Gujarat High Court
United India Insurance Company Limited vs Kishorbhai Bhikhabhai Ahir on 21 February, 2022
C/FA/3241/2013 JUDGMENT DATED: 21/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3241 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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UNITED INDIA INSURANCE COMPANY LIMITED.
Versus
KISHORBHAI BHIKHABHAI AHIR & 1 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2.1,2.2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 21/02/2022
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant-insurance company, being aggrieved and dissatisfied with the judgment and award dated 15.07.2013 passed by the Motor Accident Claims Tribunal (Aux.), Tapi at Vyara in Motor Accident Claim Petition No.74 of 2009, by which the Tribunal has awarded compensation of Rs.3,28,500/- with 8% per annum interest to the claimants from the date of filing of claim petition.
Page 1 of 8 Downloaded on : Sun Apr 24 13:42:53 IST 2022C/FA/3241/2013 JUDGMENT DATED: 21/02/2022 2. Brief facts of the case are as under: 2.1 On 01.11.2008 at about 2:00 p.m., deceased-Nitaben
Yogeshbhai Chaudhary (mother of the claimants) was going from Valod to Buhari as a pillion rider on motorcycle bearing registration No.GJ-19-H-3170. One Tractor bearing registration No.GJ-19-B-1650 with Trailer bearing registration No.GJ-5-X-62 came from the other side and dashed with the motorcycle. Therefore, deceased has received serious injuries from the accident and has ultimately succumbed to the injuries. Therefore, the complaint was lodged against Opponent No.1-Kishorebhai Bhikhabhai Ahir (driver of the Tractor) at Valod Police Station. At the time of accident, deceased was aged about 25 years old and was earning Rs.3,000/-p.m. by doing household activities. As the deceased was expired due to the accident, the claim petition is filed to get compensation of Rs.5,00,000/- under the head of loss of estate, loss of future income etc., by the Claimants-minor children of the deceased.
2.2 The Tribunal has issued notices to the opponents. Opponent No.1-Kishorebhai Bhikhabhai Ahir has not appeared, though, he was served. Opponent No.2-Insurance Company has appeared and has field written statement at Exh.10 by contending that the averments made in the claim petition are not true and there is no negligence of Opponent No.1-driver of the Tractor. As the rider of the motorcycle has not joined as a party. Accordingly, the claim petition is not maintainable. Therefore, Opponent No.2-Insurance Company has prayed that the claim petition may be dismissed.
2.3 The Tribunal has framed issues at Exh.11. The witness for the claimants-Nileshbhiai Hasubhai Chaudhary has deposed at Exh.12 and the Opponent No.2-Insurance Company has cross-examined the said witnesses. Moreover, the documentary evidence;
Page 2 of 8 Downloaded on : Sun Apr 24 13:42:53 IST 2022C/FA/3241/2013 JUDGMENT DATED: 21/02/2022 like complaint at Exh.16, Panchnama at Exh. 17, Inquest Panchnama at Exh.18, Postmortem Report at Exh.19, School Leaving Certificate at Exh.21, etc., are produced on record. The Insurance Company has produced insurance policy at Exh.24 and driving licence of the vehicle- tractor and trailer at Exh.25 on record.
2.4 The Tribunal, after considering the oral and documentary evidence, has awarded compensation of Rs.3,28,500/- with 8% per annum interest from the date of filing of the claim petition, to the claimants.
2.5 Being aggrieved and dissatisfied with the above finding on the aspect of quantum as well as liability of the Insurance Company, the present First Appeal is preferred by the Insurance Company.
