Gujarat High Court
Labhubhai Bhagwanbhai Vaghela vs Bharatbhai Dayabhai Vaghasiya on 24 January, 2020
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/FA/1380/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1380 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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LABHUBHAI BHAGWANBHAI VAGHELA & 1 other(s)
Versus
BHARATBHAI DAYABHAI VAGHASIYA & 2 other(s)
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Appearance:
MR MEHUL S SHAH(772) for the Appellant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 24/01/2020
ORAL JUDGMENT
Heard learned advocate Mr.Vishal Mehta for learned advocate Mr.Mehul Shah for the appellants.
Though served, none of the respondents are chosen to Page 1 of 11 Downloaded on : Fri Feb 12 07:30:37 IST 2021 C/FA/1380/2014 JUDGMENT appear.
2. The appellants are the original claimants who have preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 against judgment and award dated 31st January, 2014 passed by the Motor Accident Claims Tribunal (Aux.), Bhavnagar in Motor Accident Claims Petition No.258 of 2010 in so far as the said judgment and award exonerates respondent No.3 insurance company.
3. The accident from which the claim petition arose to culminate into the aforesaid judgment and award, occurred on 07th February, 2010 at about 01.00 p.m. The appellants-the parents along with their daughter were on the main road standing near the house of one Maganbhai Bhikhabhai. Opponent No.1 came with a Tractor bearing No.GJ-4H-7512 attached with trailer bearing No.GJ-4Y-5025 which was loaded with bricks, in a rash and negligent manner. The Tractor dashed due to which the daughter of the claimants died out of accidental injuries. The claimants-the appellants preferred claim petition seeking compensation.
Page 2 of 11 Downloaded on : Fri Feb 12 07:30:37 IST 2021C/FA/1380/2014 JUDGMENT 3.1 The Tribunal proceeded to adjudicate the
claim by applying relevant parameters to award the compensation to the tune of Rs.01,54,500/-. The Tribunal however allowed the claim petition against opponent Nos.1 and 2 only and exonerate respondent No.3 The Oriental Insurance Company Limited with which the offending vehicle was registered.
3.2 The Tribunal, so as to absolve the insurance company from paying the compensation, referred to and relied on various decisions and held that when the offending vehicle tractor was attached with a trolly, it became transport vehicle and that for driving such vehicle, the driver should hold valid and effective licence for driving the transport vehicle. It was recorded in paragraph-17 of the judgment by the Tribunal on the basis of the licence produced on record that the driver was having the licence to drive light motor vehicle as the licence was for LMV/MCWG Tractor for the period from 28th February, 2009 to 07th March, 2023. The contention on behalf of the insurance company was accepted that when the tractor was attached with trailer, it was a goods vehicle and hence, opponent No.1 was not entitled to Page 3 of 11 Downloaded on : Fri Feb 12 07:30:37 IST 2021 C/FA/1380/2014 JUDGMENT drive the said vehicle, did not having the requisite licence and that in light of the policy conditions, the insurance company would not be liable to pay the compensation in the above eventuality.
4. The only ground raised by the appellants-
claimants in the present appeal, therefore is that the Accident Claims Tribunal committed an error in dismissing the claim petition against the insurance company by holding that driver of the offending vehicle did not possess valid and effective licence to drive the transport vehicle as the tractor attached with the trailer. It was contended that merely because the trailer was attached with the tractor, it did not become the transport vehicle.
Reliance was placed on the licence (Exh.27) as well as the evidence of the driver of the offending driver (Exh.28).
5. The issue involved is no longer res integra in view of the decision of the Apex Court in Mukund Dewangan v. Oriental Insurance Company Limited [(2017) 14 SCC 663]. The Supreme Court considered the question whether a driver who is having a licence to drive Light Motor Vehicle and is driving transport Page 4 of 11 Downloaded on : Fri Feb 12 07:30:37 IST 2021 C/FA/1380/2014 JUDGMENT vehicle of that class is required additionally to obtain an endorsement to drive a transport vehicle.
It was held that the Light Motor Vehicle includes transport vehicle as per the weight prescribed in Section 2(21) read with Section 2(15) and Section 2(48). It was held that such transport vehicles are not excluded from the definition of light motor vehicle by virtue of Amendment Act, 54/1994.
5.1 It may be noted that while admitting the appeal, this Court had relied on the decision of the Apex Curt in Naga Shetty v. United India Insurance Company Limited [AIR 2001 SC 3356] in which it was held that person having valid driving licence to drive tractor-the motor vehicle, would not disqualify to drive tractor if trailer is attached to it and the insurance company could not be absolved on the ground that the licence to driver of the tractor becomes ineffective if the trailer is attached to it.
Noticeably, in Mukund Dewangan (supra), what was held in Naga Shetty (supra) was approved, however on the basis of the different and separate reasons and discussion as per the judgment.
