C.N. Ashwathanarayana Rao, J.
1. The Insurance Company his filed this appeal against an award in MVC No. 255/94 on the file of the Court of the Motor Accident Claims Tribunal, III Court, Raichur, dated 23.01.96 challenging the fastening of the liability of paying compensation on the appellant/3rd respondent.
2. The facts which have led to this appeal may briefly be stated as follows:-
The respondents 1 & 2 are the Wife and minor son of the deceased Rama Rao who died in a Motor Vehicle accident filed an application for compensation. The petitioner's case was that on 20,5.1994 at about 9.30 p.m. when the deceased was proceeding on Gangavathi Sindhanoor road, a lorry bearing No. KA-15/0049 which was being driven in a rash and negligent manner by the 3rd respondent (1st respondent before the Tribunal) dashed against Rama Rao resulting in the spot death.
b) The Insurance Company in its written statement contended that the 1st respondent - Driver did not possess a valid driving licence and therefore there was a violation of the terms of the insurance policy and hence the insurance company was not liable to indemnify the 2nd respondent-Owner. The said contention was made the subject matter of Issue No. 3. After trial and hearing the learned Counsel for the parties, the learned Tribunal answered Issue No. 3 against the Insurance Company and consequently held it liable to indemnify the owner. Being aggrieved by the said Judgment and award the insurance company has preferred this appeal.
3. I have heard the learned Counsel for the parties and have perused the records.
4. The facts in this case are not in dispute. By consent of parties (vide order sheet dated 20.12.95) two documents Ex-R,1 &. 2 came to be marked as exhibits on behalf of the 3rd respondent-Insurance Company. Though the learned Counsel for the respondents 1 & 2 submitted that the respondents 1 & 2 did not give any such consent, the order sheet discloses that it was done in presence of both the parties and the petitioners never objected to the same. Therefore, as rightly submitted by the learned Counsel for the appellant Ex.R-1 & 2 could be taken as having been marked as Exhibits with the consent of the petitioners. Ex-R.1 is a zerox copy of the motor vehicle insurance cover note issued by the 3rd respondent in respect of the vehicle involved in the accident, Ex.R-2 is a xerox copy of the driving licence held by the 1st respondent. It goes to show that the 1st respondent had the licence to drive 'HPV only' i.e. Heavy Passenger Vehicle.
5. The appellant in the grounds urged in the appeal memo has contended that the trial Court erred in coming to the conclusion that the appellant has not proved that the driver of the lorry did not possess a proper driving licence to drive goods vehicle. It is contended, Ex.R-2 driving licence establishes that the driver had driving licence to drive only heavy passenger vehicle and not a goods vehicle. It is contended; the grounds on which the lower Court has rejected the appellant's contention are not satisfactory and cannot be accepted.
6. Elucidating these contentions, the learned Counsel for the appellant relied upon certain provisions under the Motor Vehicles Act, 1988 (herein afterwards referred to as the ACT) and certain decisions. He drew my attention to Section 10 of the Act. It classifies the motor vehicles under different headings. Section 3 Clause 1 of the Act provides as follows:-
'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 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.'
The learned Counsel for the appellant emphasized on the words 'effective driving licence' and the words 'specifically entitles him so to do' in this provision. In support of his arguments that in the case on hand the driving licence held by the 1st respondent which is for 'HPV' Heavy Passenger Vehicle cannot be considered as a driving, licence for a 'HGV' Heavy Goods Vehicle which is the vehicle involved in the accident. The learned Counsel for the appellant relied upon certain decisions. In NEW INDIA ASSURANCE CO. LTD. v. MANDAR MADHAV TAMBE AND ORS., : AIR1996SC1150 the Supreme Court has held as follows:-
'Policy contemplates that insurance company would be liable only if the vehicle was being driven by a person holding a valid driving licence or a permanent driving licence other than a learner's licence-Driver was holding no licence on the date of accident but he held a learner's licence which had expired about two years before the accident-He obtained a fresh learner's licence and subsequently a driving licence within a few days of the accident - Whether the driver had a driving licence within the meaning of Section 2(5-A) and insurance company Iiable-Held:no; a person holding a learner's licence would not be regarded as duly licenced.'
Though the facts of the case on hand are slightly different in-as-much as the driver in the case on hand was not holding a learner's licence, the principle enunciated in the decision of the Supreme Court applies to the facts of the case on hand also.
