MAHARAJAN J. -
(1.) THIS is an appeal by the owner of a motor vehicle against the order of the Motor Accidents Claims Tribunal, Madras, awarding as against him a compensation of Rs. 5, 000 in favour of the mother of one Nandan, who met with a fatal accident on February 10, 1963, as a result of the motor vehicle dashing against him. The Tribunal found that the accident was due to the vehicle being driven negligently by the son of the appellant and that consequently the appellant was liable to pay compensation of Rs. 5, 000 to the mother of the deceased. The Tribunal further held that the insurance company, which had insured the vehicle, was exonerated of liability to indemnify the insured because at the relevant time the car was being driven by a person who had no valid licence. It is against this order dismissing the petition against the insurance company and allowing it against the appellant that the present appeal has been filed The appellant, in his anxiety to avoid liability, has raised several contentions, one of which alone merits serious consideration and it is this: that inasmuch as under exhibit P-2, the insurance policy, the insurance company has undertaken liability in respect of any accident, loss or damage except when it is being driven by any person other than a driver and inasmuch as the appellant's son was the driver holding an effective licence, the insurance company cannot avoid its liability under the contract, and that the tribunal, on an erroneous construction thereof, has dismissed the petition as against the company. In order to appreciate this contention, it is necessary to reproduce the following terms of the insurance contract "1. The company will indemnify the insured in the event of accident caused by or arising out of the use of the motor car against all sums including claimant's costs and expenses, which the insured shall become legally liable to pay in respect of - (a) death of or bodily injury to any person but except so far as is necessary to meet the requirements of section 95 of the Motor Vehicles Act, 1939, the company shall not be liable, where such death or injury arises out of and in the course of the employment of such person by the insured. " Under the heading" General expectations", the following clauses occur " The company shall not be liable under this policy in respect of - (3) any accident, loss, damage and/or liability caused, sustained or incurred whilst any motor car in respect of or in connection with which insurance is granted under this policy is - (a) being used otherwise than in accordance with the limitations as to the use, or (b) being driven by any person other than a driver. " *
(2.) THE question is whether at the time of the accident the vehicle was being driven by "any person other than a driver". In other words, was the son of the appellant a person of the description given in sub-clause (b) of clause (3) " Be it noted that the exception clause does not say that the insurance company shall not be liable if the insured vehicle is "driven by a person not holding a driver's licence". All that it says is that, if the vehicle is being driven by any person other than a driver, the insurance company shall be exonerated of its liability. THE Concise Oxford dictionary defines a driver to mean one who drives. THE definition of the word "driver" in section 2, clause (5), of the Motor Vehicles Act, is in substantial agreement with the dictionary meaning and it runs as follows "'driver'includes, where a separate person acts as a steersman of a motor vehicle, that person as well as any other person engaged in the driving of the vehicle" It is significant that this definition does not require" the person engaged in the driving of the vehicle" * to hold an effective licence. Learned counsel for the insurance company would, however, rely on a ruling of Venkatadri J. in Unique motor and General Insurance Co. Ltd. v. Kannappa Naicker. That was the case in which a person who possessed a licence for driving a light vehicle, drove a heavy vehicle and was involved in an accident. THE insurance company pleaded, on the foot of a clause similar to the one before me, that as the driver did not possess a valid licence to drive a heavy vehicle, the insurance company would not be liable to pay compensation for the death of the victim. After noticing the definition of a heavy vehicle, the learned judge observed as follows "merely looking at the definitions, one can safely say that an omnibus having a capacity for 47 passengers is certainly a heavy vehicle. Once I come to the conclusion that the bus in question is a heavy motor vehicle, I must also conclude that Palaniswami did not possess a licence to drive the bus in question which is a heavy vehicle. THErefore, the appellant insurance company is right in their contention that, when Palaniswami took the bus but for a test drive, he did not possess the requisite licence for driving it and that further the bus was driven by a person other than a driver. " *
Evidently, the learned judge, who made no reference in his judgment to the definition of the word "driver" in section 2 (5)of the Act, gave the word a meaning which is much narrower than what the definition connotes. Even assuming that the term "driver" must be constructed to be a person "who must possess the requisite licence for driving it", I think that the appellant's son would answer to that description. Admittedly, he held a learner's licence which for all purposes was effective. Rule 41 of the Madras Motor Vehicles Rules prescribes that a learner's licence shall be valid for a period of three months and may be renewed for further periods of three months on payment of a fee of two rupees for each such renewal. Rule 39 provides that the prohibition contained in section 3 of the act shall not apply to any person driving a motor vehicle in a public place during the course of receiving instruction or of gaining experience in driving with the object of presenting himself for the test required by clause (a) of sub-section (1) of section 7 of the Act so long as the driver is the holder of a learner's licence in Form LLR entitling him to drive the vehicle and there is, beside the driver in the vehicle as instructor, a person duly licensed to drive the vehicle and sitting in such a position as to be able readily to stop the vehicle and there is affixed both to the front and rear of the vehicle a plate or card as set forth in the rule. In this case, the appellant's son, who held the