Chattisgarh High Court
United India Insurance Company Limited ... vs Virendra Kumar Verma on 2 July, 2012
HIGH COURT OF CHATTISGARH AT BILASPUR
Miscellaneous Appeal C No 1437 of 2009
United India Insurance Company Limited Raipur CG
...Petitioners
VERSUS
1 Virendra Kumar Verma
2 Sanjay Kumar
3 Mohd Jahgir Khan
...Respondents
! Shri Dashrath Gupta counsel for the appellant
^ Shri P R Patankar counsel for respondent No 1 None for other respondents
CORAM: Honble Shri Justice Rangnath Chandrakar
Dated: 02/07/2012
: Judgement
O R D E R
(Passed on 2nd July, 2012) Appeal under Section 173 of the Motor Vehicles Act, 1988.
1. The appellant - United India Insurance Company Limited has preferred this appeal challenging the award dated 13-8- 2009 passed by XIIth Additional Motor Accident Claims Tribunal, (for short, "the Tribunal"), Durg in Claim Case No.29 of 2009.
2. The facts of the case, in brief, are that respondents 2 & 3 are the driver and the owner of the offending vehicle Metador 407 bearing registration No.C.G./05/ZB/0313. Respondent No.3 was registered owner of the offending vehicle and respondent No.2 Sanjay Kumar was employed as driver under respondent No.3. At the time of the accident the offending vehicle was insured with the appellant/Insurance Company. On 4-12-2008, claimant/respondent No.1 Virendra Kumar by driving his motorcycle bearing registration CG-07/LG/1446 was coming to village Chicha. On the way, respondent No.2 by driving the vehicle Metador rashly and negligently came from Khairagarh side and dashed against the motorcycle as a result of which respondent No.1/claimant fell down from the motorcycle and sustained serious injuries, thereafter, he was admitted in hospital for treatment.
3. The claimant/respondent No.1 filed an application under Section 166 of the Motor Vehicles Act, 1988 (henceforth `the Act, 1988') for compensation of Rs.14,00,000/- against the respondents No.2, 3 and appellant/Insurance Company before the Tribunal. The Tribunal has awarded Rs.1,39,572/- as compensation in favour of claimant/respondent No.1, holding liability to pay the compensation upon the appellant/Insurance Company.
4. Shri Dashrath Gupta, learned counsel appearing for the appellant/Insurance Company has vehemently argued that respondent No.2/driver of the offending vehicle was not having a valid and effective driving license to drive a goods carrying commercial vehicle, at the time of accident and he was having a driving license to drive only light motor vehicle for a period of 20 years i.e., from 2007 to 2027 (Ex.D/1) whereas, the vehicle involved in the instant case is Metador 407, which is a goods carrying commercial vehicle, as mentioned in its certificate of policy (Ex.D/2. Thus, the subject vehicle is a goods carrying commercial vehicle, There is a clear breach of policy of insurance, as the driver, who was having a license to drive light motor vehicle only, could not be permitted to drive the goods vehicle, therefore, respondent No.2/driver was responsible for the alleged accident. Learned counsel further submits that the offending vehicle was being driven in contravention of terms and conditions of Insurance Policy, therefore, the appellant/Insurance Company was not liable to pay compensation to the claimant/respondent No.1. Thus, the tribunal while passing the impugned award has committed an error in fastening the liability upon the appellant/Insurance Company. Therefore, the impugned award passed by the Tribunal be set aside. In support of his arguments, learned counsel for the appellant has placed reliance on Oriental Insurance Company Ltd., vs. Angad Kol and others, reported in 2009 AIR SCW 2747.
5. Per contra, Shri P.R. Patankar, learned counsel for respondent No.1/claimant supporting the impugned award contended that the claimant was having a valid and effective driving license of light motor vehicle and motor-cycle driven by him from which the incident took place, was empty vehicle having weight less than 7500 Kgs., therefore, the offending vehicle falls within the definition of light motor vehicle and the claimant was having a valid and effective driving license to drive the light motor vehicle which he drove at the time of accident.
