Madhya Pradesh High Court
New India Assurance Company Limited vs Smt. Rekha And Ors. on 7 May, 2004
Equivalent citations: 2004(3)MPHT283
Author: Arun Mishra
Bench: Arun Mishra
ORDER Arun Mishra, J.
1. This appeal has been preferred by the Insurer the New India Assurance Company Ltd., aggrieved by award dated 5-8-2002 passed by Motor Accident Claims Tribunal, Chhatarpur in Claim Case No. 30/2002 awarding an amount of Rs. 5,66,000/- along with interest and costs on account of death of Shri Santosh Sahu.
2. Respondent Nos. 1 to 7 have filed an application claiming compensation of Rs. 19,73,000/- on account of death of Santosh Sahu. He was the husband of Smt. Rekha/respondent No. 1. He used to carry the business of retain at various places. He used to earn Rs. 6000/- per month. He met with an accident with Commander Jeep No. MP16D-0089 driven by respondent No. 8 Ajiz Khan, Deceased was on his Bajaj M-80 vehicle.
3. Respondent Nos. 8 and 9/driver and owner in their written statement denied that jeep was driven in rash and negligent manner. Jeep was insured with New India Assurance Company Ltd. The compensation, if any, is payable by the insurer.
4. The Insurer in its reply took a plea that vehicle was driven against the terms and conditions of the policy, in rash and negligent manner by the driver of the jeep. Driver did not possess the valid driving licence. He was issued a licence to drive motor cycle and light motor vehicle of the description of private vehicle not the taxi, hence he was unauthorisedly driving the vehicle as a taxi at the time of accident. Insurer, therefore, is not liable to indemnify the owner of the vehicle. The Claims Tribunal has saddled the liability upon the appellant, hence this appeal has been preferred by the Insurer.
5. Shri Rakesh Jain, learned Counsel appearing for the appellant has raised the submission that Driver did not possess the valid driving licence. He possessed the driving licence to drive private light motor vehicle/motor cycle. He was driving a taxi/jeep, though it was a light motor vehicle but there was no endorsement to drive a public utility vehicle, hence there was breach of condition of Insurance Policy and Insurer has been wrongly saddled with the liability to indemnify. Shri Rakesh Jain has placed reliance on a decision of Division Bench of this Court in Mahesh Kumar and Anr. v. Hari Shankar Patel, 2001 ACJ 2071 to take home his submission. He has relied upon a Single Bench decision of this Court in New India Assurance Co. Ltd. v. Shailesh Yadav and Ors., 1998 ACJ 755 and he has also relied upon the decision of High Court of Himachal Pradesh rendered in New India Assurance Co. Ltd. v. Suraj Parkash and Ors., 2001 ACJ 85.
6. Shri B.J. Chourasia, learned Counsel for respondent Nos. 1 to 7 has placed reliance on a decision of Apex Court in Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., AIR 1999 SC 3181, and submitted that Insurer has been rightly held liable to make the payment of compensation. Thus no interference is called for in this appeal.
7. Driving licence has been defined in Sub-section (10) of Section 2 of Motor Vehicles Act, 1988 to mean that licence issued by the Competent Authority under Chapter II authorizing the driver to drive a motor vehicle of any specified class or description. Section 2(10) of Motor Vehicles Act, 1988 is quoted below :--
"2. (10) "driving licence" means the licence issued by a competent authority under Chapter II authorizing the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description."
8. Gross vehicle weight has been defined in Section 2(15) to mean that, in respect of any vehicle the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle.
9. "Light Motor Vehicle" has been defined in Section 2(21) of Motor Vehicles Act, 1988 to mean that 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 kgs.
10. "Private Service Vehicle" has been defined Section 2(33) to mean that a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes.
11. "Public Service Vehicle" has been defined in Section 2(35) to mean that any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contrast carriage, and stage carriage.
12. "Transport Vehicle" has been defined in Section 2(47) to mean that a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.
13. Section 3(1) of the Motor Vehicles Act, provides that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle and no person shall so drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under Sub-section (2) of Section 75 unless his driving licence specifically entitles him to do so. Section 3 of Motor Vehicles Act, 1988 is quoted below :--
"3. Necessity for driving licence.-- (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle and no person shall so drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under Sub-section (2) of Section 75 unless his driving licence specifically entitles him so to do.
(2) The conditions 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."
