Gauhati High Court
Smti Bhagyalata Bora And 2 Ors vs National Insurance Company Ltd on 28 January, 2020
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/4
GAHC010115552016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp. 203/2016
1:SMTI BHAGYALATA BORA and 2 ORS
W/O LATE KAMAL BORA, R/O CHAPORI GAON, WARD NO. 12, P.S. NORTH
LAKHIMPUR, DIST. LAKHIMPUR, ASSAM.
2: MASTER PAPU BORA
3: MISS LAKHI PRABHA BORA
BOTH ARE REPRESENTED BY NATURAL GUARDIAN AND MOTHER SMTI
BHAGYALATA BORA
ALL ARE R/O CHAPORI GAON WARD NO. 12
P.S. NORTH LAKHIMPUR
DIST. LAKHIMPUR
ASSAM
VERSUS
1:NATIONAL INSURANCE COMPANY LTD
REPRESENTED BY ITS CHIEF REGIONAL OFFICER, HAVING ITS OFFICE AT
THIRD FLOOR, LOHIA MANSION, G.S. ROAD BHANGAGARH, PIN 781005,
GUWAHATI.
Advocate for the Petitioner : MR.B BARUAH
Advocate for the Respondent : MR.R GOSWAMI
Page No.# 2/4
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 28-01-2020 Heard Mr. B. Baruah, learned counsel for the appellants as well as Mr. R. Goswami, learned counsel for the Insurance Company.
2. This appeal has been filed against the judgment dated 17.05.2013 passed by the learned Member, MACT, Lakhimpur, North Lakhimpur by which the MACT Case No. 32/2012 was dismissed.
3. The case of the appellants/claimants is that the husband of the appellant No. 3 died in a motor vehicular accident on 21.03.2012, when he lost control of the three wheeler Auto Rickshaw, which he was driving and hit a tree. The claim petition was filed by the appellants under Section 166 of the Motor Vehicle Act, 1988.
4. The case of the appellants before the learned Tribunal was that the deceased was the owner cum driver of the three wheeler Auto Rickshaw bearing Registration No. AS- 07/C-2815(AR). The said vehicle was passenger carrying Auto Rickshaw which was covered by a Package Policy, wherein the personal accident cover payable to the owner cum driver was Rs. 2 Lakhs. The premium for the said personal accident cover was also paid and as such, compensation of Rs. 2 Lakhs should have been awarded.
5. The learned Tribunal dismissed the claim petition, which was registered as MACT Case No. 32/2012, vide judgment dated 17.05.2013, on the ground that the deceased did not have a valid and effective driving licence to drive a transport vehicle. The learned Tribunal thus held that while the deceased had a driving licence to drive a light motor vehicle, there was no endorsement made upon the said driving licence to show that the deceased was permitted to drive a transport vehicle.
6. The learned counsel for the appellants submits that the licence issued to the Page No.# 3/4 deceased for driving a Light Motor Vehicle (LMV) is inclusive of a three wheeler Auto Rickshaw, which the deceased was driving at the time of the accident.
He accordingly submits that the claimants are entitled to be given compensation as per the personal accident cover provided in the insurance policy. In support of his submission, the learned counsel for the appellants has relied upon the judgment of the Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited , reported in (2017) 14 SCC
663.
7. Mr. R. Goswami, learned counsel for the Insurance Company prays for the time to clarify the requirements needed of a owner cum driver, to avail of the personal accident cover given in the Package policy.
8. Section 2(21) of the M.V. Act, 1988 includes a transport vehicle, the unladen weight of which does not exceed 7,500 kg, within the definition of a Light Motor Vehicle (LMV). As per the notification Vide S.O. 1248(E), dated 05.11.2004 issued by the Central Government, under Section 41 (4) of the M.V. Act, 2008, a three wheeler vehicle used for transport of passengers/goods is a transport vehicle. The insurance policy of the Auto Rickshaw, under the head "class of vehicle" states that the said vehicle is a A/R passenger.
In the case of Mukund Dewangan (supra), the Apex Court held at Para 60.1 as follows:
- 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 Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994.
7. In view of the above, it appears that the Auto Rickshaw driven by the deceased is a transport vehicle coming within the definition of LMV.
8. The question that has to be decided is as to whether the deceased fulfilled all the conditions required under the package policy, to enable the claimants to receive compensation under personal accident cover. Section 14 of the MV Act, 1988 states that a driving licence for a transport vehicle would be for a period of 3 years, while the deceased had a driving licence for 5 years. Thus the question that arises is whether the driving licence issued to the deceased was for a transport vehicle or for a non-transport vehicle, keeping in Page No.# 4/4 view the fact that the validity of his licence was for a period of five years.
9. On the prayer of Mr.R. Goswami, list the matter on 04.02.2020 as part-heard.
JUDGE Comparing Assistant