K.KANNAN, J. - (1.) The appeal is brought at the instance of the owner of the vehicle who had been denied the right of indemnity on the ground that the driver who held only a learners licence and he did not have an instructor accompanying him as required under Rule 3 of the Central Rules. It was, therefore, stated that there was a breach in the terms of the policy and the insurer had been granted the right of recovery after satisfying the award.
(2.) The issue of whether the mere possession of learner's licence would secure to the insured the benefit of indemnity is no longer res integra. The view expressed by the Hon'ble Supreme Court in New India Assurance Co. Ltd. v. Madar Madhav Tambe and others, 1996 2 SCC 328 that Insurance company would not be liable for payment of compensation if the vehicle in question was driven by a person holding learner licence was directly taken up for consideration by the Supreme Court in National Insurance Company Limited v. Swaran Singh and others, 2004 3 SCC 297. The Hon'ble Supreme Court in Swaran Singh's case (Supra) was considering every aspect of liability for different categories of licence starting from a fake licence to a renewal of a fake licence to learner licence, when the insurer will have a duty to pay and right to recover against the insurer. The Supreme Court was actually considering the correctness in the judgment in New India Assurance Co. Ltd. v. Madar Madhav Tambe and others, 1996 2 SCC 328 in paragraph Nos. 3 and 4 of the judgment which is reproduced as follows: "3. The appellant contested the said application. It was contended on its behalf that on 22nd July 1977, respondent No.3 had obtained a learner's licence, which enabled him to drive for the purpose of learning to drive. The validity of this learner's licence had expired on 21st November, 1977. When the accident took place on 4th July, 1979, respondent No.3 was neither holding a driving licence as contemplated by the Motor Vehicles Act, 1939, nor was he holding a learner's licence. It appears that soon after the accident respondent No.3 obtained a fresh learner's licence on 7th July, 1979 and thereafter, on 9th July 1979 obtained a driving licence. 4. The Motor Accident Claims Tribunal, vide its award dated 2nd June, 1984, came to the conclusion that the accident had occurred due to the negligence of respondent No.3. It found that respondent No.1 was entitled to compensation of Rs. 2,60,000/- an award was accordingly passed directing respondent Nos. 1 to 3 therein, including the appellant Insurance Company, to jointly or separately pay the said amount together with interest at the rate of 6% per annum.
(3.) On the same day when the judgment in Swaran Singh's case (supra) was disposed of, yet another Bench of the Supreme Court in National Insurance Co. Ltd. v. Bhagwani and others 2004 4 SCC 347, reiterated a view and cited Swaran Singh's case (Supra) as the governing consideration for liability of the insurer and holding that the learner licence was the valid licence to make the insurer liable. Still later, the point was again put to issue in Mahamooda and others v. United India Insurance Co. Ltd. And others, 2004 (13) SCC 684, where the judgments in New India Assurance Co. Ltd. v. Madar Madhav Tambe and others, 1996 2 SCC 328 and Swaran Singh's case were both considered and the Bench in Mahamooda's case (supra) preferred the dispensation in Swaran Singh's case (Supra) as the law on the subject. In the light of the above decisions, there is no scope for the insurer to plead that the liability cannot be imposed for violation of the statutory rule under Rule 3 of the Motor Vehicle Rules, requiring an instructor to present.;