Bombay High Court
Bhagwan Bajirao Tandale And Another vs Bharat Bhiwaji Kamble And Another on 29 March, 2019
Author: V.L. Achliya
Bench: V.L. Achliya
940-FA2629-2013 (Jt.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
940 FIRST APPEAL NO.2629 OF 2013
1. Bhagwan S/o Bajirao Tandale,
Age 40 years, Occupation : Agri.
R/o. Naygaon, Tq. Paithan,
Dist. Aurangabad.
2. Bhagchand S/o Bhaurao Veer,
Age 35 years, Occu. Driver,
R/o Narala, Paithan,
Dist. Aurangabad. ... Appellants
(Orig. Resp. Nos. 1 & 3)
VERSUS
1. Bharat S/o Bhiwaji Kamble
Age 32 years, Occupation: Driver,
R/o. Z.P. High School Paithan,
Dist. Aurangabad. ... Respondent No.1
(Orig. Claimant)
2. Bajaj Allianz Genral Insurance
Co. Ltd., Through its office
at 22n Floor, Rajendra Bhavan,
Near, LIC Building, Adalat Road,
Aurangabad.
... Respondent No.2
(Orig. Respondent No.2)
....
Mr. Avinash S. Deshpande, Advocate for Applicants :
Mr. K.D. Bade Patil, Advocate for Respondent No.1
Mr. S.S.Dargad, Advocate h/f Mr. S.G. Chapalgaonkar, Advocate for
Respondent No.2
....
CORAM : V.L. ACHLIYA, J.
DATED : 29th MARCH, 2019
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Judgment :
. Being aggrieved by judgment and order dated 06.12.2012
in M.A.C.P. No.361/2008 passed by Member, M.A.C.T. & Dist.
Judge-3, Aurangabad, the appellants - original respondents no.1
and 3 have preferred this appeal. By the impugned judgment, the
claims tribunal has partly allowed the claim application and
ordered the appellants to jointly and severally pay the
compensation of Rs.3,00,000/- to respondent no.1 inclusive of no
fault liability along with interest at the rate of 7% p.a. from the
date of filing of claim application till its realisation. The tribunal
has dismissed the claim as against the respondent no.2 -
insurance company. Being aggrieved, the appellants who are the
owner and driver of the vehicle have preferred this appeal.
2. In view of the challenge raised in the appeal confines to
dismissal of the claim application against the respondent no.2 -
insurance company, it is not required to discuss the facts of case
in detail. The respondent no.1 - original claimant had filed an
application U/s.166 of M.V. Act seeking compensation of
Rs.10,00,000/-. Respondent no.1 had approached with the case
that on 16.01.2008, at about 11.30 p.m., he was proceeding
Aurangabad towards Paithan on motor cycle bearing registration
MH-20/AP-5785. He was accompanied with his friend. When he
was passing in front of Saint Eknath Sahakari Sakhar Karkhana
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at Paithan, the offending vehicle i.e. tractor bearing registration
No. MH-20/AB-4286 attached with trolley and loaded with
sugarcane gave dash to motor cycle. Due to the dash given to
motor cycle, he fell down on the road and sustained serious
injury to his leg. Initially he was taken to GHATI Hospital at
Aurangabad. Later on he was shifted to to M.G.M. Hosptial at
Aurangabad. On account of injury sustained in the accident, he
was required to be operated. His leg was amputated from knee.
He sustained permanent disability.
3. On account of the accidental injury, the respondent no.1
has claimed compensation of Rs.10,00,000/- from the owner,
driver and insurance company making them liable to pay the
compensation jointly and severally. The claimant has claimed
that at the time of the accident, the respondent no.3 - driver of
tractor and trolley was driving the tractor and trolley in a rash
and negligent manner. The accident was resulted due to rash and
negligent driving on the part of driver of the tractor, which was
owned by the appellant no.1 - original respondent no.1 and
insured with the respondent no.2 - insurance company.
