Gujarat High Court
National Insurance Company Limited ... vs Babulal Mohanbhai Vala on 3 October, 2022
C/FA/529/2012 JUDGMENT DATED: 03/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 529 of 2012
With
R/FIRST APPEAL NO. 530 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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NATIONAL INSURANCE COMPANY LIMITED THROUGH ITS
AHMEDABAD REGIONAL OFFICE
Versus
BABULAL MOHANBHAI VALA & 3 other(s)
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Appearance:
MR VIBHUTI NANAVATI (513) for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 1,2,3,4.1,4.2,4.3,4.4
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date: 03/10/2022
COMMON ORAL JUDGMENT
1. The appellant- Insurance Company has filed these appeals Page 1 of 17 Downloaded on : Sun Dec 25 03:14:37 IST 2022 C/FA/529/2012 JUDGMENT DATED: 03/10/2022 under section 173 of the Motor Vehicles Act ('the Act' for short), challenging the judgment and award dated 15.10.2011, passed by the Motor Accident Claims Tribunal (Aux.), Morbi in MACP Nos. 175 of 2009 and MACP No.176 of 2009 respectively. First Appeal No. 529 of 2012, arises out of MACP No.175 of 2009 and First Appeal No. 530 of 2012, arises out of MACP No. 176 of 2009. Both these first appeals are filed by the insurance company challenging the liability fastened on it, for the payment of compensation.
2. Brief facts, arising from the record are as under:
2.1. On 24.04.2009 at around 02:30 pm, Vijayaben with her minor daughter Nikita were traveling on a motor-cycle no.
GJ-3CJ-5293, driven by Rambhai-husband of Vijayaben and father of Nikita. When they reached Rajpar road, near Jaydev oil industry, one tractor no. GJ-10-AF-0086, came with full speed in rash and negligent manner and tried to overtake the motor-cycle. While overtaking, it dashed with the motor-cycle. On account of impact of dash, the pillion riders Vijayaben and Nikita fell down where, Vijayaben died on the spot and Nikita sustained serious injuries. FIR was lodged before Morbi Taluka Police Station being CR No. 54 of 2009 and panchnama was also drawn. The original claimants filed two claim petitions under Section 166 of the Act, one in case of deceased Page 2 of 17 Downloaded on : Sun Dec 25 03:14:37 IST 2022 C/FA/529/2012 JUDGMENT DATED: 03/10/2022 Vijayaben (MACP No.175 of 2009), seeking compensation of Rs. 4 Lacs and another in case of minor Nikitaben (MACP No.176 of 2009), seeking compensation of Rs.1,00,000/-.
3. In the claim petitions, opponent no.1 is the owner of Hero Honda motor-cycle no. GJ- 3CJ-5293; opponent no.2 is Insurance Company of Hero Honda motor-cycle no. GJ-3CJ- 5293; opponent no.3 is the owner of tractor no. GJ-10AF-0086 and opponent no.4 is the driver of motor-cycle no. GJ-3CJ- 5293. It is also noticed that though two vehicles were involved in the accident, one Tractor bearing registration no. GJ-10AF-0086 and another motorcycle bearing registration no GJ-3CJ-5293, as tractor no. GJ-10AF-0086, was not insured with any of the insurance company, no other insurance company except appellant herein was joined as party respondent.
4. The Tribunal, after hearing the parties and upon appreciation of the evidence on record, awarded total compensation of Rs.2,73,300/- in case of the deceased Vijayaben (MACP No. 175 of 2009), and Rs. 44,300/- in case of minor Nikita (MACP No. 176 of 2009). In both the cases compensation was awarded with interest @ 7.5% p.a from the date of filing of claim petition till realisation and respondent nos.1 to 4 were jointly and severally held liable for the Page 3 of 17 Downloaded on : Sun Dec 25 03:14:37 IST 2022 C/FA/529/2012 JUDGMENT DATED: 03/10/2022 payment.
