Himachal Pradesh High Court
Mbd Printographics Pvt. Ltd vs Satya Devi And Others on 21 October, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No.144 of 2012
Decided on : 21.10.2016
MBD Printographics Pvt. Ltd. .....Appellant
Versus
.
Satya Devi and Others ..... Respondents
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice
Whether approved for reporting? Yes.
For the appellant: Mr.Aman Sood, Advocate.
For the respondents: Mr.Abhishek Sood, Advocate, for
of
respondents No.1 and 2.
Nemo for respondent No.4.
Mr.Ratish Sharma, Advocate, for
respondent No.5.
rt Mr.Dheeraj K. Vashista, Advocate, for
respondent No.6.
___________________________________________________________
Mansoor Ahmad Mir, Chief Justice (Oral)
This appeal is directed against the award, dated 21st January, 2012, passed by Motor Accident Claims Tribunal-II, Una, District Una, H.P., (for short, the Tribunal), whereby compensation to the tune of Rs.2,69,000/-, with interest at the rate of 9% per annum from the date of filing of the petition till realization and costs to the tune of Rs.1,000/-, came to be awarded in favour of the claimants, and the insurer was saddled with the liability, with right of recovery, (for short, the impugned award).
::: Downloaded on - 15/04/2017 21:25:02 :::HCHP 22. The claimants, the driver and the insurer have not questioned the impugned award on any count, thus, the same has attained finality so far as it relates to them.
.
3. Feeling aggrieved, the owner/insured has challenged the impugned award by way of instant appeal, on the grounds taken in the memo of appeal.
4. After hearing the learned counsel for the parties of and having gone through the record, I am of the considered view that the Tribunal has fallen into an error in exonerating rt the insurer from its liability, for the reasons mentioned hereinbelow.
5. The vehicle involved in the accident was Tractor bearing No.HP-19A-8254. Registration certificate of the offending tractor has been proved on record as Ext.R-1 and the goods carriage permit is Ext.RY. The Registration Certificate and Goods/contract carriage permit (Exts.R-1 and RY, respectively), show that the unladen and laden weight of the offending vehicle was 2065 Kg. and 3065 Kg., respectively. Thus, the offending vehicle, in terms of Section 2(21) of the Motor Vehicle Act, 1988, (for short, the Act), ::: Downloaded on - 15/04/2017 21:25:02 :::HCHP 3 which is reproduced hereinbelow, comes under the definition of "light motor vehicle".
"2. ..................... ................... (21) "light motor vehicle" means a transport vehicle .
or omnibus the gross vehicle weight of either or which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms."
6. The above provision clearly shows that the of vehicle, with unladen weight not exceeding 7,500 kilograms, would fall within the definition of "light motor vehicle".
7. rt This Court in a catena of judgments has held that the tractor-trolley falls within the definition of light motor vehicle. Latest decision on the similar principle is in FAO No.396 of 2010, titled Rajiv Kumar @ Raju vs. Raksha Devi and others, decided on 23rd September, 2016. It is apt to reproduce paragraphs 4 to 9 of the said decision hereunder:
"4. The offending vehicle was a tractor-trolley and the driver was having licence to drive Light Motor Vehicle.
The Tribunal has held that the driver was not having a valid driving licence. It is apt to reproduce para 25 of the impugned award herein.
"25.Section 2 (26) of the Act defines the word 'motor car'. The tractor does not fall within the definition of a 'motor car'. This clearly indicates that the respondent No. 2 was not having a valid driving licence to drive the tractor trolley. Otherwise too, the same was not being used for agricultural purposes or any ::: Downloaded on - 15/04/2017 21:25:02 :::HCHP 4 purpose subservient to agriculture at the material time. Therefore, it can be safely said that neither the respondent No. 2 was holding a valid and effective licence to drive the tractor trolley nor the same was being used in consonance with the terms and conditions of the insurance policy. In view of these .
reasons, the insurance company (respondent No.3) is not liable to indemnify the owner/insured(respondent No.1) (The Oriental Insurance Company Limited-Appellant versus Vidya Devi and others-Respondents, 2009 (1) Shim.LC 99. relied upon)."
