Madras High Court
The Branch Manager vs Samuvel on 20 March, 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.03.2018
CORAM
THE HONOURABLE MR.JUSTICE A.M.BASHEER AHAMED
C.M.A(MD)No.955 of 2012
The Branch Manager
Royal Sundaram Alliance Insurance Co.Ltd.,
Sundaram Towers,
Nos.45 & 46 Whites Road,
Chennai 600 014. : Appellant / Respondent No.2
Vs.
1.Samuvel
2.Kumar : Respondents 1& 2 /
Petitioners
3.S.Koil Thangam : 1st Respondent / R1
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, 1988, against the fair and decreetal order dated 21.02.2012
made in MCOP.No.111 of 2009, on the file of the Motor Accident Claims
Tribunal, (Sub Court), Valliyoor.
!For Appellant : Ms.K.R.Shiva Shankari
^For Respondent : Mr.Samuvel
:JUDGMENT
This Civil Miscellaneous Appeal has been preferred against the fair and decreetal order, dated 21.02.2012, made in M.C.O.P.No.111 of 2009, on the file of the Motor Accident Claims Tribunal, (Sub Court), Valliyoor.
2. The respondents 1 & 2, who are the claimants and L.Rs., of the deceased one Balammal, filed the claim petition in M.C.O.P. No.111 of 2009, on the file of the Motor Accident Claims Tribunal, (Sub Court), Valliyoor, claiming restricted compensation of Rs.9,00,000/-, for the death of one Balammal in a motor accident that took place on 05.01.2009, under Sections 140 & 166 of the Motor Vehicles Act. The 3rd respondent herein is the owner of the vehicle, bearing Registration No.TN-74-K-8449 and the appellant herein is the insurer of the said vehicle and both are arrayed as 1st and 2nd respondents respectively in the said claim petition.
3. The case of the claimant is that while the said Balammal was standing on the southern side corner of the road in front of a ration shop at about 4.30 p.m., on 05.01.2009, the 1st respondent's vehicle, bearing Registration No.TN-74-K-8449, came at high speed, without sounding horn, dashed against the said Balammal, who died on the spot itself because of the grievous injuries and such accident was caused by the driver of the said vehicle, due to his driving in a rash and negligent manner and both the vehicle owner and the insurer are liable to pay compensation.
4. The 1st respondent / vehicle owner filed a counter statement contending that the accident had happened due to negligent act of the deceased only and the compensation claimed under various heads are exaggerated.
5. The 2nd respondent / Insurer filed a counter statement contending that the deceased herself contributed towards the accident by coming towards middle of the road, without watching the vehicle and the driver of the said vehicle was not having any driving licence to drive any vehicle and therefore, the Insurance Company is not liable to pay any compensation, for violation of the terms of the policy and the insured / vehicle owner alone is liable to pay the compensation.
6. In order to prove the claim, on the side of the claimants, P.Ws.1 & 2 were examined. Exs.P1 to 8 were marked. P.W.1 is the 2nd claimant / son, who is one of the legal heirs of the deceased Balammal. P.W.2 is an eye-witness of the occurrence. The 1st respondent / vehicle owner was set ex-parte at the time of trial. On the side of the insurer / 2nd respondent, R.Ws.1 & 2 were examined. Exs.R1 to 7 were marked. R.W.1 is the Law Officer of the Insurance Company. R.W.2 is the Junior Assistant, RTO Office at Nagercoil.
7. After hearing and perusing the evidence on record, the Tribunal held that the accident happened and the deceased died in that accident due to rash and negligent driving of the vehicle by its driver and the respondents are liable to pay compensation along with interest and costs. The Tribunal has further directed the 2nd respondent / Insurer to pay the compensation as awarded, at the first instance to the claimant and thereafter, recover the same from the first respondent / owner of the vehicle.
8. Aggrieved by the Award, fixing the liability upon the insurer also the 2nd respondent / the Insurance Company filed this appeal before this Court.
9. The learned counsel appearing for the appellant / Insurer would contend that the accident had happened on account of negligence of the deceased herself and the driver of the vehicle was not possessing the required driving licence to drive the transport vehicle and the same amount to breach of the terms and the conditions of the Insurance Policy.
10. The learned counsel appearing for the respondents 1 and 2 / claimants would contend that the Tribunal has properly applies the evidence adduced by both sides and fixed liability upon both the vehicle owner and the insurer for payment of compensation.
11. On perusal of the Award by the Tribunal, this Court finds that the Tribunal has rightly held that neither the driver of the first respondent's vehicle nor any independent witness has been examined on the side of the respondent to rebut the evidence of claimants' side evidence to prove the plea of contributory negligence, as contended by the Insurer.
