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2011 Supreme(Kar) 811
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
D.V. Shylendra Kumar, J.
Divisional Manager National Insurance Co. Ltd., Sujatha Complex, Opp. P.B. Road, Hubli — Appellant
Vs.
Prakash S/o Anandappa and Sri. Inayath S/o Abdul Gafar Hirehalli — Respondent
Misc First Appeal No. 25165 of 2010 A/w Misc Cvl Nos. 111094 and 111096 of 2010 in Misc First Appeal No. 25165 of 2010
Decided on : 28-02-2011
Advocate Appeared:
Mr. S.K. Kayakamath, for the Appellant.
Headnote:MOTOR VEHICLES ACT, 1988 - Section 173(1): [D.V. Shylendra Kumar, J] Appeal by Insurance Company - Driver had valid licence to drive ’transport vehicle’s as endorsed on very licence - Vehicle involved in accident was an autorickshaw - Held, It is suffice to hold that the licence held by the driver of the vehicle involved in the present accident was one which enabled the driver to drive an autorickshaw also, being a motorcab - a vehicle constructed and designed to carry three passengers i.e., less than six passengers. It is, therefore, the argument advanced on by the learned Counsel for the appellant that the Insurance Company is not liable to indemnify the insured in terms of the defence it can take under Section 149 of the Act, is an untenable, illogical and frivolous argument. The second argument based on the issue or non-issue of a badge is nothing short of an argument of desperation and to be rejected outright, as the issue or non-issue, or wearing or not wearing of a badge will not in any detract from the authorisation granted under a valid licence for driving a class of vehicle mentioned in the licence. While non-display of a badge by a driver which is more importantly for the purpose of identification of the driver and for knowing the particulars of the nature of vehicle that he can drive, is not an aspect which can invalidate a licence, just because either the badge is not obtained or badge is not displayed. The licence is issued in terms of the provisions of the Act and therefore Rules and formats which are procedural, can only be one to enable to drive and not to detract from the licence it is issued and at any rate the argument to contend that the licence becomes invalidated because of the format in which it is issued is defective or because of some technical infraction of the procedural laws. Either argument has no substance in law and nothing short of a frivolous and cantankerous contention and that the appeal is thoroughly meritless and deserves to be dismissed by levying commensurate costs on the appellant-Insurance Company to discourages such a tendency and to prevent such ordeal and harassment being meted out to poor victims of accidents involving motor vehicles, being used on public roads. Therefore, appeal is dismissed even without there arising any need for issue of notices on the miscellaneous applications and levying a deterrent cost of Rs.50,000/- (Rupees fifty thousand only) on the appellant-Insurance Company.
D.V. Shylendra Kumar, J.—Appeal by the insurance company under Section 173(1) of the Motor Vehicles Act, 1988 [for short, the Act], to wriggle out of the joint liability in terms of the order and award dated 14-6-2010 passed in MVC No 544 of 2006, on the file of Addl. Civil Judge & AMACT, Ranebennur, on the most frivolous and cantankerous ground of the person who was driving the vehicle - an autocab - permitted to carry three passengers in addition to the driver, was not duly licenced to drive that vehicle, though such person did hold a valid licence to drive a "transport vehicle" as endorsed on the very licence. It is for making home this contention, Sri S K Kayakmath, learned counsel for the appellant, has very vehemently contended that the condition of the policy was that the driver driving the vehicle covered under the insurance should hold a valid licence; that a defence to the effect that the driver did not hold a valid licence is available to the insurance company even in terms of the provisions of Section) 149(2)(a)(ii) of the Act, reading as under:
149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks. -
(1) xx
(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely :-
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely :-
XXX
(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;
and therefore submits that this provision read with the provisions of Sections ) 10 and 11 of the Act and the definition of 'motor cab' as found in sub-section 25 of Section) 2 of the Act, clearly indicates that the person had not been expressly licenced to drive an autorikshaw/motorcab and the vehicle of this description can be fitted into clause-g of sub-section 2 of Section) 10 of the Act, which provides that an endorsement in respect of the motor vehicle of specified description should be mentioned in the licence; that the driver's licence expressly lacking this endorsement viz., that the driver is licenced to drive an autorikshaw/motorcab, it should be concluded that the person was not duly authorized or licenced to drive an autorikshaw and therefore the insurance company is not liable to reimburse the insured and to support this argument also refers to the provisions of Rule 16 of the Central Motor Vehicles Rules, 1989 [for short, the Rules], the issue of a badge and a further endorsement being made on the licence for having issued it and submits that a non-endorsement of the issue of badge on the licence amounts to a defect in the licence and therefore it should be inferred that the person did not have a valid licence to drive even a transport vehicle as per the licence for not containing an endorsement on the licence to the effect that the badge was issued.
2. While the first contention that the driver of the autorikshaw was not expressly licenced to drive a vehicle of the nature in terms of the licence appears to be so, on a cursory glance and to the eyes of a lay person, as the specific mention of the word either 'autorikshaw' or 'autocab' is conspicuously absent on the licence, the argument of Sri S K Kayakamath, learned counsel for the appellant, is that for this reason, though the person is author
