Rajasthan High Court - Jodhpur
Ram Kumar vs Prabhu Dayal & Ors on 28 November, 2013
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
(1) S.B. CIVIL MISC. APPEAL NO.842/2009
Ram Kumar
Vs.
Mangal Chand & Ors.
(2) S.B. CIVIL MISC. APPEAL NO.767/2012
Ram Kumar
Vs.
Prabhudayal & Ors.
Date of Judgment :: 28th November, 2013
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Moti Singh )
Mr. B.R. Chahar )
Mr. R.S. Choudhary), for the appellant.
Mr. L.D. Khatri )
Mr. T.R.S. Sodha ) for the respondent-Insurance Company
Mr. G.J. Gupta, for the respondent-claimants.
----
BY THE COURT:
These appeals under Section 173 of the Motor Vehicles Act 1988 ('the Act') filed by the appellant-owner are directed against the judgment and award dated 11.12.2008 passed by the Motor Accident Claims Tribunal, Bhadra ('the Tribunal'), whereby, the Tribunal exonerated the Insurance Company from liability to pay the compensation awarded, however, directed the Insurance Company to first pay the amount of compensation awarded and then recover the same from the appellant-owner.
The brief facts of the case may be noticed thus: claimant 2 Mangal Chand owner and driver of vehicle RJ31-T-0109 was travelling alongwith five persons on 10.11.2006 at about 11.45 AM on the main road Raslana when Narendra Kumar driving vehicle Pick-up RJ10-GA-0509 while working under the employment of Ram Kumar appellant collided with the said vehicle driven by Mangal Chand, which resulted in serious injuries to Mangal Chand and occupant of the said vehicle Smt. Nani Devi W/o Ami Lal died.
The claimant Mangal Chand and legal representatives of deceased Smt. Nani Devi filed applications for compensation ('the application') seeking sum of Rs.20,30,000/- and Rs.25,00,000/- as compensation respectively. It was, inter alia, claimed that Narendra Kumar driver of the Pick-up was driving the vehicle rashly and negligently, which resulted in the accident and, therefore, under various heads the claimants were entitled to seek compensation for the injuries suffered by Mangal Chand and on account of death of Smt. Nani Devi.
A reply to the applications was filed by Ram Kumar and Narendra Kumar, inter alia, taking the plea that the vehicle was being driven at normal speed and the accident occurred on account of rash and negligent driving by claimant Mangal Chand. It was contended that if it is found that accident occurred on account of Narendra Kumar, then the vehicle was insured with the Insurance Company and the driver was in possession of valid and effective driving licence.
The Insurance Company filed its reply and, inter alia, pleaded in additonal pleas that Narendra Kumar was not in 3 possession of driving licence authorizing him to drive transport vehicle and at the time of accident he was driving a transport vehicle and, therefore, the Insurance Company was not liable.
Based on the pleadings of the parties, the Tribunal framed five issues. On behalf of the claimants, claimants Mangal Chand and Prabhu Dayal were examined and they exhibited several documents. On behalf of the non-claimants Narendra Kumar was examined as NAW-1 and Ram Kumar was examined as NAW-2 and on behalf of Insurance Company Assistant Manager was examined as NAW-3.
After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by Narendra Kumar, who was working under the employment of appellant Ram Kumar, which resulted in injuries to Mangal Chand and Smt. Nani Devi, to which, Smt. Nani Devi succumed. While deciding issue No.3 relating to the liability of the Insurance Company, the Tribunal came to the conclusion that the driving licence of Narendra Kumar was valid for driving motor cycle and light motor vehicle ('LMV') and was valid for the period 06.08.1998 to 31.05.2018; Ram Kumar admitted in his cross-examination that his Pick-up was a transport vehicle and, therefore, there was substance in the objection raised by the Insurance Company.
The Tribunal thereafter while relying on the judgments of Hon'ble Supreme Court in National Insurance Company Limited v. Kusum Rai & Ors. : 2006 ACJ 1336 and New India Assurance Company Ltd. v. Roshanben Rahemansha Fakir & Anr. : (2008) 4 8 SCC 253 held that policy conditions were violated and directed the Insurance Company to 'pay and recover'.