4. The appellants/original respondent no.1 and 3 appeared
and resisted the claim with contention that the accident was
occurred due to sole negligence and rash and negligent driving
on the part of claimant. They have approached with the case that
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at the time of the accident, the tractor loaded with sugarcane
was standing at the gate of sugar factory. The claimant and his
friend who were ridding on motor cycle were heavily drunk. The
claimant gave dash to tractor, which was lying standing at the
gate of sugar factory. There was ample space available for
claimant to pass by the side of tractor and trolley. Due to his own
act of negligence the claimant fell down and sustained injury. On
the basis of false case, police have registered offences against
the driver of the tractor. In brief, the appellants have approached
with the case that accident and consequential injuries were
resulted due to own fault on the part of claimant
5. The Respondent No.2- insurance company resisted the
claim with contention that accident was resulted due to rash and
negligent driving and fault on the part of claimant. The
Respondent No.2 has denied its liability to pay compensation
with contention that the driver of the tractor was not holding
effective driving licence i.e. light motor vehicle (transport) to
drive the vehicle involved in the accident and there was breach of
policy condition on the part of insured - appellant no.1. In short,
the respondent no.2 has denied the liability to pay compensation
on the ground of breach of policy condition on the part of
appellant - i.e. owner and insured of said tractor.
6. In order to prove his case, the claimant has examined
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himself and further produced the documents such as FIR, spot
panchanama, driving licence, registration certificate of offending
vehicle, insurance cover note, accident form, disability certificate,
discharge card and medical bills. On behalf of the appellant no.1
i.e. the owner of the vehicle examined one official working in the
office of RTO to prove the driving licence of appellant no.2 i.e.
the original respondent no.3 (driver of the tractor). On behalf of
the respondent no.2, the insurance company has examined one
witness to prove the breach of policy condition.
7. On due consideration of the submissions advanced in the
light of oral and documentary evidence adduced in the case, the
tribunal has reached to the conclusion that claimant has proved
his case and the accident occurred solely due to rash and
negligent driving on the part of driver of the tractor i.e. appellant
no.2. It is further held that in the accident, the respondent no.1 -
original claimant has sustained serious injury and suffered
permanent disablement. The tribunal has dismissed the claim as
against the respondent no.2 i.e. original respondent no.2 -
insurance company by holding that the driver of the tractor i.e.
the appellant no.2 (original respondent no.3) not holding
effective driving licence to drive the tractor and thereby the
appellant - insured committed breach of policy condition. While
dismissing the claim against the respondent no.2 - insurance
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company, the tribunal has observed that the tractor was attached
with the trolley and the same was used for carriage of goods, and
the driver of the tractor ought to have a licence to drive light
motor vehicle (transport). Since the driver had licence to drive
the light motor vehicle only, he was not duly authorised to drive
the tractor and trolley used for the purpose of transport of goods.
Being aggrieved by the judgment and order passed by the
tribunal to exonerate the insurance company, the appellants i.e.
the owner and the driver of the vehicle have preferred this
appeal.
8. I have heard the submission advanced by Mr. A.S.
Deshpande, learned counsel for the appellant, Shri K.D. Bade
Patil, the learned counsel representing Respondent No.1 and Mr.
S.G. Chapalgaonkar, the learned counsel representing the
respondent no.2 - insurance company.
9. Mr. Deshpande, learned counsel for the appellants submits
that the Tribunal has grossly erred in holding that there was a
breach of policy condition on the part of the appellant no.1 i.e.
owner of the vehicle. It is submitted that there is no dispute as
fact that at the relevant time of accident, the driver of the tractor
i.e. respondent no.3 (appellant no.2 herein) was holding driving
licence to drive light motor vehicle, which include the tractor
involved in the accident as same being covered by definition of
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"Light Motor Vehicle" as provided U/s. 2(21) of the Motor Vehicle
Act, 1988. The form and contents of licences to be issued to drive
the vehicle U/s. 10(2)(d) of the Motor Vehicle Act 1988 provides
for class of vehicles, and "light motor vehicle" is one of such class
of vehicles for which licence to be issued. It no where provides
for category such as "light motor vehicle (non transport) or "light
motor vehicle (transport). It is further submitted that trolley
attached to the tractor very much concerned with the purpose
and use of tractor. At the time of accident, the sugarcane of the
appellant no.1 was loaded in the trolley attached to the tractor
for transporting the same to sugar factory. Therefore, the
purpose for which the tractor was used cannot said to be used for
commercial purpose and there was breach of policy condition on
the part of insured. It is further submitted that the issue
involved in appeal remains no more res integra in view of
decision rendered by the Apex Court in the case of Mukund
Dewangan Vs. Oriental Insurance Company Ltd. (2017) 14 SCC
663, wherein the Apex Court has held that light motor vehicle
includs a transport vehicle with unladen weight of which not
exceed 7500 kg. and licnece to drive such class of light motor
vehicle requires no separate endorsement to drive a transport
vehicle. It is further held that if a driver is holding licence to drive
"light motor vehicle", he can drive even transport vehicle of such
class without any endorsement to that effect.