5.2 In Mukund Dewangan (supra), the Apex Court
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stated,
"Prior to amendment in 1994 licence for transport vehicle was clearly covered as per section 10(2) in five categories, i.e., Section 10(2)(d) light motor vehicle, Section 10(2)(e) medium goods vehicle, Section 10(2) (f) medium passenger motor vehicle, Section 10(2)
(g) heavy goods vehicle and Section 10(2)(h) heavy passenger motor vehicle. The licence for 'light motor vehicle' has been provided in section 10(2)(d). The expression 'transport vehicle' has been inserted by virtue of Amendment Act 54/1994 in section 10(2)(e) after deleting four categories or classes of vehicles, i.e. medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, and heavy passenger motor vehicle. Earlier Section 10 did not contain the separate class of transport vehicles."
(para 13) 5.3 The scope of definition of light motor vehicle and the attendant aspects were observed thus, "The definition of 'light motor vehicle' makes it clear that for 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 7500 kgs. 'Gross vehicle weight' has been defined in section 2(15). The motor car or tractor or road roller, the unladen weight of any of which does not exceed 7500 kgs. as defined in section 2(48) of the Act, are also the light motor vehicle. No change has been made by Amendment Act of 54/94 in the provisions contained in sections 2(21) and 10(2)
(d) relating to the light motor vehicle. The definition of 'light motor vehicle' has to be given full effect to and it has to be read with section 10(2)(d) which makes it abundantly clear that 'light motor vehicle' is also a 'transport vehicle', the gross vehicle weight or unladen weight of which does not exceed 7500 kgs. as specified in the provision. Thus, a driver is issued a licence as per the class of vehicle i.e. light motor vehicle, transport vehicle or omnibus or another vehicle of other categories as per gross vehicle weight or unladen weight as specified in section 2(21) of the Act. The provision of section 3 of the Act requires that a person in order to drive a 'transport vehicle' must have authorization. Once a licence is issued to drive light motor vehicle, it would also mean specific authorization to drive a transport vehicle or omnibus, the gross vehicle weight or motor car, road roller or tractor, the unladen weight of which, as the case may be, does not exceed 7500 kg. The insertion of 'transport vehicle' category in section 10(2)(e) has no effect of obliterating the already defined category of transport vehicles of the class of Page 6 of 11 Downloaded on : Fri Feb 12 07:30:37 IST 2021 C/FA/1380/2014 JUDGMENT light motor vehicle. A distinction is made in the Act of heavy goods vehicle, heavy passenger motor vehicle, medium goods vehicle and medium passenger motor vehicle on the basis of 'gross vehicle weight' or 'unladen weight' for heavy passenger motor vehicle, heavy goods vehicle, the weight, as the case may be, exceed 12000 kg. Medium goods vehicle shall mean any goods carriage other than a light motor vehicle or a heavy goods vehicle; whereas 'medium passenger motor vehicle' means any public service vehicle or private service vehicle or educational institution bus other than a motorcycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle.
Thus, the newly incorporated expression 'transport vehicle' in section 10(2)(e) would include only the vehicles of the category as defined in section 2(16) - heavy goods vehicle, section 2(17) - heavy passenger motor vehicle, section 2(23) - medium goods vehicle and section 2(24) medium passenger motor vehicle, and would not include the 'light motor vehicle' which means transport vehicle also of the weight specified in Section 2(21)." (para 14) 5.4 The Supreme Court stated to hold, "Transport vehicle has been defined in section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab, a motor cab, contract carriage, and stage carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) 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. It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended 58 that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward.
Page 7 of 11 Downloaded on : Fri Feb 12 07:30:37 IST 2021C/FA/1380/2014 JUDGMENT When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994." (Para 45) 5.5 It was observed that Light Motor Vehicles includes transport vehicles also and having regard to the conjoint reading of the relevant provisions, transport vehicles were not excluded from the category of Light Motor Vehicles. It was further observed, "Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of 'light motor vehicles' and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 59 10(2)(e) of the Act 'Transport Vehicle' would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed."
(Para 46)
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5.6 Following conclusions were drawn by the Apex
Court.
"Thus we answer the questions which are referred to us thus.
(i) '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 section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)
(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of 60 light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the Page 9 of 11 Downloaded on : Fri Feb 12 07:30:37 IST 2021 C/FA/1380/2014 JUDGMENT year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."
6. In view of the above law laid down in Mukund Dewangan (supra) by the supreme court, the contention of the appellants has to be accepted. The reasoning supplied by the Tribunal and the view taken by it for absolving the respondent insurance company from paying the compensation could not hold good. The insurance company ought to have held liable to pay the compensation jointly and severally with other respondents concerned.
7. Resultantly, the impugned judgment and award of the Motor Accident Claims Tribunal (Aux.), Bhavnagar dated 31st January, 2014 in MACP No.258 of 2010 shall stand modified to the extent that opponent No.3 insurance company shall be liable jointly and severally with opponent Nos.1 and 2 to pay the compensation awarded by the Tribunal. The rest of the judgment and award in all respect shall stand to operate. The appeal is allowed in the manner and to Page 10 of 11 Downloaded on : Fri Feb 12 07:30:37 IST 2021 C/FA/1380/2014 JUDGMENT the extent above.
Record & Proceedings shall be sent back.
(N.V.ANJARIA, J) AnupC.M. JOSHI Page 11 of 11 Downloaded on : Fri Feb 12 07:30:37 IST 2021