P. Krishnamoorthy, J.
1. This appeal is by the Insurance Company against the Award in a claim petition under the Motor Vehicles Act.
2. The first respondent-claimant before the Motor Accident Claims Tribunal is the daughter of one Meenakshi. On 17.1.1980, at about 7.45 p.m., while Meenakshi alongwith one Devaki was going along the Court Road, Udupi, an Auto rickshaw, bearing Regn. No. MYX 7195 driven by the second respondent and owned by respondent No. 3, came in a rash and negligent manner and dashed against the said Meenakshi and Devaki. Meenakshi sustained grievous injuries due to the accident and later she succumbed to the injuries. An application for compensation was filed by the first respondent alleging that the accident occurred due to the rash and negligent driving of the vehicle by the second respondent. Earlier to this application, one Devi Prasad Shetty s/o the deceased Meenakshi, had filed an application for compensation on account of the death of his mother Meenakshi. After contest, the above application was dismissed by the Trial Court by an order dated 1.3.1984 which is produced as Ex. D. 12 in the case. It is alleged that the present claimant was not a party to this application. On various grounds, the claimant claimed compensation from the driver, owner and insurer of the vehicle.
3. The appellant-Insurance Company and other respondents before the Tribunal contested the application on various grounds. The main contentions taken by them were to the effect that the present application is barred by the principles of resjudicata on account of the dismissal of the earlier application filed by Devi Prasad Shetty s/o deceased Meenakshi. It was also contended by the Insurance Company that the driver of the auto-rickshaw (second respondent) had no valid driving licence on the date of the accident and that, in such an event, the policy clearly excludes the liability of the insurer and accordingly, the Insurance Company is not, in any way, liable. The claim was resisted on the ground that the accident did not occur due to the negligence of the driver. The quantum of compensation was also disputed.
4. After trial, the Motor Accident Claims Tribunal, Mangalore, over-ruled all the contentions of the driver, owner and the insurer and awarded a compensation of Rs. 35,000/- with interest from the date of the application to the claimant payable by the respondents. The Insurance Company has come up in appeal against the above order.
5. The driver and the owner of the vehicle (respondents 2 and 3 in this appeal) filed an appeal as M.F. A. No, 1716/86 before this Court beyond the period of limitation. The above appeal was dismissed as barred by limitation. But, while dismissing the appeal, in para 4 of the Judgment, this Court observed as follows:
Appellants are already party-respondents in M.F.A. No. 83/86 preferred by the insurer against the award. Learned Counsel says their appellants are entitled to be transposed as co-appellants in that appeal. It is open to appellants to seek such transposition. If and when such prayer is made, the same would be considered on its merits.
6. Based on the above observation, the driver and the owner (Respondents 2 and 3) have filed an application I. A. III praying that they may be transposed of as co-appellants in this appeal. The claimant has also tiled cross-objections challenging the quantum of compensation fixed by the Tribunal and for enhancing the quantum of compensation awarded by the Tribunal.
7. The appeal, cross-objections and the application for transposition came up for consideration before a Division Bench of this Court. It was contended by the appellant that, in view of the dismissal of the earlier application filed by the Devi Prasad Shetty, one of the legal representatives of the deceased Meenakshi, on merits, the present application filed by another legal representative on the same cause of action is barred by principles of res jndicata. The earlier application, was dismissed on the ground that, no negligence on the part of the driver is proved, as could be seen from the Judgment in the earlier case produced as Ex. D-l 2 in the case. In reply to this, the claimant contended that the ground of defence available to the Insurer is restricted by the provisions of Section 96(2) of the Motor Vehicles Act, 1939 and that they are not entitled to raise any contention or objections other than those mentioned in the above Section and accordingly, the insurer is not entitled to raise the contention regarding the maintainability of the present application, due to the dismissal of the earlier application by the brother of the present claimant.