3. Learned advocate Mr. Vibhuti Nanavati for the insurance company has submitted that the driving licence of the driver of the tractor and trailer bearing registration No.GJ-19-B-1650 was produced before the Tribunal at Exh.25 alongwith list Exh.23 by the Insurance Company. Wherein, learned advocate for the claimant has given no objection for exhibiting the same. He has submitted that the driver of the tractor-trailer was holding licence to driver TRA and MCE 5G having validity is from 27.09.2008 to 11.07.2026 and said accident has taken place on 01.11.2008. Further, he has submitted that the driver of such vehicle is required to hold driving licence as per Section 14(2)(a) of the Motor Vehicles Act, 1988 and even when, the tractor attached with Trolley plies on public place, it becomes transport vehicle. Further, he has submitted that the policy of tractor was issued under miscellaneous and special type of vehicle- package policy where, trailer was also insured. Whereas, the driver was registered as goods carriage vehicle as per the R.T.O. certificate and certificate of fitness issued under Rule 62(1) of Gujarat Motor Vehicles Rules, 1989, which would be applicable in case of transport vehicle only.
Page 3 of 8 Downloaded on : Sun Apr 24 13:42:53 IST 2022C/FA/3241/2013 JUDGMENT DATED: 21/02/2022 Further, he has submitted that the Tribunal has erred in giving finding that officer from R.T.O. was not examined, as the Tribunal has assured the learned advocate for consideration of issue of legal liability on the aspect of driving licence, which was not considered in accordance with law. Therefore, only on the ground of the liability of the insurance company, the present appeal is requires to be allowed.
4 Per contra, learned advocate Mr. Hiren M Modi for the respondent No.1- owner of the vehicle has appeared. He has placed reliance upon the decision of Hon'ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Ltd., reported in AIR 2017 SC 3668 para 42 and 43 of the judgment are relevant for consideration of the present matter, which are produced as under:
"[42] In Nagashetty (AIR 2001 SC 3356) (supra), the vehicle involved was a tractor which was used for carrying goods. The goods were carried in a trailer attached to it. It was held that if a driver was holding an effective licence to drive a tractor, he could validly drive the tractor attached to a trailer. The contention that it was a transport vehicle, as the tractor was attached to a trailer and as such the driver was not holding a valid licence, was rejected. This Court has laid down thus:
"9. Relying on these definitions, Mr. S.C. Sharda submitted that admittedly the trailer was filled with stones. He submitted that once a trailer was attached to the tractor the tractor became a transport vehicle as it was used for carriage of goods. He submitted that Section 10(2) of the Motor Vehicles Act provides for grant of licences to drive specific types of vehicles. He submitted that the driver only had a licence to drive a tractor. He submitted that the driver did not have a licence to drive a transport vehicle. He submitted that therefore it could not be said that the driver had an effective and valid driving licence to drive a goods carriage or a transport vehicle. He submitted that thus the driver did not have a valid driving licence to drive the type of vehicle he was driving.Page 4 of 8 Downloaded on : Sun Apr 24 13:42:53 IST 2022
C/FA/3241/2013 JUDGMENT DATED: 21/02/2022 He submitted that as the driver did not have a valid driving licence to drive a transport vehicle, the Insurance Co. could not be made liable. He submitted that the High Court was right in so holding.
10. We are unable to accept the submissions of Mr. S.C. Sharda. It is an admitted fact that the driver had a valid and effective licence to drive a tractor. Undoubtedly Under Section 10, a licence is granted to drive specific categories of motor vehicles. The question is whether merely because a trailer was attached to the tractor and the tractor was used for carrying goods, the licence to drive a tractor becomes ineffective. If the argument of Mr. S.C. Sharda is to be accepted, then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make that tractor or motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid driving licence to drive a tractor or a motor vehicle, he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words, a person having a valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle.
11. In this case, we find that the Insurance Company when issuing the insurance policy, had also so understood. The insurance policy has been issued for a tractor. In this insurance policy, an additional premium of Rs. 12 has been taken for a trailer. Therefore the insurance policy covers not just the tractor but also a trailer attached to the tractor. The insurance policy provides as follows for the "persons or classes of persons entitled to drive": 'Persons or classes of persons entitled to drive Any person including insured provided that the person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence: Provided also that the person holding an effective learner's licence may also drive the vehicle when not used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Page 5 of 8 Downloaded on : Sun Apr 24 13:42:53 IST 2022 C/FA/3241/2013 JUDGMENT DATED: 21/02/2022 Vehicles Rules, 1989, limitations as to use.'
