Himachal Pradesh High Court
Gautam Nath And Another vs Shri Duni Chand And Others on 16 December, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (MVA) No. 120 of 2012.
Date of decision: 16th December, 2016.
.
Gautam Nath and another .....Appellants Versus Shri Duni Chand and others .....Respondents.
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Whether approved for reporting ?1 Yes of For the appellants: Mr. G.R. Palsara, Advocate.
For the respondents: rt Nemo for respondents No. 1 to 3.
Mr. Jagdish Thakur, Advocate, for respondent No.4.
_________________________________________________ Mansoor Ahmad Mir, Chief Justice, (Oral).
This appeal is directed against the judgment and award dated 19.1.2012, passed by the Motor Accident Claims Tribunal II, Mandi, District Mandi, H.P. hereinafter referred to as "the Tribunal", for short, in MACT No. 38 of 2007, titled Duni Chand and others versus Sh. Gautam Nath and others, whereby compensation to the tune of Rs.2,36,000/- alongwith interest @ 7.5% per annum was awarded in favour of the claimants and owner and driver came to be 1 Whether the reporters of Local Papers may be allowed to see the judgment ?.::: Downloaded on - 15/04/2017 21:45:52 :::HCHP -2-
saddled with the liability, for short "the impugned award", on the grounds taken in the memo of appeal.
2. Claimants and insurer have not questioned .
the impugned award on any ground, thus it has attained the finality, so far as it relates to him.
3. Owner and driver have questioned the impugned award on the grounds taken in the memo of of appeal.
4. Learned counsel for the appellants argued rt that the Tribunal has fallen in an error in discharging the insurer from the liability and prayed that the insurer be saddled with the liability.
5. Claimants being the victims of a vehicular accident, filed claim petition before the tribunal for the grant of compensation to the tune of Rs. 15 lacs, as per the break-ups given in the claim petition, which was resisted by the respondents and following issues came to be framed.
1. Whether the deceased Chaman Lal died due to rash and negligent driving of Tipper No. HP-58- 1710 by respondent Leela Prakash as alleged? OPP.
::: Downloaded on - 15/04/2017 21:45:52 :::HCHP -3-2. If issue No. 1 is proved in affirmative, whether the petitioners are entitled for compensation, if so to what amount and from whom? OPP.
3. Whether there was breach of terms and conditions .
of insurance policy? OPR.
4. Whether the driver was not holding valid and effective driving license at the time of accident?
OPR-3.
5 Relief.
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6. Claimants have examined three witnesses and one of the claimants, namely Duni Chand also rt stepped into the witness-box as PW3. Respondents examined two witnesses, namely, Prem Singh and Leela Prkash driver of the offending vehicle No. HP-58- 1710.
7. The Tribunal, after scanning the evidence oral as well as documentary, held that the claimants have proved that driver Leela Prakash had driven the offending vehicle bearing registration No. HP-58-1710 (Tipper) rashly and negligently and had caused the accident. There is no dispute about such findings.
Accordingly, the findings returned by the Tribunal on issue No. 1 are upheld.
::: Downloaded on - 15/04/2017 21:45:52 :::HCHP -4-8. Before dealing with issue No. 2, I deem it proper to deal with issues No. 3 and 4 around which the entire controversy revolves. It was for the insurer to .
lead evidence to prove that the owner has committed willful breach, has not led any evidence. Thus, has failed to discharge the onus. The Tribunal has decided issue No. 4 without making any discussion. Driver was of having licence to drive light motor vehicle, copy of which is on record as Ext. RW2/A, which does disclose rt that the driver was competent to drive LMV transport.
9. Admittedly, the driver was driving Tipper bearing registration No. HP-58-1710, the unladen weight of which is 2800 kilograms, as per the Registration Certificate, Ext. RW1/A, thus falls within the definition of "Light Motor Vehicle" as given in Sections 2 (21) and 2 (28) of the Motor Vehicles Act, for short "the Act".
10. The learned counsel for the appellants argued that the issues stand already determined by this Court in series of appeals.