5. Aggrieved by the judgment and award of the Tribunal dated 15.10.2011, the Insurance Company has filed these appeals.
6. Heard learned advocate Mr. Vibhuti Nanavati for the appellant- Insurance Company. Despite service of rule, none appeared for the respondents no.1 (owner of motor cycle no GJ-3CJ-5293), respondent no. 2(driver of motor cycle), respondent no3. (owner of tractor no. GJ-10-AF-86) and respondents no.4 to 4.4 (original claimants). Before the tribunal also none appeared for respondent nos. 1, 2 and 3. As both these appeals are arising out of common judgment and award dated 15.10.2011, for the same accident, with the consent of learned advocate for the appellant, they are heard and decided together.
7. Appearing for the Insurance company Learned advocate Mr. Vibhuti Nanavati, submitted that the Tribunal committed a serious error in fastening the liability on the Insurance Company. He submitted that, the driver of the motor-cycle was not possessing a valid and effective license as mandated under section 3 read with section 10 of the Motor Vehicles Act. Referring to Exh.35, he submitted that the driver of the motor-
Page 4 of 17 Downloaded on : Sun Dec 25 03:14:37 IST 2022C/FA/529/2012 JUDGMENT DATED: 03/10/2022 cycle- Ramabhai Lakhubhai Jariya was possessing license to drive non-Transport vehicle as well as transport vehicle for the period from 16.10.2007 to 15.10.2010. No endorsement was made by RTO office to drive motor cycle. As he was not possessing the license to drive the motor-cycle, in view of section 3 read with section 10 of the Act, the driver of motor cycle is stated, not to have valid and effective license to drive the motor-cycle. Therefore, in view of breach of condition of insurance policy, the Insurance Company is not liable for the payment of compensation.
7.1. He further submitted that, in the deposition at Exhi- 33, RTO head clerk- Mahendrabhai Hirabhai-, had stated that as per license at Exhi-35, Ramabhai Jaria was holding license to drive light motor vehicle, heavy motor vehicle and passenger vehicle. Ramabhai was holding license to drive light motor vehicle from 13.04.1993 and from 17.01.1995, he was holding license to drive heavy motor vehicle, which was valid up to 15.10.2010. Neither he was possessing license to drive motor cycle nor any endorsement was made to that effect. In the cross examination he had further stated that it is not true that the holder of light or heavy motor vehicle is permitted to drive motor cycle.
7.2. Learned advocate further relied upon the written Page 5 of 17 Downloaded on : Sun Dec 25 03:14:37 IST 2022 C/FA/529/2012 JUDGMENT DATED: 03/10/2022 submissions filed by Insurance Company at Exhi-43, to submit that all these contentions were taken by the appellant before the Tribunal, however the tribunal erred in holding that as the driver was possessing license to drive transport as well as non
-transport vehicle, there is no violation of terms of policy.
Relying upon decision of this Court in National Insurance Company Vs. Laxmiben Ramanbhai Patel and others, in First Appeal No. 1278 of 2010 dated 15/07/2022, Mr. Nanavati submitted that Coordinate Bench of this Court in case of the driver, not having valid and effective license has exonerated the Insurance Company from its liability.
7.3. He thus, submitted that as the driver of motor-cycle on the date of accident, was not possessing valid and effective license to drive motorcycle, the claimants are not entitled for the payment of compensation as claimed. The findings of the Tribunal that as the driver was holding license to drive light motor vehicle there was no breach of conditions policy is contrary to the provisions of the act and thus erroneous. Therefore, the Tribunal is in error in fastening the liability on Insurance Company for the payment of compensation. He submitted that the Insurance Company may be exonerated from its liability and present appeal may be allowed.
8. Having heard learned advocate for the appellant-
Page 6 of 17 Downloaded on : Sun Dec 25 03:14:37 IST 2022C/FA/529/2012 JUDGMENT DATED: 03/10/2022 Insurance company and upon perusal of the records and proceedings following issues would raise for consideration: -
Issue-1: -
1) Whether in the facts of these cases, the driver of Motor Cycle No. GJ-3CJ-5293 on the date of accident, was holding valid and effective license to drive the Motor-
Cycle?
