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Madras Motor and General Insurance Co. Ltd. Vs. Madathi Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 220 of 1972
Judge
Reported inAIR1975Mad250
ActsMotor Vehicles Act, 1939 - Sections 3, 96 and 96(2) and 96(3)
AppellantMadras Motor and General Insurance Co. Ltd.
RespondentMadathi Ammal and anr.
DispositionAppeal dismissed
Cases ReferredMotor Owners Insurance Company v. Daniel.
Excerpt:
.....like driver ramachandran, who at the time of the accident, had held a licence, but had no effective licence covering the period of the accident. that clause says--driver :any one of the following--(a) the insured, (b) any other person, provided, he is in the insured's employ or is driving on his order or with his permission'.then there is the most important proviso, which is in print and which runs as follows :provided that the person driving holds a licence to drive the motor vehicle or has held and is not disqualified for holding or obtaining such a licence'.what is the proper construction to be placed on the words, the person driving holds a licence to drive the motor vehicle or has held and is not disqualified for holding or obtaining such a licence' ? this clause clearly..........is the most important proviso, which is in print and which runs as follows :'provided that the person driving holds a licence to drive the motor vehicle or has held and is not disqualified for holding or obtaining such a licence'. what is the proper construction to be placed on the words, 'the person driving holds a licence to drive the motor vehicle or has held and is not disqualified for holding or obtaining such a licence' this clause clearly contemplates a person, who, although he had obtained licence which expired prior to the accident did not hold a valid licence on the date of the accident, and yet was not disqualified forholding or obtaining such a licence. the insurance company with its great business experience, must have thought it right to cover an accident caused by a.....
Judgment:

Maharajan, J.

1. This is an appeal by the Insurance Company against the order oi the Motor Accidents Claims Tribunal. Tirunelveli, awarding a compensation of Rs. 5.000 under Section 110-A (1) of the Motor Vehicles Act, to one Madathi Ammal for the death of her husband Paramasiva Konar in a traffic accident. The accident itself took place at 4.30 a. m. on 8-1-1969. While the deceased was driving his single bullock cart in an easterly direction along the Tirunelveli-Tiruchendur main road, west of Vittilapuram vilakku, lorry MDT 7441 belonging to Badrakali Ammal (the first respondent in the Court below) and insured with the appellant and driven by one Ramachandran dashed against the bullock cart, with the result the deceased was thrown off the cart and was killed on the soot.

2. After the accident, the driver himself lodged Ex. A-3, the first information report, in which he stated that while driving, he had a nao for a second, with the result his lorry dashed against the bullock cart, and the driver of the cart and the bullock died on the spot. On foot of this first information report, the driver was prosecuted under Sections 304-A and 279, I. P. C. before the Additional First Class Magistrate, Tirunelveli, and convicted and sentenced to undergo rigorous imprisonment for nine months and three months respectively. In these circumstances, the learned counsel for the appellant is fair enough to concede that the plea of rashness and negligence on the Part of the lorry driver has been established, and he is not prepared to challenge the finding in this behalf.

The next question that arises for consideration is, what is the quantum of compensation payable to the widow of the deceased The evidence of P. W. 1'. the widow is that her husband used to earn about Rs. 5 every day and that at the time of the accident he was aged 40. But for the accident, it is not unlikely that he would have- lived for another 20 years. If he had been paving even Rs. 75 per mensem, to his dependent wife, he would have said Rs. 900 per year to her for a period of 20 years. Even making allowance for the lump sum payment, I would have fixed the amount of compensation at a much higher figure than the amount of Rs. 5.000 fixed by the tribunal. However, as the claimant has not preferred any appeal, I confirm the quantum fixed by the tribunal.

3. The third and most important question raised by the Insurance Company may next be considered. Ex. B-1 is the histsry sheet of Ramachandran. who drove the lorry and caused the accident. This history sheet has been maintained in the office of the Regional Transport Authority. Tirunelveli. It is found therefrom that the driving licence originally issued to Ramachandran expired on 27-11-1968. Under Section 10 of the Motor Vehicles Act--

'A driving licence issued or renewed under this Act shall, subject to the provisions contained in this Act as to the cancellation of driving licences and the disqualification of holders of driving licences for holding or obtaining driving licences, be effective without renewal for a periodof three years only, from the date of the issue of the driving licence, or, as the case may be from the date with effect from which the driving licence is renewed under Section 11 and the driving licence shall be deemed to continue to be effective for a period of 30 days after the date of its expiry.'