7. In UNITED INDIA INSURANCE CO. LTD. v. K. SUBRAMANIAM AND ORS., ACJ 1991 2 Mad 625 it has been held as follows:
'Motor insurance Licence Defenses available to insurance company-Accident by a tempo, a three-wheeler goods vehicle, driven by a driver who was holding licence to drive a light motor vehicle-Driver's licence was endorsed after the date of accident authorising him to drive a transport vehicle as paid employee-Whether the driver had a valid licence on the date of accident to drive the tempo and the insurance company liable-Held: no'.
8. In UNITED INDIA INSURANCE CO. LTD. v. PALANIAMMAL AND ORS., 1991 ACJ 424 Mad it has been held as follows:
'Motor insurance-Driving licence-Defences available to insurance company-Accident caused by a tourist taxi driven by a person having licence to drive light motor vehicle-Tribunal held the insurance Company liable on the ground that when the accident was caused the vehicle was on a test run and was not being used as a tourist taxi and the driving licence would suffice to hold that the vehicle was driven by a duly licensed driver-Whether the driver had a valid driving licence to drive a tourist taxi and the insurance company liable - Held : no; the mere user of the tourist taxi for a purpose other than that for which it could be used, would not affect the character of the vehicle.'
9. In M. SAMMAMMA AND ANOTHER v. SYED KAJA MAUNUDDIN AND ORS.,1992 ACJ 375 AP it has been held as follows:
'On a perusal of the evidence, it has been found from the entries in Exh. A-2 that the driver who drove the vehicle is not having the valid licence to drive the lorry. Mere fact that he was in possession of the driving licence for a light motor vehicle does not mean that he is having a valid licence. What is valid licence has to be considered with reference to the vehicle that was involved in the accident. Since different classes of licences are there and different periods and experience has been required for having those licences, it cannot be said that a person who is having light motor vehicle licence can drive the vehicle wherein it requires, under the rules, heavy motor vehicle licence. In this case, the vehicle involved is the lorry and admittedly, the driver was not having a licence for driving the iorry. Under those circumstances, the court was perfectly justified in arriving at the conclusion that the insurance company is not liable to pay him.'
10. The learned Counsel for the appellant then relied upon unreported decisions of this Court in M.F.A. No. 2103/84 and M.F.A. No. 933/92. The learned Counsel has made available zerox copies of the said decisions. In MFA No. 2193/84 by an order dated 6.12.90, this Court has held as follows:
'The appellant has also challenged the award of the Tribunal in making R-2, Insurance Company not liable to pay the amount of the award. But the finding of the Tribunal is that the driver was holding licence to drive only the passenger vehicles and not heavy goods truck. The evidence of PW-1 the motor vehicles Inspector clearly establishes that the driver had no licence to drive heavy goods vehicle. In view of this finding of the Tribunal, R-2 the insurance company cannot be made liable to pay the compensation awarded to the appellant on account of. rash and negligent driving of the driver in driving heavy goods vehicle which was involved in the accident.'
This decision has been followed in the other Unreported decision in MFA No. 933/92 dated 8.12.93.
11. All these decisions fully support the argument of the learned Counsel for the appellant.
12. Countering the contention of the learned Counsel for the appellant, the learned Counsel for the respondents-1 & 2 relied upon a decision ORIENTAL INSURANCE CO. LTD. v. HAZIRA BEGUM AND ORS., 1995 ACJ Kar. 236 a Single Judge of this Court held in that case as follows'-
'While the employment of the worker was admitted, the main contest was whether the driver was entitled to drive the particular type of vehicle. This contention is raised in this behalf by, of course and as usual, the insurance company. What is contended by it is that the worker had only a licence to drive a light motor vehicle, ('L.M.V.' for short) and the vehicle driven was a 'medium goods vehicle' which he was not entitled to drive and, therefore, the workman was not 'duly licensed' to drive the vehicle. According to it, Alwyn Nissan vehicle is a goods carriage coming under the category of medium goods vehicle, and, therefore, a licensee to drive light motor vehicle cannot drive the said vehicle and that, therefore, there is a breach of the condition of the insurance policy. Hence, according to the insurance company, in view of Section 96(2) (b)(ii) of the Motor Vehicles Act. 1939, it is not liable to indemnify the amount awarded.'
