Punjab-Haryana High Court
Bajaj Allianz vs Kulbir Kaur And Others on 4 November, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
FAO No. 1245 of 2012 -1-
In the High Court of Punjab and Haryana at Chandigarh
FAO No. 1245 of 2012
Date of Decision: 4.11.2014
Bajaj Allianz General Insurance Company Limited
---Appellant
Versus
Kulbir Kaur and others
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
***
Present:- Mr. Vishal Aggarwal, Advocate
For the appellant
None for respondents No. 1 to 6
Mr. H.S.Dhindsa, Advocate
for respondents No. 7 and 8
***
1. Whether Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
REKHA MITTAL, J.
The present appeal has been directed against the award dated 9.4.2011 passed by the Motor Accident Claims Tribunal, Mansa (in short "the Tribunal") whereby compensation in favour of Kulbir Kaur and others, legal representatives of deceased Kuldip Singh (deceased) in regard to death of Kuldip Singh in a motor vehicular accident due to rash and negligent driving of Canter LPT 709 bearing No. PB-31C of 8557 driven by Gurmit FAO No. 1245 of 2012 -2- Singh on the fateful day on 11.1.2009 has been awarded.
The insurance company has filed the instant appeal to challenge the findings of the Tribunal on issue No. 4 on the ground that the insurance company is entitled to recover the amount of compensation after discharging liability qua the claimants.
The learned Tribunal, in view of defence raised in the written statement filed by the insurance company framed issue No. 4 in the following terms:-
"Whether respondent No. 2 was not holding a valid and effective driving licence at the time of accident?OPR"
The learned Tribunal held that the offending vehicle is LMV Tata 709 as its gross weight mentioned in the insurance cover is 7250 Kgs, the unladed weight as per registered cover (RC) is 3460 Kgs. and, therefore, the vehicle falls within the purview of light motor vehicle (in short "LMV") defined in Section 2(21) of the Motor Vehicles Act, 1988 (in short "the Act") and since the driver was authorized to drive LMV, the driver was holding a valid and effective driving licence.
Counsel for the appellant contends that the vehicle in question was insured with the company as a commercial vehicle and type of vehicle is described as Goods Carrying-Public Carrier. The driver of the vehicle appeared in the witness box and admitted during cross examination that the offending vehicle is a transport vehicle and used for transportation of goods. It is vehemently argued that as the driver was not holding a driving licence to drive a transport vehicle in view of provisions of the Act, he was not competent to drive the vehicle in question, therefore, the insured is guilty of FAO No. 1245 of 2012 -3- violating terms and conditions of the insurance policy which entitles the insurance company to recover the amount of compensation from the insured after discharging liability qua the claimants/third party. It is further argued that even if the vehicle falls within the definition of LMV, keeping in view its gross weight described in the insurance policy or unladen weight reflected in the registered cover but as the vehicle in question is a transport vehicle, it can not be driven by a driver who did not possess driving licence to drive a transport vehicle. For this purpose, he has relied upon latest judgment of the Hon'ble Supreme Court of India in Oriental Insurance Company Limited vs. Angad Kol and others, 2009(2)RCR(Civil)419.
Counsel for the contesting respondents, while refuting contentions of counsel for the appellant has submitted that there is no error in the findings recorded by the learned Tribunal that as the vehicle in question is LMV as defined in Section 2(21) of the Act and the driver was holding a driving licence to drive LMV, the driver had a valid licence to drive the vehicle in question, negating plea of the insurance company that the insured is guilty of violating the terms and conditions of insurance policy. For this purpose, he has referred to judgment of the Hon'ble Supreme Court of India in National Insurance Company Limited vs. Sri Annappa Irappa Nesaria and others 2008(1)RCR(Civil)848.
I have heard counsel for the parties and perused the records. Counsel for the parties fairly conceded that keeping in view the gross and unladen weight of vehicle Tata 709, it would fall within the definition of LMV defined in Section 2(21) of the Act. However, it becomes an admitted position of the case that the vehicle in question is a FAO No. 1245 of 2012 -4- goods carriage as described in the insurance policy and the insured got insurance policy (package policy) for a commercial vehicle. The driver of the offending vehicle in unequivocal terms has admitted that the vehicle in question is a transport vehicle and was being used for transporting goods.