After considering the evidence available on record, the Tribunal awarded a sum of Rs.1,80,042/- as compensation for the injuries suffered by Mangal Chand and a sum of Rs.1,57,997/- as compensation to legal representatives of Smt. Nani Devi.
It is submitted by learned counsel for the appellant-owner that the Tribunal fell in error in coming to the conclusion that as the driver was in possession of driving licence effective for driving 'light motor vehicle', the policy conditions have been violated and, consequently, wrongly authorized the Insurance Company to recover the amount of compensation paid by it from the appellant. Reference was made to definition of light motor vehicle as contained in Section 2 (21) of the Act and Section 10 (2) of the Act.
Reliance was placed on the judgments of Hon'ble Supreme Court in the case of S. Iyyapan v. M/s. United India Insurance Co. Ltd. & Anr. : 2013 DNJ (SC) 523, National Insurance Company Ltd. v. Annappa Irappa Nesaria & Ors. : 2008 DNJ (SC) 199 and the judgment of this Court in United Nidia Insurance Co. Ltd. v. Smt. Kamli Devi & Ors. : 2009 (1) DNJ (Raj.) 277.
On the other hand, learned counsels appearing for the Insurance Company submitted that admittedly the driver Narendra Kumar was holding a licence authorizing him to drive 'light motor vehicle' and at the time of accident he was driving 5 'transport vehicle' and, therefore, there was violation of policy conditions and Insurance Company cannot be held liable for payment of compensation and though a direction to pay and recover also could not be passed by the Tribunal as in several judgments the said power has been exercised by Hon'ble Supreme Court under Article 142 of the Constitution of India, which power is not available with the Tribunal, the finding of the Tribunal regarding violation of policy conditions does not call for any interference. Reference was made to the definition of 'goods carrier', 'transport vehicle' and provisions of Sections 3, 4 (2), 7, 10 and 14 of the Act. Reference was also made to Rules 14, 16 and Forms 4 & 6 of the Central Motor Vehicles Rules, 1989 ('the Rules').
Reliance was placed on the judgments of Hon'ble Supreme Court in the case of Roshanben Rahemansha Fakir (supra), Kusum Rai (supra) and Oriental Insurance Co. Ltd. v. Angad Kol & Ors. : (2008) 1 SCC 696.
I have considered the rival submissions. The issue, which arises for consideration in the present appeals is whether a driver holding driving licence authorizing him to drive 'light motor vehicle' is entitled to drive a 'transport vehicle' having gross vehicle weight not exceeding 7500 kgs.?
The undisputed facts, which emerge from the record of the case are that the vehicle RJ10-GA-0509 registered in the name of Ram Kumar has been categorized as a Pick-up and its gross vehicle weight has been indicated as 2750 kgms. vide registration certificate (Exhibit-5). Further, the driving licence of 6 Narendra Kumar (Exhibit-7) indicates that the same was issued on 01.06.1998 and authorized him to drive motor cycle with gear and light motor vehicle. The licence further indicated that the licence was valid for driving motor vehicle 'other than transport vehicle' for the period 01.06.1998 to 31.05.2018 and a clear endorsement as '-No-' was made on the portion meant for indicating the validity of licence for driving transport vehicle. The insurance policy (Exhibit-8) provided for condition that a person driving the vehicle should hold an effective driving licence at the time of accident.
It would be appropriate to notice few definitions at this stage:-
"2(14) "goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods;
(21) "light motor vehicle" means 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 [7,500] kilograms;
(47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle."
It would also be appropriate to notice few provisions of the Act:-
"3. 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 authorising 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 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 7 as may be prescribed by the Central Government.
4. Age limit in connection with driving of motor vehicles.- (1) No person under the age of eighteen years shall drive a motor vehicle in any public place:
Provided that [a motor cycle with engine capacity not exceeding 50cc] may be driven in a public place by a person after attaining the age of sixteen years.
(2) Subject to the provisions of section 18, no person under the age of twenty years shall drive a transport vehicle in any public place.
(3) No learner's licence or driving licence shall be issued to any person to drive a vehicle of the class to which he has made an application unless he is eligible to drive that class of vehicle under this section.