By force of Section 10 therefore, the licence of Ramachandran shall be deemed to continue to be effective for a period of 30 days from 27-11-1968. In other words, it must be deemed to have been in force till 27-12-1968. Actually. Ramachandran appears to have renewed his licence, not within the period of the grace allowed by Section 10 of the Act but with effect from 10-1-1969. Under the proviso to sub-section (1) of Section 11 of the Act,

'Provided that in any case where the application for the renewal of a driving licence is made more than 30 days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal.'

It must, therefore, be taken that Ramachandran applied for renewal only on 10-1-1969 and that is why it has been renewed for a period of three vears from 10-1-1969 to 9-1-1972. It would, therefore, follow that on 8-1-1969. the actual date of the accident, the driver had no effective or valid licence. Learned counsel for the Insurance Company contends that under Section 96 of the Motor Vehicles Act the Insurance Company is not liable to cover the risk brought about by a driver, who on the date of the accident had no valid licence. Before considering the validity of this contention. I think it necessary to set out the relevant clauses of Section 96 of the Act. That section provides that an insurer shall be entitled to defend the action on any of the following grounds, viz.--

'2 (a) ....... or

(b) that there has been breach of a specified condition of the policy, being one of the following conditions, namely :

(i) a condition excluding the use of the vehicle (a) ... ... (b) ... ... (c) ... ...

(d) ... ...

(ii) a condition excluding driving by a named person or persons-or by any person who is not duly licenced, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification......'

While the provision makes it clear that the right of the Insurance Company to defend is restricted to the various conditions set out in this sub-section, it is also clear from the sub-section that none of these defences will be available to the Insurance Company, unless it incorporates these conditions in the policy. The expression in Clause (b) of Section 96(2) that there has been breach of a specified condition of the policy, being one of the following conditions,' reinforces this conclusion. It is contended on behalf of the Insurance Company, that by virtue of the provisions of Section 96 the Insurance Company is exonerated of the liability to cover an accident caused by a driver, who did not hold an effective licence on the date of the accident though prior to the date of the accident he might have held a valid licence and on the date of the accident he was not disqualified for holding or obtaining a driving licence. I am unable to agree. All that the section does is to enumerate the conditions, which the Insurance Company is at liberty to incorporate in the policy. What the Act in effect tells the Insurance Company is. 'There are certain risks which, under the statute, you are bound to cover. There are certain other risks, which by negotiating with the owner of the vehicle you may choose to cover at your option, though under the statute you are not bound to cover the same'. Section 96 enables the Insurance Company to defend an action against it on the ground that there has been a breach of a specified condition of the policy and enables the company to incorporate in the policy any of the conditions mentioned in Sub-clause (ii) of Clause (b) of Section 96 (2) which enables the Insurance Company, to incorporate in the insurance policy 'a condition excluding driving by a named person or persons or by any person who is not duly licenced or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification.' This clause, it may be noted, contains three sub-clauses which are disjunctive, viz.. (1) excluding driving by a named person or persons; or (2) excluding driving by any person who is not duly licensed; or (3) excluding driving by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. The first clause permits an Insurance Company to rid itself of the liability by providing that if an accident occurs while a named person drives the vehicle, the company shall not be liable to indemnify the owner. The second clause enables the Insurance Company to disclaim liability in cases where at the time of the accident, the driver is a person who does not hold a licence duly granted to him. The third clause enables the Insurance Company to disclaim liability in cases where during the accident the vehicle was driven by a person who might not hold a valid licence at the time of the accident, but who had held a licence previously, but who had not been disqualified for holding or obtaining it. In other words, the three sub-clauses in Section 96 (2) (b) (ii) indicate the amplitude of exclusion. As the sub-clauses are disjunctive, an option is given to the Insurance Company, to exclude driving either by a named person or by a person who is not duly licensed or by a person who has been disqualified for holding or obtaining a driving licence or to exclude driving by all these three classes of persons. In other words, it is open to the Insurance Company to refuse to cover a risk brought about by a person like driver Ramachandran, who at the time of the accident, had held a licence, but had no effective licence covering the period of the accident. But, unfortunately, the Insurance Company has in this case exercised its option even to include a person, who had held a licence prior to the date of the accident, (that is to say licence that had expired prior to the date of the accident) and vet was not disqualified for holding or obtaining such a licence at the time of the accident. Ex. B-3 is the policy admittedly issued by the appellant to the owner of the lorry. The schedule to this policy delineates the area of liability of the Insurance Company. The limits of the liability are given in the schedule as Rs. 20,000 in respect of any one accident and Rs. 20.000 in respect of any one claim or series of claims arising out of one event. Then the schedule proceeds to define the limitations of the vehicle as to use. Then in red ink, the following words occur :

'The policy does not cover :

1. Use for organised racing pace-making reliability trial or speed testing.

2. Use whilst drawing a trailer.........

3. Use for the conveyance of passengers for hire or reward.' Then comes the clauses relating to the driver. That clause says--

'Driver : Any one of the following--

(a) the Insured,

(b) any other person, provided, he is in the insured's employ or is driving on his order or with his permission'.