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10. On the other hand, learned counsel representing the
respondent no.2 - insurance company has fairly conceded that in
the case of Mukund Dewangan (supra), the Apex Court has ruled
that, no separate endorsement required for the driver holding
driving licence to drive the light motor vehicle, if the vehicle is
light motor vehicle with unladden weight 7500 kg. However, the
learned counsel submits that in the case of M/s. Bajaj Alliance
General Insurance Co. Ltd. Vs. Rambha Devi and Ors., the
Division Bench of the Apex Court vide order dated 03.05.2018
passed in the matter directed the Registry to place the matter
before the Hon'ble Chief Justice for passing appropriate order in
view of prayer made for reconsideration of decision in the case of
Mukund Dewangan (supra),
11. I have carefully considered the submissions advanced in
the light of challenge raised in appeal as to decision of Tribunal to
exonerate the respondent no.2 - insurance company and decision
in the case of Mukund Dewangan (supra). Perusal of the
judgment and order passed by the tribunal reflect that the
Tribunal has exonerated the respondent no.2 - insurance
company only for the reason that the driver of the tractor i.e.
appellant no.2 was holding licence to drive the light motor vehicle
and he was not authorised to drive light motor vehicle used for
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transport i.e. tractor attached with trailer/trolley. The tribunal
was of the view that in order to drive the tractor with
trolley/trailer, the appellant no.2 - the driver of offending vehicle
ought to have driving licence with endorsement to drive light
motor vehicle (transport).
12. In my view, the reasons and findings recorded by the
tribunal to exonerate the insurance company are not sustainable
in the light of decision in the case of Mudund dewangan (supra).
The Hon'ble three Judges Bench of the Apex Court while deciding
the reference has considered the conflicting decisions and
formulated the following questions for its consideration :-
"1. What is the meaning to be given to the definition
of "light motor vehicle" as defined in Section 2(21) of
the MV Act? Whether transport vehicles are excluded
from it?
2. Whether 'transport vehicle' and 'omnibus' the
"gross vehicle weight" of either of which does not
exceed 7500 kg. would be a "light motor vehicle" and
also motor car or tractor or a roadroller, "unladen
weight" of which does not exceed 7500 kg. and
holder of a 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 kgs. or a motor car or tractor or roadroller, the
"unladen weight" of which does not exceed 7500
kgs. ?
3. What is the effect of the amendment made by
virtue of Act No. 54 of 1994 w.e.f. 14.11.1994 while
substituting Clauses (e) to (h) of Section 10(2) which
contained "medium goods vehicle", "medium
passenger motor vehicle", "heavy goods vehicle" and
"heavy passenger motor vehicle" by "transport
vehicle"? Whether insertion of expression 'transport
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vehicle' Under Section 10(2)(e) is related to said
substituted classes only or it also excluded transport
vehicle of light motor vehicle class from the purview
of Sections 10(2)(d) and 2(41) of the Act?
4. What is the effect of Amendment of Form 4 as to
the operation of the provisions contained in Section
10 as amended in the year 1994 and whether the
procedure to obtain the driving licence for transport
vehicle of the class of "Light Motor Vehicle" has been
changed ?"
13. The specific issue involved in the reference made for
consideration was, whether a driver who is having licence to drive
"light motor vehicle" and driving "transport vehicle" of that class
is required additionally to obtain an endorsement to drive the
transport vehicle? On due examination of the relevant provisions
of the M.V. Act and considering the position prior to the
amendment made in the M.V.Act in 1994, the Hon'ble Apex Court
has ruled that Section 10 of the M.V. Act requires a driver to hold
a licence with respect to the class of vehicles and not with
respect to the type of vehicles. It is further observed that in one
class of vehicles, there may be different categories of vehicles. If
the category of vehicle is covered by such class of vehicles, then
no separate endorsement is required to drive such vehicles. It is
observed that as light motor vehicle includes transport vehicle
and, a holder of licence to drive light motor vehicle can drive all
the vehicles of such class including transport vehicles no separate
endorsement required on driving licence to drive transport
vehicle. It is held that possessing the licence to drive light motor
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vehicle is sufficient to any such class of vehicles. The Apex Court
has answered above quoted question referred for its
consideration under reference as under:
"60.1. 'Light motor vehicle' as defined in section
2(21) of the Act would include a transport vehicle as per
the weight prescribed in section 2(21) read with section
2(15) and 2(48). Such transport vehicles are not
excluded from the definition of the light motor vehicle
by virtue of Amendment Act No.54/1994.
