Himachal Pradesh High Court
The New India Assurance Company vs Bihari Lal And Others on 28 August, 2015
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 135 of 2009
Decided on: 28.08.2015
.
The New India Assurance Company ...Appellant.
Versus
Bihari Lal and others ...Respondents.
of
Coram
rt
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Whether approved for reporting? Yes.
For the appellant: Mr. B.M. Chauhan, Advocate.
For the respondents: Nemo for respondent No. 1.
Mr. Parmod Singh Thakur, Advocate, for
respondents No. 2 and 3.
Mansoor Ahmad Mir, Chief Justice (Oral)
Subject matter of this appeal is the judgment and award, dated 29.10.2008, made by the Motor Accident Claims Tribunal, Kinnaur Civil Division at Rampur Bushahr, H.P. (for short "the Tribunal") in M.A.C. Petition No. 20 of 2006, titled as Shri Bihari Lal versus Shri Dikshit Thakur and others, whereby compensation to the tune of ` 1,02,668/ with interest @ 9% per ::: Downloaded on - 15/04/2017 18:49:34 :::HCHP : 2 : annum from the date of filing of the claim petition till its realization came to be awarded in favour of the claimantinjured, .
against the respondents and the insurer was directed to satisfy the award (for short "the impugned award").
2. The claimantinjured, the ownerinsured and the of driver of the offending vehicle have not questioned the impugned award on any count, thus, has attained finality so far it relates to them.
rt
3. Appellantinsurer has questioned the impugned award on the ground that the driver of the offending vehicle was not having a valid and effective driving licence, thus, the owner insured has committed a willful breach and the Tribunal has fallen in an error in saddling it with liability.
4. I have gone through the record, perused the impugned award and am of the considered view that this ground is not tenable and the Tribunal has rightly saddled the appellantinsurer with liability for the following reasons:
5. Admittedly, the driver was driving Mahindra Pick Up, the gross vehicle weight of which is 2820 kilograms, as per ::: Downloaded on - 15/04/2017 18:49:34 :::HCHP : 3 : the Registration Certificate, Ext. RB, is a light motor vehicle.
6. I deem it proper to reproduce the definitions of .
"driving licence", "light motor vehicle", "private service vehicle"
and "transport vehicle" as contained in Sections 2 (10), 2 (21), 2(35) and 2 (47), respectively, of the MV Act herein:
of "2. .................
(10) "driving licence" means the licence rt issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than a learner, a motor vehicle or a motor vehicle of any specified class or description.
xxx xxx xxx (21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or roadroller the unladen weight of any of which, does not exceed 7,500 kilograms.
xxx xxx xxx (35) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage.
xxx xxx xxx (47) "transport vehicle" means a public service vehicle, a goods carriage , an educational institution bus or a private service vehicle."
::: Downloaded on - 15/04/2017 18:49:34 :::HCHP: 4 :
7. Section 2 (21) of the MV Act provides that a "light motor vehicle" 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. Section 2 (35) of the MV Act gives the definition of a of "public service vehicle", which means any vehicle, which is used or allowed to be used for the carriage of passengers for hire or rt reward and includes a maxicab, a motorcab, contract carriage and stage carriage. It does not include light motor vehicle (LMV). Section 2 (47) of the MV Act defines a "transport vehicle". It means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.
8. At the cost of repetition, definition of "light motor vehicle" includes the words "transport vehicle" also. Thus, the definition, as given, mandates the "light motor vehicle" is itself a "transport vehicle", whereas the definitions of other vehicles are contained in Sections 2(14), 2 (16), 2 (17), 2 (18), 2 (22), 2 (23) 2 (24), 2 (25), 2 (26), 2 (27), 2 (28) and 2 (29) of the MV Act. In these definitions, the words "transport vehicle" are neither used ::: Downloaded on - 15/04/2017 18:49:34 :::HCHP : 5 : nor included and that is the reason, the definition of "transport vehicle" is given in Section 2 (47) of the MV Act.
.
9. In this backdrop, we have to go through Section 3 and Section 10 of the MV Act. It is apt to reproduce Section 3 of the Act herein:
of "3. Necessity for driving licence. (1) No person shall drive a motor vehicle in any public place unless he holds an rt effective driving licence issued to him authorising 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 subsection (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."
10. It mandates that the driver should have the licence to drive a particular kind of vehicle and it must contain endorsement for driving a transport vehicle. In this section, the words "light motor vehicle" are not recorded. Meaning thereby, this section is to be read with the definition of other vehicles including the definition given in Section 2 (47) of the MV Act ::: Downloaded on - 15/04/2017 18:49:34 :::HCHP : 6 : except the definition given in Section 2 (21) of the MV Act for the reason that Section 2 (21) of the MV Act provides, as discussed .
hereinabove, that it includes transport vehicle also.
