GOPAL DOSS SHYAMDOSS Vs. ANJALAI AMMAL

JUDGEMENT

(1.) THIS is an appeal by the owner of a motor vehicle against the order of the Motor Accidents Claims Tribunal, Madras, awarding as against him a compensation of Rs. 5, 000 in favour of the mother of one Nandan, who met with a fatal accident on February 10, 1963, as a result of the motor vehicle dashing against him. The Tribunal found that the accident was due to the vehicle being driven negligently by the son of the appellant and that consequently the appellant was liable to pay compensation of Rs. 5, 000 to the mother of the deceased. The Tribunal further held that the insurance company, which had insured the vehicle, was exonerated of liability to indemnify the insured because at the relevant time the car was being driven by a person who had no valid licence. It is against this order dismissing the petition against the insurance company and allowing it against the appellant that the present appeal has been filed The appellant, in his anxiety to avoid liability, has raised several contentions, one of which alone merits serious consideration and it is this: that inasmuch as under exhibit P-2, the insurance policy, the insurance company has undertaken liability in respect of any accident, loss or damage except when it is being driven by any person other than a driver and inasmuch as the appellant's son was the driver holding an effective licence, the insurance company cannot avoid its liability under the contract, and that the tribunal, on an erroneous construction thereof, has dismissed the petition as against the company. In order to appreciate this contention, it is necessary to reproduce the following terms of the insurance contract "1. The company will indemnify the insured in the event of accident caused by or arising out of the use of the motor car against all sums including claimant's costs and expenses, which the insured shall become legally liable to pay in respect of - (a) death of or bodily injury to any person but except so far as is necessary to meet the requirements of section 95 of the Motor Vehicles Act, 1939, the company shall not be liable, where such death or injury arises out of and in the course of the employment of such person by the insured. " Under the heading" General expectations", the following clauses occur " The company shall not be liable under this policy in respect of - (3) any accident, loss, damage and/or liability caused, sustained or incurred whilst any motor car in respect of or in connection with which insurance is granted under this policy is - (a) being used otherwise than in accordance with the limitations as to the use, or (b) being driven by any person other than a driver. " *

(2.) THE question is whether at the time of the accident the vehicle was being driven by "any person other than a driver". In other words, was the son of the appellant a person of the description given in sub-clause (b) of clause (3) " Be it noted that the exception clause does not say that the insurance company shall not be liable if the insured vehicle is "driven by a person not holding a driver's licence". All that it says is that, if the vehicle is being driven by any person other than a driver, the insurance company shall be exonerated of its liability. THE Concise Oxford dictionary defines a driver to mean one who drives. THE definition of the word "driver" in section 2, clause (5), of the Motor Vehicles Act, is in substantial agreement with the dictionary meaning and it runs as follows "'driver'includes, where a separate person acts as a steersman of a motor vehicle, that person as well as any other person engaged in the driving of the vehicle" It is significant that this definition does not require" the person engaged in the driving of the vehicle" * to hold an effective licence. Learned counsel for the insurance company would, however, rely on a ruling of Venkatadri J. in Unique motor and General Insurance Co. Ltd. v. Kannappa Naicker. That was the case in which a person who possessed a licence for driving a light vehicle, drove a heavy vehicle and was involved in an accident. THE insurance company pleaded, on the foot of a clause similar to the one before me, that as the driver did not possess a valid licence to drive a heavy vehicle, the insurance company would not be liable to pay compensation for the death of the victim. After noticing the definition of a heavy vehicle, the learned judge observed as follows "merely looking at the definitions, one can safely say that an omnibus having a capacity for 47 passengers is certainly a heavy vehicle. Once I come to the conclusion that the bus in question is a heavy motor vehicle, I must also conclude that Palaniswami did not possess a licence to drive the bus in question which is a heavy vehicle. THErefore, the appellant insurance company is right in their contention that, when Palaniswami took the bus but for a test drive, he did not possess the requisite licence for driving it and that further the bus was driven by a person other than a driver. " *

(3.) THIS is an observation which appears to support the contention of the insurance company; but reading the entire order as a whole, giving emphasis to the decretal portion of the order and taking into consideration the direction of the learned judge that the parties would be at liberty to adduce additional evidence after remand, and in the light of the newly produced insurance policy which contains the relevant terms of the contract, I think that the learned judge did not intend by the said observations to construe the terms of a policy which was not before him, but intended only to construe section 96 (2) (b) of the Act, the terms of which are now found not to have been reproduced verbatim in the policy. I hold that the car was being driven by a driver, who did possess a valid licence, but who drove the car in violation of one of the conditions of the licence. In my view, the car was being driven by a person who possessed the requisite licence such as to make the insurer liable for the compensation payable by the insuredin the result the order of the Tribunal is modified and the second respondent insurance company also made liable for the amount of compensation awarded.