The question for adjudication is, 'if a LMV is a transport vehicle, can a driver holding a driving licence to drive LMV without any endorsement of transport validity be held competent to drive said vehicle?
The question is no longer res integra in view of judgment of the Hon'ble Supreme Court of India in Angad Kol and others' case (supra) wherein the court has also referred to its earlier judgments in Ashok Gangadhar Maratha vs. Oriental Insurance Company Limited, 2001(1) RCR (Civil) 437, New India Assurance Company Limited vs. Prabhu Lal 2008(1) RCR(Civil)198 and the judgment relied upon by counsel for the respondents National Insurance Company Limited vs. Sri Annapa Irappa Nesaria and others' case (supra). In para 10 of the judgment, it has been held, quoted hereinbelow:-
"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 licence 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 licence to drive a 'transport vehicle' whereas in case of any other licence, it may remain FAO No. 1245 of 2012 -5- effective for a period of 20 years."
In para 17, there is reference to the judgment in Prabhu Lal's case (supra) and a relevant extract from para 17, quoting paras 30, 37 and 38 from the judgment in Prabhu Lal's case (supra) reads as follows:-
"17. The effect of the different terms of licences granted in terms of the provisions of Section 2(14) and 2(47) has also been noticed by this Court in New India Assurance Co. Ltd. v. Prabhu Lal [(2008) 1 SCC 696], stated :
"30. Now, it is the case of the Insurance Company that the vehicle of the complainant which met with an accident was a "transport vehicle". It was submitted that the insured vehicle was a "goods carriage" and was thus a "transport vehicle". The vehicle was driven by Ram Narain, who was authorised to drive light motor vehicle and not a transport vehicle. Since the driver had no licence to drive transport vehicle in absence of necessary endorsement in his licence to that effect, he could not have driven Tata 709 and when that vehicle met with an accident, the Insurance Company could not be made liable to pay compensation.
XXX XXX XXX
37. The argument of the Insurance Company is that at the time of accident, Ram Narain had no valid and effective licence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive light motor vehicle. The learned FAO No. 1245 of 2012 -6- counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having licence to drive light motor vehicle, he cannot drive a transport vehicle unless his driving licence specifically entitles him so to do (Section 3). Clauses (14), (21), (28) and (47) of Section 2 make it clear that if a vehicle is "light motor vehicle", but falls under the category of transport vehicle, the driving licence has to be duly endorsed under Section 3 of the Act. If it is not done, a person holding driving licence to ply light motor vehicle cannot ply transport vehicle. It is not in dispute that in the instant case, Ram Narain was having licence to drive light motor vehicle. The licence was not endorsed as required and hence, he could not have driven Tata 709 in absence of requisite endorsement and the Insurance Company could not be held liable.
38. We find considerable force in the submission of the learned counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under Clause (47) of Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that FAO No. 1245 of 2012 -7- there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To us, therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle in question."
In Prabhu Lal's case (supra), the vehicle in question was Tata 407 and in Angad Kol and others' case (supra), the vehicle involved was mini door auto. Keeping in view the decision in Angad Kol and others' case (supra), I find merit in the contention of counsel for the appellant that a transport vehicle may be a LMV but for the purpose of driving the same, a distinct licence is required to be obtained.
As in the case at hand, the driver did not obtain a licence to drive a transport vehicle in compliance with the provisions of Section 3 of the Act, I have no hesitation to hold that the driver of the offending vehicle was not holding a valid licence to drive the vehicle in question and, therefore, the insured/owner is guilty of violating the terms and conditions of the insurance policy. In this view of the matter, the insurance company is right in its submission that it has a right to recover the amount of compensation from the insured after discharging liability qua the claimants.
As an upshot of the discussion made hereinabove, the findings recorded by the learned Tribunal on Issue No.4 are set aside and the said issue is decided in favour of the insurance company and against the insured. The award passed by the Tribunal is modified to the extent that the insurance company shall be entitled to recover the amount of compensation FAO No. 1245 of 2012 -8- after discharging liability qua the claimants.
For the reasons aforesaid, the appeal is allowed leaving the parties to bear their own costs.
(Rekha Mittal) Judge 4.11.2014 paramjit