11. My this view is supported by Section 10 of the MV Act, which reads as under:
of "10. Form and contents of licences to drive. (1) Every learner's licence and driving licence, except a driving licence rt 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 the holder to drive a motor vehicle of one or more of the following cases, namely:
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) transport vehicle;
(i) roadroller;
(j) motor vehicle of a specified description."
12. Section 10 (2) (d) of the MV Act contains "light motor vehicle" and Section 10 (2) (e) of the MV Act, was substituted in terms of amendment of 1994, class of the vehicles specified in clauses (e) to (h) before amendment stands deleted and the ::: Downloaded on - 15/04/2017 18:49:34 :::HCHP : 7 : definition of the "transport vehicle" stands inserted. So, the words "transport vehicle" used in Section 3 of the MV Act are to .
be read vizaviz other vehicles, definitions of which are given and discussed hereinabove.
13. A Division Bench of the High Court of Jammu and of Kashmir at Srinagar, of which I (Justice Mansoor Ahmad Mir, Chief Justice) was a member, in a case titled as National rt Insurance Co. Ltd. versus Muhammad Sidiq Kuchey & ors., being LPA No. 180 of 2002, decided on 27th September, 2007, has discussed this issue and held that a driver having licence to drive "LMV" requires no "PSV" endorsement. It is apt to reproduce the relevant portion of the judgment herein:
"The question now arises as to whether the driver who possessed driving licence for driving abovementioned vehicles, could he drive a passenger vehicle? The answer, I find, in the judgment passed by this court in case titled National Insurance Co. Ltd. Vs. Irfan Sidiq Bhat, 2004 (II) SLJ 623, wherein it is held that Light Motor Vehicle includes transport vehicle and transport vehicle includes public service vehicle and public service vehicle includes any motor vehicle used or deemed to be used for carriage of passengers. Further held, that the authorization of having PSV endorsement in terms of Rule 41 (a) of the ::: Downloaded on - 15/04/2017 18:49:34 :::HCHP : 8 : Rules is not required in the given circumstances. It is profitable to reproduce paras 13 and 17 of the .
judgment hereunder: "13. A combined reading of the above provisions leaves no room for doubt that by virtue of licence, about which there is no dispute, both Showkat Ahamd and Zahoor Ahmad were competent in terms of section 3 of the of Motor Vehicles Act to drive a public service vehicle without any PSV endorsement and express authorization in terms of rule 4(1)(a) rt of the State Rules. In other words, the requirement of the State Rules stood satisfied.
............................................
17. In the case of Mohammad Aslam Khan (CIMA no. 87 of 2002) Peerzada NoorudDin appearing as witness on behalf of Regional Transport Officer did say on recall for further examination that PSV endorsement on the licence of Zahoor Ahmad was fake. In our opinion, the fact that the PSV endorsement on the licence was fake is not at all material, for, even if the claim is considered on the premise that there was no PSV endorsement on the licence, for the reasons stated above, it would not materially affect the claim. By virtue of "C to E" licence Showkat Ahmad was competent to drive a passenger vehicle. In fact, there is no separate definition of passenger vehicle or passenger service vehicle in the Motor Vehicles Act. They come within the ambit of ::: Downloaded on - 15/04/2017 18:49:34 :::HCHP : 9 : public service vehicle under section 2(35). A holder of driving licence with respect to "light Motor Vehicle"
.
is thus competent to drive any motor vehicle used or adapted to be used for carriage of passengers i.e. a public service vehicle."
In the given circumstances of the case PSV endorsement was not required at all."
of
14. The mandate of Sections 2 and 3 of the MV Act came up for consideration before the Apex Court in a case titled as rt Chairman, Rajasthan State Road Transport Corporation & ors. versus Smt. Santosh & Ors., reported in 2013 AIR SCW 2791, and after examining the various provisions of the MV Act held that Section 3 of the Act casts an obligation on the driver to hold an effective driving licence for the type of vehicle, which he intends to drive. It is apt to reproduce paras 19 and 23 of the judgment herein:
"19. Section 2(2) of the Act defines articulated vehicle which means a motor vehicle to which a semitrailer is attached; Section 2(34) defines public place; Section 2(44) defines 'tractor' as a motor vehicle which is not itself constructed to carry any load; Section 2(46) defines `trailer' which means any vehicle, other than a semi trailer and a sidecar, drawn or intended to be drawn by a motor vehicle. Section 3 of the Act provides for necessity for driving ::: Downloaded on - 15/04/2017 18:49:34 :::HCHP : 10 : license; Section 5 provides for responsibility of owners of the vehicle for contravention of Sections 3 and 4; Section .
