protect the members of the Community travelling in vehicles or using the road from the risk attendant upon the user of the motor vehicles on the roads and to provide easy mode of getting compensation by the claimants from Insurance Company by providing for compulsory insurance'.
6. Sri S. Srishaila, learned Counsel appearing for the insurer submitted that the question referred to the Bench has already been answered by a learned Single Judge of this Court in DHANALAKSHMI'S case as also by the Apex Court and the said decision does not require any reconsideration. Accordingly, a person holding licence to drive heavy passenger vehicle cannot be said to be holding licence to drive heavy goods vehicle also unless there is an endorsement in the licence authorizing driving of heavy goods vehicle as the said two types of vehicles have been defined separately and belong to different categories.
7. The learned Counsel appearing for the Respondents submitted that the insurer has failed to prove that there is willful breach of conditions of policy and mere production of driving licence would not prove the case of the insurer and the scope and ambit of defence and degree of proof is considered by a recent three Judges Bench judgment of the Supreme Court in NATIONAL INSURANCE CO., LTD., v. SWARAN SINGH AND ORS., 2004(1) Supreme 243 and the reference may be answered in terms of the judgment of the Supreme Court.
8. We have given anxious consideration to the contentions of the learned Counsel for the parties and perused the decisions relied upon by them.
9. It will be appropriate to go through the relevant Sections of the Motor Vehicles Act, 1988 (for short, the 'Act').
10. Section 3 of the Act deals with necessity for driving licence and the same reads as follows:-
'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.'
11. Section 9 of the Act deals with granting of driving licence and Section 10 prescribes the form and contents of licences to drive. Section 10 of the Act as it stood prior to 14.11.1994, when it was amended by Act 54 of 1994 read as follows:-
'10. Form and contents of licences to drive:- (1) Every learner's licence and driving licence, except a driving licence issued under Section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.
(2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:-
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) medium goods vehicle;
(f) medium passenger motor vehicle;
(g) heavy goods vehicle;
(h) heavy passenger motor vehicle;
(i) road-roller;
(j) motor vehicle of a specified description.'
However, after the amendment of Sub-section (2) of the above said Section by Act 54 of 1994, which has come into effect from 14.11.1994, Clauses (e) to (h) in Sub-section (2) have been deleted and Clause (e) 'transport vehicle', has been included and the present sub-section after amendment reads as follows:-
'10(2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:-
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) transport vehicle;
(i) road-roller;
(k) motor vehicle of a specified description.'
12. The above said provisions of the Act have been considered by the Supreme Court in the case of National Insurance Co., Ltd., referred to supra. The Apex Court has also considered the scope, ambit, comprehension and limits of defence available to the Insurance Company in a claim petition under the Motor Vehicles Act, in view of the provisions of Section 149(2), (4) and (5) of the Act, with special reference to the defence pertaining to driving licence has been considered in detail in the recent judgment of three Judges Bench of the Supreme Court in NATIONAL INSURANCE CO., case supra. It is observed; 'if a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have -no licence for driving another type of vehicle which is of the same category but of different type. As, for example, when a person is granted a licence for driving a light motor vehicle he can drive either a car or a jeep and it is not necessary that he must have driving licence both for car and jeep separately'. (para 45)
13. The question as to whether the person who has been granted licence for one type of vehicle can drive another type of vehicle has been dealt with specifically by the Supreme Court in the above referred case of National Insurance Co., Ltd., and it is observed as follows:-
'WHEN THE PERSON HAS BEEN GRANTED LICENCE FOR ONE TYPE OF VEHICLE BUT AT THE RELEVANT TIME HE WAS DRIVING ANOTHER TYPE OF VEHICLE:
'86. Section 10 of the Act provides for forms and contents of licences to drive. The licence has to be granted in the prescribed form. Thus, a licence to drive a light motor vehicle would entitle the holder thereof to drive the vehicle falling within that class or description.
'87. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in Sub-section (2) of said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are (a) Motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (c) transport vehicle, (f) road roller and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicle which are covered in broad types mentioned in Sub-section (2) of Section 10. They are 'goods carriage', ' heavy-goods vehicle', 'heavy passenger motor-vehicle', 'invalid carriage', 'light motor-vehicle', 'maxi-cab', 'medium goods vehicle', 'medium passenger Motor-vehicle', 'motor-cab', 'motorcycle', 'omnibus', 'private service vehicle', 'semi - trailer' 'tourist vehicle' 'tractor', 'trailer', and 'transport vehicle'. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal. A person possessing a driving licence for 'motorcycle without gear', for which he has no licence. Cases may also arise where a holder of driving licence for 'light motor vehicle' is found to be driving a 'maxi-cab', 'motor-cab', or 'omnibus' for which he has no licence. In each case on evidence led before the tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence'.
'88. We have construed and determined the scope of Sub-clause (ii) of Sub-section (2) of Section 149 of the Act. Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches of inconsequential deviation in the matter of use of vehicles. Such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties.'