14. Section 10 of the Motor Vehicles Act provides that driving licence shall also be expressed as entitling holder to drive a motor vehicle of one or more of the classes mentioned in Sub-section (2) of Section 10. Section 10 of the Motor Vehicles Act is quoted below :--
"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.
(2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling holder to drive a motor vehicle of one or more of the following classes, 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. Light Motor Vehicle has been defined in Section 2(21) to mean that the weight of a transport vehicle or omnibus does not exceed 7500 Kgs. The word transport vehicle has been further defined under Section 2(47) to mean that a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.
16. Under Section 10 it is provided that driving licence shall be expressed as entitling holder to drive a motor vehicle of the kind of vehicle mentioned under Section 10(2). The word "transport vehicle" itself is included in the definition of light motor vehicle. Coming to the facts of the case it is clear that vehicle in question was a Jeep, which is admittedly a light motor vehicle. It is submitted that it was used as a taxi at the relevant time, hence there should have been an endorsement to drive public service vehicle, which has been defined under Section 2(35) of the Act. It is conceded that no different tests have been prescribed for driving the private light motor vehicle or motor vehicle used for carrying passengers. The transport vehicle itself covers private service vehicle and public service vehicle both in its ambit as defined in Section 3(47) of the Motor Vehicles Act. The Apex Court in Ashok Gangadhar Maratha v. Oriental Insurance Company Ltd. (supra) in the backdrop of the fact that light motor vehicle a Swaraj Mazda truck was insured, vehicle was damaged in the accident. A plea was taken that driver did not possess the valid driving licence. He possessed the licence to drive the light motor vehicle but not a transport vehicle. The Apex Court has considered Section 3 and expressed opinion as to interpretation of Section 3 thus :--
"5. This section uses two expressions, namely, "motor vehicle" and "effective driving licence". "Effective" would mean a valid licence both as regards the period and type of vehicle. We are not considering here otherwise any incapacity of the person holding a driving licence. "Driving licence", "Motor Vehicle" or "Vehicle", "transport vehicle", "light motor vehicle", "goods carriage", "heavy goods vehicle" and "medium goods vehicle" have been defined in Section 2 of the Act as under :--
"driving licence" (Clause 10) means the licence issued by a competent authority under Chapter II authorizing the person specified therein to drive, otherwise than as a learner, a motor vehicle of any specified class or description; "motor vehicle" or "vehicle" [Clause (28)] means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclose premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty-five cubic centimeters; "transport vehicle" [Clause (47)] means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle; "light motor vehicle: [Clause (21)] 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 7500 kilograms; "goods carriage" [Clause (14)] means any motor vehicle constructed or adopted for use solely for the carriage of goods, or any motor vehicle not so constructed; or adapted when used for the carriage of goods; "heavy goods vehicle" [Clause (16)] means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms; and "medium goods vehicle" [Clause (23)] means any goods carriage other than a light motor vehicle or a heavy goods vehicle."
17. The Apex Court in Ashok Gangadhar Maratha (supra) has further considered the meaning to be given to "light motor vehicle" thus :--
6. Nagar Saheb Jadhav, the driver was having the driving licence to drive a light motor vehicle. On the day of the accident, vehicle was not carrying any goods. Contention of the insurer has been that the vehicle was a goods carriage and thus a transport vehicle. Rule 16 of the Central Motor Vehicle Rules, 1989 prescribes the form under which a driving licence is to be issued. It is Form No. 6. Jadhav was having a driving licence in Form 6 which was for driving a light motor vehicle. There was no endorsement on his driving licence authorizing him to drive a transport vehicle. For a vehicle to be a transport vehicle, it must be a goods carriage which in turn means any motor vehicle constructed or adapted for use solely for the carriage of goods or when not so constructed or adapted used for the carriage of goods. We have the definitions of "heavy goods vehicles" and "medium goods vehicle". Instead the definition is of "light motor vehicle". If we apply the definition of a "light motor vehicle" as given in Clause (21) of Section 2 of the Act to mean a "transport vehicle" in turn means a "goods carriage" then we have nowhere the definition of a "light motor vehicle" without it being a "goods carriage". Section 2 of the Act begins with the words unless in this Act the context otherwise requires". We have, therefore, to give a meaningful interpretation to "light motor vehicle" as given in Clause (21). Clause (e) of the Rule 2 of the Central Motor Vehicle Rules, 1989 defined "non-transport vehicle" to mean a motor vehicle which is not a transport vehicle [Clause (e) renumbered as Clause (h) by 1993 Amendment to Rules]. This definition would, therefore, take out of the definition of "transport vehicle" as given in Clause (21) light motor vehicles which are not goods carriage.