Then there is the most important proviso, which is in print and which runs as follows :

'Provided that the person driving holds a licence to drive the motor vehicle or has held and is not disqualified for holding or obtaining such a licence'. What is the proper construction to be placed on the words, 'the person driving holds a licence to drive the Motor Vehicle or has held and is not disqualified for holding or obtaining such a licence' This clause clearly contemplates a person, who, although he had obtained licence which expired prior to the accident did not hold a valid licence on the date of the accident, and yet was not disqualified forholding or obtaining such a licence. The Insurance Company with its great business experience, must have thought it right to cover an accident caused by a person who has had considerable driving experience, and yet due to inadvertence or absent-mindedness, has not chosen to renew that licence during the period allowed by law and has been involved in an accident while he had not obtained a renewal of the licence. Evidently, the Insurance Company trusts the experienced drivers not to drive the vehicle rashly and negligently, this expectation resting upon their past performance rather than upon the technical, but unimportant question whether they have been careful and alert enough to renew the licence within the period allowed by law, Mr. Devanathan, learned counsel for the Insurance Company, says that the proviso should be construed in such a way as to exclude the intention of the Insurance Co. to include driving by a person who did not hold an effective licence at the time of the accident. I am entirely at a loss the accept such a construction. The Insurance Company has used the words deliberately to show that it has made a distinction between two categories of drivers, viz., (1) drivers holding licence to drive the motor vehicle at the time of the accident: and (2) drivers, who have held a licence prior to the date of the accident, but not disqualified for holding it at the time of the accident, though they hold no valid licence at the time of the accident. I therefore, refuse to accept the rather artificial construction which is sought to be put by learned counsel upon the proviso contained in the policy.

4. It is lastly contended that the construction contended for would receive support from Section 3 of the Motor Vehicles Act. I am unable to agree. Section 3 says--

'No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to himself authorising him to drive the vehicle......'

The penalty for disobeying Section 3 is that the driver would forfeit his licence or otherwise would be penalised. There is nothing in Section 3 or any other section of the Act which would justify the contention that a driver violating Section 3 or any other penal provision of the Act would be virtue of his violation relieve the Insurance Company, of its liability to indemnify. Violation of the motor vehicle rules is a matter for which certain penalties are prescribed. Those penalties do not and cannot exonerate the Insurance Company of its liabilit because under an express contract, it has stipulated to cover a liability of this kind. Inthe result. I repel all the contentions raised by the Insurance Company and confirm the order of the Court below.

5. I may also refer to a decision of Raghavan. J. in Motor Owners Insurance Company v. Daniel. : AIR1972Mad15 upon which reliance is placed by learned counsel. That was a case where the Insurance policy repeated word for word the provisions of Section 66 (2) (b) (ii) of the Act. As I have already held Section 96 (2) (b) (ii) of the Act gives an option to the Insurance Company to lay down any of the three conditions specified in Sub-clause (ii) In that case, the Insurance Contract had incorporated cumulatively two out of the three conditions contemplated in Sub-clause (ii), and, thereby excluded driving not only by a person who had held a licence, though he was not disqualified at the time of the accident, but also driving by a person, who was not at the time of the accident duly licensed. But in this case, the Insurance Company, without incorporating all the permissible conditions mentioned by the statute, has opted to exclude driving only by a person who had prior to the accident, held the licence and was not disqualified at the time of the accident from holding or obtaining such a licence. I do not, therefore, think that the decision of Raghavan. J. has any application to the facts of this case.

6. The result is, the appeal fails and will stand dismissed with costs,

7. I direct, under Section 110-CC of the Motor Vehicles Act that the claimant shall be entitled to simple interest at 6 per cent, upon the amount of Rs. 5.000 from the date of the claim. 28-2-1969 upto the date of payment. It appears that a sum of Ra. 2,000 has been already deposited by the Insurance Company into the Court, in which case it will not carry interest from the date of deposit, though it will carry interest from the date of claim upto the date of deposit. Time for payment of the balance two months.


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