Delhi District Court
Ms. Janki Devi vs M/S. Navnirman Construction Co. Ltd on 24 May, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.188/14
Date of Institution: 05.09.2008
IN THE MATTER OF
1.Ms. Janki Devi
W/o Shri Megh Nath
2.Megh Nath
S/o Late Shri Bipin Bihari Prasad
Both R/o 18/2, Chanda Pur
Anchal Baniapur
District Saran, Bihar.
Present address:
8/55, Andrewsganj
PS Defence Colony, New Delhi. ...Petitioners
Versus
1. M/s. Navnirman Construction Co. Ltd.
BU8, SFS Flats, Outer Ring Road
Pitampura near IT Colony
New Delhi.
2. Reliance General Insurance Co. Ltd.
Through its Manager,
Ansal Tower, 38, Nehru Place
New Delhi110019.
Suit No. 188/14
Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 1 of 29
3. Shri Dalip @ Vinod
S/o Shri Bhagi Ram Jhakhar
R/o Village Kanser, PS Ravatsar
District Hanumangarh
Rajasthan. ...Respondents
Final Arguments heard : 13.05.2014 Award reserved for : 24.05.2014 Date of Award : 24.05.2014 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 163A of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioners that on 16.04.2007 at about 5 p.m, the deceased had gone to repair the Crane bearing Engine No.96481, Chassis No.21963 and when he got it repaired, the crane itself started and the digging Panja of the same hit the stomach of the deceased and also injured the other person. Due to the forceful impact the deceased sustained multiple grievous injuries and the deceased was removed to Kalyani Hospital, Gurgaon and from there he was taken to Safdarjung Hospital where he succumbed to the injuries on 17.04.2007. It is averred that the deceased died in an accident arising out of the use of crane. It is stated that in respect of the accident FIR No.154/2007 under Section 304A was registered at PS Sadar, Gurgaon. It is averred that Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 2 of 29 the respondent No.1 is the owner / insured and respondent No.2 is the insurer of the offending crane, hence all the respondents are severally or jointly liable to pay the compensation to the petitioners. It is averred that the deceased was a young boy of 20 years of age and was the only bread earner in the family and was working as a mechanic and earning Rs.3,300/ p.m. It is stated that he was unmarried. It is prayed that an amount of Rs.10,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
3. Written statement was filed on behalf of the respondent No.1 taking the preliminary objections that this court does not have the jurisdiction to adjudicate the matter inasmuch as the machine was not a motor vehicle, hence the vehicle was not covered under Section 2 (28) of the Act. It is averred that it is an illegal ploy on the part of the plaintiff to mislead the court. It is averred that the suit is devoid of any cause of action and there is no privity of contract between the petitioner and respondent No.1. It is denied that the petitioner had been injured due to the alleged accident by the said machine. The averments made in the claim petition were denied. It is averred that the respondent No.3 was not a driver of the machine since he was just an operator of the said machine and there was no need to have any license to operate the said machine because the said machine was not a motor vehicle and is not covered under the Act and no license was issued by the competent authority i.e. License Authority, Transport Department. It is averred that the deceased was only a passerby and not a mechanic and he was not repairing any Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 3 of 29 machine whatsoever. It is averred that the deceased had not got any injury from the said machine. It is averred that the machine was not involved in the accident and it was a false allegation on the side of the petitioners who want to get the compensation falsely from the respondents.
4. Separate written statement was filed on behalf of the respondent No.2 taking the preliminary objections that the petition is not maintainable because as per the own averments of the claimants the case was a case of moving of bunker of Folkland, mechanical defect in the vehicle and the same was not covered under the Motor Vehicle Act and under the policy terms and conditions. It is averred that the petition is bad for misjoinder and nonjoinder of necessary and proper parties and the respondent No.2 is not a necessary party. It is averred that no cause of action has arisen against the respondent No.2 and the petition is not maintainable under Sections 163A and 163 A (I) since the alleged income of the deceased is more than Rs.40,000/ per annum since the compensation claimed is Rs.10 Lakh. It is averred that the deceased was neither an employee of the respondent No.1 nor was earning Rs.3,300/ p.m. It is denied that the deceased was engaged in any vocation at all. It is averred that Section 163 A is only applicable to the third party and no other vehicle was involved in the alleged accident. It is averred that the deceased was not a third party. It is averred that even if it is held that the deceased Shri Jai Prakash Prasad sustained injures then he had sustained injuries on account of his own negligence in some other mishap i.e. moving of bunker of Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 4 of 29 Fokland and not on account of any vehicular accident.