5. The learned Tribunal has lost sight of Section 2 (21) of the Motor Vehicles Act, for short "the Act", which reads of as under:
"2 (21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor rt car or tractor or road-roller the unladen weight of any of which, does not exceed 2 [7500] kilograms;"
6. Thus, it does include tractor.
7. This Court in FAO No. 187 of 2010, titled as Baldev Singh versus Jagdish Chand & another, decided on 8th April, 2016, has held that tractor falls within the definition of 'light motor vehicle'.
8. The same principle has been laid down by this Court in the cases titled as Oriental Insurance Company versus Gulam Mohammad (since deceased) & others, reported in Latest HLJ 2014 (HP) 244; Joginder Singh @ Pamma versus Vikram @ Vickey and others, reported in Latest HLJ 2014 (HP) Suppl. 292;
and Oriental Insurance Company versus Sudesh Kumari and others, reported in 2014 (2) Shim. LC 918.
9. The Punjab and Haryana High Court in FAO No. 5114 of 2009 titled, The New India Assurance Company Limited vs. Mahender Singh decided 26.10.2009 held that the driver, who was driving a tractor, was holding a licence to drive car, jeep and motor cycle only, is also ::: Downloaded on - 15/04/2017 21:25:02 :::HCHP 5 competent to drive tractor and the Insurance company was held liable to pay the compensation."
8. Viewed thus, the offending vehicle i.e. tractor-
.
trolley with loader is a light motor vehicle. Admittedly, at the time of accident, the driver of the offending vehicle was having a valid and effective driving licence to drive a light motor vehicle, as has been observed by the Tribunal in of paragraph 28A of the impugned award. However, I have gone through the copy of the driving licence produced on rt record as Ext.R-2, which shows that the driver of the offending vehicle was having a valid and effective driving licence to drive a light motor vehicle.
9. Having said so, it can safely be held that the owner had not committed any willful breach.
10. It is beaten law of the land that the insurer has to plead and prove that the owner of the offending vehicle has committed willful breach of the terms and conditions contained in the policy and mere plea here and there cannot be a ground for seeking exoneration.
11. The Apex Court in case titled as National Insurance Co. Ltd. versus Swaran Singh & others, reported in ::: Downloaded on - 15/04/2017 21:25:02 :::HCHP 6 AIR 2004 Supreme Court 1531, has taken the similar view. It is apt to reproduce relevant portion of para 105 of the judgment hereinbelow:
.
"105. .....................
(i) .........................
(ii) ........................
(iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in subsection (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or of disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in rt the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability, must not only establish the available defence(s) raised in the said proceedings; but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them.
(v).........................
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149 (2) of the Act."
12. It is also profitable to reproduce para 10 of the latest judgment of the Apex Court in the case of Pepsu Road ::: Downloaded on - 15/04/2017 21:25:02 :::HCHP 7 Transport Corporation versus National Insurance Company, reported in (2013) 10 Supreme Court Cases 217 hereinbelow:
"10. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the .
driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in of that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority rt before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran ingh case. If despite such information with the owner that the licence possessed by his driver is 8 :fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the Insurance Company is not liable for the compensation."
13. Thus, it was for the insurer to plead and prove that the offending vehicle was being driven in violation of the terms and conditions contained in the insurance policy, has not led any evidence to that effect, has failed to discharge the onus.
::: Downloaded on - 15/04/2017 21:25:02 :::HCHP 814. Having regard to the above discussion, the appeal is allowed and the insurer is saddled with the liability.
The insurer is directed to deposit the amount, alongwith .
interest as awarded by the Tribunal, within eight weeks from today in the Registry of this Court.
15. At this stage, the learned counsel for the appellant stated that the award amount deposited by the of insurer before the Tribunal has already been released in favour of the claimants.
rt He, therefore, stated that the amount deposited by the appellant in the Registry may be ordered to be refunded to the insured/appellant. His statement is taken on record. Accordingly, the Registry is directed to refund the amount, alongwith interest accrued thereon, in favour of the appellant/owner forthwith.
16. The appeal stands disposed of accordingly.
October 21, 2016 ( Mansoor Ahmad Mir )
(Tilak) Chief Justice
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