8. The Division Bench after hearing the parties, felt that the questions raised before this Court and mentioned above involves on important question, particularly, relating to the maintainability of the second application as also the right of the insurer, to urge a ground relating to the maintainability of the application, in view of the restrictions contained in Section 96(2) of the Motor Vehicles Act, 1939. Consequently, the Division Bench has referred this case for the decision by a Full Bench. The Division Bench was also of the view that, as the case is being referred to a Full Bench, it is proper that LA. Ill, the application for transposition be also decided by the Full Bench. This is how the matter is before the Full Bench.
9. As the whole case is referred by the Division Bench to the Full Bench, we heard the appeal in full on its merits in regard to all the points raised by the parties concerned. The appellant insurance Company as stated earlier, raised the contentions that the present application filed by the claimant is not maintainable, in view of the dismissal on merits of the application filed by the Devi Prasad Shetty, another legal representative (son of deceased Meenakshi), on the same cause of action. It was also contended by the appellant-Insurance Company that in any view of the matter, the Insurance Company is not liable as the driver of the vehicle had no valid driving licence at the time of the accident and that, such a contingency being excluded from the purview of the policy, they are not liable. On the other hand, learned Counsel for the claimant contended that the Insurance Company is not entitled to raise the contention in regard to the maintainability of the application as their defence are restricted to the grounds mentioned in Section 96(2) of the Motor Vehicles Act, 1939. Learned Counsel for respondents 2 and 3, viz., driver and the owner, pressed their contention that they are liable to be transposed as co-appellants alongwith the insurer.
10. On the above contentions, the following points arise for consideration in this appeal, viz.,
(1) Whether the Insurance Company is liable to compensate the claimant in view of the fact that the driver of the auto-rickshaw, at the time of the accident, had no valid licence ?
(2) Whether the present claim is barred by res judicata in view of the dismissal of the earlier application filed by Devi Prasad Shetty, son of the deceased Meenakshi, on the same cause of action ?
(3) Whether the Insurance Company is entitled to raise the defence of the resjudicata in view of the restrictions contained in Section 96(2) of the Motor Vehicles Act ?
(4) What order to be passed on LA. III the application few transposition filed by respondents 2 and 3, the driver and owner of the vehicle ?
Before considering these questions, it is relevant to note the admitted or proved facts in this case, which are necessary to decide the points formulated by us.
11. The first respondent-claimant is the daughter of deceased Meenakshi and the accident occurred on 17.1.1980 at about 7.45 p.m. while she vitas going alongwith one Devaki, in Court Road, Udupi. She was hit by an auto-rickshaw bearing Regn. No. MYS 7195 driven by the second respondent and owned by the third respondent. Due to the accident, she suffered injuries and later succumbed to the same. Prior to the present application, one Devi Prasad Shetty, son of the deceased Meenakshi had filed an application in M.V.C. No. 89/90 for compensation in which the present claimant was not impleaded as a party. That application was dismissed on merits after holding that the negligence on the part of the driver is not proved and the Judgment in the above case is produced as Ex. D. 12. It has also been proved in the case that the driver of the auto-rickshaw, on the date of the accident, i.e. on 17.1.1980, had no driving licence to drive the same. He had obtained a learner's driving licence which expired on 9.11.1979. Subsequently, a fresh driving licence was obtained with effect from 21.1.1980 to 20.7.1980. Thereafter, he obtained a permanent licence on 30.1.1980 and accordingly, on the date of the accident, the driver of the vehicle had no valid driving licence to drive the auto-rickshaw. It is in this background that we have to decide the points raised by the learned Counsel in this case. Now, we shall consider the points involved in seriatim.
12. Point No.1: The question to be decided is as to whether the insurer can be made liable in view of the fact that the driver of the auto-rickshaw, on the date of the accident, had no driving licence at all. The Tribunal overruled this contention by holding that it is not enough if the insurer proves that the driver had no driving licence on the date of the accident but they have to further prove that on the date of the accident the driver who had not possessed the licence, was disqualified from obtaining a valid licence. The Tribunal further held that as the insurer had not proved that on the date of the accident, the driver was disqualified to obtain or to hold a licence, the Insurance Company is liable for payment of compensation.