9. There is no evidence to record and no claim has either been made by the insurer that the vehicle in question was having a permit for goods carriage- If we accept the contention of the insurer, there can never be any light motor vehicle and there can never be any driving licence for driving a light motor vehicle. We can not put such a construction on Clause (21) of Section 2 of the Act so as to exclude a light motor vehicle from the Act altogether. Light motor vehicle is a motor vehicle to drive for which Jadhav possessed effective driving licence. His driving licence was valid on the date of accident In allowing the claim of the appellant the State Commission held that "the driver who drove the vehicle at the time of accident, had as a matter of fact, a valid driving licence for driving a light motor vehicle and there is no material on record to show that he was disqualified from holding or obtaining such a licence at the time of accident. In view of these facts and in the circumstances of the case, we are satisfied that the policy does not insist on the driver having a licence to drive to obtain a specific endorsement to drive a transport vehicle". We, however, do not subscribe to such a view."
18. The Apex Court in Ashok Gangadhar Maratha (supra) has discussed the meaning to be given to light motor vehicle under Section 2(21) thus:--
"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 (28) of Section 2 of the Act. A light motor vehicle can not always mean a light goods carriage. Light motor vehicle can be non-transport vehicle as well.
11. To reiterate, since a vehicle can not 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 though it could be said to have been designed to be used as a transport vehicle or goods carrier, it can not be so held on account of the statutory prohibition contained in Section 66 of the Act.
12. It was pointed out by the appellant that the legal representative of Jadhav, the driver, had filed a petition for compensation under the Act. Insurer had resisted the claim taking the stand that the driver of the vehicle did not possess a valid driving licence to drive the vehicle. The plea of the insurer was rejected by the Claims Tribunal and petition for compensation was allowed and compensation paid to the legal representatives of the driver. No appeal was preferred by the insurer in that case.
19. The Apex Court in Ashok Gangadhar Maratha (supra) has ultimately held that as the driver possessed the valid driving licence, as such insurer can not escape the liability. The Apex Court has held thus :--
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 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 authorization 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."
The Apex Court has laid down that there was no statutory requirement to have specific authorization on the licence of the driver under Form 6 under the Motor Vehicle Rules.
20. In view of the Apex Court decision, we find that driver in the instant case was holding valid driving licence to drive the vehicle in question. Reliance has been placed on a decision of Division Bench of this Court in Mahesh Kumar and Anr. v. Hari Shankar Patel (supra), in which it has been held that driver was driving a Matador, which is a light motor vehicle but the vehicle was being used as a public service vehicle for carrying passengers. It was held by this Court that driver did not possess valid driving licence to drive the vehicle. The decision of the Apex Court in Ashok Gangadhar Maratha v. Oriental Insurance Company Ltd. (supra) has not been noticed as probably the report was not made available of the Apex Court decision though earlier in point of time to the decision of Division Bench in Mahesh Kumar v. Hari Shankar Patel (supra). In view of the decision of the Apex Court in Ashok Gangadhar Maratha (supra), which has not been noticed, considering the definition of light motor vehicle, rules and requirement of form, decision in Mahesh Kumar v. Hari Shankar Patel (supra) can not be followed by us.
21. We are unable to accept view has been taken by Single Bench of this Court in New India Assurance Co. Ltd. v. Shailesh Yadav and Ors., 1998 ACJ 755. We can not subscribe to a similar view expressed in decision cited of the High Court of Himachal Pradesh in Suraj Prakash's case. We respectfully disagree with it in view of the decision of the Apex Court in Ashok Gangadhar Maratha (supra).
22. However, we find that driver possessed a valid driving licence and considering the definition of Light Motor Vehicle and transport vehicle, driver had the licence to drive the vehicle, which he was driving. In the facts of the instant case it is clear that driver could carry the persons in his vehicle as per licence possessed. Whether those persons had paid the fare is wholly irrelevant for determining the validity of the licence possessed by the driver. It is conceded that no different tests are prescribed for driving the vehicle. It is not the case of goods vehicle being plied as passengers vehicle or passenger vehicle being plied as goods vehicle. We find that there is no breach. In our opinion submission raised by the Counsel for the appellant can not be accepted.
23. Resultantly, appeal fails. Same is hereby dismissed. Parties to bear their own costs as incurred.