Issue-2: -
2) If, the point no 1 is decided in negative than, whether, the insurance company is liable for the payment of compensation as directed by the tribunal?
To decide these issues certain provisions would be relevant.
"10. Section 2 (10) of the Act reads as under:
"driving licence" means the licence issued by a competent authority under Chapter II authorizing the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description;"
"Section 2 (27) of the Act reads as under:
"motor cycle" means a two-wheeled motor vehicle, Page 7 of 17 Downloaded on : Sun Dec 25 03:14:37 IST 2022 C/FA/529/2012 JUDGMENT DATED: 03/10/2022 inclusive of any detachable side-car having an extra wheel, attached to the motor vehicle"
Section 2 (28) of the Act reads as under:
"motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding[twenty-five cubic centimeters]"
Section 3 of the Act reads as under:
"Necessity for driving licence.-(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing 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 sub-section (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 Page 8 of 17 Downloaded on : Sun Dec 25 03:14:37 IST 2022 C/FA/529/2012 JUDGMENT DATED: 03/10/2022 Government."
Section 10 of the Act, reads as under:
10(1) Every learner's licence and driving licence, except a driving licence 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 classes, namely:--
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle; 1[(e) transport vehicle;] 1[(e) transport vehicle;]"
(i) road-roller;
(j) motor vehicle of a specified description."
9. As per Section 2(10) of the Act, "driving licence" means the licence issued by the competent authority under Chapter II, authorizing the person specific therein to drive a motor vehicle of any specified class or description. As per Section 2(27) "motor cycle" means two-wheeled motor vehicle inclusive of any detachable side-car attached to the motor vehicle. As per Section 2(28) "motor vehicle" adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not Page 9 of 17 Downloaded on : Sun Dec 25 03:14:37 IST 2022 C/FA/529/2012 JUDGMENT DATED: 03/10/2022 include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding[twenty-five cubic centimeters].
9.1. Therefore, in my opinion when the motorcycle has been specifically defined under the Act and in view of Section 2 (10) when a stipulation is made that driving licence means the licence issued by the competent authority authorizing the person specified in the driving licence, to drive a motor vehicle of any specified class or description, a general meaning to a motor vehicle cannot be made applicable to hold the driving licence as valid and effective licence. In other words, once the "driving licence", "motorcycle" and "motor vehicle"
or "vehicle" has been defined under the Act, a specific meaning in this regard is to be given to the phrases used in the section. The conjoint reading of all the three definitions makes it clear that a specific licence, authorised by the competent authority to drive the motor vehicle of a specific class or description is the requirement of the Section to describe valid and effective licence.
10. Section 3 of the Act, refers to necessity of driving license. It stipulates that no person shall drive a motor vehicle, Page 10 of 17 Downloaded on : Sun Dec 25 03:14:37 IST 2022 C/FA/529/2012 JUDGMENT DATED: 03/10/2022 in any public place unless, he holds effective driving license issued to him, authorising him to drive that vehicle. Section 10 of the Act, refers to the Form and contents of license to drive. Section 10, sub section (2), clause (a) and (b) of the act, states that the driving license shall also be expressed as entitling holder to drive a motor-vehicle of one or more of the classes, where clause (a) classifies motor cycle without gear and clause
(b) classifies motorcycle with gear. Therefore, in my opinion, conjoint reading of section 3 with section 10 (2) mandates the driver to hold license to drive motor cycle with or without gear. Moreover, a driver is not stated to have valid and effective license if he does not possess the same for the class of vehicle which he is to drive.
11. In the present case the driving license at Exh. 35 specifies that Rambahi Lakhubhai was possessing license to drive the transport vehicle as well as non-transport vehicle. More so, the deposition of the RTO head clerk at Exh.33, clearly supports the case of appellants that the driver of motor- cycle was not having endorsement to drive the motor-cycle, at the relevant time. Further, in the cross-examination, the claimants could not establish that the deceased had the endorsement to drive the motor-cycle on his driving license.