5. It is further averred that the driver of the vehicle was not holding a valid and effective driving license to drive the said vehicle at the time of the alleged accident and the owner of the vehicle had entrusted the alleged vehicle to the driver in violation of the provisions of the Act voluntarily, willingly and illegally and the said fact was in the knowledge of the owner/ insured and as such there was a violation of Driver Clause of the terms and conditions of Insurance policy and the respondent No.2 was not liable to indemnify the loss to owner or to pay compensation to the claimants. It is averred that the owner had not intimated about the happening of the alleged accident and as such the respondent No.2 had no liability to indemnify the insured or to pay compensation to the claimants. It is averred that the petitioners have not come with clean hands before the court and they are not the legal heirs of the deceased. It is averred that the amount of compensation is clearly unsubstantiated, exorbitant, exaggerated and arbitrary. It is averred that in case the owner of the crane was not holding a valid and effective route permit, fitness certificate and permission by local authorities to use the said vehicle at the time of the alleged accident, the respondent No.2 would not be liable to pay compensation to the petitioners. The averments made in the claim petition were denied.
Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 5 of 29
6. An application under Order 6 rule 17 CPC was filed on behalf of the petitioners for correction of date of accident in the petition which was allowed vide order dated 3.6.2009 of my learned predecessor. Vide order dated 15.1.2010 of my learned predecessor the respondents No.1 and 3 were directed to be served by way of publication in local newspaper and they were served by way of publication in 'Veer Arjun'. Vide order dated 15.3.2010 of my learned predecessor the respondents No.1 and 3 were proceeded exparte and the matter was listed for evidence. PW1 was examined and PE was closed on 27.9.2010. Thereafter an application was filed on behalf of the respondent No.2 under Order 12 CPC and on 5.10.2010 it was submitted by the learned counsel for the respondent No.1 that there is no driving license of the alleged offending vehicle which is a crane and is not a vehicle and as such it is only a machine. An application under Order IX rule 7 CPC was filed on behalf of the respondent No.1 for setting aside the exparte order dated 15.3.2010 which was allowed vide order dated 25.10.2010 of my learned predecessor. On 19.11.2010 it was submitted by the learned counsel for the respondent No.1 that the petition was not maintainable before the Tribunal and the same was again submitted on 4.1.2011 and 9.2.2011. Vide order dated 11.9.2012 of my learned predecessor it was held that the controversy between the parties could not be decided without evidence being led. An application under Order 18 rule 17 CPC was filed on behalf of the petitioners for producing the petitioner/ PW1 for crossexamination which was allowed vide order dated 10.10.2013 of my learned predecessor.
Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 6 of 29
7. On behalf of the petitioners the petitioner No.2 Megh Nath appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/X reiterating the averments made in the claim petition. He stated that at the time of the accident his son was residing at Delhi and working in Delhi and residing with his grandfather in law and PW1 was doing the work of mason in Delhi. He stated that his wife had been living at his native village. He has exhibited his I card as Ex.PW1/1, ration card as Ex.PW1/2 and attested copies of case FIR No.154/07 as Ex.PW1/3.
8. On behalf of the respondent No.2 Shri Navneet Goel, Dy. Manager (Legal) appeared as R2W1 and led his evidence by way of affidavit which is Ex.R2W1/A. He deposed that the respondent No.2 sent notice under order 12 rule 8 with Section 151 CPC and Section 134 of the Act to the respondent No.1 and Mr. Dalip @ Vinod through their counsel to produce the valid and effective driving license of the driver and the original insurance policy. He stated that the respondent No.2 also filed an application under order 12 read with Section 151 CPC to issue directions to the owner and driver of the offending vehicle to supply copy of valid and effective driving license but both failed to file the same in court and to supply the respondent No.2 and stated that license was not required to drive the vehicle in question. Notice under Order 12 rule 8 CPC, postal receipts, UPC receipts and attested copy of policy are Ex.R2W1/1 to Ex.R2W1/5. He deposed that the driver of the vehicle was not holding valid and effective driving license to drive the said vehicle at the time of the alleged Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 7 of 29 accident, therefore there was violation of the Act and 'Driver Clause' of Terms and conditions of the insurance policy. He stated that since the driver of the alleged offending vehicle was not holding any DL at the time of the accident, the insurance company was not liable to indemnify the owner for any liability or to pay compensation to the claimants. He was not crossexamined on behalf of the petitioners.