6. I have heard learned counsel for the parties, perused the impugned award as also the evidence available on record.
7. From perusal of the record and documents, it is clear that the offending vehicle involved in the accident was Metador 407 which was a goods carrying commercial vehicle and owner thereof was respondent No.3 which was driven by respondent No.2/driver, at the time of accident. Learned Claims Tribunal in para 15 of its impugned award held that on the date of accident the respondent No.2 driver was holder of license for driving the vehicle motor-cycle and light motor-vehicle Thus, it is also clear from the record that the respondent No.2/driver was not a valid and effective driving license to drive the goods carrying commercial vehicle and he was having only driving license to drive a light motor vehicle whereas he was driving the offending vehicle TATA 407, a goods carrying commercial vehicle, at the time of incident.
8. In the matter of Oriental Insurance Company Ltd. Vs. Angad Kol and others, reported in 2009 (AIR SCW 2747), the Hon'ble Supreme Court has held thus:
"9. Although the definition of the `light motor vehicle' brings within its umbrage both `transport vehicle' or `omnibus', indisputably, as would be noticed infra, a distinction between an effective license granted for transport vehicle and passenger motor vehicle exists.
10. The distinction between a `light motor vehicle' and a `transport vehicle' is, therefore, evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct license is required to be obtained. The distinction between a `transport vehicle' and a `passenger vehicle' can also be noticed from Section 14 of the Act. Sub-section (2) of Section 14 provides for duration of a period of three years in case of an effective license to drive a `transport vehicle' whereas in case of any other license, it may remain effective for a period of 20 years."
9. In the matter of New India Assurance Company Ltd. Vs. Prabhulal, reported in 2007 AIR SCW 7677 the Hon'ble Supreme Court has held thus:
"23. The District Forum held that the documents clearly mentioned that the vehicle was a `goods carriage' as defined in Section 2(14) covered by the category of `transport vehicle' under Section 2(47) of the Act. The State Commission held that since the gross weight of the vehicle was only 6800 Kgs. and did not exceed permissible limits (7500 Kgs.) nor it was carrying goods at the time of accident, it was a Light Motor Vehicle. For coming to that conclusion, the State Commission relied upon Ashok Gangadhar.
24. In our considered view, the State Commission was wrong in reversing the finding recorded by the District Forum. So far as Ashok Gangadhar is concerned, we will deal with the said decision little later but from the documentary evidence on record and particularly, from the permit issued by the Transport Authority, it is amply clear that the vehicle was a `goods carrier' [Section 2(14)]. If it is so, obviously, it was a `transport vehicle' falling under clause (47) of Section 2 of the Act. The District Forum was, therefore, right in considering the question of liability of the Insurance Company on the basis that Tata 709 which met with an accident was `transport vehicle'."
10. In view of the above, this Court is of the opinion that the law laid down by the Hon'ble Supreme Court in the cases of Oriental Insurance Company Ltd. Vs. Angad Kol and others (supra) and New India Assurance Company Ltd. Vs. Prabhulal (supra), is clearly applicable to the present case. It is not disputed that the driver was having license to drive a light motor vehicle, which is different from the license issued to drive a transport vehicle or medium goods vehicle. Thus, it is found that driver Sanjay Kumar was not having a valid and effective driving license to drive the offending vehicle, i.e., Metador 407, and as such, since the vehicle was driven by an unauthorized person, the insurance company is not liable to indemnify damages and satisfy the award.
11. Thus, applying the said principles to the facts of the present case, it is held that driver Sanjay Kumar, who was not entitled to drive a goods carrying commercial vehicle, for which, a different license would be required under the law, there being breach of terms of the policy, the Insurance Company could not have been held liable to satisfy the award, but the owner and the driver of the offending vehicle shall be liable to pay compensation.
12. In view of the above facts and circumstances, I am of the considered opinion that the Tribunal while passing the impugned award has not considered all the aspects of the matter and thereby committed illegality in fastening the liability upon the appellant/Insurance company, and I am of the further considered opinion that the appellant/insurer of the offending vehicle Metador 407 is not liable to pay compensation to the claimant, therefore, the instant appeal is allowed and it is held that the appellant/insurance company of the vehicle is not liable to pay compensation and that part of the impugned award is set aside. However, remaining part of the impugned award is not interfered with in the instant appeal. The appellant/insurance company is exonerated from liability to pay compensation. The compensation shall now be paid to the claimant by the driver/respondent No.2 and owner/respondent No.3 of offending vehicle Metador 407 jointly and severally.
13. The appellant/Insurance Company shall be at liberty to recover the amount so deposited by it.
14. No order as to costs.
JUDGE