12. Further, in the decision of this Court in the case National Page 11 of 17 Downloaded on : Sun Dec 25 03:14:37 IST 2022 C/FA/529/2012 JUDGMENT DATED: 03/10/2022 Insurance Company Vs. Laxmiben Ramanbhai Patel and others, in First Appeal No. 1278 of 2010, it is held as under:
"8. At this stage, on the basis of the aforesaid circumstance, learned advocate Mr. Mehta has drawn attention to few decisions delivered by the co-ordinate Bench which is again based upon the decision delivered by the Division Bench of this Court, in which, on the basis of such admitted position, since there was no license on the date of the accident, the Insurance Company is absolved from the responsibility and as such, in view of such proposition having been laid by the co- ordinate Bench of this Court, the same deserves to be considered. Hence, the Court deems it proper to reproduce the said observations contained in paragraph 8 from the decision dated 18.01.2022, reads as thus:-
"8.0. In case on hand also it clearly transpires that the driver of offending vehicle had no license on the date of accident. As per the provision of the Motor Vehicles Act leverage of 30 days was given on license having expired whereas in this case one year has passed and same has not renewed. It is an admitted position that driver of offending vehicle did not possess any license on the date of accident. Following the ratio laid down by the Coordinate Bench of this court in the case of Mahmad Rafik Munnebhai Ansari (supra), the appellant- Insurance Company cannot be therefore, held liable to indemnify the award. The conclusion arrived at by the Tribunal that the license was not cancelled also is against the provision of Act and Page 12 of 17 Downloaded on : Sun Dec 25 03:14:37 IST 2022 C/FA/529/2012 JUDGMENT DATED: 03/10/2022 that would not create any liability of the appellant. In light of the aforesaid, therefore, the appellant cannot be held to be liable to satisfy the award and appellant Insurance Company therefore, deserves to be exonerated. It goes without saying that the opponent nos. 1 and 2 would be jointly and severely liable to satisfy the award. In light of the above fact, the contention raised by Mr. Patel that order of pay and recovery deserves to be passed, cannot be accepted. That as per the order dated 18.09.2012 passed in Civil Application No.7758 of 2012, the appellant Insurance Company has deposited whole awarded amount with interest and no disbursement is made in favour of the claimant. However, the respondent claimant was permitted to withdraw the interest that may be accrued on such deposit. If any such interest is permitted to be disbursed in favour of the claimant, as per the order dated 18.09.2012 in Civil Application No. 7758 of 2012, the same cannot be recovered from the claimant. Rest of the amount be refunded back to the appellant Insurance Company forthwith with proportionate costs and interest. The impugned judgment and award is hereby quashed and set aside. Appeal is thus, partly allowed to the aforesaid extent. Registry is directed to transmit back the Record and Proceedings of the case to the Tribunal forthwith."
13. In the decision of the Hon'ble Supreme Court in the case of Oriental Insurance Co. Limited vs. Zaharulnisha reported in Page 13 of 17 Downloaded on : Sun Dec 25 03:14:37 IST 2022 C/FA/529/2012 JUDGMENT DATED: 03/10/2022 2008 12 SCC 385 referring to Section 10, the Hon'ble Supreme Court in paragraph 18 has held as under:
"18. In the light of the above-settled proposition of law, the appellant insurance company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of scooter by Ram Surat who admittedly had no valid and effective licence to drive the vehicle on the day of accident. The scooterist was possessing driving licence of driving HMV and he was driving totally different class of vehicle which act of his is in violation of Section 10(2) of the MV Act."