This contention was negatived by this Court on a perusal of the definition of light motor vehicle under Section 2 Clause 21 of the Act and the evidence that was before the Court. As rightly submitted by the learned Counsel for the appellant this decision has no application to the case on hand for more than one reason. Firstly, the case relied on was under the Workmen's Compensation Act. A perusal of the entire decision goes to show that this Court examined the contention of the insurance company in the light of the provisions under the Workmen's Compensation Act as a beneficial piece of social legislation. Secondly, the Court on the basis of the evidence on record found that the vehicle involved in the accident was a goods carriage weighing less than 6,000 kilograms i.e. 5.360 kilograms, and therefore on the basis of the definition of a transport vehicle under Section 2 Clause 47 of the Act, there was no difference between a light motor vehicle for which the driver had the licence and a medium goods vehicle which was involved in the accident. Consequently, this Court rejected the contention of the insurance company and held it liable to indemnify the owner. The facts of the case on hand are altogether different. Admittedly in the case on hand the driver as on the date of accident had licence for a heavy passenger vehicle whereas the vehicle which was involved in the accident which was being driven by him was a heavy goods vehicle. The definition of a heavy passenger vehicle and a heavy goods vehicle are found in Section 2 Clauses 16 & 17 of the Act as follows:
'Section 2 Clause 17 defines a 'heavy passenger motor vehicle' as any public service vehicle or private service vehicle or educational institution bus or omnibus 'the gross vehicle weight' of any of which, or a motor car the unladen weight of which, exceeds 12,000 kilograms;
Section 2 Clause 16 defines a 'Heavy goods vehicle' as any goods carriage 'the gross vehicle weight' of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms.
In view of these definitions the learned Counsel for the appellant was right in submitting that these two types of vehicles belong to different type of classes and driving licence which is applicable to one class of such vehicles cannot be said to apply to other class.
13. In answer to a Court question at the time of arguments, as to whether the appellant is prepared to examine the driver of the vehicle involved in the accident who has not been examined, the learned Counsel for the appellant submitted that he is prepared to examine him and the matter may be remanded for that purpose with specific directions to the Tribunal. The learned Counsel for the respondents-1 & 2 opposed this submission stating that the insurance company had sufficient opportunity before the Tribunal to adduce all its evidence and since it has not been done it is not open to this Court to re-open the matter at this length of time and permit the insurance company to examine the driver. In support of his submission, the learned Counsel for the respondents-1 & 2 relied upon an unreported decision of this Court in C.R.P. Nos. 2848/93 & 2849/93 dated 20.9.96. The learned Counsel for the appellant himself has made available a copy of the said Judgment, in that decision it has been held as follows:
'There are certain over-riding considerations which apply to judicial proceedings and one of them is the rule of finality. It is true that exceptions are made with regard to serious cases where important evidence is permitted to be introduced at a later point of time; but one of the considerations which the Court has to take into account is the status of the parties if this procedure were to be permitted. It may be that there was no particular fault on the part of the insurance company and that they were handicapped because of the fact that the police authorities who should have taken note of the driving licence and the type of licence which the driver possessed, did not do this, but the fact still remains that the proceeding has finally concluded and it would be extremely harsh to the poor claimants to whom some small amount has been awarded because of the damage to their vehicles and the minor injuries, at this late point of time if the litigation were to be re-opened. The Court is required to take congnizance of these factors particularly where an application for re-opening a finally concluded proceeding is made and more so, where an application for remand involving long term litigation is made. It is principally for this reasons that I am not inclined to permit the introduction of any further evidence at this stage or to remand the matters'.
14 On a perusal of the evidence on record I find that there is no need for remanding the matter to the Tribunal. A perusal of Ex.R-1 the insurance policy cover note given by the insurance company relating to the vehicle involved in the accident goes to show that the 'gross vehicle weight' of the vehicles involved in the accident was 16,200 kilograms. It would therefore be a heavy goods vehicle within the meaning of Section 2 Clause 16 of the Act. Therefore, the driving licence held by the first respondent before the Tribunal as per Ex.R-2 which is for a heavy passenger motor vehicle cannot be considered as driving licence for a heavy goods vehicle. Hence, there is a clear violation of the terms of the insurance policy and the insurance company cannot be made liable to pay the compensation determined in this case. Hence, the appeal has to be allowed and the award passed by the Tribunal has to be modified.
15. For the reasons aforesaid the appeal is allowed and the award passed by the Tribunal is hereby modified holding that only the respondents-1 & 2 are liable to pay the compensation determined by the Tribunal to the petitioners and there is no liability on the insurance company. The amount deposited by the appellant in this Court in pursuance of the interim order passed on 14.6.96 shall be paid to the appellant.
The parties are directed to bear their own costs in this appeal.