13. The appellant-Insurance Company relied on a specific clause in the Insurance Policy Ex. D-3, which reads as follows :
Any person provided he is in the insured's employ and is driving on his order or with his permission. Provided that the person driving holds a valid driving licence at the time of the accident or had held a permanent driving licence (other than a learner's licence) and is not disqualified from holding or obtaining such a licence.
14. According to the learned Counsel for the appellant, one of the conditions of the policy to make the insurer liable is that the person driving the vehicle should hold a valid driving licence at the time of the accident. Under Section 96(2)(b)(ii), the insurer is certainly entitled to raise this contention in regard to a condition excluding driving by any person who is not duly licensed. An identical clause contained in the insurance policy was considered by their Lordships of the Supreme Court in New India Assurance Co. Ltd. v. Mandar Madhav Tambe and Ors., : AIR1996SC1150 . Their Lordships considered the connotation of the term duly licensed' contained in the Exclusion Clause in the insurance policy and observed at paragraph 14 of the Judgment, thus:
14. From the aforesaid it is clear that what was obtained by respondent No. 3 from the Authorities under the Act was not a licence within the meaning of Section 2(5A) of the said Act. He had obtained a learner's licence which allowed him to be on the road subject to his fulfilling the conditions contained therein. One of the important conditions was that if he was driving a motor vehicle then there must be besides him in the vehicle as an instructor, a person duly licenced to drive the vehicle and sitting in such a position as to be above readily to stop the vehicle'. It is clear from this that two learners by themselves cannot be in one car which is being driven by one of them. If the learner having a learner's licence under the rules is to drive a car then he must have sitting besides him a person who is duly licensed. This clearly shows that a N driving licence' as defined in the Act is different from a learner's licence issued under Rule 96. In other words, a person would be regarded as being duly licenced only if he has obtained a licence under Chapter II of the Motor Vehicles Act and a person who has obtained a temporary licence which enables him to learn driving cannot be regarded as having been duly licensed. The decision of the Single Judge of the Himachal Pradesh High Court in United India Insurance Company's case (AIR 1986 Him. Pra. 27) to the extent to which he has taken a contrary view must be held to have been incorrectly decided.
Again in Paragraph 15, their Lordships observed thus :
15. Apart from the fact that a learner having such a licence would not be regarded as duly licensed, the aforesaid clause in the insurance policy makes it abundantly clear that the Insurance Company, in the event of an accident, 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.
15. From the aforesaid decision of the Supreme Court, it is clear that in order to make the insurer liable in the light of the conditions in the insurance policy that the driver of the vehicle should have a valid licence on the date of the accident. It is not enough even if he had a learner's licence on the date of the accident. But on the facts proved in this case, it is clear that the driver of the auto-rickshaw had no valid licence, neither a permanent nor even a learner's licence on the date of the accident. Accordingly, in the light of the exclusion clause contained in the insurance policy, the insurer is not liable for the claim in this case. The point is accordingly answered hi favour of the appellant.
16. Point No. 2: The question that arises for consideration is as to whether the present application is maintainable in view of the dismissal of the earlier application filed by Devi Prasad Shetty, s/o deceased Meenakshi, Ex. D. 12 is the Judgment oh the claim filed by Devi Prasad Shetty, which shows that it was dismissed on merits after holding that it is not proved that the driver of the auto-rickshaw was negligent. But it has to be noted that the present claimant, viz. the first respondent in the appeal was not a party to the above application. It is contended by the learned Counsel for the appellant that the claim filed by Devi Prasad Shetty was a representative one and on behalf of and for the benefits of all the legal representatives of the deceased Meenakshi and in the light of Explanation 6 to Section 11 of the Code of Civil Procedure, the previous Judgment would operate as resjudicata in the present claim. On the other hand, it is contended by the learned Counsel for the claimant that the earlier Judgment cannot operate as resjudicata as the present claimant was not a party to the earlier proceedings.
