1. THIS appeal is directed against the order of the District Forum, Shimla, dated 9.12.1996, whereby the appellant/opposite party (hereinafter to be referred to as the Insurance Company) has been directed to pay to the complainant/respondent (hereinafter to be referred to as the complainant) a sum of Rs. 1.40.000/- alongwith interest @ 12% per annum from the date of filing the complaint i.e. from 14.12.1995 till the date of payment and costs of Rs. 1,000/-.
2. THE brief facts as set out in the pleadings are that the complainant who was the owner of Truck No. HIS-3093 got it insured with the Insurance Company for a sum of Rs.2,00,000/-. THE vehicle suffered loss due to the accident while it was going towards Khalini on the Bye Pass Road. THE insurance policy was admittedly in force at the relevant time. THE complainant has claimed an amount of Rs. 3,59,046/-. THE claim has been resisted by the Insurance Company on the ground that at the time of accident, the driver of the truck Shri Rohit Kumar Walia was not having a valid driving licence, as he was only having a learner''s licence at the time of accident. Further, the truck at the time when it met with an accident, was carrying 4 unauthorised passengers. We have heard the learned Counsels for the parties.
The point that the truck was carrying 4 unauthorised passengers had not been pressed by the learned Counsel for the Insurance Company in view of the judgment of the Supreme Court in Nagarajun''s case reported as (1996) 4 SCC 64. However, Mr. Ashwani Sharma, learned Counsel for the Insurance Company has contended that the driver of the vehicle was only having a learner''s driving licence at the time of accident and as such was not having a valid driving licence and in terms of the insurance policy, the complainant is not entitled to any compensation. In this context, at the very outset, we may notice the judgment of the High Court against the award of the Commissioner under Workmen''s Compensation Act (SDM), Shimla (Rural) in F.A.O. No. 15 of 1997 titled as National Insurance Company Ltd. v. Smt. Kamla & Another, decided on 18.9.1997 in respect of this very accident. The High Court has confirmed the award of the Commissioner under Workmen''s Compensation Act in favour of the claimant/ respondent arising out of the same accident. A copy of the order dated 18.9,1997 has been annexed alongwith the Application No. M.A. 254/7 filed by the complainant/respondent in the appeal. We may notice that this objection was taken by the Insurance Company before the High Court as well that the driver of the ill-fated vehicle was not having a valid driving licence, but no evidence was placed on record by the Insurance Company before the Commissioner, Workmen''s Compensation, to substantiate their submission. The Insurance Company could have very well placed all the material on the record to show that the driver of the ill-fated truck was not having a valid driving licence. The High Court consequently has rejected the contention of the Insurance Company that the driver of the truck was not having a valid driving licence. This finding binds the Insurance Company and they cannot be permitted now to raise this contention before the Consumer Court.
The Counsel for the Insurance Company has relied upon the judgment of the Hon''ble Supreme Court in New India Assurance Co. Ltd. v. Mandar Mahdav Tambe & Others, (1996) 2 Supreme Court Cases 328, and tried to substantiate that the driver having a learner''s licence cannot be regarded as a duly licensed driver and the Insurance Company is not liable to pay compensation.
3. WE are afraid this judgment cannot be applied in the facts and circumstances of the present case. The Hon''ble Supreme Court in the aforementioned case has interpreted the term ''duly licensed'' driver within the meaning of Section 96(2)(b)(ii) of the Motor Vehicles Act (New Section 149) (hereinafter to be referred to as the Act). Section 96 refers to the statutory defences available to the Insurance Company against third party. In that context, the Supreme Court has held that a driver having a learner''s licence cannot be regarded as a ''duly licensed'' driver within the meaning of Section 96(2)(b)(ii), as in that case, the accident was caused by a person who held a learner''s licence, the validity of which had already expired and the exclusion clause in the insurance policy specifically provided that the person driving the vehicle must hold a valid driving licence or a permanent driving licence other than learner''s licence. In the present case, however, admittedly learner''s licence had not expired and was valid at the time of accident and that there is no aforementioned exclusion clause in the present policy. Furthermore, the interpretation given by the Supreme Court deals with only statutory defences available under Section 96(2)(b)(ii) of the Motor Vehicles Act vis-a-vis third party risk.
