Singh Vs. M/S Oriental Insurance Co.Ltd.& ANR.  INSC 484 (5 March
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1537 OF
2009 [Arising out of SLP (Civil) No. 20101 of 2008] Bhuwan Singh ...Appellant
Versus M/s Oriental Insurance Company Ltd. & Anr. ...Respondents
SINHA, J :
This appeal is directed against a judgment and order dated
3-04-2008 passed by a learned Single Judge of the High Court of Uttarakhand at
Nainital in Appeal From Order No. 589 of 2006.
Appellant is the owner of a tractor bearing No. UA06/0363. It hit Paras
Gubbar (deceased), son of Shri Harish Chandra Gubbar while he was riding on a
cycle. He was aged about 19 years. He sustained an injury on his head and died
on the spot.
heirs and representatives filed a claim petition before Motor Accidents Claim
Tribunal, Nainital which was registered as M.A.C.P. No.86 of 2001. An award of
Rs.1,32,000/- was passed in favour of the said applicants/claimants. In the
said proceedings, appellant inter alia raised a plea that the tractor was being
driven by one Diwan Singh and the appellant being the owner thereof was sitting
by his side whereafter he ran away.
stopped the vehicle and a first information report was lodged against him
alleging that he had been driving the same rashly and negligently.
It was, furthermore, stated that the vehicle was insured with
Oriental Insurance Company Limited under Policy Cover No. 58226 for the period
5-11-2000 and 4-11-2001.
insurance company, on the other hand, raised a contention that as the driver of
the said tractor was not holding a valid and effective licence, it 3 had no
liability to reimburse the owner or the driver for the damages payable by the
owner of the vehicle to the claimants-respondents.
The learned Tribunal, inter alia, framed the following issues:
Whether the rash and negligent driving by the driver of tractor no. UA 06/0363
on 5.1.2001 resulted in the accident causing death of Paras Gubbar and whether
on the said date the tractor was owned by the respondent no. 1 and was insured
with by the respondent no. 2 the insurance company? (2) Whether the petitioner
suffered damage on account of the said accident and deserved to be compensated,
if yes, to what extent and from which party? (3) Whether the petition is
maintainable or suffers from non joinder of necessary party has stated by the
respondent No. 1 and respondent No. 2 in their replies? (4) Whether the
petitioner is entitled to any relief?"
An award of Rs. 1,32,000/- was passed in favour of the claimants.
An appeal preferred thereagainst by the appellant has been dismissed by the
High Court by reason of the impugned Judgment.
Ms. Rachna Joshi Issar, learned counsel appearing on behalf of the
appellant would submit :
4 (i) No
issue having been framed despite a specific plea having been raised by the
appellant that he had not been driving the tractor, the tribunal and
consequently the High Court committed a serious error in passing the impugned
Appellant at the relevant time must be held to have been holding an effective
licence as he had been granted a learner's licence earlier, the finding of the
Tribunal and consequently the High Court exonerating the insurance company from
its liability to reimburse the owner in respect of the awarded amount suffers
from serious legal infirmity.
Having regard to the statutory duties imposed upon the insurance company to
reimburse the owner of the vehicle or driver as provided for in Section 149 of
the Motor Vehicles Act, 1988, the impugned judgment must be held to be
insurance company having not proved breaches of conditions of contract of
insurance as has been held by this Court in National Insurance Co. Ltd. v.
Swaran Singh and Ors.
SCC 297], the High Court must be held to have 5 committed a serious error of
law in passing the impugned judgment.
Respondent-Insurance Company, on the other hand, would contend :
Appellant cannot be said to have been prejudiced in any manner by non-framing
of a specific issue as to whether the tractor was being driven by the appellant
or Diwan Singh.
finding of fact having been arrived at, that the owner of the vehicle himself
was driving the vehicle; the onus of proof that he was not its driver was upon
the appellant and not the insurance company.
Appellant having raised a specific plea as regards his non- involvement in the
accident, the burden of proof was on him.
Appellant indisputably is the owner of the vehicle in question. He
was admittedly in the vehicle when it met with the accident. A First
Information Report was lodged against him. He was proceeded against in a
criminal trial having been charge-sheeted by the Investigating Agency.
It is also not in dispute that the vehicle was insured. The
relevant portion of the Contract of Insurance reads as under :
of classes of (A) Any person including persons entitled to insured. (B)
PROVIDED drive that a person driving hold an effective driving Licence at the
time of the accident and is not disqualified from holding or obtaining such a
licence. (C) PROVIDED also that the person holding an effective learner's
licence may also drive the vehicle and such a person satisfies the requirement
of the rule 3 of the Central Motor Vehicle Rule 1988.
as to use Agri. Use.