7. Restrictions on the granting of learner's licences for certain vehicles. - (1) No person shall be granted a learner's licence to drive a transport vehicle unless he has held a driving licence to drive a light motor vehicle for at least one year.
(2) No person under the age of eighteen years shall be granted a learner's licence to drive a motor cycle without gear except with the consent in writing of the person having the care of the person desiring the learner's licence.
10. Form and contents of licences to drive. - (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;
(e) transport vehicle;
(i) road-roller;
(j) motor vehicle of a specified
description.
14. Currency of licences to drive motor
vehicles. - (1) A learner's licence issued under this Act shall, subject to the other provisions of this Act, be effective for a period of six months from the date of issue of the licence.
(2) A driving licence issued or renewed 8 under this Act shall,-
(a) in the case of a licence to drive a transport vehicle, be effective for a period of three years:
[Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus; and]"
Further, Rule 14 and 16 of the Rules deal with application for a driving licence and form of driving licence respectively and form 4 and 6 have been prescribed in accordance with the said Rules for application and form of licence.
A close scrutiny of the above provisions would reveal that 'light motor vehicle' has been defined to mean a transport vehicle or omnibus the gross vehicle weight of which does not exceed 7500 kgs. A plain reading of the said definition creates an impression that a transport vehicle having gross vehicle weight less than 7500 kgs. would be a light motor vehicle and once a driver holds driving licence to drive 'light motor vehicle', he is as well entitled to drive a transport vehicle having gross vehicle weight not exceeding 7500 kgs. However, a definition cannot be read in isolation and divorced from the context, other relevant definitions and provisions of the Act and for giving true meaning/effect to a definition, the other provisions of the enactment as well needs to be taken into consideration.
A 'transport vehicle' has been defined to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle and in turn 'goods carriage' has been 9 defined to mean a motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods.
A combined reading of the definition of 'Light Motor Vehicle', 'Goods Carriage' & 'Transport Vehicle' would reveal that a goods carriage irrespective of the fact that its gross weight is less than 7500 kgs. would be a transport vehicle and the consequences thereof would follow.
The provisions relating to licence make a clear distinction between light motor vehicle and a transport vehicle. Section 3 prohibits a person from driving a transport vehicle unless his driving licence specifically entitles him so to do. Section 4 provides for age limit in connection with driving of motor vehicles and gives out the age of 18 years for the said purpose. However, sub-section (2) of Section 4 provides that no person under the age of 20 years shall drive a transport vehicle in any public place. Section 7 provides a restriction on granting a learner's licence to drive a transport vehicle unless a person has held a driving licence to drive a light motor vehicle for at least one year. Section 10 provides for form and contents of licences to drive and provides for classes, which includes (d) light motor vehicle and (e) transport vehicle as two distinct categories and Section 14, which deals with currency of licences to drive motor vehicles provides that while a licence to drive a transport vehicle would be effective for a period of three years, any other licence would be effective for a period of twenty years/or until the person attains the age of fifty years and the same is open for 10 renewal for five years thereafter.
In all the provisions, noticed/considered hereinbefore, the distinction qua the eligibility, restriction and duration between a licence to drive transport vehicle and other vehicles is quite distinct and apparent. The form of licence under Section 3 of the Act and Rule 16 of the Rules further highlights the said distinction, wherein, when a licence to drive light motor vehicle is granted, the same specifically provides "the licence to drive a motor vehicle other than transport vehicle is valid from ........... to............"
The use of word transport vehicle in various provisions as noticed above in Sections 3, 4, 7, 10 and 14 and Rules 14 and 16 alongwith Forms 4 and 6 cannot be read to mean that the transport vehicle indicated therein would not include a transport vehicle having gross vehicle weight not exceeding 7500 kgs. as that interpretation would not only defeat the purpose, for which, the distinct provisions have been incorporated qua the transport vehicle, the same would render the definitions of 'transport vehicle' and 'goods carrier' as contained in Sections 2(14) and (47) of the Act otiose.
