Jammu & Kashmir High Court - Srinagar Bench
National Insurance Co. Ltd vs Mohammad Ishaq Khanday & Ors on 8 February, 2011
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
OWP No.873 of 2009
CMP No.1347 of 2009
National Insurance Co. Ltd
Petitioners
Gh. Rasool Baba & ors
Respondents
! Mr. J. A. Kawoosa, Advocate
^ Mr. Muzaffar Ahmad Bakal, Advocate
Honble Mr. Justice Mohammad Yaqoob Mir, Judge
Date: 08 /02/2011
:J U D G M E N T:
Quashment of the order dated 23.3.2006 passed by Divisional Consumers Protection Forum, Srinagar and the order dated 5.8.2009 passed by J&K State Consumer Disputes Redressal Commission, Srinagar, is sought.
The short and only contention of the petitioner is that the petitioner is not liable to pay any compensation to the damage as caused to the vehicle (Scorpio) in the accident as occurred on 29.9.2003 because the driver, at the time of accident, did not possess valid and effective driving license and it is on the same basis claim of the complainant (respondent No.1) was repudiated by the petitioner on 28.4.2004. The driver at the time of accident was having driving license authorizing him to drive heavy goods vehicle when the vehicle (Scorpio) is a light motor vehicle, so driver was not authorized to drive light motor vehicle.
In support of his contention, learned counsel for the petitioner has placed reliance on the judgment reported in (2006) 4 Supreme Court Cases 250, judgment rendered by Coordinate Bench in CIMA No.24/2009 dated 13.5.2010 in the case titled National Insurance Co. Ltd. Vs. Mohammad Ishaq Khanday & ors, AIR 2008 SC 2266 and AIR 2008 SC 2218.
In opposition learned counsel for the respondent No.1 placed reliance on the judgments reported in 2004(II) S.L.J. 623(DB) and 2009(I) S.L.J. 379.
In view of the said contentions, both learned counsel agreed for disposal of this petition at this stage itself and also submitted that in view of admitted factual position, no further pleadings are required. In view of this submission, petition is admitted to hearing and is taken up for final adjudication.
Respondent No.1(complainant) purchased vehicle (Mahindra Scorpio) from Chowdhary Motors Pvt. Ltd. Narwal Bye-pass, Jammu against the cost of Rs.7,10,228/ and got it insured with the insurer (National Insurance Company) under Policy No.421006/31/03/6303230 for the period commencing 23.9.2003 to 22.9.2004. The vehicle while on its way to Srinagar means on transit met with an accident on 28.9.2003, got damaged and in the accident various persons also got injured. The information about accident is stated to have been given to the insurer and the insurer appointed its surveyor Mr. Rajesh Gupta who vide his survey report dated 23.12.2003 has given the particulars of the vehicle and particulars of driver, according to which the driver possessed the driving license issued by Licensing Authority L. A. Zun Zun Rajasthan on 22.11.1985 and renewed vide No.R-118/BPT by L. A. Baghpat (UP) and the type of licence is recorded H.T.V.
In the driving licence, copy of which is placed on record, the licence is shown to have been issued for driving the vehicle Heavy Transport Vehicle (H.T.V) and in pursuance of renewal dated 10.11.1998 it has been recorded as for H.T.V(PE). This position has been got verified by the insurer through another surveyor Raj Kumar (Chartered Investigator) who vide his report dated March, 2004 has clarified that on verification from the office of ARTO, Baghpat, the renewal R-118 dated 10.11.1998 stands in the name of Shri Rajesh Kumar S/O Shri Sanjeet Singh R/O Village & Post Subhanpur District Baghpat and the licence is for HTV(PE) only and is valid from 10.11.1998 to 9.11.2001 and lastly has been renewed with effect from 3.1.2002 to 2.1.2005.
The insurer vide communication dated 25.5.2004 has conveyed to the insured that the vehicle involved in the accident is a light passenger vehicle. The driver was not holding a valid and effective driving licence which is a violation of the policy, as such, claim is repudiated.
The complainant (respondent No.1) lodged the complaint before the Divisional Consumers Protection Forum, Srinagar (hereinafter referred to as D-Forum). Learned D-Forum after considering the submissions and the evidence while relying on the judgment rendered by the Division Bench of this Court in National Insurance Company Vs. Irfan Sidiq Bhat (2004(II) SLJ 623), has concluded that the repudiation made by the insurer is illegal, service is found deficient. The loss as assessed by the surveyor to the tune of Rs.1,61.542/ less by salvage valued at Rs.15,000 has been awarded along with interest @ 6% from the date of institution till its realization. In addition, Rs.20,000/ by way of compensation has been awarded which shall include cost of litigation. The learned D-Forum also concluded that the transport vehicles includes the vehicles of which unladen weight does not exceed 7500/ kilograms, therefore, license meant for heavy transport vehicle does also include light motor vehicle.