6 provides for restrictions on the holding of driving license; Section 56 provides for compulsion for having certificate of fitness for transport vehicles; Section 59 empowers the State to fix the age limit of the vehicles; Section 66 provides for necessity for permits to ply any vehicle for any commercial purpose; Section 67 of empowers the State to control road transport; Section 112 provides for limits of speed; Sections 133 and 134 imposes a duty on the owners and the drivers of the rt vehicles in case of accident and injury to a person; Section 146 provides that no person shall use any vehicle at a public place unless the vehicle is insured. In addition thereto, the Motor Vehicle Taxation Act provides for imposition of passenger tax and road tax etc.
20. ..........................
21. .........................
22. ........................
23. Section 3 of the Act casts an obligation on a driver to hold an effective driving license for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licenses for various categories of vehicles mentioned in subsection (2) of the said Section. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in subsection (2) of Section 10. They are 'goods carriage', 'heavy goods vehicle', 'heavy passenger motor vehicle', ::: Downloaded on - 15/04/2017 18:49:34 :::HCHP : 11 : 'invalid carriage', 'light motor vehicle', 'maxicab', 'medium goods vehicle', 'medium passenger motor vehicle', 'motor .
cab', 'motorcycle', 'omnibus', 'private service vehicle', 'semi trailer', 'tourist vehicle', 'tractor', 'trailer' and 'transport vehicle'."
15. The Apex Court in another case titled as National Insurance Company Ltd. versus Annappa Irappa Nesaria of & Ors., reported in 2008 AIR SCW 906, has also discussed the rt purpose of amendments, which were made in the year 1994 and the definitions of 'light motor vehicle', 'medium goods vehicle' and the necessity of having a driving licence. It is apt to reproduce paras 8, 14 and 16 of the judgment herein:
"8. Mr. S.N. Bhat, learned counsel appearing on behalf of the respondents, on the other hand, submitted that the contention raised herein by the appellant has neither been raised before the Tribunal nor before the High Court. In any event, it was urged, that keeping in view the definition of the 'light motor vehicle' as contained in Section 2(21) of the Motor vehicles Act, 1988 ('Act' for short), a light goods carriage would come within the purview thereof.
A 'light goods carriage' having not been defined in the Act, the definition of the 'light motor vehicle' clearly indicates that it takes within its umbrage, both a transport vehicle and a nontransport vehicle.::: Downloaded on - 15/04/2017 18:49:34 :::HCHP
: 12 : Strong reliance has been placed in this behalf by the learned counsel in Ashok Gangadhar Maratha vs. Oriental .
Insurance Company Ltd., [1999 (6) SCC 620].
9. .....................
10. ..................
11. ..................
of
12. .................
13. .................
rt
14. Rule 14 prescribes for filing of an application in Form 4, for a licence to drive a motor vehicle, categorizing the same in nine types of vehicles.
Clause (e) provides for 'Transport vehicle' which has been substituted by G.S.R. 221(E) with effect from 28.3.2001. Before the amendment in 2001, the entries medium goods vehicle and heavy goods vehicle existed which have been substituted by transport vehicle. As noticed hereinbefore, Light Motor Vehicles also found place therein.
15. .............................
16. From what has been noticed hereinbefore, it is evident that 'transport vehicle' has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time, to cover both, 'light passenger carriage vehicle' and 'light goods carriage vehicle'.::: Downloaded on - 15/04/2017 18:49:34 :::HCHP
: 13 : A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as .
well."
16. Having said so, I hold that the endorsement of PSV was not required.
17. Viewed thus, the Tribunal has not committed an of error in holding that the driver of the offending vehicle was having a valid and effective driving licence to drive the offending rt vehicle and the ownerinsured has not committed any willful breach.
18. Having glance of the above discussions, the appeal merits to be dismissed and the impugned award is to be upheld.
Accordingly, the impugned award is upheld and the appeal is dismissed.
19. Registry is directed to release the awarded amount in favour of the claimantinjured strictly as per the terms and conditions contained in the impugned award after proper identification.
20. Send down the record after placing copy of the ::: Downloaded on - 15/04/2017 18:49:34 :::HCHP : 14 : judgment on Tribunal's file.
(Mansoor Ahmad Mir) .
Chief Justice August 28, 2015 ( rajni ) of rt ::: Downloaded on - 15/04/2017 18:49:34 :::HCHP