Beli Ram v. Rajinder Kumar & Anr.
SANJAY KISHAN KAUL, J.
1. The sole question of law for consideration in the present appeals
is whether in case of a valid driving licence, if the licence has expired,
the insured is absolved of its liability.
2. The facts are in a very narrow compass. The first respondent
herein, met with an accident on 20.5.1999 while driving a truck owned
by the appellant herein, under whom he was gainfully employed. T he
consequence for the first respondent was 20 per cent permanent disability.
The first respondent herein filed a petition under the Workmen’s
Compensation Act, 1923 (hereinafter referred to as ‘the Compensation
Act’) before the Commissioner, Sadar, Bilaspur on 17.2.1999 seek ing
compensation of an amount of Rs.5,00,000/-, impleading the appellant
and second respondent herein – the insurance company which had insured
the vehicle. These proceedings resulted in an award by the Commissioner
on 8.12.2004 granting Rs. 94,464/- for the injuries suffered and
Rs.67,313/- towards medical expenses of the first resp ondent. The
amounts awarded were to carry interest @ 9 per cent per annum from
the date of filing of the application till the date of payment. The
compensation amount was mulled on to the second respondent as insurer,
while the interest was directed to be paid by the appellant herein.
3. The parties to the proceedings all filed appeals aggrie ved by
different aspects of the award. An intrinsic part of the consideration by
the High Court was the issue raised about the validity of the driving
licence of the first respondent at the time of the acci dent. The driving
licence was endorsed by the Superintendent of R&LA Office, Udaipur
but the licence expired on 6.9.1996 and there was no endorsement for
renewal thereafter. Thus, the first respondent was driving the vehicle as
the driver of the appellant herein for almost three years without the
licence being renewed.
4. The aforesaid aspect of the non-validity of the driving licence
weighed with the High Court while passing the impugned judgment dated
3.3.2009, absolving the insurance company of any liability and fastening
the same upon the appellant herein on account of there being a material
breach of the insurance policy.
5. The High Court, after the aforesaid finding took note of Section
4 of the Compensation Act, more specifically the following aspect:
BELI RAM v. RAJINDER KUMAR & ANR.
“4. Amount of compensation –
(1) Subject to the provisions of this Act, the amou nt of
compensation shall be as follows, namely:-
(a) Where death results from the injury An amount e qual to fifty per cent of the
monthly wages of the deceased workman
multiplied by the relevant factor;
or
An amount of eighty thousand, whichever is
more;
(b) Where permanent total disability results
from the injury
An amount equal to sixty per cent of the
monthly wages of the injured workman
multiplied by the relevant factor,
or
An amount of ninety thousand rupees,
whichever is more.
Explanation I.— For the purposes of clause (a) and clause ( b),”
relevant factor”, in relation to a workman means the factor
specified in the second column of Schedule IV against the entry
in the first column of that Schedule specifying the number of years
which are the same as the completed years of the age of t he
workman on his last birthday immediately preceding the date on
which the compensation fell due.”
6. On consideration of the aforesaid provision, the High Court
opined that there was no provision under the Compensation Act for
payment of medical expenditure incurred by the claimant for treatment.
The accident having taken place in the year 1999, the monthly wa ges
stated to be Rs.4,500/-, it was found that the maximum amount of wages
permissible under the Compensation Act for determin ing the
compensation could be Rs.2,000/-. Compensation was liable to be paid
within thirty (30) days of the accident and the owner could have recovered
the amount from the insurer if ultimately it was established that the insurer
was liable to have indemnified the insured. The appellant was found to
be in breach of the statutory duty of a benevolent legisla tion, i.e., the
Compensation Act and, thus, the appellant was burdened to pay interest
as also maximum penalty of 50 per cent. The amount of compensation
was thus quantified as under:
“1. Amount of compensation = Rs. 83,968/-
2. Penalty @ 50% on the amount of
compensation = Rs. 41,984/-
37
3. Interest w.e.f. 20.6.1999 to 3.3.2009
(9 years & 257 days) on the amount of
compensation = Rs. 73,335/-”
7. The result was that the appeals of the insurer and the claimant
were allowed. The endeavour to seek review of the judgment on t he
basis of pronouncement of this Court in National Insurance Co. Ltd.
v. Swaran Singh and Ors. 1 failed and the application was dismissed on
8.7.2009.
