1.This is an appeal filed by the Insurance Company challenging the award in M.V.O.P.No.504 of 2006 dated 12-01-2009 on the file of the District Judge-cum-Motor Accidents Claims Tribunal, Srikakulam to the extent the award fastening the liability on it.
2.The first respondent is the Claimant in O.P.No.504 of 2006 and the second respondent (owner of the offending vehicle - motorcycle No.AP 30 E 3915).
3.On 04-06-2006 the first respondent herein (Claimant in O.P.) was proceeding on his scooter bearing No.AP 31 M 4116 from the Government Hospital, Srikakulam. A motorcycle bearing registration No. AP 30 E 3915 belonging to the second respondent herein driven by one Yarabati Chandrasekhara Rao came in the opposite direction and dashed against the scooter. On account of the said incident, the Claimant sustained multiple injuries and the scooter was also badly damaged. He, therefore, filed the O.P. and sought for a compensation of a sum of Rs.3,00,000/-. The second respondent (owner of the vehicle) remained ex parte. The appellant - Insurance Company contested the claim mainly on the ground that the driver of the offending motorcycle did not have the required licence to drive motorcycle, as such, the conditions of the insurance policy were violated, thus, be exonerated from the liability. The Tribunal formulated necessary issues whether the first respondent suffered injuries on account of the rash and negligent driving of a motorcycle, or whether the accident was due to his own negligence and whether the first respondent was entitled to compensation and if so, to what amount and from whom.
4.The Claimant examined himself as PW-1 and got examined the Doctors as PWs.2 and 3. Exs.A-1 to A-14 were marked on his behalf. The appellant - insurance company examined its legal executive as RW-1 and also got examined Senior Assistant of R.T.A., Srikakulam as RW-2. Exs.B-1 to B-10 were marked on its behalf. In addition, Exs.C-1 to C-3 were also marked through the Advocate.
5.The Tribunal on consideration of evidence on record held that the accident was caused due to the rash and negligent driving on the part of the driver of the motorcycle. It was also held that the first respondent was entitled for a sum of Rs.95,000/- towards compensation. As regards liability, the Tribunal although noticed that the driver of the offending vehicle possessed only a light motor vehicle driving licence, it did not accept the contention of the appellant - Insurance Company that the said licence cannot be considered as an effective licence to drive the motorcycle and, therefore, held that the appellant - insurance company is also jointly and severally liable. That is how this appeal has been filed.
6.Heard the learned counsel for both the parties.
7.Sri A. Ramakrishna Reddy, learned counsel appearing for the appellant would contend that the driver of the offending vehicle did not possess effective licence as required under the provisions of Section 10 r/w. Section 3 of the Motor Vehicles Act, 1988 (hereinafter in short referred to as 'the Act' for the purpose of convenience) to drive the motorcycle. He would submit that the offending vehicle was a Hero Honda motorcycle with gears. He would further submit that in order to drive a motorcycle with gears specific authorization is required, notwithstanding the driver possessed light motor vehicle driving licence. He would submit that the appellant - insurance company was established by adducing evidence that the driver of the motorcycle had no such licence, therefore, the Tribunal ought not to have fastened the liability.
8.Learned counsel Sri A. Rama Rao appearing for the first respondent, however, would contend that the light motor vehicle driving licence is enough and a separate licence to drive a motorcycle is not required. He would submit that the driving licence Ex.B-7 does not show that it prevents the driving of a motorcycle. The motorcycle is a light vehicle, therefore, the light motor vehicle driving licence answers the requirements of Sections 10 and 3 of the Act. .
9.Considering the contentions, the only point that false for consideration in this appeal is: Whether the light motor vehicle driving licence is sufficient to drive a motorcycle with gears and if so, whether the appellant - insurance company can also be made liable
10.It is the specific case of the appellant - insurance company that the driver of the offending motorcycle had no specific authorization to drive the motorcycle with gears. This plea was specifically raised and in support of the same it examined the legal executive as RW-1. RW-1 in his evidence stated that the offending motorcycle bearing No.AP-30-E-3915 is covered by insurance policy (Ex.B-1). He stated that the driver of the said motorcycle was not having valid driving licence and to drive the said vehicle the driver must possess a licence to drive the motorcycle with a gear, but the driver had only a licence to drive a light motor vehicle.
11.The extract of the driving licence of the driver, Yarabati Chandrasekhara Rao was filed as Ex.B-2 (Ex.B-7 is a copy of the same driving licence). The appellant - insurance company also examined the Senior Assistant working in the office of the Regional Transport Authority, Srikakulam as RW-2. He produced the driving licence and the same was marked as Ex.B-7. RW-2 in his evidence stated that the driver was holding licence for the light motor vehicle. In his cross-examination he stated that any vehicle the weight of which is below 750 Kgs., is a light motor vehicle and the weight of the motorcycle would be 150 Kgs. (1500 Kgs.)
12.The Tribunal based on the evidence of RW-2 and Ex.B-2 (Ex.B-7) took the view that the driver who possesses the light motor vehicle licence can also drive a motorcycle.
13. From the above, it is evident that the driver of the motorcycle did not have separate authorization to drive the motorcycle with gears. It is also evident that the appellant - insurance company took all the steps to ensure the participation of the second respondent - owner in the proceedings before the Tribunal. It also adduced evidence through RWs.1 and 2.