'89. On all pleas of breach of licensing conditions taken by the insurer, it would be open to the tribunal to adjudicate the claim and decide inter se liability of insurer and insured; although where such adjudication is likely to entail undue delay in decision of the claim of the victim, the tribunal in its discretion may relegate the insurer to seek its remedy of reimbursement from the insured in the civil Court.'
14. It is clear from the above said observations made by the Supreme Court (hat the question as to whether at the time of accident, the driver had been granted licence for one type of vehicle and he was driving another type of vehicle, has to be established by the Insurance Company as it would be a defence of breach of conditions of the policy by the insured and it has been observed in the above referred case of National Insurance Co.Ltd. that the burden is upon the Insurance Company to prove that there was wilful breach on the part of the insured in permitting a driver holding a licence to drive a particular type of vehicle to drive another type of vehicle for which he was not licensed and that has to be proved by leading evidence by the Insurance Company and mere production of licence by itself would not per se amount to proof of breach of conditions of the policy. The Supreme Court has observed as follows:-
'67. The proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event, the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance Company cannot be absolved of its liability. (See Sohan Lal Passi (supra).
68. Apart from the above, we do not intend to lay down anything further i.e. degree of proof which would satisfy the aforementioned requirement inasmuch as the same would indisputably depend upon the facts and circumstances of each case. It will also depend upon the terms of contract of insurance. Each case may pose different problem which must be resolved having to a large number of factors governing the case including conduct of parties as regard duty to inform, correct disclosure, suppression, fraud on the insurer etc.
It will also depend upon the fact as to who is the owner of the vehicle and the circumstances in which the vehicle was being driven by a person having no valid and effective licence. No hard and fast rule can therefore be laid down. If in a given case there exists sufficient material to draw an adverse inference against either the insurer or the insured, the Tribunal may do so. The parties alleging breach must be held to have succeeded in establishing the breach of conditions of contract of insurance on the part of the insurer by discharging its burden of proof. The Tribunal, there cannot be any doubt, must arrive at a finding on the basis of the materials available on records.'
15. It is well settled in view of the above said decision of the Supreme Court that mere fact that the driver was not authorised to drive the type of vehicle which he was driving at the time of the accident would not be a defence to avoid liability of the award passed against a third party in respect of a compulsorily insurable claim as the provisions of compulsory insurance indisputably have been made inter alia with a view to protect the right of a third party (para 17) and such a benefit to a third party was provided under the Statute keeping in view the fact that the conditions in the insured's policy may be of no or little effect in relation to a claim by a person to whom an insured was under a compulsorily insurable liability (para 22) and any condition in the insurance policy, whereby the right of the third party is taken away, would be void (para 21). It has also been observed by the Supreme Court in the above said decision that having regard to the provisions of Section 149(2) of the Act and having regard to the fact that the words used in Section 3 and Section 149(2) are different, words have to be interpreted in the context in which they are used.
'40. We may also take note of the fact that whereas in Section 3 the words used are 'effective licence', it has been differently worded in Section 149(2) i.e., 'duly licensed'. If a person does not hold an effective licence as on the date of the accident, he may be liable for prosecution in terms of Section 141 of the Act but Section 149 pertains to insurance as regard third party risks.
41. A provision of a statute which is penal in nature vis-a-vis a provision which is beneficent to a third party must be interpreted differently. It is also well known that the provisions contained in different expressions are ordinarily construed differently.
42. The words 'effective licence' used in Section 3, therefore, in our opinion cannot be imported for Sub-section (2) of Section 149 of the Motor Vehicles Act. We must also notice that the words 'duly licensed' used in Sub-section (2) of Section 149 are used in past tense.'
16. The above said principles laid down by the Supreme Court in the case of National Insurance Co., Ltd., would clearly answer the question referred to the Division Bench. The decisions of this Court, which are contrary to the principles laid down by the Supreme Court in the above referred case, would stand overruled. The decision of this Court in UNITED INSURANCE COMPANY LTD., v. DHANALAKSHMI AND ORS., has to be read in the light of the observations made by the Supreme Court in the case of National Insurance CO., Ltd., referred to above. However, it is the duty of the Tribunal to find out in each case as to whether the Insurance Company has been able to discharge its burden of proving breach of conditions of the policy in the light of the observations made by the Supreme Court in the above referred case and it should not absolve the Insurance Company of its liability to satisfy the claim of a third party whose interest is compulsorily insurable under the Act and would only enable the Insurance Company in case it succeeds in proving the breach of conditions of the policy, to recover the amount from the insured as laid down by the Supreme Court in the above referred decision. Each case has to be considered as per its own facts and circumstances.
17. Accordingly, we answer the reference in terms of the observations made by the Supreme Court in the above cited decision NATIONAL INSURANCE CO., LTD., v. SWARAN SINGH AND ORS.
Let the Appeals and revision Petition be posted before the appropriate Bench having roster for disposal on merits in accordance with law.