11. The same issue was raised before the Supreme Court in case titled Ashok Gangadhar ::: Downloaded on - 15/04/2017 21:45:52 :::HCHP -5- Maratha v. Oriental Insurance Co. Ltd. reported in AIR 1999 SC 3181. It is apt to reproduce paras 10, 11 and 14 of the said judgment herein:
.
"10. Definition of "light motor vehicle" as given in clause (21 ) of Section 2 of the Act can apply only to a "light goods vehicle" or a "light transport vehicle". A "light motor vehicle" otherwise has to be covered by the definition of "motor vehicle" or "vehicle" as given in clause of (28) of Section 2 of the Act. A light motor vehicle cannot always mean a light goods carriage. Light motor vehicle can be non-transport vehicle as well.
11. To reiterate, since a vehicle cannot rt be used as transport vehicle on a public road unless there is a permit issued by the Regional Transport Authority for that purpose, and since in the instant case there is neither a pleading to that effect by any party nor is there any permit on record, the vehicle in question, would remain a light motor vehicle. The respondent also does not say that any permit was granted to the appellant for plying the vehicle as a transport vehicle under Section 66 of the Act. Moreover, on the date of accident, the vehicle was not carrying any goods, and thought it could be said to have been designed to be used as a transport vehicle or goods carrier, it cannot be so held on account of the statutory prohibition contained in Section 66 of the Act.
12-13 .... ..... .....
14. Now the vehicle in the present case weighed 5,920 kilograms and the driver had the driving licence to drive a light motor vehicle. It is not that, therefore, that insurance policy covered a transport vehicle which meant a goods carriage. The whole case of the insurer has been built on a wrong premise. It is itself the ::: Downloaded on - 15/04/2017 21:45:52 :::HCHP -6- case of the insurer that in the case of a light motor vehicle which is a non- transport vehicle, there was no statutory requirement to have specific authorisation on the licence of the driver under Form 6 under the Rules. It had, .
therefore, to be held that Jadhav was holding effective valid licence on the date of accident to drive light motor vehicle bearing Registration No. KA-28-
567."
12. This Court in FAO No. 54 of 2012 titled of Mahesh Kumar and another vs. Smt. Piaro Devi and others decided on 25th July, 2014, held that such type rt of vehicle is LMV. It is apt to reproduce paras 10,11,14,16,18 and 19 of the said judgment herein:
"10.I deem it proper to reproduce the definitions of "driving licence", "light motor vehicle", "private service vehicle"
and "transport vehicle" as contained in Sections 2 (10), 2 (21), 2(35) and 2 (47), respectively, of the MV Act herein:
"2. .................
(10) "driving licence" means the licence issued by a 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 or description.
xxx xxx xxx "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms.::: Downloaded on - 15/04/2017 21:45:52 :::HCHP -7-
xxx xxx xxx (35) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage .
carriage.
xxx xxx xxx (47) "transport vehicle" means a public service vehicle, a goods carriage , an educational institution bus or a private service vehicle."
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11. Section 2 (21) of the MV Act provides that a "light motor vehicle" means a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor rt car or tractor or road roller the unladen weight of any of which, does not exceed 7500 kilograms. Section 2 (35) of the MV Act gives the definition of a "public service vehicle", which means any vehicle, which is used or allowed to be used for the carriage of passengers for hire or reward and includes a maxicab, a motorcab, contract carriage and stage carriage. It does not include light motor vehicle (LMV).
Section 2 (47) of the MV Act defines a "transport vehicle". It means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.
12-13. ...... ...... .....
14. It mandates that the driver should have the licence to drive a particular kind of vehicle and it must contain endorsement for driving a transport vehicle. In this section, the words "light motor vehicle" are not recorded. Meaning thereby, this section is to be read with the definition of other vehicles including the definition given in Section 2 (47) of the MV Act except the definition given in Section 2 (21) of the MV Act for the reason that Section 2 (21) of the MV Act provides, as discussed ::: Downloaded on - 15/04/2017 21:45:52 :::HCHP -8- hereinabove, that it includes transport vehicle also.