14. Section 3 of the Act provides that no person shall drive motor vehicle in any public place, unless he holds an effective driving licence issued to him authorizing him to drive a vehicle and no person shall so drive a transport vehicle (other than a motor cab or motorcycle) hired for his own use or rented under any scheme made under Sub-Section 2 or Section 75, unless the driving licence specifically entitles so to do.
15. Section 10 of the Act prescribes the Form and contents of the licences. Sub Section (2) of Section 10 prescribes that driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, viz.,
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) transport vehicle;
(f) to (h) x x x x x (i) road-roller; and (j) motor vehicle of a specified description.
16. Section 11 provides for additions to driving licence. A person holding a driving licence to drive any class or description of motor vehicles may apply and obtain additional authorization to drive other class or description of motor vehicles added to the existing licence.
17. Chapter 2 of the Central Motor Vehicles Rules 1989 (Rules for brevity) provides for Forms and Procedure relating to the driving licence. As per Rule 10 of the Rules, an application for grant of a learners licence shall be made in Form-2 and under Rule 13 of the Rules, such licence should be issued in Form 3. As per Rule 14, an application for driving licence is made in Form 4 and an international licence in From 6-A and under Rule 16 of the Rules, such licence shall be issued in Form 6 and 6-A respectively. As per Rule 17, any application for addition of another class of motor vehicle to the driving licence to be made in Form 8. Form 6 enumerates the classes of vehicles as enumerated in Section 10 of the Act. The corresponding Form 6 is the authorization to drive the aforesaid class/classes of vehicles. This is the legal frame of driving licence under motor vehicles Act, 1988,
18. The Form 6 prescribed under Rule 16 of the Rules provides that the holder of licence can drive a vehicle of the description mentioned therein where authorization is granted to drive motorcycle which is expressly so provided by making an endorsement to that effect. The distinction between light motor vehicle and motorcycle with gear is therefore evident.
19. Sections 3, 10, 11 of the Act and Rule 16 of the Rules read together make it clear a licence to be effective should have authorization to drive a particular class of vehicle.Thus, if a vehicle is a motorcycle with gear, the driving licence should be endorsed as authorization to drive the vehicle as "Motorcycle with gear". If it is not done, a person holding licence to drive any other class of vehicle cannot be said to hold an effective licence to drive that particular class of vehicle.
20. In New India Assurance Co. Ltd. V. Prabhu Lal1 the Apex Court, while considering the case which involved a goods carrier which is a transport vehicle within the meaning of Section 2 (7) of the Act, held that Section 3 required a driver to have an endorsement which would entitle him to drive a transport vehicle. In a later decision, in Oriental Insurance Co. Ltd., V. Angad Kol & Others2, after referring to the judgment in Prabhu Lal's case (supra 1) and other judgments, the Apex Court reiterated the same view.
21.In the instant case, it is on record that the driver had no such licence to drive a motorcycle with gear. Mere holding of light motor vehicle driving licence is not sufficient to drive the said class of vehicle.
22. In the light of the said legal provisions the contention of the learned counsel for the first respondent that there is no specific condition in the driving licence to prevent driving motorcycle is not tenable. It is therefore, to be held that the finding of the Tribunal that the light motor vehicle driving licence is sufficient to drive the motorcycle is not sustainable.
23.The learned counsel for the first respondent would contend that the appellant - insurance company may be directed to pay the amount and recover the same from the owner of the vehicle.
24. The counsel for the appellant - Insurance Company would oppose the request on the ground that in the instant case the owner never co-operated in the proceedings and not available, hence recovery is impossible. He would submit that during the pendency of O.P. the notices through the counsel was sent to the second respondent (owner of the vehicle) and also to the driver calling upon them to submit the driving licence. Notice was served on the owner of the vehicle and the notice sent to the driver was returned un-served. Proof in that regard was filed as Exs.B-3 to B-6. Ex.B-8 was the office copy of the legal notice, Ex.B-9 is the un-served postal returned cover and Ex.B-10 is the affidavit along with the un-served summons. It is true that despite the efforts, the owner of the vehicle remained ex parte in the O.P. Notice of this appeal was also returned with an endorsement that "Addressee left, whereabouts not known". On the directions of this Court dated 17-06-2010 the appellant also took out notice by registered post acknowledgment due. The notice was again returned with an endorsement "Addressee left without instructions. Hence, returned to sender." It may be noted that the first respondent in his examination in chief as PW-1 admitted that the driver paid Rs.10,000/- at the time of recording the compromise before the District Legal Services Authority. It is, therefore, evident that the second respondent is deliberately evading the service of notice. In circumstances, particularly having regard the fact that the appellant - insurance company specifically pleaded that the second respondent knowingly allowed a person who had no valid licence to drive a motorcycle, it is not proper to direct the appellant - insurance company to pay and recover from the second respondent (owner of the vehicle).
25. From the analysis above, this Court holds that the appellant - Insurance Company is not liable to satisfy the award and the award to the extent making it jointly liable, is set aside. The award in M.V.O.P.No.504 of 2006 dated 12-01-2009 on the file of the District Judge-cum-Motor Vehicles Accidents Claims Tribunal, Srikakulam, in all other respects stands good. The appeal is accordingly allowed. There shall be no order as to costs.
1 AIR 2008 (S.C.) 614
2 2009 ACJ 1411