Rajasthan High Court - Jodhpur
Mushtaq Khan And Anr vs Shankarlal And Ors on 1 July, 2019
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 2823/2016
1. Mushtaq Khan S/o Shri Kalu Khan, by caste Kayamkhani,
resident of Sawaranwas, Tehsil & District Nagaur
(Driver of Tractor No.RJ-21-RC-5952)
2. Kalu Khan S/o Shri Sube Khan @ Sawai Khan, by caste
Kayamkhani, resident of Saranwas, Tehsil & District Nagaur.
(Agreement Owner of Tractor No.RJ-21-RC-5952)
----Appellants
Versus
1. Shankerlal S/o Sh. Ummedaram,
2. Guddi D/o Shankerlal,
3. Ramlal S/o Shankerlal,
4. Suresh S/o Shankerlal,
5. Rampyari W/o Sh. Ummedaram,
All are by caste Jat & Resident of Beenthwal, Tehsil &
District Nagaur.
6. Govindram S/o Shri Birmaram, by caste Jat, resident of
Amarpura, Tehsil & District Nagaur
(Registered Owner of Tractor RJ-21-RC-5952)
7. Bharti Axa General Insurance Co. Ltd., 1st Floor, Icon Survey
No. 28, Doddanakundi Village K.R. Puram, Hobli,
Bangalore- 37.
(Insurer of Tractor No. RJ-21-RC-5952)
Connected With
S.B. Civil Misc. Appeal No. 802/2017
Govind Ram S/o Sh. Birmaram, by caste Jat, aged about 60
Resident of Amarpura, Tehsil And District Nagaur Raj.
----Appellant
Versus
1. Shankerlal S/o Sh. Ummedaram,
2. Guddi D/o Shankerlal,
3. Ramlal S/o Shankerlal,
4. Suresh S/o Shankerlal,
5. Rampyari W/o Sh. Ummedaram,
All Are By Caste Jat, And Resident Of Beenthwal, Tehsil
And District Nagaur.
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(2 of 6) [CMA-2823/2016]
6. Mushtaq Khan S/o Kalu Khan, by caste Kayamkhani,
resident Of Sawaranwas, Tehsil & District Nagaur.
(Non-Claimant/driver of Tractor No. RJ-21-RC-5952)
7. Kalu Khan S/o Suvekhan @ Sawai Khan, by Caste
Kayamkhani, resident of Saranwas, Tehsil & District Nagaur.
(Non-Claimant/owner of Tractor No. RJ-21-RC-5952)
8. Bharti Axa General Insurance Co. Ltd., 1St Flor, Icon Survey
No. 28, Doddanakundi Village K.r. Puran, Hobli, Bangalore-
37.
(Insurer of Offending Vehicle No. RJ-21-RC-5952)
----Respondents
For Appellant(s) : Mr. L.S. Jakhaniya in SBCMA
No.2823/2018 & Mr. Raghuvendra
Mundel in SBCMA No.802/2017
For Respondent- : Mr. Vikas Bijarnia
Claimants
For Respondent- : Mr. Santosh Choudahry
Insurer
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment 01/07/2019 Heard learned counsel for the parties on application under Section 5 of the Limitation Act filed in S.B. Civil Misc. Appeal No.802/2017.
As per office report, the appeal is reported to be barred by 58 days.
Having regard to facts and circumstances of the case and considering the grounds set out in the application for condonation of delay, same is allowed and delay in filing the appeal is condoned.
With the consent of rival parties, both these appeals are heard finally.
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(3 of 6) [CMA-2823/2016] Appellants, driver, subsequent owner through agreement and registered owner, have preferred these appeals under Section 173 of the Motor Vehicles Act, 1988 (for short, 'Act') challenging the findings on particular Issue No. 2, recorded in judgment and award dated 13.01.2016, passed by Motor Accident Claims Tribunal, Nagaur (for short, 'learned Tribunal'). The learned Tribunal, while quantifying and awarding compensation to the respondent-claimants, has exonerated the insurer from its liability.
The facts, apposite for the purpose of this appeal are that respondent-claimants filed a claim petition before the learned Tribunal claiming compensation to the tune of Rs.21,72,000/- on account of death Smt. Bhanwari in an accident occurred on 20.02.2013 by the offending vehicle Tractor bearing No. RJ-21-RC- 5952. The claim petition was contested by driver, registered owner and subsequent owner of the vehicle taking stand that the accident was not occurred from the offending vehicle. The claim petition was also contested by the Insurer and it was pleaded on its behalf that the insured had violated the terms and conditions of the insurance policy.
Learned Tribunal, on the basis of pleadings, settled three issues for determination. For substantiating his claim, respondent-claimants examined two witnesses namely A.W.1 Shankarlal and A.W.2 Bhomaram, besides tendering sixteen documents. The non-claimants examined two witness namely NAW-1 Mustak Khan and NAW-2 Amit sharma and tendered three documents. Learned Tribunal decided Issue No.1 relating to rash and negligent driving of the offending vehicle in favour of claimants. While adverting to Issue No.2, learned Tribunal has allowed the same in favour of insurer. Learned Tribunal has found (Downloaded on 03/07/2019 at 09:59:49 PM) (4 of 6) [CMA-2823/2016] that at the time of accident, the driver was not in possession of a valid driving license to ply commercial vehicle. While switching on to Issue No.3, the learned Tribunal worked out compensation for loss of dependency to the tune of Rs.4,68,000/-. In totality, learned Tribunal assessed total amount of compensation to the tune of Rs.5,93,000/-.