It goes without saying that rights and liabilities of the parties as regards the loss caused to the vehicle are essentially determined by the terms and conditions of the contract of insurance which they have entered into. It is settled position that even in cases of third party risk, it is always permissible for an Insurance Company to provide and agree for a condition different from the defences available aforementioned in the form of insurance policy and if the terms of the policy are more liberal than the expression ''duly licenced'' used in Section 96 of the Act, in that situation, it would not be necessary to determine the exact scope and connotation of the expression ''duly licensed'' and the decision would be confined to the interpretation of the relevant provision of the contract of insurance policy. In this context, we may also refer to the judgment of Gujarat High Court in Chanchalaben and Others v. Shaileshkumar and Others, AIR 1974 Gujarat 145.
4. IT would therefore, be relevant to refer to the relevant clause in the present insurance policy which may be reproduced below :
"Persons or classes of persons entitled to driver- (a) The insured. (b) Any other person who is driving on the insured''s order or with his permission Provided that the person driving holds or had held and has not been disqualified from holding an effective driving licence with all the required endorsements thereon as per the Motor Vehicles Act and the Rules made thereunder for the time being in force to drive the category of motor vehicle insured thereunder".
There is no dispute that the person was in possession of a learner''s licence which is issued under Section 8 of the Motor Vehicles Act, 1988 and as such it cannot be said that he was not having a valid driving licence at the time of accident. It is nobody''s case that the driver was disqualified from holding an effective driving licence with all the required endorsements thereon as per the Motor Vehicles Act and the Rules made thereunder.
In Chanchalaben''s case (supra), almost similar provision in the insurance policy was interpreted by the Gujarat High Court and it was held that the person driving who holds a licence to drive the vehicle means not only a fully qualified and regular licensed driver, but it also means a learner driver. In this context, the following observations may be quoted :
"....Driving, therefore, is common both to a fully qualified driver as well as to a learner. Whereas a fully qualified driver drives a vehicle either for making an income or for pleasure, as in the case of an owner-driver, a learner drives a vehicle in order to learn driving. Therefore, both drive a motor vehicle with different objects in view. The difference in the objects with which they drive a vehicle cannot cloud the concept of driving in the case of a learner. For the reasons stated above, we are of the opinion that the expression "the person driving holds a licence to drive the motor cycle" means not only a fully qualified and regularly licensed driver but it also means a learner driver. Mr. Vakil has invited our attention to a passage in "Fire and Motor Insurance" by E.R. Hardy Ivamy, 1969 Edition. At p. 231, under the caption "Licence" includes "Provisional Licence". It has been stated there that the expression "licence" includes a provisional licence. The aforesaid observation made by the learned author has been based upon the decision of the Westminster County Court in Rendlesham v. Dunne, reported in (1964) 1 Lloyd''s Rep. 192. In that decision. Judge Herbert of the Westminster County Court has held that the meaning of the word "licence" cannot be restricted to "full licence". Indeed, his decision has been based upon Road Traffic Act, 1960 of Great Britain. The Scheme of the Motor Vehicles Act, 1939 is largely similar to Road Traffic Act, 1960. Mr. Vakil has also invited our attention to Road Traffic Offences by G.S. Wilkinson, 5th Edition. At p. 196, it has been observed that the expression "who holds or has held a driving licence" includes a driver who has once held a licence even though such a licence was provisional. That observation has also been made by the learned author on the strength of the aforesaid decision of the Westminster County Court in (1964) 1 Lloyd''s Rep. 192. We have made reference to the aforesaid two books just to show that in matters, which raise such questions, there is identical thinking in England also".
xxx xxx xxx5. HAVING regard to over-all circumstances of the case, we are of the opinion that the Insurance Company has failed to establish that the driver of the truck was not having a valid driving licence. No interference is called for. The appeal is dismissed with no orders as to costs. Appeal dismissed. ______________
