SMT. SHAKUNTLA Vs. RAM SWAROOP & ORS.

JUDGEMENT

(1.) This appeal is directed against the award dated 2/8/1999 passed by the Motor Accident Claims Tribunal, Baran whereby, learned Tribunal awarded a sum of Rs. 1,53,600.00 holding respondents No.1 and 2 driver & owner jointly & severally liable to pay the said sum however exonerated the Oriental Insurance Co.Ltd., Baran - respondent No.3 from its liability to pay compensation.

(2.) Contention of the learned counsel for the claimant-appellant is that the controversy raised in the present appeal is squarely covered by the judgment of Supreme Court in National Insurance Co.Ltd. Vs. Swaran Singh and Others : (2004) 3 SCC 297:(AIR 2004 SC 1531) , wherein their lordships held that even driver held a learner's license, the insurance company would still be liable to fulfill the statutory obligations in terms of Sec. 149(2)(a)(ii) and 3 of the Motor Vehicles Act, 1988. Learned counsel for the appellant argued that award in the present case was delivered on 2/8/1999 and the judgment of Supreme Court in the aforesaid case in which the that proposition of law has been settled was rendered in 2004 therefore appeal be allowed, the impugned award be set-aside and the respondent-insurance company be held liable to pay compensation to the claimant.

(3.) Learned counsel for the respondent-insurance company has opposed the appeal and argued that the judgment of Supreme Court in Swaran Singh supra is not applicable in the facts of the present case because in this judgment, provisions of Sec. 2(10) of the Motor Vehicles Act, 1988 (for short, the "Act of 1988") have not been taken note of, wherein it has been clearly stated that driving license means the license issued by a competent authority under chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle. Learned counsel in this connection has cited the judgment of Supreme Court in New India Assurance Co.Ltd. Vs. Mandar Madhav Tambe and others : (1996) 2 SCC 328(AIR 1996 SC 1150) . Learned counsel also argued that Rule 3(b)(c) of the Central Motor Vehicles Rules, 1989 (for short, the "Rules of 1989") has also not been considered by the Supreme Court in Swaran Singh supra, which inter-alia provides that the provisions of sub-Section (1) of Sec. 3 shall not apply to a person while receiving instructions or gaining experience in driving with the object of presenting himself for a test of competence to drive, so long as- (b) such person is accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle and (c) there is painted, in the front and the rear of the vehicle or on a plate or card affixed to the front and the rear, the letter "L" in red on a white background. Learned counsel argued that in the present case, there was no proof that driver was accompanied by instructor holding an effective driving license. There was thus violation of Sec. 3 of the Motor Vehicles Act, 1988, which requires that the driver should possess an effective driving licence, which condition was inserted in the policy of the insurance company. In support of his argument, learned counsel cited the judgment of this Court in Bhanwar Lal Vs. Gorkha Ram & Ors. : 2000 DNJ [Raj.] 459 and another judgment of Himachal Pradesh High Court in National Insurance Co.Ltd. Vs. Smt.Vidya Devi and others : 1998(1) T.A.C. 586 (H.P.) .