8. The only question which has been debated before us, is as set
out at the inception of the judgment. The appellant sought to rely upon
the recent judgment of this Court, Nirmala Kothari v. United India
Insurance Company Limited. 2 The question of law examined in this
judgment was as to what is the extent of care/diligence expected of the
employer/insured while employing a driver. The legal position regarding
the liability of the insurance company when the driver of the offending
vehicle possessed an invalid/fake driver’s licence was adverted to for
answering this question, by referring to earlier judicial pronouncements
and the same was culled out in para 12 as under:
“12. While hiring a driver the employer is expected to verify if the
driver has a driving licence. If the driver produces a licence which
on the face of it looks genuine, the employer is not expect ed to
further investigate into the authenticity of the licence unless there
is cause to believe otherwise. If the employer finds the driver to
be competent to drive the vehicle and has satisfied himsel f that
the driver has a driving licence there would be no breach of Section
149(2)(a)(ii) and the insurance company would be liable under
the policy. It would be unreasonable to place such a high onus on
the insured to make enquiries with RTOs all over the country to
ascertain the veracity of the driving licence. However, if the
insurance company is able to prove that the owner/insured w as
aware or had notice that the licence was fake or invalid and still
permitted the person to drive, the insurance company would no
longer continue to be liable.”
9. We have heard learned counsel for the parties and on a query
being raised, whether there is a view taken on the question as to what
would be the consequence of a valid driving licence having expired both
1 (2004) 3 SCC 297
2 (2020) 4 SCC 49 (authored by one of us, Krishna Mur ari, J.)
BELI RAM v. RAJINDER KUMAR & ANR.
[SANJAY KISHAN KAUL, J.]
the learned counsel for the appellant and learned counsel for respondent
No.2 insurance company stated that there was no direct vie w on this
point. We even posed a question qua any judicial view of the High Courts
in this behalf, but the answer to the same was also in the negativ e. We
reserved the orders because we wanted to satisfy ourselves over this
aspect.
10. We have not been able to trace out any judgments of this
Court but there are judicial pronouncements of the High Courts dealing
with the issue.
11. We consider it appropriate to first commence with the view of
this Court in the Swaran Singh. 3 case, which examined the meaning of
the expression “duly licensed”, as used in Section 149(2)(a)(i i) of the
Motor Vehicles Act, 1988 (hereinafter referred to as the ‘MV Act’).
The factual matrix dealt with the claim of a third party and the different
eventualities considered were: (a) licence not held; (b) fake licence held;
(c) licence held but validity whereof has expired; (d) licence not held for
type of vehicle being driven; and (e) learner’s licence h eld. We may
note here that the facts of the present case relate to eventuality (c)
above. A liberal view was taken considering the intent of the legislation
in question and that it was a case of a third party claim. In an endeavour
of the insurance company to absolve itself of liability the following
observations were made:
“41. However, clause (a) opens with the words “that there has
been a breach of a specified condition of the policy”, impl ying
that the insurer’s defence of the action would depend upon the
terms of the policy. The said sub-clause contains three conditions
of disjunctive character, namely, the insurer can get away f rom
the liability when (a) a named person drives the vehicle; (b) it was
being driven by a person who did not have a duly granted licence;
and (c) driver is a person disqualified for holding or obtaining a
driving licence.
42. We may also take note of the fact that whereas in Section 3
the words used are ‘effective licence’, it has been diffe rently
worded in Section 149(2) i.e. ‘duly licensed’. If a person does not
hold an effective licence as on the date of the accident, he may
3 (supra)
39
be liable for prosecution in terms of Section 141 of the A ct but
Section 149 pertains to insurance as regard third party risks.
43. A provision of a statute which is penal in nature vis -a-vis a
provision which is beneficent to a third party must be interpreted
differently. It is also well known that the provisions contained in
different expressions are ordinarily construed differently.
