CHAUHAN, J. - (1.) THIS petition has been filed against the impugned Award dated 3. 1. 1998 passed by the Motor Accident Claims Tribunal, Barmer in M. A. C. T. Claim No. 60/1997 fastening the "no fault liability" of Rs. 50, 000/-to the driver and owner of the vehicle and exoneration respondent No. 3 the insurance company-from the said liability.
(2.) THE facts and circumstances giving rise to this case are that petitioner owned the truck having registration No. RRG 2712 and the same had been insured with respondent No. 3, the United India Insurance Company Ltd. . One Narain Ram, who is defendant No. 1 in the claim petition and has not been impleaded in this petition, was possessing a learning driving licence valid from 24. 2. 1997 to 23. 8. 97 and when he was driving the said vehicle on 13. 3. 97 it met with an accident which resulted in the death of a twelve years old boy Ghamanda Ram the son of claimants No. 1 and 2. THE claimants filed the Claim Case No. 60/1997 before the learned Tribunal claiming compensation. However, the dispute arose regarding the interim award under Section 140 of the Motor Vehicles Act, 1988 (for short, "the Act") for "no fault liability". THErein respondent No. 3, the insurance company, took a plea that it was not liable to pay the same as the vehicle, at the relevant time, had been driven by an unauthorised person and the driver was holding merely a learner's driving licence and he was not duly effective licence-holder. THE learned Tribunal placing reliance upon the judgment of the Hon'ble Supreme Court in New India Assurance Company Ltd. vs. Mandar Yadav Tambe (1), allowed the contention of the insurance company and exonerated it from the liability of interim award. Hence this petition. Sec. 140 of the Act provides for liability without fault in certain cases. As per the said provision, in case of death or permanent disability of any person as a result of the accident, the owner of the vehicle shall be liable to make payment of the entire award on the principle of "no fault liability" and for such claim, it is not required for the claimant to plead and establish the death or permanent disability, in respect of which the claim had been made, was due to any wrongful act, neglect or default of the owner of the vehicle. The provision of Sec. 2 (x) of the Act, which defines "driving Licence" reads as under:- " Driving Licence" means the licence issued by the Competent Authority under Chapter II, authorising the person specified therein to drive, otherwise than a learner, a motor vehicle or a motor vehicle of any specified class of descrpition. " Rule 141 of the Central Motor Vehicles Rules, 1989 (for short, "the Rules, 1989") mandatorily requires and authorises the insurer to issue every holder of policy of insurance, a certificate of insurance in Form 51 in respect of each such vehicle. Clause (9) of said Form 51 reads as under:- " Persons or class of persons entitled to drive stage carriage/contract carriage/private service vehicle:- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Goods carriage:- Any person, including insured: provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective learner's licence may also drive the vehicle when not used for transport of goods at the time of the accident and that such a person satisfies the requirements of rule 3 of the Central Motor Vehicles Rules, 1989". Rules 3 of the Rules, 1989 provides, in general, for non-application of the provisions of Sec. 3 of the Act for a person receiving instructions or gaining experience in driving with the object of presenting himself for a test of competence to drive. Sec. 3 of the Act completely prohibits any person to drive a vehicle on any public place unless he holds an effective driving licence. In fact, it is a general clarification as Sub-sec. (2) of Sec. 3 of the Act also provides for a similar provision stating that condition, subject to which Sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle, shall be such as may be prescribed by the Central Government.
(3.) MR. Punia, learned counsel for the petitioner has valiantly tried to develop a case on the basis of Form 51, as explained above, but the submission made by him is preposterous for the reason that petitioner failed to lay down any factual foundation that the person, who was driving the vehicle and met the accident, had anything to do with the requirement of Sec. 3 of the Act or rule 141 of the Rules, 1989, nor there is anything on record even before this Court, nor is there any averment in the petition that at the relevant time, the vehicle was not carrying the goods. Thus, in absence of the averments and pleadings to this effect, such an argument is not tenable. The Hon'ble Supreme Court has dealt with the issue in detail in New India Assurance Company vs. Mandar Yadav Tambe (supra) and categorically held that in case the driver was not holding the effective driving licence the insurer cannot be fastened with the liability and a driver holding learner's licence cannot be regarded as a person having effective driving licence and in case the insurance policy makes it clear that in the event of an accident the insurer will be liable provided the vehicle was driven by a person holding valid driving licence or a permanent driving licence other than a learner licence, it cannot be fastened with any liability to indemnify the owner. In Kashi Ram Yadav & Anr. vs. Oriental Fire & General Insurance Co. & Ors. (2) the Hon'ble Supreme Court had held that when the insured himself entrusted the vehicle to a person who did not hold an effective licence, the insured could be said to have committed the breach of condition of policy and in case he is found guilty of committing such a breach, the insurer can escape from the obligation to indemnify the insured. ;