Learned counsel appearing for the appellants submits that the learned Tribunal has erred in deciding Issue No.2 regarding violation of the conditions of insurance policy. Learned counsel for the appellants also submits that the issue involved in the matter has already been set at rest by the Larger Bench of Supreme Court in Mukund Dewangan Vs. Oriental Insurance Company Limited [(2017) 14 SCC 663].
On the other hand learned counsel for the respondent- insurer submits that the driver of insured vehicle was not having license to ply commercial vehicle but holding the license to ply LMV. He, therefore, submits that the instant appeals, being bereft of any merit, are liable to be rejected.
I have considered the submissions made at Bar, perused the impugned judgment & award and also scanned record of the case.
Upon examining the judgment in case of Mukund Dewangan (supra), there remains no quarrel that a transport vehicle, as per weight prescribed in Section 2(21) read with Section 2(15) & 2(48) includes an "omnibus", as the gross weight of either of which does not exceed 7500 kg. The Court further held that holder of a driving licence to drive the class of "light motor vehicle" as provided in Section 10(2)(d) would be competent to drive a transport vehicle or omnibus, the "gross vehicle weight" of which does not exceed 7500 kg, or a motor car or tractor or (Downloaded on 03/07/2019 at 09:59:49 PM) (5 of 6) [CMA-2823/2016] roadroller, the "unladen weight" of which does not exceed 7500 kg. The Court held:
"Prior to amendment in 1994 licence for transport vehicle was clearly covered as per Section 10(2)in five categories, i.e., Section 10(2)
(d) light motor vehicle, Section 10(2)(e) medium goods vehicle, Section 10(2)(f) medium passenger motor vehicle, Section 10(2)(g) heavy goods vehicle and Section 10(2)(h) heavy passenger motor vehicle. The licence for 'light motor vehicle' has been provided in section 10(2)(d). The expression 'transport vehicle' has been inserted by virtue of Amendment Act 54/1994 in Section 10(2)
(e) after deleting four categories or classes of vehicles, i.e. medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, and heavy passenger motor vehicle. Earlier Section 10 did not contain the separate class of transport vehicles.
The definition of 'light motor vehicle' makes it clear that for 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 kgs. 'Gross vehicle weight' has been defined in section 2(15). The motor car or tractor or road roller, the unladen weight of any of which does not exceed 7500 kgs. as defined in Section 2(48) of the Act, are also the light motor vehicle. No change has been made by Amendment Act of 54/94 in the provisions contained in Sections 2(21) and 10(2)(d) relating to the light motor vehicle. The definition of 'light motor vehicle' has to be given full effect to and it has to be read with Section 10(2)(d) which makes it abundantly clear that 'light motor vehicle' is also a 'transport vehicle', the gross vehicle weight or unladen weight of which does not exceed 7500 kgs. as specified in the provision. Thus, a driver is issued a licence as per the class of vehicle i.e. light motor vehicle, transport vehicle or omnibus or another vehicle of other categories as per gross vehicle weight or unladen weight as specified in Section 2(21) of the Act. The provision of Section 3 of the Act requires that a person in order to drive a 'transport vehicle' must have authorization. Once a licence is issued to drive light motor vehicle, it would also mean specific authorization to drive a transport vehicle or omnibus, the gross vehicle weight or motor car, road roller or tractor, the unladen weight of which, as the case may be, does not exceed 7500 kg. The insertion of 'transport vehicle' category in Section 10(2)(e) has no effect of obliterating the already defined category of (Downloaded on 03/07/2019 at 09:59:49 PM) (6 of 6) [CMA-2823/2016] transport vehicles of the class of light motor vehicle. A distinction is made in the Act of heavy goods vehicle, heavy passenger motor vehicle, medium goods vehicle and medium passenger motor vehicle on the basis of 'gross vehicle weight' or 'unladen weight' for heavy passenger motor vehicle, heavy goods vehicle, the weight, as the case may be, exceed 12000 kg. Medium goods vehicle shall mean any goods carriage other than a light motor vehicle or a heavy goods vehicle; whereas 'medium passenger motor vehicle' means any public service vehicle or private service vehicle or educational institution bus other than a motorcycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle.
Thus, the newly incorporated expression 'transport vehicle' in section 10(2)(e) would include only the vehicles of the category as defined in Section 2(16) - heavy goods vehicle, Section 2(17)
- heavy passenger motor vehicle, Section 2(23) - medium goods vehicle and Section 2(24) medium passenger motor vehicle, and would not include the 'light motor vehicle' which means transport vehicle also of the weight specified in Section 2(21)." In a later judgment rendered by Supreme Court dated 06.03.2018 (Jagdish Kumar Sood V/s. United India Insurance Co. Ltd. & Ors. - Civil Appeal No.240/2017) same view is reiterated.
Thus, relying on judgment in Mukund Dewangan (supra), impugned award to the extent of finding on Issue No.2 absolving insurance company is set aside. The appeals are, therefore, allowed and the liability to pay compensation is jointly and severally fastened on the insurer in addition to the registered owner, subsequent owner through agreement and driver.
There shall be no order as to costs.
(P.K. LOHRA),J 90-a.asopa/-
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