9. I have heard the Learned Counsel for the petitioners as well as the Learned Counsels for the respondents No.1 and 2 and perused the record. Written submissions were also filed on behalf of the respondent No.1 which I have perused. The petitioners were also examined on 15.4.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
10. At the outset an objection was taken on behalf of the respondent No.1 that this court does not have the jurisdiction to adjudicate the matter inasmuch as the machine was not a motor vehicle, hence the vehicle was not covered under Section 2 (28) of the Act. It was stated in the written statement that the respondent No.3 was not a driver of the machine since he was just an operator of the said machine and there was no need to have any license to operate the said machine because the said machine was not a motor vehicle and is not covered under the Act and no license was issued by the competent authority i.e. License Authority, Transport Department and the machine was not involved Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 8 of 29 in the accident. Likewise the respondent No.2 had also taken an objection in its written statement that the petition is not maintainable because as per the own averments of the claimants the case was a case of moving of bunker of Folkland, mechanical defect in the vehicle and the same was not covered under the Motor Vehicle Act and under the policy terms and conditions. It was stated that even if it is held that the deceased Shri Jai Prakash Prasad sustained injures then he had sustained injuries on account of his own negligence in some other mishap i.e. moving of bunker of Fokland and not on account of any vehicular accident.
11. On the other hand it is the case of the petitioners that on 16.04.2007 at about 5 p.m, the deceased had gone to repair the Crane bearing Engine No.96481, Chassis No.21963 and when he got it repaired, the crane itself started and the digging Panja of the same hit the stomach of the deceased and also injured the other person. Due to the forceful impact the deceased sustained multiple grievous injuries and the deceased was removed to Kalyani Hospital, Gurgaon and from there he was taken to Safdarjung Hospital where he succumbed to the injuries on 17.04.2007. It was stated that the deceased died in an accident arising out of the use of crane and in respect of the accident FIR No.154/2007 under Section 304A was registered at PS Sadar, Gurgaon. PW1 in paras 2 and 7 of his affidavit Ex.PW1/X had stated that on 16.4.2007 at about 5 p.m. his son met with a road accident by vehicle bearing No./Engine No.96481 and chassis No.21963 (crane) arising out of the use of Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 9 of 29 the said vehicle and his son died at Safdarjung Hospital where his post mortem was conducted.
12. The petitioners have placed on record the certified copy of the criminal record consisting of the copy of FIR No.154/2007 PS Sadar, Gurgaon under Section 304A, copy of DD, copy of complaint, copy of death report, copy of invoice in respect of the alleged offending vehicle, copy of insurance policy, copy of post mortem report, copy of charge framed in the matter by the learned CJM, Gurgaon vide order dated 7.1.2010, certified copy of the charge sheet. As per the FIR No.154/07 under Section 304A IPC, PS Sadar, Gurgaon the same was registered on the basis of the complaint of Jaipal Singh who had stated that he was passing from NH 8 where a little before Rajeev Chowk work of digging of sewer line was going on and the deceased Jai Prakash and Rahul owner of Rahis Crane Service met with an accident with digging machine Poke Land and both were admitted to Kalyani Hospital. The accident was of 16.4.2007 and the said complaint was made on 19.4.2007 on the basis of which the FIR was registered and the complainant had also stated that on 18.4.2007 he came to know that Jai Prakash had expired and then he had lodged the complaint. Thus the petitioners had stated that the digging panja of the crane had hit the deceased while the complainant has referred to the same as digging machine Poke Land and the respondents have referred to it as Fokland. In the charge which was served on the respondent No.3 for the offence under Section 304A IPC vide order dated 7.1.2010 the machine has Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 10 of 29 been referred to as Poke Land machine (digging machine).
13. During cross examination by learned counsel for the respondent No.2 PW1 stated that he was not present at the time of the incident. He stated that he was informed by the police about the accident of his son. He stated that police had recorded his statement in Delhi. He denied the suggestion that his son had not expired due to road accident. During cross examination on behalf of respondent No.1 PW1 stated that the claim petition had been filed by him. He stated that he was not an eye witness of the accident. He stated that he was not aware whether Rahul was with his son at the time of the accident. He did not know what was the condition of the crane at the time of the accident. Thus PW1 was not an eye witness to the accident and he was informed by the police about the accident of his son. He had also stated that he was not aware whether Rahul was with his son at the time of the accident and he did not know what was the condition of the crane at the time of the accident.
