AMBUJAM Vs. HINDUSTAN IDEAL INSURANCE COMPANY

JUDGEMENT

(1.) IN this appeal no steps having been taken for impleading the legal representatives of the second respondent, and as the second respondent is dead long before, learned counsel for the appellant frankly admits that he is unable to prosecute the appeal as against the second respondent. The appeal is, therefore, dismissed as against the second respondent for non-prosecution. The first respondent is the Hindustan Ideal insurance Company taken over, after nationalisation, by the United INdia Fire and General INsurance Company. The material point which was considered by the learned judge, who negatived the objection of the owner of the taxi which was involved in the accident, revolved round a question of fact. It is common ground that at or about the time of the accident in which the appellant's taxi was involved, it was being driven by a person who was a learner and did not have an effective licence which alone would enable the person to drive a motor vehicle independently on a public-road. The learned judge paid particular attention to this aspect and accepted the contention of the insurance company that R. W. 1 who was driving the vehicle at the time of the accident was not a regular driver, but was only a mechanic who had a learner's licence. The argument of the appellant was that in the taxi there was R. W. 2 who was a regular driver and that his presence was sufficient to obviate any technicality, as R. W. 2 was controlling the movement of the vehicle. But the learned judge has found as a fact that R. W. 2 was not there to help R. W. 1 in his driving or keep watch over his driving and that his object was to observe the performance of the vehicle. Thus, therefore, at the time of the accident the person who was at the wheels was not having an effective licence. Under the insurance policy the liability of the insurance company could arise only if all the terms of the contract as between the insurance company and the owner are fully complied with. One such clause in the policy is that the person driving the vehicle holds a licence to drive a motor vehicle. The point for consideration is whether the person who drove the vehicle, namely, R. W. 1 was or could be deemed to be one having a valid licence. The policy seeks to indemnify not only the insured, but also any driver who is driving the vehicle at the insured's order. Here again, there is no evidence to show that the learner or the mechanic who was at the wheels, did not have an express authority from the owner to drive the vehicle. It was in those circumstances that the learned judge had to consider the point at issue, whether the insurance company was bound under the terms of the policy. He rightly accepted the contention of the insurance company that R. W. 1 did not have an effective licence to drive the vehicle, and, therefore, exonerated the insurance company. As against this part of the judgment under which the insurance company was exonerated from liability, the present appeal has been filed by the owner of the taxi seeking for a decree against the insurance company as well. Counsel for the appellant reiterated all the contentions which were urged before the learned judge, and in. particular, his contention was that the mechanic or learner did have authority from the owner of the vehicle and secondly that the learner's licence which R. W. 1 held at the time of the accident, was sufficient compliance with the terms of the contract.

(2.) SO far as the first point is concerned, except for a reiteration of the same argument which was projected before the learned judge, learned counsel did not point out to anything on record to substantiate his contention that the owner of the vehicle had authorised the mechanic to drive the vehicle. Secondly, on merits, we are not satisfied that R. W. 2 who was also in the taxi, was in control of the vehicle. Actually, he was there to observe the performance of the vehicle and not to control the learner who was attempting to take the vehicle on a public road. We, therefore, come to the question whether under the contract of insurance, the possession by R. W. 1 of a learner's licence was sufficient compliance with the terms of the insurance policy and whether, therefore, liability could also be thrown on the shoulder of the insurance company. Mr. Kalyanasundaram, learned counsel for the insurance company, referred to ss. 3 and 5 of the Motor Vehicles Act, which, in our view, clinch the issue. In fact, these provisions have been referred to by the learned judge in his judgment in extenso. Under the chapter on licensing of drivers of motor vehicles, an embargo is created by statute prohibiting persons from driving in a public place without holding an effective driving licence. Obviously effective driving licence cannot be an equation for a learner's licence, which is only granted to a person learning driving and which by itself cannot vest him with a right independently to negotiate a motor vehicle on the strength of it. The intention of the Legislature is made more clear in s. 5 which speaks of the responsibility of owners of motor vehicles for contravention of ss. 3 and 4. No owner or person in charge of a motor vehicle shall cause or permit any person, who does not satisfy the provisions of s. 3 to drive a motor vehicle. Therefore, even if the owner could be deemed to have given any permission to the learner who was driving the vehicle, it would contravene s. 5 of the Act. On the facts, therefore, we are satisfied that as r. W. 1 who was driving the vehicle, had only a learner's licence, and not an effective licence, which alone could enable him to take a motor vehicle on a public road, and as the accident occurred whilst the vehicle was being negotiated by a person who did not have a regular licence, the insurance company was right when it took up the objection that the policy did not govern such a situation and that it would be exonerated from paying compensation to the injured person. We, therefore, agree with the conclusion of the learned judge and uphold that part of his judgment under which he exonerated the insurance company. The result is that the appeal fails even against the 1st respondent. The appeal is accordingly dismissed. There will be no order as to costs.