14. In the decision of New India Assurance Company vs. Tika Ram reported in (2012) ACJ 1088, the Hon'ble Himachal Pradesh High Court held in paragraphs 3, 5, 6 and 7 as under:
"3. A scooter has not been defined under the Motor Vehicles Act and a scooter will fall under the definition of Motor Cycle, as quoted above. In Section 2(21), light motor vehicle has been defined to mean a transport vehicle or omnibus or motor car or tractor or road-roller with a weight of above 7500 kilogram. It is pertinent to note that all the vehicles included are four wheeled vehicles and a motor cycle has not been included in the definition of LMV. This stands to reason Page 14 of 17 Downloaded on : Sun Dec 25 03:14:37 IST 2022 C/FA/529/2012 JUDGMENT DATED: 03/10/2022 also. A person who can drive a scooter may not be able to drive a car. Similarly, a person who can drive a car need not necessarily have the capability to drive a motor cycle. The technique for driving two wheelers is totally different from the technique required for driving four wheeled vehicles.
5. The Apex Court in Oriental Insurance Company Limited vs. Zaharulnisha and others, (2008) 12 SCC 385 :(AIR 2008 SC 2218) also held that a person having driving licence of Heavy Motor Vehicle cannot be said to hold a valid driving licence to drive a Scooter.
6. Mr. V.S. Chauhan relying upon the directions given in Zaharulnisha's case and of this Court in Ghanshayam's case submits that the amount deposited by the Insurance Company be paid to the claimants and the right to recover the amount be given to the Insurance Company.
Similar directions given by this Court have been set aside by the Apex Court and the Apex Court has clearly held in Zaharulnisha's case that it has issued the directions in exercise of jurisdiction is vested in it under Article 142 of the Constitution of India. This Court has no such powers.
Therefore, no such directions can be given.
7. Accordingly, the appeal is allowed, the award is modified and the Insurance Company is held not entitled to pay the awarded amount. No costs."
Page 15 of 17 Downloaded on : Sun Dec 25 03:14:37 IST 2022C/FA/529/2012 JUDGMENT DATED: 03/10/2022
15. Therefore, in view of above, in my opinion, it is the case where the driver of the motor-cycle no. GJ-3 CJ-5293, was not holding a valid and effective driving license on the date of accident to drive motor cycle. Therefore, there is violation of provision of section 3 read with section 10 of the Act. Therefore, the Tribunal in my opinion is in error in holding that the driver of motorcycle No. GJ-3CJ-5293 on the date of accident, was holding valid and effective licence to drive motorcycle. The Issue No.1 therefore is answered in negative. Since the driver of Motor-Cycle No. GJ-3CJ-5293 was not holding valid and effective licence as mandated under the provisions of the Act, the Tribunal is in error in fastening the liability on the Insurance Company. Therefore, in my opinion the Insurance Company shall not be held responsible for the liability, which arose pursuant to the accident, where the driver of the motor-cycle was not holding the valid and effective license as contemplated under section 3 read with section 10 of the act. The issue No.2 is therefore answered in negative.
16. The impugned judgment and award dated 15.10.2011, therefore deserves to be quashed and set-aside and is hereby quashed and set -aside. The appeal of the appellant insurance company is allowed in part. The Insurance Company is absolved from its liability, for the payment of the Page 16 of 17 Downloaded on : Sun Dec 25 03:14:37 IST 2022 C/FA/529/2012 JUDGMENT DATED: 03/10/2022 compensation to the original claimants. The amount, which has been deposited pursuant to the judgment and award dated 15.10.2011, before the Tribunal which was ordered to be kept in Fixed Deposit, is ordered to be released with accrued interest thereon, in favour of the appellant-Insurance Company within a period of three months from the date of receipt of the order. However, amount if any already disbursed to the original claimants, shall not be recovered from the claimants.
17. With the above observations, these appeals stand disposed of. No order as to cost.
18. Registry is hereby directed to transmit back the Record and Proceedings of the case to back to the concerned Tribunal forthwith.
(MAUNA M. BHATT,J) Radhika Page 17 of 17 Downloaded on : Sun Dec 25 03:14:37 IST 2022