44. The words “effective licence” used in Section 3, therefore, in
our opinion cannot be imported for sub-section (2) of Section 149
of the Motor Vehicles Act. We must also notice that the wor ds
‘duly licensed’ used in sub-section (2) of Section 149 are used in
past tense.
45. Thus, a person whose licence is ordinarily renewed in terms
of the Motor Vehicles Act and the rules framed thereunder despite
the fact that during the interregnum period, namely, whe n the
accident took place and the date of expiry of the licence, he did
not have a valid licence, he could during the prescribed pe riod
apply for renewal thereof and could obtain the same automatically
without undergoing any further test or without having been declared
unqualified therefor. Proviso appended to Section 14 in unequivocal
term states that the licence remains valid for a period of thirty
days from the day of its expiry.”
…. …. …. …. …. ….
“48. Furthermore, the insurance company with a view to avoid its
liabilities is not only required to show that the conditions laid down
under Section 149(2)(a) or (b) are satisfied but is further required
to establish that there has been a breach on the part of the insured.
By reason of the provisions contained in the 1988 Act, a more
extensive remedy has been conferred upon those who h ave
obtained judgment against the user of a vehicle and after a
certificate of insurance is delivered in terms of Section 147(3) a
third party has obtained a judgment against any person insured by
the policy in respect of a liability required to be covered by Section
145, the same must be satisfied by the insurer, notwithstandi ng
that the insurer may be entitled to avoid or to cancel the policy or
may in fact have done so. The same obligation applies in respect
of a judgment against a person not insured by the policy in respect
of such a liability, but who would have been covered if the policy
BELI RAM v. RAJINDER KUMAR & ANR.
[SANJAY KISHAN KAUL, J.]
had covered the liability of all persons, except that in respect of
liability for death or bodily injury.”
12. We may next advert to the judgment in the Nirmala Kothari 4
case. The judgment was sought to be canvassed in suppor t of the
proposition by learned counsel for the appellant and we reproduce the
relevant paragraphs in addition to the one reproduced above, as under:
“10. While the insurer can certainly take the defence that the
licence of the driver of the car at the time of accident was invalid/
fake however the onus of proving that the insured did not take
adequate care and caution to verify the genuineness of the licence
or was guilty of willful breach of the conditions of the insurance
policy or the contract of insurance lies on the insurer.
11.The view taken by the National Commission that the law as
settled in the PEPSU case is not applicable in the present matter
as it related to third-party claim is erroneous. It has been
categorically held in the case of National Insurance Co. Ltd.
vs. Swaran Singh & Ors. (SCC p.341, para 110) that,
“110. (iii)…Mere absence, fake or invalid driving licence o r
disqualification of the driver for driving at the relevant time,
are not in themselves defences available to the insurer against
either the insured or the third parties . To avoid its liability
towards the insured, the insurer has to prove that the insured
was guilty of negligence and failed to exercise reasonable care
in the matter of fulfilling the condition of the policy regarding
use of vehicles by a duly licenced driver or one who was not
disqualified to drive at the relevant time.”
13. The submission, thus, was that the appellant as insured had
taken adequate care by verifying the licence of the driver/first respondent
at the time of employment and the liability could have been mulled on the
appellant only if he was aware or had notice that the licence was fake or
invalid and still permitted the person to drive. This was stated not to be
the factual position in the present case as the issuance of the licence has
not been doubted, but rather that it was not subsequently renewed which
was pleaded to be the responsibility of the first respondent.
4 (supra)
41
14. We did point out at that stage itself by raising a quer y as to
how this judgment would help in the case of the appellant since it was
not a case of a fake or invalid licence. If the appellant was required to
take adequate care and caution to verify the driving lic ence at the
threshold, thereafter, the burden shifted on the insurance company to
prove that such due care was not taken, could it be said that having, at
the first blush verified the driving licence, the appellant was absolved of
the responsibility of verifying whether the driving licenc e was kept
renewed?