60.2. A transport vehicle and omnibus, the gross vehicle
weight of either of which does not exceed 7500 kg.
would be a light motor vehicle and also motor car or
tractor or a road roller, 'unladen weight' of which does
not exceed 7500 kg. and holder of a driving licence to
drive class of "light motor vehicle" as provided in
section 10(2)(d) is 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
road-roller, the "unladen weight" of which does not
exceed 7500 kg. That is to say, no separate
endorsement on the licence is required to drive a
transport vehicle of light motor vehicle class as
enumerated above. A licence issued under section 10(2)
(d) continues to be valid after Amendment Act 54/1994
and 28.3.2001 in the form.
60.3. The effect of the amendment made by virtue of
Act No.54/1994 w.e.f. 14.11.1994 while substituting
clauses (e) to (h) of section 10(2) which contained
"medium goods vehicle" in section 10(2)(e), medium
passenger motor vehicle in section 10(2)(f), heavy
goods vehicle in section 10(2)(g) and "heavy passenger
motor vehicle" in section 10(2)(h) with expression
'transport vehicle' as substituted in section 10(2)(e)
related only to the aforesaid substituted classes only. It
does not exclude transport vehicle, from the purview of
section 10(2)(d) and section 2(41) of the Act i.e. light
motor vehicle.
60.4. The effect of amendment of Form 4 by insertion of
"transport vehicle" is related only to the categories
which were substituted in the year 1994 and the
procedure to obtain driving licence for transport vehicle
of class of "light motor vehicle" continues to be the
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same as it was and has not been changed and there is
no requirement to obtain separate endorsement to drive
transport vehicle, and if a driver is holding licence to
drive light motor vehicle, he can drive transport vehicle
of such class without any endorsement to that effect."
13. In my view, the decision in the case of Mukund Dewangan
(supra) squarely applicable to the facts of the case and issue
involved in appeal. In the case in hand, there is no dispute that
appellant no.2 i.e. driver of the tractor was holding licence to
drive light motor vehicle i.e. tractor. The fact is also not in
dispute that the claim petition was dismissed as against
respondent no.2 - insurance company only for the reason that
the driver of the tractor i.e. appellant no.2 was holding licence to
drive light motor vehicle without endorsement "transport". Since
the issue has been set at rest and concluded by the judgment of
Hon'ble three Judges Bench in the case of Mukund Dewangan
(supra), holding that there is no requirement to obtain separate
endorsement to drive the transport vehicle for the driver holding
the licence to drive light vehicle, the reason and findings
recorded by tribunal to exonerate the respondent no.2 deserves
to be set aside and the appeal deserves to be partly allowed.
The contention of learned counsel for the respondent no.2 that
vide order dated 03.05.2018 passed in the case of M/s. Bajaj
Alliance General Insurance Co. in Civil Appeal No.841/2018, the
Division Bench of the Hon'ble Apex Court has directed the
registry to place the papers before the Hon'ble Chief Justice for
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appropriate orders pursuant to the prayer made for
reconsideration of decision in the case of Mukund Dewangan
(supra), deserves no consideration by this Court in deciding the
present appeal.
14. In the result, the appeal deserves to be partly allowed to
the extent to set aside the judgment and order passed by the
tribunal to dismiss the claim petition and exonerate respondent
no.2 from payment of compensation awarded in favour of
claimant. In view of conclusion arrived at that the Respondent
no.2 - insurance company is liable to pay compensation to
claimant along with the appellants i.e. original respondent nos. 1
and 3, the appeal deserves to be partly allowed. Accordingly the
following order is passed:
ORDER
[i] The claim petition is partly allowed.. [ii] The judgment and order passed by tribunal to dismiss the claim petition against respondent no.2 - insurance company is set aside. Respondent no.1 to 3 in claim petition are jointly and severally liable to pay the compensation awarded by the tribunal to the claimant - petitioner.
[iii] The respondents no.1 to 3 are directed to jointly and severally pay the sum of Rs.3,00,000/- inclusive of no fault ::: Uploaded on - 24/01/2020 ::: Downloaded on - 05/04/2020 05:08:25 ::: 940-FA2629-2013 (Jt.) 14 liability along with interest at the rate of 7% from the date of filing the claim application till its realization to the claimant. [iv] Award/Decree be drawn accordingly.
( V.L. ACHLIYA ) JUDGE SPR ::: Uploaded on - 24/01/2020 ::: Downloaded on - 05/04/2020 05:08:25 :::