17. While considering this question, it is relevant to note the provision in the Motor Vehicles Act in relation to the filing of a petition fer compensation arising out of a motor vehicle accident. Section 110-A provides for application for compensation which reads as follows at the relevant time :
110-A. (1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 10 may be made-
(a) by the person who has sustained the injury; or
(a)(a) by the owner of the property; or
(b) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(c) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased; as the case may be:
provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondent to the application.
(2) Every application under Sub-section (1) shall be made to the Claims Tribunal having jurisdiction over the area in which the accident occurred, and shall be in such form and shall contain such particulars as may be prescribed.
(3) No application for compensation under this Section shall be entertained unless it is made within six months of the occurrence of the accident :
Provided that the Claims Tribunal may entertain the application after the expiry of the said period of six months, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.
18. It is clear from the proviso to Sub-section (1) of Section 110A that an application for compensation shall be made on behalf of or for the benefit of all the legal representatives. In other words, it is a representative action and the proviso further provides that the legal representatives who have not joined the application, shall be impleaded as respondents to the application.
19. It is tune, that in the previous application, Devi Prasad Shetty was litigating in respect of a private right claimed in common for him and the other legal representatives of the deceased Meenakshi. Admittedly, the first respondent-claimant was not a party to the previous proceedings and if the previous proceedings should operate as res judicata as against her, Explanation VI to Section 11CPC must be applicable. It is only by virtue of Explanation VI to Section 11, the previous Judgment in the case filed by Devi Prasad Shetty can operate as res judicata as against the present claim. It is true that Devi Prasad Shetty as also the present claimant, have made a claim on the same cause of action, viz., death of their mother due to the accident which occurred on 17.1.1980. Admittedly, the first respondent-claimant was not a party to the previous proceedings and the proviso to Section 110-A(l) clearly provides the procedure to be followed in case the application is not filed by all the legal representatives. It clearly provides that, if all the legal representatives did not join in filing of an application, the persons who have not joined the petition, shall be impleaded as respondents. Explanation VI to Section 11 is an exception to an ordinary rule of res judicata, in that, it deems certain persons who are not parties to the proceedings as parties to the same in certain contingency, viz., where persons litigated, bonafide in respect of a public right or of a private right claimed in common for themselves and others. In order that Explanation VI to Section 11 is attracted, it is essential that the procedural requirements laid down by any law or Rule shall be strictly complied with, for otherwise. Explanation VI will not apply in such cases.
20. In Kumaravelu Chettiar and Ors. v. T.P. Ramaswami Ayyar and Ors. . Their lordships were considering the effect of Explanation VI of Section 11 in regard to a suit, in which public rights were involved and to which the provisions of Order 1, Rule 8 CPC were applicable. In that case, a question arose as to whether the previous suit in regard to a public right decided without complying with the provisions of Order 1, Rule 8 CPC, shall operate as res judicata in the subsequent suit in view of Explanation VI to Section 11 CPC. Their Lordships held that if a suit started under Order 1, Rule 8 is to have benefit of Explanation VI to Section 11, the conditions of Rule 8 must have been complied with fully. In that context their Lordships observed:
Explanation 6, Section 11 is controlled by Order 1, Rule 8, and if a Court allows a suit to which the rule applies to proceed in a representatives capacity for the benefit of numerous parties all these parties will not be bound by the decree, even if the contest leading to it were bona fide, but the procedure prescribed by the rule is in no respect followed.
21. In that context, their-Lordships have also observed at page 190 thus :
Bonafide litigation will not exclude the neglect of statutory conditions. If the litigation be not bona fide the most complete observance of these conditions will not give to the decree the force of a res judicata.