15.My this view is supported by Section 10 of the MV Act, which reads as under:
"10. Form and contents of licences to .
drive. -
(1) Every learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.
of (2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following rt cases, namely:-
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) transport vehicle;
(i) road-roller;
(j) motor vehicle of a specified description."
15- .... ..... .....
16. Section 10 (2) (d) of the MV Act contains "light motor vehicle" and Section 10 (2) (e) of the MV Act, which was substituted in terms of amendment of 1994, class of the vehicles specified in clauses (e) to (h) before amendment stand deleted and the definition of the "transport vehicle" stands inserted. So, the words "transport vehicle" used in Section 3 of the MV Act are to be read viz-a-viz other vehicles, definitions of which are given and discussed hereinabove.
17. ..... ....... ........ .......
18. The purpose of mandate of Sections 2 and 3 of the MV Act came up for consideration before the Apex Court in a ::: Downloaded on - 15/04/2017 21:45:52 :::HCHP -9- case titled as Chairman, Rajasthan State Road Transport Corporation & ors. versus Smt. Santosh & Ors., reported in 2013 AIR SCW 2791, and after examining the various provisions of the MV Act held that Section 3 of the Act casts an .
obligation on the driver to hold an effective driving licence for the type of vehicle, which he intends to drive. It is apt to reproduce paras 19 and 23 of the judgment herein:
"19. Section 2(2) of the Act defines articulated vehicle which means a motor of vehicle to which a semi-trailer is attached; Section 2(34) defines public place; Section 2(44) defines 'tractor' as a motor vehicle which is not itself constructed to carry any rt load; Section 2(46) defines `trailer' which means any vehicle, other than a semi- trailer and a side-car, drawn or intended to be drawn by a motor vehicle. Section 3 of the Act provides for necessity for driving license; Section 5 provides for responsibility of owners of the vehicle for contravention of Sections 3 and 4; Section 6 provides for restrictions on the holding of driving license; Section 56 provides for compulsion for having certificate of fitness for transport vehicles;
Section 59 empowers the State to fix the age limit of the vehicles; Section 66 provides for necessity for permits to ply any vehicle for any commercial purpose; Section 67 empowers the State to control road transport; Section 112 provides for limits of speed;
Sections 133 and 134 imposes a duty on the owners and the drivers of the vehicles in case of accident and injury to a person; Section 146 provides that no person shall use any vehicle at a public place unless the vehicle is insured. In addition thereto, the Motor Vehicle Taxation Act provides for imposition of passenger tax and road tax etc.
20. ..........................
21. .........................::: Downloaded on - 15/04/2017 21:45:52 :::HCHP
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22. ........................
23. Section 3 of the Act casts an obligation on a driver to hold an effective driving license for the type of vehicle which he intends to drive. Section 10 of the Act enables the .
Central Government to prescribe forms of driving licenses for various categories of vehicles mentioned in sub-section (2) of the said Section. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are 'goods carriage', 'heavy goods of vehicle', 'heavy passenger motor vehicle', 'invalid carriage', 'light motor vehicle', 'maxi- cab', 'medium goods vehicle', 'medium passenger motor vehicle', 'motor-cab', 'motorcycle', 'omnibus', 'private service rt vehicle', 'semi- trailer', 'tourist vehicle', 'tractor', 'trailer' and 'transport vehicle'."
19. The Apex Court in another case titled as National Insurance Company Ltd. versus Annappa Irappa Nesaria & Ors., reported in 2008 AIR SCW 906, has also discussed the purpose of amendments, which were made in the year 1994 and the definitions of 'light motor vehicle', 'medium goods vehicle' and the necessity of having a driving licence. It is apt to reproduce paras 8, 14 and 16 of the judgment herein:
"8. Mr. S.N. Bhat, learned counsel appearing on behalf of the respondents, on the other hand, submitted that the contention raised herein by the appellant has neither been raised before the Tribunal nor before the High Court. In any event, it was urged, that keeping in view the definition of the 'light motor vehicle' as contained in Section 2(21) of the Motor vehicles Act, 1988 ('Act' for short), a light goods carriage would come within the purview thereof.
