REPORTABLE

IN THE 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

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. 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.

3. 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.   

His legal 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.

Villagers  stopped  the  vehicle  and  a  first  information  report  was  lodged

against  him  alleging  that  he  had  been  driving  the  same  rashly  and

negligently.   

4. 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.   

The 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

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had  no  liability  to  reimburse  the  owner  or  the  driver  for  the  damages

payable by the owner of the vehicle to the claimants-respondents.   

5. The learned Tribunal, inter alia, framed the following issues:

“(1) 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?”  

6. 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.   

7. Ms. Rachna Joshi Issar, learned counsel appearing on behalf of the

appellant would submit :

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(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 judgment.

(ii) 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.

(iii) 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

unsustainable.

(iv) The  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.

[(2004)  3  SCC 297],  the  High  Court  must  be  held  to  have

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committed  a  serious  error  of  law  in  passing  the  impugned

judgment.  

8. Respondent-Insurance Company, on the other hand, would contend :

(i) 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.   

(ii) A 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.

(iii) Appellant  having  raised  a  specific  plea  as  regards  his  non-

involvement in the accident, the burden of proof was on him.

9. 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.

10. It is also not in dispute that the vehicle was insured.  The relevant

portion of the Contract of Insurance reads as under :

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“………………………………………………………….

Persons  of  classes  of persons  entitled  to drive

(A)  Any  person  including insured.  (B)  PROVIDED 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.

Limitations as to use Agri. Use.

11. 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.

Rule 14 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.

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12. 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

form 4.

13. 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.

14. 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

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been  brought  to  our  notice  providing  for  automatic  renewal  of  learner’s

licence.

In  Ram  Babu  Tiwari v.  United  India  Insurance  Co.  Ltd.  &  Ors.

[(2008) 8 SCC 165], this Court held :

“18. 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.”

15. 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.

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16. The claimants in their claim petition described the appellant as owner

as well as driver of the vehicle.    

The  insurance  company,  as  noticed  hereinbefore,  has  also

categorically raised the plea that the appellant was not holding a valid and

effective licence.

The 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.

As indicated  hereinbefore,  not  only a criminal  case was  pending against

him, he was also charge-sheeted.  

17. 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 vehicle.

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18. 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.

19. 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.   

20. It is now well-settled in view of Section 58 of the Indian Evidence

Act that facts admitted need not to be proved.   

21. 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.

Filing of 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.   

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25. There  is,  thus,  no  merit  in  the  case.   The  appeal  is  dismissed.

However, in the facts and circumstances of this case, there shall be no order

as to costs.

            ………………………….J. [S.B. Sinha]

..…………………………J.     [Dr. Mukundakam Sharma]

New Delhi; March 5, 2009

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