The absence of a qualified instructor for a learner driver does not constitute a breach of insurance policy, maintaining the insurer's liability for compensation in the event of an accident.

JUDGMENT :

Pravin S. Patil, J.

. Heard.

2. In the present appeal, challenge is to the judgment and order passed by the Motor Accident Claims Tribunal, Amravati, in MACP No.374/2006 decided on 28.03.2008 at the instance of the appellant Insurance Company only on the ground that learned Tribunal failed to consider the fact that the driver of the vehicle was having a learner’s license and not a permanent licence. As such, the same is the breach of the policy and, therefore, the appellant Company is not responsible even to pay and recover in the present matter.

3. It is the case of the respondent claimant before the Claims Tribunal that on 23.04.2006, the deceased was dashed by a Tata Sumo No. MH 20/W-4062 driven by respondent No.5, owned by respondent No.6 and insured with the appellant Company resulting to his death.

4. The respondents claimants therefore, filed a Claim Petition bearing No.374/2006 claiming thereby compensation of Rs.6 lakhs due to death of deceased in a motor accident.

5. In light of this factual position, on behalf of the claimant, Mrs Sangita Sanjay Kalhane was examined before the Reference Court, who has given the details of the accident as well as income of the deceased. She was cross-examined by the present appellant. This witness was not an eyewitness to the accident nor it is expected from legal heirs of the deceased to state correct factual position of the licence of the driver of offending vehicle. Therefore, her evidence to the extent of entitlement of just compensation is required to be considered in the matter.

6. On behalf of the appellant Insurance company, the Administration Officer, Shri Sahadev Narayanrao Dhakurkar was examined by the appellant. In his evidence, he has stated that after obtaining the details of the licence of the driver of the vehicle, it is revealed that the driver was having learner’s license and not a permanent license. The said licence was issued on 08.06.2006.

7. In light of this evidence, the submission of the appellant before Insurance Company was that the driver of the offending vehicle was not possessing a valid licence at the time of accident. According to the appellant, as per rules, when driver of the vehicle holding the learner’s licence, then there should be a person accompanied with him holding an effective driving license and if such person was not in the vehicle, then learner licence holder cannot drive the vehicle. On this basis, it is the submission of the appellant that it is a breach of the Insurance policy and thereby appellant Company be exonerated from the compensation.

8. In light of the submission made by the appellant before the Insurance company, the learned Tribunal held that in any case, the driver was holding a license. Merely because someone having valid and permanent license was not accompanied in the vehicle, was not a mandatory condition in the policy and thereby recording the reasons dismissed the submission made by the appellant and passed the order and thereby hold that all the respondents jointly and severally liable for the payment of compensation.

9. Against the judgment of the Tribunal, the appellant Insurance Company has preferred the present appeal and raised same ground that the driver of the offending vehicle was not authenticated to drive the vehicle without being accompanied by a person having an effective driving license. The appellant has relied upon Rule 3 of the Central Motor Vehicles Rules, 1989. According to the appellant, as per the Rule 3 (1B), it is necessary for the learning licence holder, while driving the vehicle, a person must be accompanied holding an effective driving license to drive the vehicle and such instructor must be sitting in such a position to control or stop the vehicle.

10. The appellant also relied upon the judgment of the Hon’ble Supreme Court of India in case of National Insurance Co. Ltd. Vs. Kusum Rai and others reported in (2006) 4 SCC 250 , in support her contention that the person driving the vehicle