15. We are of the view that once the basic care of verif ying the
driving licence has to be taken by the employer, though a detailed enquiry
may not be necessary, the owner of the vehicle would know the validity
of the driving licence as is set out in the licence itself. It cannot be said
that thereafter he can wash his hands off the responsibility of not checking
up whether the driver has renewed the licence. It is not a case where a
licence has not been renewed for a short period of time, say a month, as
was considered in the case of Swaran Singh 5 where the benefit was
given to a third party by burdening the insurance company. The licence
in the instant case, has not been renewed for a period of three years and
that too in respect of commercial vehicle like a truck. The appellant
showed gross negligence in verifying the same.
16. We are conscious of the fact that in the present case the
beneficiary is the driver himself who was negligent but then we are not
dealing with a claim under the MV Act but under the Compensation Act,
which provides for immediate succor, not really based on a fault theory
with a limited compensation as specified being paid. We are, thus, in the
present proceedings not required to decide the share of the burden
between the appellant as the owner and the first respondent as the driver
as may happen in a proceeding under the MV Act.
17. We now turn to the views of some of the High Courts, which
have come to our notice on our own research!
18. The Delhi High Court in T ata AIG General Insurance Co.
Ltd. v. Akansha & Ors. 6 found that the driving licence having expired
led to the natural finding that there was no valid driving licence on the
date of the accident. The initial onus was discharged by the insurance
5 (supra)
6 2015 SCC OnLine 6758 : (2015) 2 TAC 52
BELI RAM v. RAJINDER KUMAR & ANR.
[SANJAY KISHAN KAUL, J.]
company in view of the licence not being valid on the date of the accident.
The onus, thereafter, shifted to the owner/insured to prove that he had
taken sufficient steps to ensure that there was no breac h of the terms
and conditions of the insurance policy. Since no evidence had been led in
this behalf, a presumption was drawn that there was willful and conscious
breach of the terms and conditions of the insurance policy.
19. The Allahabad High Court in The Oriental Insurance Co.
Ltd. v. Manoj Kumar & Ors. 7 again dealt with the case of an expired
driving licence. The endeavour to rely on the principle set forth in a fake
licence case was held not applicable in the case of an expired licence
since the owner was supposed to be aware that the driving lice nce of
the driver had expired and, thus, it was held that it was the duty of the
owner to have ensured that the driver gets the licence renew ed within
time. In the absence of a valid driving licence, the vehicle was being
driven in breach of the condition of the policy, requiring the vehicle to be
driven by a person who is duly licensed, and thus, there was breach of
Section 149(2)(a)(ii) of the MV Act, the consequence being that the
insurance company could not be held liable.
20. The last judgment is of the Himachal Pradesh High Court in
National Insurance Co. Ltd. v. Hem Raj & Ors. 8 This was, once
again, a case of an originally valid licence, which had expired, there was
no question of a fake licence. It was opined that the conclusio ns to be
drawn from the observations of the judgment in the Swaran Singh 9
case of this Court, were that the insurance company can defend an
action on the ground that the driver was not duly licensed on the date of
the accident, i.e., an expired licence having not been renewed wi thin
thirty (30) days of the expiry of the licence as provided in Sections 14 &
15 of the MV Act. In this context it was observed that the Swaran
Singh.10 case did not deal with the consequences if the licence is not
renewed within the period of thirty (30) days. If the driving licence is not
renewed within thirty (30) days, it was held, the driver ne ither had an
effective driving licence nor can he said to be duly lice nced. The
conclusion, thus, was that the driver, who permits his licence to expire
and does not get it renewed till after the accident, cannot c laim that it
should be deemed that the licence is renewed retrospectively.