Hon'ble Supreme Court in the case of Prabhu Lal (supra) after taking into consideration the judgments in the case of Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd. :
(1999) 6 SCC 620 and in the case of Kusum Rai (supra) held thus:-
"23. The District Forum held that the documents clearly mentioned that the vehicle was a 'goods carriage' as defined in Section 2 11 (14) covered by the category of 'transport vehicle' under Section 2(47) of the Act. The State Commission held that since the gross weight of the vehicle was only 6800 Kgs and did not exceed permissible limits (7500 Kgs) nor it was carrying goods at the time of accident, it was a Light Motor Vehicle. For coming to that conclusion, the State Commission relied upon Ashok Gangadhar.
24. In our considered view, the State Commission was wrong in reversing the finding recorded by the District Forum. So far as Ashok Gangadhar is concerned, we will deal with the said decision little later but from the documentary evidence on record and particularly, from the permit issued by the Transport Authority, it is amply clear that the vehicle was a 'goods carrier' [Section 2(14)].
If it is so, obviously, it was a 'transport vehicle' falling under Clause (47) of Section 2 of the Act. The District Forum was, therefore, right in considering the question of liability of the Insurance Company on the basis that Tata 709 which met with an accident was 'transport vehicle'.
25. The second question is as to who was driving the vehicle which collided with M.P. Roadways Bus on April 17, 1998. In this connection, it may be stated that it was the case of the complainant that the vehicle (Tata
709) was driven by Mohd. Julfikar to Indore. Because of rash and negligent driving by Kalu, driver of other vehicle i.e. M.P. Roadways bus, there was an accident and Ram Narain, brother of the complainant, sustained serious injuries. Mohd. Julfikar was having valid licence to drive Light Motor Vehicle (LMV) as well as Heavy Motor Vehicle (HMV) and hence the complainant was entitled to compensation from the Insurance Company.
26. The contention of the Insurance Company, on the other hand, was that it conducted an inquiry which revealed that at the time of accident it was not Mohd. Julfikar who was driving the vehicle, but it was Ram Narain who was driving it. Ram Narain was having licence to drive Light Motor Vehicle only and since the vehicle in question was a transport vehicle, he could not have driven the said vehicle in absence of an endorsement as required by law and hence the complainant was not entitled to any amount from the Insurance Company and the Insurance Company could 12 not be held liable.
27. The District Form, as observed earlier, considered the assertion of the complainant and the defence of the Insurance Company as to who was driving Tata 709 and on the basis of overall evidence adduced before it, held that it was Ram Narain who was driving the vehicle that met with an accident. The said Ram Narain was not having licence to drive transport vehicle and as such, Insurance Company was not liable. The District Forum noted that in the FIR lodged in respect of the accident, Ram Narain was shown to be the drive of the vehicle. Not only that but the evidence adduced before the District Forum also went to show that at the time of accident, Ram Narain was the driver of the insured vehicle. The argument of the complainant that the officials of the Insurance Company obtained his signatures on some documents without reading them over and making the claimant to understand the contents thereof was negatived. The assertion of the complainant that he was 'illiterate' and was knowing only how to put his signature was also not believed by the District Forum. The said finding of fact has not been set aside either by the State Commission or by the National Commission. Even otherwise, from the evidence on record, we are satisfied that it was Ram Narain who was driving the vehicle at the time of accident. We have, therefor, to proceed to consider whether the complainant was entitled to claim compensation from the Insurance Company in such an eventuality.
28. The argument of the Insurance Company is that at the time of accident, Ram Narain had no valid and effective licence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive Light Motor Vehicle. The learned Counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having licence to drive Light Motor Vehicle, he cannot drive a transport vehicle unless his driving licence specifically entitles him so to do (Section 3). Clauses (14), (21), (28) and (47) of Section 2 make it clear that if a vehicle is 'Light Motor Vehicle', but falls under the category of Transport Vehicle, the driving licence has to be duly endorsed under Section 3 of the Act. If it is not done, a person holding driving licence to ply Light Motor Vehicle cannot ply transport vehicle. It is not 13 in dispute that in the instant case, Ram Narain was having licence to drive Light Motor Vehicle. The licence was not endorsed as required and hence, he could not have driven Tata 709 in absence of requisite endorsement and Insurance Company could not be held liable.