22. In Effuah Amissah v. Effuah Krabah and Ors., AIR 1936 PC 147, at page 149, it was observed as follows :
Their Lordships do not doubt that an action by or on behalf of a family may result in a res judicata : See 54 LA. 122(1), but such an action, if it is to bind absent or future members of the family, must be so constituted according to the local rules of procedure by a representation order or in some other way that all such members can be regarded as represented before the Court.
23. The decision in N. Venkateswara Prabhu v. Krishna Prabhu : [1977]2SCR636 , relied on by the appellant, can have no application to the facts of this case, for in that case, neither Order 1, Rule 8 CPC nor of any provision similar to one contained in the proviso to Section 110-A(1) was involved.
24. From the aforesaid decisions of the Privy Council, it is clear that Explanation VI to Section 11 is an exception to the ordinary rule of res judicata, in that, it would operate as res judicata even as against persons who are not parties to the earlier proceedings in certain contingencies. But in order to attract that provision, if there are any rules prescribed, which regulate the proceeding, they must be strictly complied with. If the procedural provisions are not strictly complied with, Explanation VI to Section 11 can have no application. As stated earlier, under the Motor Vehicles Act, there is a specific provision contained in the proviso to Section 110-A(1) to the effect that persons who have not joined the application in a claim for compensation, shall be impleaded as respondents. If such persons are not impleaded, the Judgment in the previous case, cannot operate as res judicata as against them as the procedure prescribed has not been complied with. Admittedly, in this case, the present claimant was not impleaded in the previous proceedings and accordingly, the Judgment in Devi Prasad Shetty's case' cannot operate as res judicata and accordingly, we answer the point against the appellant.
25. Point No. 3 .-Though elaborate arguments were addressed by the learned Counsel on both sides on the question, it is not necessary for us to express any opinion in view of our decisions on Points 1 and 2. We have already held that the Insurance Company is not liable in view of the violation of one of the policy conditions. We have also held that the previous Judgment in Devi Prasad Shetty's case cannot operate as res judicata in the present claim. In that view of the matter, it is not necessary for us to express any opinion on the above question and accordingly, we leave open that question for the present.
26. Point No. 4: The only further question to be decided is as to whether the driver and the owner who are respondents 2 and 3 in the appeal should be transposed as co-appellants. It is to be noted that the driver and the insurer filed an appeal beyond the period of limitation and it was dismissed on that ground. The provision contained in Order 1, Rule 10 is discretionary. White considering whether an order should be passed under Order 1, Rule 10 CPC, the Court must take into account all the circumstances of the case. Admittedly, the driver and the owner did not file an appeal in time and in fact, the appeal filed by them was dismissed as belated. A right is accrued to the claimant by their not filing an appeal in time. By virtue of the provisions contained in Section 96(2) of the Motor Vehicles Act, the defence available to the Insurance Company is limited and by transposing respondents 2 and 3 as appellants, they will be entitled to raise all contentions. We do not think that in the circumstances, it is a fit case where we should exercise our discretion in favour of respondents 2 and 3 by transposing them as appellants. They did not file an appeal in time and by transposing them as appellants, the scope of defence may be widened. As the appeal was not filed in time, a right is accrued to the claimant which should not be lightly taken away. In that view of the matter, we do not think that this is a fit case where we should exercise our discretion to transpose respondents 2 and 3 as co-appellants. Accordingly, we do not find any merit in LA. III and it is dismissed.
27. In view of our finding that the Insurance Company is not liable, the cross-objection filed by the claimant in regard to the quantum of compensation does not arise for consideration and it is accordingly dismissed.
In view of what is stated above, we allow this appeal and hold that the Insurance Company is not liable for the amount awarded in the case, but the award as against the owner and driver will stand.
The appeal is disposed of as above. The cross-objection is dismissed. No costs.