7 (2015) 111 ALR 275 (authored by Krishna Murari, J. , as he then was)
8 : 2012 ACJ 1891 (authored by Deepak Gupta, J., as he then was)
9 (supra)
10 (supra)
43
21. The learned Judge debated the question of the consequences
of the MV Act being a beneficial piece of legislation. Thus, if two
interpretations were possible, it was opined that the one which is in favour
of the claimants should be given, but violence should not be done to the
clear and plain language of the statute. Thus, while protecting the rights
of the claimants by asking the insurance company to deposit the amount,
the recovery of the same from the insured would follow as the sympathy
can only be for the victim of the accident. The right which has to be
protected, is of the victim and not the owner of the vehicle. It was, thus,
observed in para 18 as under:
“18. When an employer employees a driver, it is his duty to check
that the driver is duly licensed to drive the vehicle. Section- 5 of
the Motor Vehicles Act provides that no owner or person incharge
of a motor vehicle shall cause or permit any person to drive the
vehicle if he does not fulfil the requirements of Sections 3 and 4
of the Motor Vehicles Act. The owner must show that he has
verified the licence. He must also take reasonable care to see
that his employee gets his licence renewed within time . In my
opinion, it is no defence for the owner to plead that he forgot that
the driving licence of his employee had to be renewed. A person
when he hands his motor vehicle to a driver owes so me
responsibility to society at large. Lives of innocent people are put
to risk in case the vehicle is handed over to a person not du ly
licensed. Therefore, there must be some evidence to show t hat
the owner had either checked the driving licence or had given
instructions to his driver to get his driving licence rene wed on
expiry thereof. In the present case, no such evidence has be en
led. In view of the above discussion, I am clearly of the view that
there was a breach of the terms of the policy and the Insur ance
Company could not have been held liable to satisfy the claim.”
22. We have reproduced the aforesaid observations as it is o ur
view that it sets forth lucidly the correct legal positi on and we are in
complete agreement with the views taken in all the three judgments of
three different High Courts with the culmination being the elucidation of
the correct legal principle in the judgment in the Hem Raj 11 case.
23. When we turn to the facts of the present case there is almost
an identical situation where the appellant has permitted to let the first
11 (supra)
BELI RAM v. RAJINDER KUMAR & ANR.
[SANJAY KISHAN KAUL, J.]
respondent driver drive the truck with an expired licence for al most
three (3) years. It is clearly a case of lack of reasonable care to see that
the employee gets his licence renewed, further, if the original licence is
verified, certainly the employer would know when the licence expires.
And here it was a commercial vehicle being a truck. The appellant has
to, thus, bear responsibility and consequent liability of permitting the driver
to drive with an expired licence over a period of three (3) years. The
only thing we note is that fortunately there has been no accident with a
third party claimant but the person who has caused the sufferance and
sufferer are one and the same person, i.e., the first responden t driver.
We are, however, dealing with the determination under the Compensation
Act and those provisions are for the benefit of the workmen like the first
respondent, even though he may be at fault, by determining a small amount
payable to provide succor at the relevant stage when the larger issues
could be debated in other proceedings.
The only exception is in the provisos to Section 3 of the
Compensation Act, which is not the factual situation in the present case.
The relevant provision reads as under:
“3. Employer’ s liability for compensation.-
(1) If personal injury is caused to a workman by accident arising
out of and in the course of his employment, his employer shall be
liable to pay compensation in accordance with the provisions of
this Chapter:
Provided that the employer shall not be so liable—
(a) in respect of any injury which does not result in the total or
partial disablement of the workman for a period exceeding [four]
days;
(b) in respect of any [injury, not resulting in death, caused by] an
accident which is directly attributable to—
(i) the workman having been at the time thereof under the
influence of drink or drugs, or
(ii) the wilful disobedience of the workman to an order expressly
given, or to a rule expressly framed, for the purpose of securing
the safety of workmen, or
45
(iii) the wilful removal or disregard by the workman of any
safety guard or other device which he knew to have been
provided for the purpose of securing the safety of workmen.”
We are not aware whether any other proceedings have b een
initiated or not, at least, none that have been brought to our notice. The
aforesaid findings of the initial lack of care by the first respondent in not
renewing the driving licence would be present, but the lack of care of
the appellant as the employer would also arise. We have penned down
the aforesaid views as such a situation is quite likely to arise in proceedings
under the MV Act where a third party is claiming th e amount.
Proceedings here being under the Compensation Act, the consequences
are not flowing to the first respondent as the initial negligent person.
24. In view of the aforesaid, the appeals are dismissed by settling
the aforesaid question of law and leaving the parties to bear their own
costs.
Ankit Gyan Appeals dismissed.
BELI RAM v. RAJINDER KUMAR & ANR.
[SANJAY KISHAN KAUL, J.]