learner's licence, was only guilty of a violation of the rule which required him not to drive without an instructor by his side. Such violation might expose him to a penalty under the law, or to a cancellation of the learner's licence; but it cannot make him any the less of a driver within the meaning of section 2, clause (5) of the Act, or the less of a driver "holding the requisite licence" within the meaning of the ruling of venkatadri J. Whichever construction is adopted, I think it right to hold that at the time of the accident the vehicle was being driven by a person who was a "driver" within the meaning of the policy and the definitionlearned counsel for the insurance company draws my attention to section 96 of the Act which provides that an insurer shall be entitled to be maid a party to the proceedings and to defend the action on any of the following grounds, namely " (2) (a ). . . . . . . . . . . . or (b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely - (i) a condition excluding the use of the vehicle (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. . . . . " *
While the above provision makes it clear that the right of the insurance company to defend is restricted to the various conditions set out in this sub-section, it is also clear from this sub-section that none of these defences will be available to the insurance company, unless it incorporates these conditions in the policy. The expression in clause (b) "that there has been a breach of a specified condition of the policy, being one of the following conditions" * , reinforces this conclusion. But it is contended for the insurance company that, though the insurance policy does not expressly exclude driving by a person "who is not duly licensed", the insurance company would be entitled to rely upon the conditions embodied in section 96 (2) (b) (ii)of the Act. I am unable to agree. All that the section does is to enumerate the conditions which the insurance company is at liberty to incorporate in the contract. If the conditions embodied in section 96 (2) (b) (ii) have not been actually incorporated in the contract, it is not open to the insurance company to avoid liability on the ground that such conditions must be deemed to have been written into the contract. In fact, I find from the English cases that the insurance companies in England take care to incorporate in the insurance policy all the conditions enumerated in section 96 (2) (b ). Unfortunately, the insurance companies in India do not seem to be as careful as the English companies.
The liability of the company has, therefore, to be ascertained, not from what the act says the conditions may be but from what the contract shows the conditions actually are. As I have already said, the contract would exonerate the company from liability only if at the relevant period the vehicle was being driven "by a person other than a driver". The appellant's son was certainly a driver holding a licence but driving the car in breach of one of the conditions of the licence. Such a breach does not convert the "driver into a person other than a driver". As for the ruling of Venkatadri J. , it is clearly distinguishable on the ground that the person who drove the heavy vehicle in that case had no licence at all to drive it. He could not, therefore, be regarded as a driver holding an effective licence within the restricted meaning given to the term by the learned judge. Giving even the restricted meaning, I am at a loss to regard the person who drove the car during the accident in this case as one who had no licence to drive it. It would, therefore, follow that the insurance company would, without doubt, be liable to indemnify the insured against the liability to pay compensation to the claimantanother contention raised by learned counsel for the insurance company is that, in the remand order of the High Court, the question has been finally settled, and that it is not open to me to come to a conclusion different from that of the learned judge who passed the remand order. In A. A. O. No. 154 of 1964, the insurance company preferred an appeal against the original order of the Motor Accidents Claims Tribunal awarding compensation to the mother of the deceased boy. At the time the appeal was heard, even the insurance policy had not been produced and the terms thereof were not known. Venkatadri J. , who disposed of that appeal, says in the decretal portion of the remand order as follows "in my opinion, this case has to go back to the motor Accidents Claims Tribunal to decide the question whether the insurance company is liable to pay the compensation to the mother of the deceased boy, if at the time of the accident the car was being driven by a driver who did not possess a valid licence. " *
It is clear from this statement that the learned judge did not intend to decide the question whether the appellant's son possessed a valid licence. No doubt, in the body of the order, the learned judge has said as follows "if it is proved that at the time of the accident the car was being driven by a driver who was holding only a trainee's licence and was without the help of a regularly licenced driver, certainly the insurance company cannot be asked to pay compensation. " *
(3.) THIS is an observation which appears to support the contention of the insurance company; but reading the entire order as a whole, giving emphasis to the decretal portion of the order and taking into consideration the direction of the learned judge that the parties would be at liberty to adduce additional evidence after remand, and in the light of the newly produced insurance policy which contains the relevant terms of the contract, I think that the learned judge did not intend by the said observations to construe the terms of a policy which was not before him, but intended only to construe section 96 (2) (b) of the Act, the terms of which are now found not to have been reproduced verbatim in the policy. I hold that the car was being driven by a driver, who did possess a valid licence, but who drove the car in violation of one of the conditions of the licence. In my view, the car was being driven by a person who possessed the requisite licence such as to make the insurer liable for the compensation payable by the insuredin the result the order of the Tribunal is modified and the second respondent insurance company also made liable for the amount of compensation awarded.
The insurance company will pay the appellant the costs of the appeal.;