12. The policy is for a tractor. The "effective driving licence" is thus for a tractor. The restriction on a learner driving the tractor when used for transporting goods shows that the policy itself contemplates that the tractor could be used for carriage of goods. The tractor by itself could not carry goods. The goods would be carried in a trailer attached to it. That is why the extra premium for a trailer. The restriction placed on a person holding a learner's licence i.e. not to drive when goods are being carried is not there for a permanent licence-holder. Thus a permanent licence-holder having an effective/valid licence to drive a tractor can drive even when the tractor is used for carrying goods. When the policy itself so permits, the High Court was wrong in coming to the conclusion that a person having a valid driving licence to drive a tractor would become disqualified to drive the tractor if a trailer was attached to it."
[43] Section 10(2) (a) to (j) lays down the classes of vehicles to be driven not a specific kind of motor vehicles in that class. If a vehicle falls into any of the categories, a licence holder holding licence to drive the class of vehicle can drive all vehicles of that particular class. No separate endorsement is to be obtained nor provided, if the vehicle falls in any of the particular classes of section 10(2). This Court has rightly observed in Nagashetty that in case submission to the contrary is accepted, then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle it by itself does not mean that driver ceased to have valid driving licence. In our considered opinion, even if such a vehicle is treated as transport vehicle of the light motor vehicle class, legal position would not change and driver would still have a valid driving licence to drive transport vehicle of light motor vehicle class, whether it is a transport vehicle or a private car/tractor attached with trolley or used for carrying goods in the form of transport vehicle. The ultimate conclusion in Nagashetty is correct, however, for the reasons as explained by us."
Page 6 of 8 Downloaded on : Sun Apr 24 13:42:53 IST 2022C/FA/3241/2013 JUDGMENT DATED: 21/02/2022 Accordingly, he has submitted that there is no substance in the appeal in view of above judgment as Hon'ble Apex Court has clearly held that such defence regarding validity of driving licence cannot be entertained. Therefore, he has prayed that the present appeal filed by the Insurance Company may be dismissed.
5. Though the claimants are served, they have not appeared before this Court.
6. I have heard learned advocates of respective parties. I have perused the record and proceedings. I have considered the impugned judgment and award passed by the Tribunal. I have also gone through the memo of appeal. It clearly transpires that the only contention raised by the insurance company is about non-holding of valid and effective driving licence by the driver of the tractor as well as trailer when he was lying on the public premises, therefore, vehicle becomes transport vehicle. That controversy is squarely addressed by the judgment of Hon'ble Apex Court in the case of Mukund Dewangan (supra). It squarely covers the applicability and interpretation of Section 10 (2) of the Motor Vehicles Act, 1988 in the facts and circumstances of the present case, where the tractor attached with the trolley was driving on the public place by the driver of the vehicle, who is holding the driving licence as mentioned to drive TRA and MCE 5G. Therefore, when the abovementioned driving licence is valid and effective one, then the issue raised by the Insurance Company is meritless in view of the judgment in the case of Mukund Dewangan (supra). Therefore, I found that the present appeal deserves to be dismissed as meritless and accordingly, the present appeal is required to be dismissed, which would meet the ends of justice.
Page 7 of 8 Downloaded on : Sun Apr 24 13:42:53 IST 2022C/FA/3241/2013 JUDGMENT DATED: 21/02/2022
7. With the above observations, the following order is passed:
7.1 The present First Appeal No.3241 of 2013 is dismissed, with no order as to casts.
7.2 The Tribunal shall disburse the entire compensation amount lying with it and/or in FDR, alongwith accrued interest, to the claimants, by following due procedure, by way of account payee cheque, after proper verification.
7.3 Record and Proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 8 of 8 Downloaded on : Sun Apr 24 13:42:53 IST 2022