Sanjay and anr. Vs. Akhlesh and anr. - Court Judgment

Excerpt:
- - if on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the 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. to avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not dis-qualified to drive at the relevant time.n.k. mody, j.1. this order shall also govern the disposal of m.a. no. 757/98. being aggrieved by the award dated 28.4.1998 passed by mact, west nimar, mandleshwar in claim case no. 36/96, the present appeal and ma no. 757/98 has been filed.2. short facts of the case are that the accident took place on 20.10.1995 by a scooter bearing registration no. mp-10b-4900. the scoter was being driven by appellant no. 2, naveen, owned by appellant no. 1, sanjay and was insured with respondent no. 2, insurance company.3. due to the accident respondent no. 1, who was aged 12 years at the time of accident sustained fracture in his right leg of tibia bone and fracture of femur bone in left leg. respondent no. 1 was hospitalized. claim petition was filed by respondent no. 1, which was registered as claim case no. 36/96, in which the insurance company, respondent no. 2, herein opposed the claim on the ground that at the relevant time appellant no. 2 was not possessing the valid driving licence.4. on the basis of pleadings of the parties the learned tribunal framed the issues, recorded the evidence and passed the award against the appellants for a sum of rs. 30,00 along with interest @ 12% per annum and exonerated respondent no. 2, insurance company.5. being aggrieved by this part of the award whereby respondent no. 2 has been exonerated, the owner and driver who are appellants in ma no. 955/98 has preferred the appeal and in ma no. 757/98 respondent no. 1, who was claimant is appellant praying for enhancement. respondent no. i submits that breakup of amount awarded is as under:rs. 25,000 : towards permanent disability.rs. 5,000 : towards medical expenses.6. it is submitted that respondent no. 1 was a boy of 12 years. on account of accident appellant was hospitalized with effect from 20.10.1995 to 3.11.1995. the permanent disability was assessed @ 18% by dr. y.k. sharma. it is submitted that on account of loss of earnings of attenders for the period when the respondent no. 1 was under treatment no amount has been awarded. similarly, no amount has been awarded towards pain and sufferings. no amount has been awarded towards attender. it is submitted that amount awarded is on lower side. it is submitted by respondent no. 1 that respondent no. 2, insurance company has wrongly been exonerated.7. learned counsel for the appellants mr. a.s. garg submits that insurance company has wrongly been exonerated. it is submitted that appellant no. 2 was possessing the driving licence dated 7.11.1993, which is exhibit p-2 and which is on record. it is submitted that appellant no. 2 was possessing one kind of driving licence, therefore, it is not a case when appellant no. 2 is not having the licence. learned counsel for the appellant no. 2 placed reliance on paras-47 and 89 of a decision reported in : air2004sc1531 , national insurance co. ltd. v. swaran singh, which reads as under: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 for both car and jeep separately.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 the central government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. the various types of vehicles described for which a driver may obtain a licence for one or more of them are, (a) motorcyle without gear; (b) motorcyle with gear; (c) invalid carriage; (d) light motor vehicle; (e) 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 vehicles 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, max-cab, medium goods vehicle, medium passenger motor vehicle, motor cab, motor cycle, 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 as 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 the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the 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.8. mr. s.v. dandvate, counsel for respondent no. 2 submits that the appellant no. 2 was not possessing the valid driving licence for driving a motorcycle. it is submitted that from the perusal of a.w. -2 akhilesh it is evident that appellant no. 2 dashed respondent no. 1. learned counsel also placed reliance on the decision of swaran singh (supra) which reads as under:mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. to avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not dis-qualified to drive at the relevant time.the court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.9. so far as appeal for enhancement of award is concerned, it appears that the amount awarded is on lower side as no amount has been awarded towards loss of earning of attenders for the period when the injured was under treatment, pain and sufferings, transport and conveyance charges.10. since the appellant no. 2 was possessing a hmv licence and the accident has taken place by lmv, therefore, it cannot be said that appellant no. 2 was not possessing the licence. in view of this the findings of the learned tribunal exonerating the insurance company is not sustainable in law. in view of this ma no. 955/98 stands allowed. the findings of the learned tribunal, whereby the respondent no. 2 was exonerated from the liability are set-aside holding that respondent no. 2 is jointly responsible to pay the compensation to respondent no. 1 along with the appellants. so far as ma no. 757/98 filed by respondent no. 1 is concerned is also allowed in part. the amount awarded is enhanced by modifying the award from rs. 30,000 to rs. 45,000 with interest @ 6% per annum from the date of filing of claim petition.no order as to costs.c.c. as per rules.