ORIENTAL INSURANCE CO LTD Vs. R VINOD KUMAR

JUDGEMENT

(1.) THE appeal is preferred by the Oriental Insurance Company Limited against the award dated 27.12.2004 made in MCOP No.87 of 2004 by the Motor Accident Claims Tribunal (II Additional Subordinate Judge)Coimbatore.

(2.) BACKGROUND facts in a nutshell are as follows:- One minor Vinod Kumar, met with motor vehicle accident on 20.5.2001 at about 5.15 p.m., He was travelling along with his grand father Arumugam by sitting on his lap as pillion rider in a TVS 50 Moped. When the said Moped was driven by one Pandian from on appalayam to Kalpana Theatre Junction, Koundampalayam, a transport lorry bearing Registration No.TN 45-Z-2769 owned by the second respondent and insured with the appellant/Insurance Company, came in a rash and negligent manner at a high speed and hit against the TVS 50 Moped. Due to said the impact, the minor claimant thrown out of the vehicle and sustained grievous injuries. The minor claimant claimed a compensation of Rs.9,00,000/- before the Tribunal. The appellant/Oriental Insurance Company Limited resisted the claim. On pleadings, the following issues were framed by the Tribunal:- a) Whether the accident had occurred due to the negligence on the part of the lorry driver or the rider of the motor cycle in which the claimant was travelled? b)Whether the claimant is entitled to compensation from the respondents? If so, what is the amount and from whom? After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the driver of the lorry belonging to the second respondent and awarded a compensation of Rs.2,50,000/- with interest at 9% p.a. from the date of petition. The details of the compensation are as under:-Rs. Grievous injuries 25,000/- Disability 50,000/- Medical expenses 10,000/- Extra Nourishment 5,000/- Transport charges 1,000/- Damages towards articles 1,000/- Future earning capacity 1,00,000/- Permanent disability 58,000/- ------------ Total 2,50,000/- ------------ Aggrieved by that award, the Insurance Company has filed the present appeal.

(3.) HEARD the counsel and perused the documents available on record. On the side of the minor claimant. P.Ws 1 and 2 were examined and Exs P1 to P6 were marked. P.W.1 is the father of the claimanant. P.W.2 is his grand father. Ex P1 is the First Information Report Ex P2 is the Inspector's report Ex P3 is the charge sheet Ex P4 is the Accident Register Ex P5 is the Certificate given by Oriental Insurance Company and Ex P6 is the Case sheet given by the Coimbatore Government Medical College Hospital, Coimbatore. On behalf of the appellant/Insurance Company one Sivakumar was examined as R.W.1 and marked Ex R.1- driving licence and Ex. R2 Insurance Policy and certificate. After considering the oral and documentary evidence, the Tribunal has given categorical finding that the accident had occurred due to rash and negligent driving of the driver of the lorry. There is no dispute regarding the same. The learned counsel appearing for the appellant submitted that the driver of the lorry does not possess any valid licence at the time of the accident. The licence was expired on 9.3.1998 and further it was renewed from 5.5.1998. Thereafter, the said licence has not been renewed. But the accident occurred only on 20.5.2001. There is no material on record to show that whether subsequently the licence has been renewed or not after 4.5.2001. Hence, the licence was expired on 4.5.2001. The learned counsel appearing for the appellant/Insurance company vehemently contended that the driver of the lorry does not possess valid licence at the time of the accident and therefore, the owner of the vehicle alone is liable to pay the compensation. The learned counsel appearing for the claimant relied on a decision of a Division Bench of this Court in S.Latha Devi-v- M.Kamalanathan(2009(4) L.W.484)wherein considering the scope of Section 14 of the Motor Vehicles Act , a Division Bench has held that when Section 3 of the Act uses the words' Effective Licence" and the proviso to Section 14 says that the licence continues to be effective for a period of 30 days, the statute cannot be ignored. Therefore, this Court held in paragraph 6 of the said decision as follows: "As regards the first point that the driver of the insured vehicle did not sustain an effective licence, we are afraid, we have to reject this contention in view of the clear language of Section 14 of the Motor Vehicles Act. Section 14 reads thus: "14. Currency of licences to drive Motor vehicles (1). . . . (2) A driving licence issued or renewed under this Act shall' (a)........ (b)...... Provided that every driving licence shall, notwithstanding its expiry under this sub-section, continue to be effective for a period of thirty days from such expiry.' In this case, the dates have already been given. Therefore, until 27.8.98, the licence continued to be 'effective'. It does not matter in the least whether subsequently the driver had made an application for renewal of the licence. That may be relevant in cases where the accident took place more than 30 days after the expiry of the licence. In this case, that question does not arise. The learned counsel for the insurance company referred to the decision of the Supreme Court in Ishwar Chandra & Ors.v. The Oriental Insurance Co., Ltd.,(2007 SAR (Civil) 339=2007(2) L.W.733), where the Supreme Court had dismissed the appeal filed by the claimants on the ground that " as on the said date, the renewal application had not been filed, the driver did not have a valid licence on the date when the vehicle met with the accident.' In that case, the facts were different. The accident took place on 28.4.95 whereas the licence of the offending vehicle had long expired on 27.8.94 and the 30 days period mentioned in Section 14 had long lapsed. In that case, the Supreme Court had referred to the earlier decision in National Insurance Co., Ltd. v. Swaran Singh reported in (2004) 3 SCC 297= 2004 -2 L.W.744, wherein it is observed in paragraphs 42 to 46 as follows: 42. We may also take note of the fact that whereas in Section 3 the words used are "effective licence" , it has been differently worded in Section 149(2) ie, "duly licensed". If a person does not hold an effective licence as on the date of the accident, he may be liable for prosecution in terms of Section 141 of the Act but Section 149 pertains to insurance as regards third party risks. 43. A provision of a statute which is penal in nature vis-a-vis a provision which is beneficent to a third party must be interpreted differently. It is also well known that the provisions contained in different expressions are ordinarily construed differently. 44. The words "effective licence" used in Section 3, therefore, in our opinion, cannot be imported for sub-section (2) of Section 149 of the Motor Vehicles Act. We must also notice that the words " duly licensed' used in sub-section (2) of Section 149 are used in the past tense. 45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor." Proviso appended to Section 14 in unequivocal terms states that the licence remains valid for a period of thirty days from the day of its expiry. 46. Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving licence has lapsed, as in the meantime the provisions for disqualification of the driver contained in Sections 19,20,21,22,23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry. Therefore, when Section 3 of the Act uses the words "effective licence' and the proviso to Section 14 says that that the licence continues to be effective for a period of 30 days, we cannot ignore the statute. We hold that notwithstanding the expiry of the licence, it was effective. Therefore, we reject the objection made on behalf of the insurance company that the driver of the offending vehicle did not have an effective licence on the date of the accident."