14. A copy of the statement of Rahul who had also allegedly met with the accident along with the deceased is on record who had stated that he has several big and small cranes which he sends on rent. He stated that in March 2007 the work of one company was going on at NH 8, Gurgaon for digging of sewer line and contractors Bhola and Chhote Lal had taken his one crane on rent. He stated that on 16.4.2007 his one crane slipped and fell into the ditch and to take out the same one Pokeland belonging to Shri Ravi Jain was called. Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 11 of 29 He stated that his other crane was taking out the crane which had fallen in the ditch. The Pokeland of Shri Ravi Jain which was being driven by Dalip i.e. the respondent No.3 had pressed the crane of Rahul and worked rashly and negligently due to which the Pokeland turned all of a sudden and its panja hit Jai Prakash who was working there on the stomach and also hit Rahul on his foot and both of them were taken to Kalyani Hospital where he was discharged after first aid and Jai Prakash was sent to Safdarjung Hospital where he died on 19.4.2007. He stated that the accident had taken place due to the driver Dalip of the Pokeland of Shri Ravi Jain using the same rashly and negligently.
15. It is thus seen that the petitioners had stated about the accident taking place with a crane whereas both the complainant Jai Pal and Rahul who was also allegedly injured in the accident had stated about the accident taking place with a Pokeland digging machine. In fact the crane belonged to Rahul and it was the Pokeland belonging to the respondent No.1 which is stated to be the alleged offending vehicle. It may be mentioned that though different names have been used as per the copy of the invoice in respect of the alleged offending vehicle it was a Tata Hitachi Model EX200LC Hydraulic Excavator Backhoe with GP Bucket and kit. Even the insurance policy shows that the insurance was taken in respect of Tata Hitachi EX200LC Excavator. Moreover the term is poclain and not Pokeland or Fokland. Whatever be the nomenclature it is to seen on the basis of various factors whether it is indeed a motor vehicle or not.
Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 12 of 29
16. The question that has been raised by the respondents No.1 and 2 is that this court does not have the jurisdiction to adjudicate the matter inasmuch as the machine was not a motor vehicle and not covered under Section 2 (28) of the Act (for the sake of convenience the term 'offending vehicle' is being used hereinafter which has nothing to do with the actual nature of the vehicle/equipment allegedly involved in the accident and which question is the subject matter herein). An objection to this effect was raised at the initial stage itself by the respondent No.1. Motor Accident Claims Tribunals have been set up under Section 165 of the Act. It provides:
"165. Claims Tribunals. (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Explanation. For the removal of doubts, it is hereby declared that the expression "claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles" includes claims for compensation under Section 140 and Section 163A."
Section 166 of the Act refers to an application for compensation arising out of an accident of the nature specified in subsection (1) of Section 165 of the Act. Similarly Section 140 of the Act provides:
"140. Liability to pay compensation in certain cases on the Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 13 of 29 principle of no fault. (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section."
Section 163A also likewise provides:
"163A. Special provisions as to payment of compensation on structured formula basis. (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be."
Thus Section 165 under which the Claims Tribunals have been constituted refers to the constitution of Claims Tribunals for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Sections 140 and 163A of the Act also specifically refer to use of motor vehicles and the present petition has been filed under Section 163A of the Act. In fact the Claims Tribunals have been set up by virtue of a provision contained in the Motor Vehicles Act which is an Act to 'consolidate and amend the law relating to motor vehicles.' Thus 'motor vehicles' are intrinsic to any claim to be adjudicated by the Motor Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 14 of 29 Accident Claims Tribunal.
17. The question that then arises is whether the offending vehicle allegedly involved in the accident is a motor vehicle within the meaning of the Act so as to make the present proceedings maintainable or not. A motor vehicle has been defined under Section 2 (28) of the Act as under:
"(28) "motor vehicle" or "vehicle" 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 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 enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twentyfive cubic centimeters."
Thus for a vehicle to be called a motor vehicle:
i) it must be mechanically propelled;
ii) it must be adapted for use upon roads
but it does not include:
i) a vehicle running upon fixed rails;
ii) a vehicle of a special type adapted for use only in a
factory or in any other enclosed premises;
iii) a vehicle having less than four wheels fitted with engine
capacity of not exceeding twentyfive cubic centimeters. It is thus clear that a vehicle to be a motor vehicle has to be mechanically Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 15 of 29 propelled and to be adapted for use upon roads and it should not fall in any of the exceptions.