A 'light goods carriage' having not been defined in the Act, the definition of the 'light motor vehicle' clearly indicates that it takes ::: Downloaded on - 15/04/2017 21:45:52 :::HCHP
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within its umbrage, both a transport vehicle and a non-transport vehicle.
Strong reliance has been placed in this behalf by the learned counsel in Ashok Gangadhar Maratha vs. Oriental Insurance Company .
Ltd., [1999 (6) SCC 620].
9. .....................
10. ..................
11. ..................
of
12. .................
13. .................
14. Rule 14 prescribes for filing of an rt application in Form 4, for a licence to drive a motor vehicle, categorizing the same in nine types of vehicles.
Clause (e) provides for 'Transport vehicle' which has been substituted by G.S.R. 221(E) with effect from 28.3.2001. Before the amendment in 2001, the entries medium goods vehicle and heavy goods vehicle existed which have been substituted by transport vehicle. As noticed hereinbefore, Light Motor Vehicles also found place therein.
15. .............................
16. From what has been noticed hereinbefore, it is evident that 'transport vehicle' has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time, to cover both, 'light passenger carriage vehicle' and 'light goods carriage vehicle'.
A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well."
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13. Applying the ratio, the vehicle in question is a "Light Motor Vehicle".
14. Same principles of law have been laid down by .
this Court in FAOs No. 385 of 2007 & 388 of 2007, decided on 14.11.2014, FAOs No. 33 & 55 of 2010, decided on 17.10.2014, FAO No. 293 of 2006 decided on 4.4.2014, and FAO No. 319 of 2012 decided on 2.12.2016.
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15. Having said so, the Tribunal has wrongly decided issue No. 4. Accordingly, it is held that the rt driver was holding a valid and effective driving licence at the time of accident and owner has not committed any breach.
16. It was for the insurer to plead and prove the insurer has committed willful breach in terms of National Insurance Co. Ltd. versus Swaran Singh and others, reported in AIR 2004 Supreme Court 1531.
It is apt to reproduce relevant portion of para 105 of the judgment herein:
"105. .....................
(i) .........................
(ii) ........................
(iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of Section 149, have to be ::: Downloaded on - 15/04/2017 21:45:52 :::HCHP
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proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the .
insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
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(iv) The insurance companies are, however, with a view to avoid their liability, must not only establish the available defence(s) raised in the said proceedings but rt must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them.
(v).........................
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149 (2) of the Act."
17. It would also be profitable to reproduce para 10 of the judgment rendered by the Apex Court in Pepsu Road Transport Corporation versus National ::: Downloaded on - 15/04/2017 21:45:52 :::HCHP
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Insurance Company, reported in (2013) 10 Supreme Court Cases 217, herein:
"10. In a claim for compensation, it is certainly .
open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is of the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid rt driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver.
However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is ::: Downloaded on - 15/04/2017 21:45:52 :::HCHP
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explained in Swaran Singh case. If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, .
in such circumstances, the Insurance Company is not liable for the compensation."
18. Having glance of the above discussion, findings on issue No. 3 are set aside and is decided in of favour of the claimants and against the insurer.
19. Viewed thus, the Tribunal has fallen in an rt error in discharging the insurer from the liability.
20. Factum of insurance is not in dispute. Thus, the insurer has to satisfy the award.
21. In view of the above, the appeal is allowed, impugned award is modified and the insurer is directed to satisfy the award.
22. The insurer is directed to deposit the amount alongwith interest, as awarded by the Tribunal, within eight weeks from today in the Registry. The Registry, on deposit, is directed to release the amount in favour of the claimants, strictly in terms of the conditions contained in the impugned award, through payees' cheque account, or by depositing the same in ::: Downloaded on - 15/04/2017 21:45:52 :::HCHP
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their bank accounts, after proper verification. Statutory amount deposited by the appellants, is awarded as costs in favour of the claimants, be released .
accordingly.
23. Send down the record forthwith, after placing a copy of this judgment.
December 16, 2016. (Mansoor Ahmad Mir) of (cm Thakur) Chief Justice.
rt ::: Downloaded on - 15/04/2017 21:45:52 :::HCHP