Dissatisfied with the order of D-Forum, the petitioner filed an appeal before the J&K State Consumer Disputes Redressal Commission, Srinagar (hereinafter referred to as the State Commission), but without success as the State Commission held that the entry made in the driving licence was for HTV (PE) which is supported by the report of Survey Raj Kumar. The entry (PE) signifies passenger vehicle, additionally opined that vis-`-vis the vehicle route permit along with registration certificate had to be obtained. In case vehicle is considered to be light motor vehicle, even then the driver was having a valid and effective HTV(PE) driving licence, same covers the licence for plying light motor vehicle. Finally the order of the D-Forum has been up-held and appeal dismissed with cost of Rs.3000/.
Now the moot question for determination is as to whether driver of the vehicle (Scorpio) who possessed the valid and effective driving licence to driver HTV(PE) could be said to have valid and effective licence for driving light motor vehicle? Every case has its own distinct features. This case too has its own distinct feature so has to be considered in the same background. The driver possessed valid and effective driving licence for HTV(PE) but the vehicle involved in the accident driven by him was a light motor vehicle (Scorpio) and in this backdrop it is to be seen as to whether light motor vehicles fall within the definition of transport vehicle.
Before adverting to the position of the case in aforesaid background, it shall be quite advantageous to refer to the law as has been relied upon by the learned counsel for the parties.
In the judgment National Insurance Co. Ltd. Vs. Kusum Rai & others, (2006)4SCC 250, rendered by the Honble Apex Court, the point in issue vis-`-vis licence was that the vehicle involved in the accident was used as a taxi (commercial vehicle). The driver of the said vehicle at the relevant point of accident was holder of a licence to driver light motor vehicle only, on the basis of which the insurer claimed exoneration from liability. It was held that the driver did not possess valid licence. Para 19 of the judgment is apt to be quoted:
19. Thus, although we are of the opinion that the appellant was not liable to pay the claimed amount as the driver was not possessing a valid licence and the High Court was in error in holding otherwise, we decline to interfere with the impugned award, in the peculiar facts and circumstances of the case, in exercise of our jurisdiction under Article 136 of the Constitution but we direct that the appellant may recover the amount from the owner in the same manner as was directed in Nanjappan.
In the case titled National Insurance Co. Ltd. Vs. Mohammad Ishaq Khanday & Ors(CIMA No.24/2009) decided on 13.5.2010, one of the points involved was as to whether driver did possess valid and effective licence to drive heavy goods vehicle (tipper) which was involved in the accident. It was noticed that the driver did possess licence to drive medium passenger vehicle and it was concluded that the licence to drive medium passenger vehicle is not valid and effective for driving a heavy goods vehicle and in this background insurer was absolved from the liability.
In the judgment New India Assurance Co. Ltd. Vs. Roshanben Rahemansha Fakir & anr. (AIR 2008 SC 2266), driver of the offending vehicle was holder of licence for auto rickshaw but at the time of accident he was driving three wheeler i.e. auto rickshaw delivery van. The Honble Apex Court has noticed the position of the type of the vehicle reproducing the entries of the table showing the position of vehicle being transport vehicle or non-transport vehicle. The notification dated 5th of November, 2004 published in the Gazette of India, Extraordinary, Part-II, Section 3(ii) dated 5th of November, 2004 has been issued in exercise of the powers under sub-section (4) of Section 41 of the Act. The entries as quoted are reproduced here-under:
Transport Vehicle Non-Transport Vehicle (1) (2)
(i) to (iv)
(i) to (iii)
(v) Three wheeled vehicles for transport of passengers/ goods
(iv) Three wheeled vehicles for personal use.
Finally it has been concluded that three wheeler (auto rickshaw delivery van) involved in the accident was a transport vehicle whereas the driver was holder of the licence to drive three wheeler which as per entries referred above is a non-transport vehicle, insurer, as such, was absolved from the liability.
In the judgment rendered in Oriental Insurance Co. Vs. Zaharulnisha & Ors. (AIR 2008 SC 2218), driver was holding licence for driving heavy motor vehicle (HMV) but at the time of accident he was driving two wheeler(scooter) which was held to be a different class of vehicle in terms of Section 10 of the Motor Vehicles Act. In para 15 reference has been made to para 47 of the judgment rendered by three Judge Bench of the Honble Apex Court in National Insurance Co. Ltd. Vs. Swaran Singh {(2004)3 SCC 297} and it has been recorded:
In paragraph 47 of the judgment, the learned Judges have held that if a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have no licence for driving another type of vehicle which is of the same category but of different type. As for example, when a person is granted a licence for driving a light motor vehicle he can drive either a car or a jeep and it is not necessary that he must have driving licence both for car and jeep separately.
Finally, in para 18 it has been held :
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.