18. It would be argued on behalf of the petitioners that the offending vehicle comes under the category of motor vehicle. Chapter IV of the MV Act, 1988 deals with Registration of Motor Vehicles. The said Chapter provides for necessity for registration and the place where and how the vehicle is to be registered. A notification was issued by the Ministry of Transport vide notification S.O. 1248(E ) dated 5.11.2004 by which 'construction equipment vehicle' was included as a nontransport vehicle for purposes of Section 41(4) of the Act at entry (xiv) as 'construction equipment vehicles as defined in Rule 2(ca)'. A 'transport vehicle' has been defined by Section 2(47) as:
"(47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle."
A 'nontransport vehicle' has been defined by Rule 2(h) of the Central Motor Vehicles Rules, 1989 (hereinafter referred to as the Rules) as a motor vehicle which is not a transport vehicle. Thus for a vehicle to be a 'nontransport vehicle' it must be a motor vehicle. The notification itself mentions that the specification of the type of motor vehicles is for the purpose of Section 41(4) of the Act. 'Construction Equipment Vehicle' has been included as a non Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 16 of 29 transport vehicle in the notification meaning thereby that it is construed as a motor vehicle. In this light it has to be seen whether the alleged offending vehicle is a 'construction equipment vehicle' to fall within the ambit of the notification.
19. Section 110 empowers the Central Government to make Rules regulating the construction, equipment and maintenance of motor vehicles and trailers with respect to subject matters provided therein while Section 111 empowers the State Government to make Rules regulating the construction, equipment and maintenance of motor vehicles and trailers in respect of the matters not covered by Subsection (1) of Section 110. The 'construction equipment vehicle' has been defined in Rule 2(ca) of the Central Rules, 1989, thus : "2(ca) "construction equipment vehicle" means rubber tyred (including pneumatic tyred), rubber padded or steel drum wheel mounted, selfpropelled, excavator, loader, backhoe, compactor roller, dumper, motor grader, mobile crane, dozer, fork lift truck, selfloading concrete mixer or any other construction equipment vehicle or combination thereof designed for offhighway operations in mining, industrial undertaking, irrigation and general construction but modified and manufactured with "on or off" or "on and off" highway capabilities.
Explanation. A construction equipment vehicle shall be a non transport vehicle the driving on the road of which is incidental to the main offhighway function and for a short duration at a speed not exceeding 50 kms per hour, but such vehicle does not Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 17 of 29 include other purely offhighway construction equipment vehicle designed and adopted for use in any enclosed premises, factory or mine other than road network, not equipped to travel on public roads on their own power."
Thus this definition provides that excavator and backhoe shall be included in construction equipment vehicle which shall be a nontransport vehicle the driving on the road of which is incidental to the main offhighway function and for a short duration at a speed not exceeding 50 kms per hour. However the same must be rubber tyred (including pneumatic tyred), rubber padded or steel drum wheel mounted. Further such vehicle does not include other purely offhighway construction equipment vehicle designed and adopted for use in any enclosed premises, factory or mine other than road network, not equipped to travel on public roads on their own power.
20. It would be the contention of the learned counsels for the respondents No.1 and 2 that the alleged offending vehicle is covered neither in the definition of construction equipment vehicle nor by the notification as it is meant for use only in closed premises and it was contended that the same is not adapted for use on a road but it is adapted for use in an enclosed place. It was also argued that the alleged offending vehicle is not capable of use for transporting goods or people on a public road and therefore, it is not a 'motor vehicle'. However there is no merit in the contention that as the alleged offending vehicle is not capable of use for transporting goods or people on a Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 18 of 29 public road, therefore it is not a motor vehicle as other types of vehicles have also been included in the definition of 'motor vehicle' and the definition of 'construction equipment vehicle' in Rule 2(ca) makes this amply clear.
21. A combined reading of the definition of 'motor vehicle' in Section 2(28) of the Act, of 'construction equipment vehicle' in Rule 2(ca) of the Rules and of the notification makes it clear that an excavator and backhoe would be non transport vehicles unless they fall in any of the exceptions. The definition of 'motor vehicle' excludes a vehicle of a special type adapted for use only in a factory or in any other enclosed premises and 'construction equipment vehicle' excludes purely offhighway construction equipment vehicle designed and adopted for use in any enclosed premises, factory or mine other than road network, not equipped to travel on public roads on their own power. Further a vehicle to be a 'motor vehicle' should be any mechanically propelled vehicle adapted for use upon roads and as regards "construction equipment vehicle" it means rubber tyred (including pneumatic tyred), rubber padded or steel drum wheel mounted, selfpropelled, excavator or backhoe etc. It was argued on behalf of the respondent No.1 that the alleged offending vehicle is not fitted with rubber tyres and it is not adapted for use on the road. As per the information available on the subject through internet the alleged offending vehicle runs on chain plates which are neither rubber tyred, nor pneumatic tyred nor rubber padded nor steel drum wheel mounted while "Construction equipment vehicle" means rubber tyred (including pneumatic tyred), rubber Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 19 of 29 padded or steel drum wheel mounted, selfpropelled.
22. Reference may be made to the case law on the subject. In Western Coalfields Ltd. vs State Of Maharashtra And Anr. 2004 (3) BomCR 237, 2004 (1) MhLJ 883 the question that arose before the court was whether the excavators belonging to the petitioner were required to be registered under the MV Act, 1988 and were liable to pay tax under the Bombay Motor Vehicles Tax Act, 1988. Various judgments were referred to and it was observed:
"10. The question that falls for decision before us is whether the heavy earth moving machinery used by the petitioner in its colliery for mining activities is 'motor vehicle' within the meaning of Section 2(28) of the MV Act, read with the 'Construction Equipment Vehicle' defined in Rule 2(ca) of the Central Rules of 1989.
11. In Central Coal Fields Ltd. v. State of Orissa and Ors., 1992 Supp (3) SCC 133, the Apex Court was seized with the question whether Dumpers and Rockers are motor vehicles within the meaning of Motor Vehicles Act and were liable to pay road tax. The Apex Court in paragraph 9 observed thus : "9. It would be appropriate now to mention that some documentary material was sent to us by the appellants by means of an affidavit after we had reserved judgment. That material is suggestive of the fact that Dumpers in some States are granted permission to run on public roads at a speed not exceeding 16 kms per hour and on bridges and culverts at a speed not exceeding 8 kms per hour. From this it is suggested that they have a minimum weight and safe laden weight fixed on some principles. Pictures of various types of Dumpers have also been sent to us which indicate prominently one factor that these Dumpers run on tyres, in marked contrast Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 20 of 29 to chain plates like caterpillars or military tanks. By the use of rubber tyres it is evident that they have been adapted for use on roads, which means they are suitable for being used on public roads. The mere fact that they are required at places to run at a particular speed is not to detract from the position otherwise clear that they are adapted for use on roads. The very nature of these vehicles make it clear that they are not manufactured or adapted for use only in factories or enclosed premises. The mere fact that the Dumpers or Rockers as suggested are heavy and cannot move on the roads without damaging them is not to say that they are not suitable for use on roads. The word 'adapted' in the provision was read as 'suitable' in Bolani Ores case by interpretation on the strength of the language in Entry 57, List II of the Constitution. Thus on that basis it was idle to contend on behalf of the appellants that Dumpers and Rockers were neither adaptable nor suitable for use on public roads. Thus on the fact situation, we have no hesitation in holding that the High Court was right in concluding that Dumpers and Rockers are vehicles adapted or suitable for use on roads and being motor vehicles per se as held in Bolani Ores case were liable to taxation on the footing of their use or kept for use on public roads; the network of which, the State spreads, maintains it and keeps available for use of motor vehicles and hence is entitled to a regulatory and compensatory tax (Exemptions claimable apart). The appellants, therefore, in our view, have no case for grant of any relief in these appeals."
12. The Apex Court, thus, held that merely because the Dumpers were used solely on the premises of the owner, or that they were in closed premises, or permission of the authorities was needed to move them from one place to another, or that they were not intended to be used or were incapable of being used for general purposes, or that they have an unladen and laden capacity depending on their weight and size, were of no consequence and dumpers are liable to be treated as vehicles.
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13. In Chief General Manager, Jagannath Area and Ors. v. State of Orissa and Anr., , the question for consideration was whether the dumpers used in the mining areas were taxable as motor vehicles under the provisions of Orissa Motor Vehicles Taxation Act, 1975. The Apex Court applied the principles laid down in Central Coalfields Ltd....
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9. On these facts it is difficult for us to hold that the vehicles are not adapted or suitable or capable of being used on public roads, even though for most of the time they might actually be used within the mining areas on the roads prepared by the mining owners. Following the two earlier judgments of this Court in Central Coal Fields Ltd. and Union of India v. Chowgule & Co. we hold that the dumpers in question are motor vehicles and are taxable within the ambit of the Taxation Act."
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16......The question before us is : whether the heavy earth moving machinery of Western Coalfields Ltd. is motor vehicle under Section 2(28) of MV Act, 1988. The answer, in our thoughtful consideration, is in the affirmative. In view of the amendment of Rules of 1989 by insertion of Rule 126B, by Central Motor Vehicles (Amendment) Rules, 1993 and insertion of Rule 2(ca), defining 'construction equipment vehicle', no doubt is left about the legal position that heavy earth mover machinery is a motor vehicle. The construction equipment vehicle means rubber tyred (including pneumatic tyred), rubber padded or steel drum wheel mounted, selfpropelled, excavator, loader, backhoe, compactor roller, dumper, motor grader, mobile crane, dozer, fork lift truck, designed for offhighway operations and by way of explanation it is clarified that such vehicle is nontransport vehicle driving on the road of which is incidental to the main offhighway function. We have, therefore, no hesitation in holding that heavy Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 22 of 29 earth moving machineries, owned by the petitioner Western Coalfields Ltd. are required to be registered under the MV Act, 1988 and they are liable to pay tax under the Bombay Motor Vehicles Tax Act, 1988."
In this case it was held that the excavators belonging to the petitioner were required to be registered under the MV Act, 1988. However it is significant that in the judgment in Central Coal Fields Ltd. v. State of Orissa and Ors., 1992 Supp (3) SCC 133 which was relied upon the Hon'ble Supreme Court while dealing with the question whether Dumpers and Rockers are motor vehicles within the meaning of Motor Vehicles Act and were liable to pay road tax had specifically observed that pictures of various types of Dumpers had also been sent which indicated prominently one factor that the Dumpers run on tyres, in marked contrast to chain plates like caterpillars or military tanks and 'by the use of rubber tyres it is evident that they have been adapted for use on roads, which means they are suitable for being used on public roads.' Thus it was held that the fact that they use rubber tyres made it evident that they had been adapted for use on roads.
23. The learned counsel for the respondent No.1 has relied upon the judgment of the Hon'ble High Court of Bombay in V.M. Salgaocar & Bros. Ltd. and another v. State of Goa and others 2009 ACT 2452 where the contention raised was that poclains, ripper dozers and drill masters used in mining sites for excavation, transportation and other allied works are not motor Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 23 of 29 vehicles within the meaning of Section 2(28). Reference was made to the judgment in Western Coalfields (supra) which was distinguished and it was held that the 'machinery under scrutiny before us is quite different. It is not adapted or designed or suited for use on the roads and, therefore, none of the machines or equipment are covered by the definition under the Motor Vehicles Act.' It was observed:
"9. The ratio of the decisions of the Apex Court on this aspect is that machineries or vehicles which are adapted for use upon roads are liable for registration and other consequences under the Motor Vehicles Act. However, special vehicles which are adapted for use only in a factory or in an enclosed premises are not so liable and that the test to determine whether vehicle is adapted for use upon a road or not will include the consideration whether the vehicle is fitted with rubber tyres pneumatic or otherwise, which are the definite indications of its use on roads, notwithstanding the speed limit that may be imposed on such vehicles.... Though the machinery is fitted with chain plate tracks or caterpillar tracks for limited mobility, admittedly, none of the machineries is fitted with rubber tyres pneumatic or otherwise which are obviously necessary for making the vehicle suitable for uses on the road. These factors clearly lead to the inference that the machinery is not adapted for use on a road, but it is adapted for use in an enclosed place such as a mining lease."
Thus it was held that the test to determine whether vehicle is adapted for use upon a road or not will include the consideration whether the vehicle is fitted with rubber tyres pneumatic or otherwise, which are the definite indication of its use on roads, notwithstanding the speed limit that may be imposed on such Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 24 of 29 vehicles. Even the definition of 'construction equipment vehicle' provides that the vehicle must be rubber tyred (including pneumatic tyred), rubber padded or steel drum wheel mounted to be covered under the definition. In the present case it was specifically argued on behalf of the respondent No.1 that the alleged machine/ crane is not fitted with rubber tyres and the literature available on the subject through internet also shows that the alleged offending vehicle runs on chain plates like caterpillars or military tanks. Thus the alleged offending vehicle would not be adapted for use on the road. The same is sufficient to take the alleged offending vehicle out of the purview of the definition of 'motor vehicle' contained in Section 2(28) of the Act and 'construction equipment vehicle' contained in Rule 2(ca) of the Rules and also out of the purview of the notification dated 5.11.2004.
24. It was also stated that not being a motor vehicle the same was not registered. A perusal of the record shows that everywhere the chassis number and engine number have been mentioned and there is no registration number and it is the contention that as the alleged offending vehicle was not a motor vehicle it was not required to be registered. It was argued that as such even DL had not been issued by the competent authority for operating the alleged offending vehicle and in fact the respondent No.2 has also not been able to show that there was any requirement of obtaining a DL. It may also be mentioned that FIR has been registered in the instant case under Section 304A only and even the charge has been served upon the respondent No.3 for Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 25 of 29 the offence only under Section 304 A IPC and not under Section 279 IPC.
25. It would then be argued on behalf of the petitioners that in respect of the alleged offending vehicle an insurance policy had been issued for a motor vehicle. A copy of the insurance policy has been placed on record and the same is in respect of a motor vehicle. In the written statement the respondent No.2 had taken the preliminary objection that the petition is not maintainable because as per the own averments of the claimants the case was a case of moving of bunker of Folkland, mechanical defect in the vehicle and the same was not covered under the Motor Vehicle Act and under the policy terms and conditions whereas at the stage of evidence the plea was taken that the respondent No.3 did not possess a valid DL to drive the alleged offending vehicle. On behalf of the respondent No.2 R2W1 proved the notices sent under order 12 rule 8 with Section 151 CPC and Section 134 of the Act to the respondent No.1 and Mr. Dalip @ Vinod through their counsel to produce the valid and effective driving license of the driver and the original insurance policy. He deposed that the driver of the vehicle was not holding valid and effective driving license to drive the said vehicle at the time of the alleged accident, therefore there was violation of the Act and 'Driver Clause' of Terms and conditions of the insurance policy and as such the insurance company was not liable to indemnify the owner for any liability or to pay compensation to the claimants. He was not crossexamined on behalf of the petitioners. Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 26 of 29
26. During cross examination by the learned counsel for the respondent No.1 R2W1 stated that generally physical inspection of the vehicle is not done before issuing policy of insurance however in case the previous policy had expired and thereafter insurance was sought they inspect the vehicles. He did not know whether at the time of issuance of insurance policy, the registration certificate of the offending vehicle was taken or not. He could neither admit nor deny that offending vehicle was not required to be registered. He stated that photographs of all the vehicles which are insured by them are not taken. He denied the suggestion that all the vehicles which are insured by them are physically inspected by them and their photographs are taken. He could not say whether the documents of the vehicle / crane involved in the present case were seen before issuing the insurance policy or not. He could not say as to whether the agent of respondent No.2 who had insured the crane was specifically told that it was a crane which was to be insured and it did not require any DL for driving and thereafter the said agent issued the policy. He admitted that after receipt of notice from the insurance company, letter Ex.R2W1/R1 was sent to the insurance company by the respondent No.1. He denied the suggestion that DL is not required for driving the vehicle / crane insured vide policy Ex.R2W1/5. Thus R2W1 stated that generally physical inspection of the vehicle is not done before issuing policy of insurance. However if that had been done perhaps the alleged offending vehicle would not have been insured as a motor vehicle.
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27. R2W1 also did not know whether at the time of issuance of insurance policy, the registration certificate of the offending vehicle was taken or not, he could neither admit nor deny that offending vehicle was not required to be registered, he stated that photographs of all the vehicles which are insured by them are not taken, he could not even say whether the documents of the vehicle / crane involved in the present case were seen before issuing the insurance policy or not and he also could not say as to whether the agent of respondent No.2 who had insured the crane was specifically told that it was a crane which was to be insured and it did not require any DL for driving and thereafter the said agent issued the policy. There is also nothing to show that the respondent No.2 had made any verification before issuing the policy in question or had checked any documents pertaining to the alleged offending vehicle and it is clear that the policy was issued in a routine manner without carrying out any verifications which it was required to do and if the verification had been done, a lot of issues raised could have been avoided.
28. It is thus seen that the alleged offending vehicle was not adapted for use on roads and it was neither rubber tyred (including pneumatic tyred), nor rubber padded nor steel drum wheel mounted and as such it would not be covered under the definition of 'motor vehicle' or 'construction equipment vehicle'. It is thus held that the alleged offending vehicle/ equipment with which the alleged accident had taken place was not a motor vehicle within the meaning of the Act, and once a motor vehicle was not involved the claim Suit No. 188/14 Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 28 of 29 petition would not be maintainable before the Tribunal which has been set up under Section 165 of the Act to adjudicate upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Accordingly the claim petition is dismissed. An attested copy of the award be given to the parties (free of cost). File be consigned to record room.
Announced in open court
on this 24th day of May, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 188/14
Janki Devi & Ors. Vs. M/s Navnirman Construction Co. Ltd. & Ors. Page No. 29 of 29