Concededly the appellant had been holding a learner's licence. It
expired on 22-12-2000. The accident took place on 5-01-2001. He applied for
grant of a regular licence only on 22-01-2001, whereafter only the licence was
granted to him.
of the Central Motor Vehicle Rules, 1989 provides for the manner in which an application
for driving licence is to be filed. Such an application is to be filed in form
4 and is required to be inter alia accompanied by an effective learner's
licence to drive the vehicle of the type to which the application relates.
Different provisions in the Motor Vehicle Act as also rules framed
thereunder exist for filing applications for grant of learner's licence and a
licence. Whereas an application for grant of a learner's licence is filed in
form 3 prescribed by the rules; an application for grant of licence is filed in
The word effective licence is defined in Section 3 of the Act.
Sub- section 2 of Section 149, however, uses the word duly licensed. In Swaran
Singh (supra), a three Judge Bench of this Court has drawn a distinction between
the said two terms.
The Act provides for grant of a learner's licence. It indisputably
is a licence within the meaning of provisions thereof. A person holding a
learner's licence is also entitled to drive a vehicle but it is granted for a
specific period. The terms & Conditions for grant of a learner's licence
are different from those of a regular licence. Holding of a learner's licence
is imperative for filing an application for grant of licence as provided for in
Rule 4 of the Rules. Converse however is not true. Only because the appellant
held a learner's licence which had expired and was not valid on the date of
accident, he cannot be said to be duly licensed. It is true that despite expiry
of a regular licence, it may be renewed, but no provision has 8 been brought to
our notice providing for automatic renewal of learner's licence.
Babu Tiwari v. United India Insurance Co. Ltd. & Ors. [(2008) 8 SCC 165],
this Court held :
It is beyond any doubt or dispute that only in the event an application for
renewal of licence is filed within a period 30 days from the date of expiry
thereof, the same would be renewed automatically which means that even if an
accident had taken place within the aforementioned period, the driver may be
held to be possessing a valid licence. The proviso appended to Sub-section (1)
of Section 15, however, clearly states that the driving licence shall be
renewed with effect from the date of its renewal in the event the application
for renewal of a licence is made more than 30 days after the date of its
expiry. It is, therefore, evident that as, on renewal of the licence on such
terms, the driver of the vehicle cannot be said to be holding a valid licence,
the insurer would not be liable to indemnify the insured."
Appellant herein raised a specific plea that he was not driving
the vehicle and one Diwan Singh was driving the same. The said fact was within
his special knowledge. Burden of proof, therefore, to prove the same was on
him. He did not examine Diwan Singh.
The claimants in their claim petition described the appellant as
owner as well as driver of the vehicle.
insurance company, as noticed hereinbefore, has also categorically raised the
plea that the appellant was not holding a valid and effective licence.
burden of proof ordinarily would be on insurance company to establish that
there has been a breach of conditions of the contract of insurance. In this
case, however, the burden in terms of Section 106 of the Evidence Act was on
the appellant. He failed to discharge the said burden.
indicated hereinbefore, not only a criminal case was pending against him, he
was also charge-sheeted.
A finding of fact has been arrived at that he had been driving the
vehicle. He in view of the pleadings raised by the insurance company cannot be
said to have been prejudiced by non-framing of specific issue as to whether he
was driving the vehicle or not. He was aware of the pleadings of the parties.
He adduced evidence in that behalf. The tribunal as also the High Court arrived
at a finding of fact that it was the appellant who had been driving the
If that be so, the question raised before us must be determined
having regard to the proved facts namely as on the date of accident he was not
holding any valid and effective licence.
In terms of Section 149 of the Act, the insurance company would be
liable to pay the awarded amount to the claimants provided the accident is
covered by the terms of the policy, although the burden in respect thereof
would be in the insurance company.
It is now well-settled in view of Section 58 of the Indian
Evidence Act that facts admitted need not to be proved.
The question as to whether the appellant was holding a valid
licence or not was within his knowledge. The driver was to show that he held
licence in respect of the vehicle for which he had filed an application.
an application and grant thereof would therefore are pre-requisite for holding
a valid and effective licence.
24. As on
5-01-2001 the appellant was not duly licensed as his learner's licence expired
on 22-12-2000. He filed an application for grant of licence much later.
Insurance company, therefore, in our opinion was not bound to reimburse him in
terms of the Contract of Insurance.
is, thus, no merit in the case. The appeal is dismissed.
in the facts and circumstances of this case, there shall be no order as to
...............................J. [S.B. Sinha]
................................J. [Dr. Mukundakam Sharma]