29. We find considerable force in the submission of the learned Counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under Clause (47) of Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To us, therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle in question."
(emphasis supplied) The said judgment in no uncertain terms holds that if a vehicle is 'light motor vehicle', but falls under the category of transport vehicle, the driving licence has to be duly endorsed under Section 3 of the Act.
Hon'ble Supreme Court in the case of Angad Kol (supra) while relying on judgment in the case of Prabhu Lal (supra) and distinguishing the judgments in the case of Annapa Irappa Nesaria (supra) and Ashok Gangadhar Maratha (supra) held that driver in that case, who was holding driving licence to drive light motor vehicle did not hold a valid and effective driving licence for driving a goods vehicle and breach of conditions of the insurance was, therefore, apparent on the face of the record.
The judgment of Hon'ble Supreme Court in the case of Kusum Rai (supra) held that the driver holding driving licence to 14 drive light motor vehicle was not entitled to drive a commercial vehicle.
Similarly in the case of Roshanben Rahemansha Fakir (supra) Hon'ble Supreme Court held that driver holding driving licence for light motor vehicle was not entitled to drive an autorickshaw.
So far as the case of Annappa Irappa Nesaria (supra) is concerned, Hon'ble Supreme Court in the said case while relying on the position of Rules/Form prior to 28.03.2001 and the date of accident came to the conclusion that at the relevant point of time the light motor vehicle continued to govern both light passenger carriage vehicle and light goods carriage vehicle and, therefore, a driver, who had a valid licence to drive a light motor vehicle was authorized to drive a light goods vehicle as well. The said judgment has been considered in subsequent judgment by Hon'ble Supreme Court in Angad Kol (supra) and the same has been distinguished on account of the effective date i.e. 28.03.2001.
Admittedly, in the present case, the accident has occurred on 10.11.2006 i.e. post 28.03.2001 and, therefore, the said judgment in the case of Annappa Irappa Nesaria (supra) has no application. The case of S. Iyyapan (supra) besides the fact that the said judgment does not take into consideration law laid down in the case of Angad Kol (supra) and Roshanben (supra), the accident had occurred on 23.05.1998 i.e. prior to 28.03.2001 and even as per view of the law laid down in Angad Kol's case, wherein, date of accident has been held to be having significance 15 the judgment in the case of S. Iyyapan also does not help the cause of the appellant. The judgment of this Court in Smt. Kamli Devi (supra) has not taken into consideration the judgment of Roshanben Rahemansha Fakir (supra), which was delivered just a day before the case of Smt. Kamli Devi and is not in conformity with the judgments of Hon'le Supreme Court in the case of Angad Kol (supra) and Prabhu Lal (supra).
This Court while considering the submissions of the parties that as the licence to drive light motor vehicle was issued prior to 28.03.2001 and, therefore, in view of the law laid down by Hon'ble Supreme Court in the case of Annappa Irappa Nesaria (supra) the said licence would be effective for a transport vehicle, in view of the endorsement on the licence restricting the same for 'other than transport vehicle' has negated the said argument in the case of National Insurance Company Limited v. Ashish Kumar & Anr. : S.B. Civil Misc. Appeal No.4346/2011 decided on 07.10.2012.
In view of the above discussion and the law laid down by Hon'ble Supreme Court in the cases of Roshanben Rahemansha Fakir (supra), Angad Kol (supra) and Prabhu Lal (supra), the person holding driving licence to drive light motor vehicle is not entitled to drive transport vehicle even if its gross vehicle weight is less than 7500 kgs.
Applying the law to the case in hand, on the admitted facts of the case as noticed hereinbefore, wherein, the driver Narendra Kumar was holding a driving licence effective for driving light motor vehicle, which specifically contained 16 endorsement regarding its validity 'other than transport vehicle', the finding recorded by the Tribunal on issue No.3, regarding violation of policy condition, does not call for any interference.
Accordingly, the appeals have no substance and the same are, therefore, dismissed. No costs.
(ARUN BHANSALI), J.
A.K.Chouhan/-