NATIONAL INSURANCE CO LTD Vs. SANJAY

JUDGEMENT

(1.) APPELLANT by Mr. R. V. Sharma, Advocate. Respondent Nos. 2 and 3 by Mr. Mahesh Goyal, Advocate. Heard on admission.

(2.) THIS appeal is filed by the insurance company under section 173 of the Motor vehicles Act, 1988 (in short 'the Act')challenging the award dated 16. 5. 2003, passed in Claim Case No. 51 of 2002, whereby learned Tribunal awarded a sum of Rs. 50,000 to the claimant, respondent no. 1 and also directed the appellant insurance company to indemnify the insured. Other findings pertaining to the involvement of vehicle and terms and conditions of the insurance policy and the date of insurance of the offending vehicle is not under challenge.

(3.) THE learned counsel for the appellant submits that the learned Tribunal committed error in not exonerating the insurance company in indemnifying the insured. He submitted that as per section 2 (47) and section 3 of the Act, the driver, respondent no. 2, was not having valid driving licence to drive Tata 407 vehicle which is registered as a goods carriage. In support of the said contention he drew my attention to the statement of A. K. Singh, NAW 1 and ramesh Chandra Sharma, NAW 2, employees of the R. T. O. , Gwalior. These two witnesses in their statement very specifically stated that though the respondent No. 2 was having driving licence to drive light motor vehicle and motor cycle but he was not permitted to drive light commercial vehicle, i. e. , the offending vehicle. He also drew my attention to the insurance policy, exh. D1 and submitted that the offending vehicle is registered as goods carriage vehicle and on the date of accident the driver was not having valid driving licence to drive goods vehicle. In support of the said contention he drew my attention to the decision of the Division Bench at Indore in the case of Mahesh Kumar v. Hari Shanker patel, 2001 ACJ 2071 (MP), wherein it was held that driver was driving Matador which is a light motor vehicle and driver had a licence to drive light motor vehicle but the vehicle was being used as a public service vehicle for carrying passengers. Endorsement of professional licence was made after the date of accident and on the date of accident the driver was not having licence to drive professional commercial vehicle and, therefore, insurance company is not liable to indemnify the insured. He further submitted that the Supreme Court in the case of National Insurance Co. Ltd. v. Kusum Rai, 2006 ACJ 1336 (SC), had taken the similar view. The relevant paras 9 and 17 read as under: