Gujarat High Court
Icici Lombard General Insurance Co Ltd vs Mumtazbibi Saukat Mohmmed Pathan & 8 on 10 April, 2014
Author: Harsha Devani
Bench: Harsha Devani
C/FA/33/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO.33 of 2014
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ICICI LOMBARD GENERAL INSURANCE CO LTD....Appellant(s)
Versus
MUMTAZBIBI SAUKAT MOHMMED PATHAN & 8....Defendant(s)
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Appearance:
MS VIDHI J BHATT, ADVOCATE for the Appellant(s) No.1
MR HIREN M MODI, ADVOCATE for the Defendant(s) No.1 - 6
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CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI
Date : 10/04/2014
ORAL ORDER
1. The appellant - insurance company in this appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") has called in question the judgment and award dated 31st July, 2013 passed by the Motor Accident Claims Tribunal at Vadodara (hereinafter referred to as "the Tribunal") in Motor Accident Claim Petition No.691/2005.
2. The facts stated briefly are that the respondents No.1 to 6 herein filed a claim petition before the Tribunal in relation to the death of one Shaukat Mohmmed Pathan caused in a vehicular accident that occurred on 30 th April, 2005. According to the claimants, on 30th April, 2005, deceased Shaukat Mohmmed Pathan was going on his bicycle carrying cattle feed for his goats. He was riding his bicycle on the correct side of the road, that too, on the kutcha road which was parallel to the tar road. The original opponent No.1, that Page 1 of 9 C/FA/33/2014 ORDER is, the respondent No.7 herein, who was driving the tractor in a rash and negligent manner dashed against the rear side of the bicycle of the deceased as a result whereof the deceased fell down on the road and came under the wheels of the tractor and died on the spot. The claimants, accordingly, claimed compensation of Rs.8,00,000/- with interest at the rate of 18% per annum from all the opponents herein jointly and severally. The Tribunal after appreciating the evidence on record partly allowed the claim petition by awarding compensation of Rs.3,56,000/- together with interest at the rate of 9% per annum by holding all the opponents including the appellant herein, jointly and severally liable to pay the same. Being aggrieved, the insurance company is in appeal.
3. Ms. Vidhi Bhatt, learned advocate for the appellant vehemently assailed the impugned award by submitting that at the time when the accident occurred, the tractor had a trolley attached to it. It was submitted that when a trolley is attached to a tractor, it assumes the character of a goods vehicle and hence, the driver is required to have a non- transport licence for the purpose of driving such vehicle. Reference was made to the decision of the Supreme Court in the case of Natwar Parikh & Co. Ltd. v. State of Karnataka and others, 2006 ACJ 1, for the proposition that even though a trailer is drawn by a motor vehicle which by itself being a motor vehicle, the tractor-trailer would constitute a goods carriage and accordingly, is a transport vehicle. It was submitted that it is an admitted position that the driver of the truck was holding a licence only for driving a tractor which was a non-transport licence and as such, he was not competent to drive a transport vehicle. It was pointed out that the driving Page 2 of 9 C/FA/33/2014 ORDER licence had been issued for a period of 20 years, and hence in view of the provisions of section 14 of the Act, the licence evidently was a non-transport licence and the moment a trailer was attached to the tractor, it became a goods vehicle and, therefore, a transport vehicle, and the driver holding a non- transport licence was not competent to drive the same. It was further submitted that the insurance policy covered only the tractor and no policy for the trailer had been obtained and hence, the insurance company is not liable since the trailer was not insured. It was submitted that in relation to a goods vehicle, a special permit is required to be obtained under section 66 of the Motor Vehicles Act which was not done in the present case and so also, there is a breach of the conditions of insurance policy and, therefore, the Tribunal was not justified in holding the insurance company liable to indemnify the owner of the tractor in respect of liability incurred by him.
4. On the other hand, Mr. Karna Dhomse, learned advocate for Mr. Hiren Modi, learned advocate appearing on caveat on behalf of respondents No.1 to 6 opposed the appeal by submitting that merely because a trailer is attached to a tractor, the same does not become a goods vehicle requiring the driver to hold a transport licence. In support of such submission, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Nagashetty v. United India Insurance Co. Ltd. and others, 2001 ACJ 1441, wherein the Supreme Court has held that merely because a trailer is added either to a tractor or to a motor vehicle does not make that tractor or motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid licence to drive a tractor Page 3 of 9 C/FA/33/2014 ORDER or a motor vehicle, he continues to have a valid licence to drive that tractor or motor vehicle even if the trailer is attached to it or his goods are carried in it. In other words, a person having valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle. On the aspect that the insurance policy did not cover the trailer, the learned advocate invited the attention of the court to the policy of insurance to submit that the same permitted a trailer to be attached to the tractor and, therefore, there is no breach of any of the conditions of the policy. It was submitted that in the present case, it is the tractor which has collided with the deceased and it is the tractor which is involved in the accident and not the trailer and as such, the insurance policy would cover the risk in question. It was, accordingly, urged that the appeal being devoid of merit, deserves to be dismissed.
5. In rejoinder, Ms. Vidhi Bhatt, learned advocate for the appellant submitted that the Supreme Court in the case of Nagashetty v. United India Insurance Co. Ltd. (supra) has failed to consider its previous decision in the case of Natwar Parikh v. State of Karnataka (supra) wherein the court has held that the moment a trailer is attached to a tractor, the same falls within the ambit of the expression 'goods carriage'. It was further submitted that in the decision of the Supreme Court in the case of Nagashetty v. United India Insurance Co. Ltd. (supra), the premium had also been paid in respect of the trailer and hence, the insurance policy covered the risk whereas in the facts of the present case, the risk is not covered. It was accordingly urged that the matter requires consideration and the appeal deserved to be admitted.