12. Admittedly, Ex.R1 / Insurance Policy stood in the name of the 3rd respondent herein for the offending vehicle bearing Registration No.TN- 74-K-8449 and the said policy was in force on the date of occurrence / accident. R.W.1 has produced the letter, dated 19.09.2010, addressed to the vehicle owner / 3rd respondent herein, along with a copy of the driving licence issued in the name of the driver viz., P.Lingam on 02.05.2003, to drive the Light Motor Vehicles, valid upto 01.05.2013 and marked as Ex.R2. R.W.2 has also admitted during the evidence by stating that the said driver was having licence to drive Light Motor Vehicles (NT) vehicle, which is valid upto 01.05.2023 and such detail is marked as Ex.R7. It is also admitted that certificate of registration in respect of vehicle, bearing Registration No.TN-74-K-8449, stands in the name of 3rd respondent herein and the copy of it was marked as Ex.R6 in the evidence of R.W.2.
13. The learned counsel appearing for the appellant contends that the driver of the offending vehicle was having licence to drive the Light Motor Vehicles and not having any endorsement for driving the transport vehicle and hence, it amounts to breach of terms of the insurance policy.
14. The counsel for R1 and R2 / claimants would argue that no separate endorsement is required to be obtained by the holder of the LMV Licence to drive the transport vehicle "unladen weight" of which does not exceed 7500 Kgs. The counsel for R1 and R2 also relies the Judgment of the Apex court in Mukund Dewangan Vs. Oriental Insurance Co.Ltd., reported in [2017 (2) TN MAC 145 (SC)] and also the Judgment of Principal Bench of this Court in Sriram General Insurance Co.Ltd., Vs. Thamarai reported in [2017 (2) TN MAC 255 (DB)] in which, by relying the aforesaid Apex Court Judgment, it has been held as follows:-
?Motor Vehicles Act, 1988 (59 of 1988), Sections 149, 2(21), 10(2)(d) & 10(2)(e) ? Non-possession of valid and effective Driving Licence ? Liability of Insurer ? Goods Vehicle ? Driver possessing Driving Licence to drive Light Motor Vehicle and not Transport Vehicle ? No specific endorsement / badge obtained ? If, amounts to gross violation of terms and conditions of Policy of Insurance ? Whether Insurer liable to be exonerated from its liability ? No specific endorsement required to be obtained by Driver holding LMV Licence to drive Transport Vehicle ? Three ? Judge Bench decision in Mukund Dewangan followed ? Non-obtaining of specific endorsement to drive Transport Vehicle, therefore, of no consequence ? No violation of Policy condition ? Order of Tribunal holding Insurer liable, confirmed.?
15. In this case on hand, it is admitted that the driver of the vehicle was in possession of driving licence for Light Motor Vehicle. As per Ex.R6, Registration Certificate of the offending vehicle, bearing Registration No.TN-74-K-8449 "unladen weight" of the vehicle is shown as 1585, which stands in the name of the 3rd respondent herein.
16. When the matter was taken up today, it is fairly contended by the learned counsel for the appellant Insurance Company that in view of the latest decision rendered by the Three Judges Bench of the Apex Court in the Judgment reported in [2017 (2) TN MAC 145 (SC)] (cited supra) in respect of the reference with regard to conflicting of opinion in the decision of the Hon'ble Apex Court on the question as to whether a driver, who is having licence to drive ?Light Motor Vehicle? and is drive ?Transport Vehicle? of that clause is required to additionally obtain an endorsement to drive a transport vehicle, the question has been referred for the decision to a Larger Bench and the Larger Bench, in the decision cited supra, had answered in paragraphs 45 & 46, which reads as follows:-
?45. 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 that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. 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. ?
46. 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 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. 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 light motor vehicle class as enumerated above. A licence issued undersection 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 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.?
17. In view of the above, the grounds raised by the appellant / Insurance Company cannot be sustained and the appeal is liable to be dismissed.
18. In the result, the Civil Miscellaneous Appeal preferred by the appellant Insurance Company is dismissed, confirming the order of the Tribunal made in M.C.O.P. No.111 of 2009, on the file of the Motor Accident Claims Tribunal, (Sub Court), Valliyoor, dated 21.02.2012. However, there shall be no order as to costs.
To
1.The Motor Accident Claims Tribunal, (Sub Court), Valliyoor.
2.The Record Keeper, Vernacular Section Madurai Bench of Madras High Court.
Madurai.
.