Page 4 of 9 C/FA/33/2014 ORDER6. This court has considered the submissions advanced by the learned advocates for the respective parties and has perused the record and proceedings of the case.
7. As noted hereinabove, the main ground for challenging the impugned judgment and award is that at the time when the accident took place, a trailer was attached to the tractor and the driver was holding a non-transport licence and hence, did not hold a valid licence for driving a transport vehicle. That once a trolley is attached to the tractor, it assumes the character of a goods vehicle and hence, when the driver who is driving the tractor and trailer does not hold a transport licence, he is not qualified to drive the same. Another ground for assailing the impugned award is that the insurance policy does not cover the trailer and that when the trailer is attached to the tractor, it becomes a goods vehicle and a permit is required under section 66 of the Motor Vehicles Act in respect thereof and in the absence of such permit, there is a breach of the conditions of policy and the insurance company is not liable to indemnify the insured.
8. It is an admitted position as is also evident from the record of the case that the driver of the offending vehicle was holding a non-transport licence which was issued for a period of 20 years from the date of such issue. It is also an admitted position that there was a trolley attached to the tractor at the time of the accident. The question that, therefore, arises for consideration is as to whether when a trailer is attached to a tractor, the same assumes the character of a goods vehicle and the driver who otherwise holds a valid licence to drive a Page 5 of 9 C/FA/33/2014 ORDER tractor would not be competent to drive the tractor-cum- trolley. This issue is no longer res integra inasmuch the same stands concluded by the decision of the Supreme Court in the case of Nagashetty v. United India Insurance Co. Ltd. (supra). In the said case the main contention raised before the Supreme Court was that the driver had a valid licence to drive a tractor, however, since a trailer had been attached to the tractor and was filled with stones, and the driver of the tractor had no licence to drive a goods vehicle, therefore, he did not have a valid driving licence. The Supreme Court observed that it was an admitted fact that the driver had a valid and effective licence to drive a tractor. The court expressed the view that merely because a trailer is added either to a tractor or to a motor vehicle, by itself, does not make that tractor or motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid driving licence to drive a tractor or a motor vehicle, he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words, the person having a valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle. The court held that a permanent licence holder having an effective/valid licence to drive a tractor can drive it even when the tractor is used for carrying goods.
9. As regards the contention that the Supreme Court in the above decision failed to consider its earlier decision in the case of Natwar Parikh v. State of Karnataka (supra), a conjoint reading of the two decisions shows that the decision of Page 6 of 9 C/FA/33/2014 ORDER the Supreme Court in the case of Nagashetty v. United India Insurance Co. Ltd. (supra) was rendered in the context of the Motor Vehicles Act, 1988 whereas the decision in the case of Natwar Parikh v. State of Karnataka (supra) was rendered in the context of Karnataka Motor Vehicles Taxation Act, 1957. The court observed that categorisation of a motor vehicle for taxation under the 1957 Act, would depend upon the use of the motor vehicle on the given occasion, whether it is adapted for that purpose or not. The court, accordingly, held that the categorisation of tractor-trailer by the taxation authority had been rightly made based on the use of the motor vehicle on the given occasion and accordingly, did not find any merit in the argument advanced on behalf of the appellant therein that the taxation authority cannot go beyond the certificate of registration issued by the authorities in the State of Maharashtra. The court specifically observed that taxation is not a subject matter of the Motor Vehicles Act, 1988 but taxation is governed by the Taxation Act which falls under Entry 57 List II of the Seventh Schedule to the Constitution. Taxation is governed by a separate Code which in the said case happened to be the Karnataka Motor Vehicles Taxation Act, 1957 and as held by the Supreme Court in the case of State of Karnataka v. K. Gopalakrishna Shenoy, 1987 (3) JT 67, the provisions of sections 3 and 4 of the Taxation Act have to be construed on their own force and not with reference to the provisions of registration or fitness certificate under the Motor Vehicles Act, 1988. Thus, it is apparent that the Supreme Court in the above decision has drawn a distinction between the construction which is required to be put for categorization of a vehicle under the Motor Vehicles Act in relation to a case under the Motor Vehicles Act and that under Page 7 of 9 C/FA/33/2014 ORDER a taxation statute. In any case, the scope of the proceedings in the above case was in relation to the categorization of vehicles in the context of a taxation statute which has no bearing when it comes to the categorization of a vehicle for the purposes of the Motor Vehicles Act. Under the circumstances, the submission that the Supreme Court in the subsequent decision failed to consider its earlier decision in the case of Natwar Parikh v. State of Karnataka, does not merit acceptance.
10. Insofar as the question of there being a breach of policy on the ground that there was a trailer attached to the tractor is concerned, as has rightly been observed by the Tribunal in the impugned award, the policy of insurance clearly permits use while drawing trailers as permitted by law. Under the circumstances, the said submission also does not merit acceptance. As regards the contention that in the case before the Supreme Court, the insurance policy covered the trailer whereas in the facts of the present case the trailer is not covered by the insurance policy, in the facts of the present case, the evidence on record reveals that the tractor had dashed against the rear side of the bicycle, hence in effect and substance, it was the tractor which was involved in the accident and not the trailer. Under the circumstances, merely because the trailer was not insured would not absolve the insurance company from its liability to indemnify the insured in respect of the accident involving the tractor.
11. In the light of the above discussion, the court does not find any merit in the appeal. The appeal, accordingly, fails and is dismissed.
Page 8 of 9 C/FA/33/2014 ORDER12. The Registry shall forthwith send back the record and proceedings of the case.
( Harsha Devani, J. ) hki Page 9 of 9