The insurer was held not liable to pay the compensation. The learned counsel for the respondent (complainant) has relied on the judgment reported in 2004(II) S.L.J. 623. In the said judgment the point in issue was altogether different. It was projected therein that the driver was authorized to drive heavy transport vehicle and there was no public service vehicle (PSV) endorsement on the licence as required in terms of Rule 4(1)(a) of the Jammu & Kashmir Motor Vehicle Rules, 1991. In para 8 of the judgment, the Court noticed that the driver possessed the licence wherein serial Nos. c, d and e were tick marked by pen. The said serial nos. stands for light motor vehicles, medium motor vehicles and heavy motor vehicles and it was held that the driver held driving licence which entitled his to drive light motor vehicles within the meaning of Section 2(1) of the Motor Vehicles Act. The light motor vehicles include a transport vehicle, transport vehicle includes a public service vehicle and public service vehicle includes any motor vehicle used or adapted to be used for carriage of passengers for hire or reward. Finally it was held that where the licence authorizes a person to drive a light motor vehicle and the vehicle conforms to the description/definition of light motor vehicle and public service vehicle, it would not be necessary to obtain another authorization under Rule 4(1) of the State Rules. The said Rules are to be understood as complimentary to the Act and not in derogation.
In the reported case, the vehicle (Sumo) was involved which was a light motor vehicle, so the company was held liable.
Similar position has been dealt with in the judgment captioned National Insurance Co. Ltd. Vs. Mr. Manzoor Ahmad Bhat (2009(I) S.L.J. 379) and while relying on the aforesaid Division Bench judgment, the company has been held liable to pay the claim amount.
While considering the law as has been laid down in the judgments referred hereinabove, what emerges is that the point in issue in all the aforesaid judgments vis-`-vis question of validity of the driving licence was altogether different in its context as compared to the case in hand. The vehicle (Scorpio) admittedly is a light motor vehicle. The driver admittedly was the holder of licence to driver HTV(PE). Now the question is as to whether he could be said to have a valid licence for driving light motor vehicle. In this connection it shall be quite relevant to refer to Section 7(1) of the MV Act, as was correctly referred to by the learned counsel for the complainant (respondent No.1), same is reproduced here-under:-
7. Restrictions on the granting of learners licences for certain vehicles:-
(1) No person shall be granted a learners licence to drive a transport vehicle unless he has held a driving licence to drive a light motor vehicle for at least one year. Plain reading would suggest that for obtaining a learners licence to drive a transport vehicle, the seeker thereof is required, at the first instance, to have been holding a driving licence to driver a light motor vehicle for at least one year, means licence to drive a light motor vehicle is a pre-condition for grant of licence to drive transport vehicle.
Now the question is what transport vehicle is. Same is defined in Section 2(47) of the MV Act, which reads as under:-
transport vehicle means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Above referred provision clearly reveals that transport vehicle includes public service vehicle, a goods carriage or a private service vehicle. The public service vehicle, in terms of Section 3(35) of the MV Act means a vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxi cab, a motor cab, contract carriage and stage carriage. The said vehicles are also defined in Sections 2(7), 2(22), 2(25) and 2(40) of the MV Act, which provides that maxi cab shall be a vehicle constructed or adapted to carry more than six passengers, motor cab means any motor vehicle constructed or adapted to carry not more than six passengers, contract carriage is a vehicle which carries passengers for hire or reward and stage carriage is a vehicle constructed or adapted to carry more than six passengers.
The private service vehicle is defined under Section 2(33) of the MV Act, means a vehicle constructed or adapted to carry more than six passengers in connection with trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes.
In the given facts and circumstances, vehicle involved relates to private service vehicles because the Scorpio relates to aforesaid category of vehicles. The vehicle (Scorpio) admittedly had been constructed for carrying more than six passengers excluding the driver which position is clear from the sale certificate which provides seating capacity (including driver) 1+7 and the unladen weight is 1910 kgs. The vehicle was purchased but as yet was not used for carrying passengers for want of registration certificate and route permit, so at the time of accident, what type of vehicle it could be termed to be, admittedly a transport vehicle which include private service vehicle.
In the notification dated 5th of November, 2004 published in the Gazette of India, Extraordinary, Part-II, Section 3(ii) dated 5th of November, 2004, in exercise of powers under sub-section (4) of Section 41 of the Act. The relevant entry vis-`-vis private service vehicle is quoted herein below:-
Transport Vehicle Non-Transport Vehicle (1) (2)
(i) to (vii)
(i) to (xi)
(ix) Private Service vehicle
(x)Private service vehicle registered in the name of an individual and declared to be used by him solely for personal use.
The Scorpio being a private service vehicle constructed for transport of passengers and not having been declared to be used for personal use by the purchaser (respondent No.1), therefore, falls within the category of transport vehicle. When it is, so, the driver possessed the licence for driving HTV(PE). Vehicle, light or heavy, can either be transport vehicles or non-transport vehicles. Light motor vehicle as defined under Section 2(21) of the MV Act means a transport vehicle, omnibus, a motor car, tractor or road roller, the unladen weight of which does not exceed 75,00/ kilograms. Admittedly the unladen weight of the Scorpio does not exceed 7500/ kilograms, so is a transport vehicle which falls within the ambit of Section 2(21) i.e. light motor vehicle.
Section 10(2) of the MV Act provides that driving licence shall be express as entitling the holder to drive a motor vehicle of various classes, such as:
(a) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) transport vehicle; (f) road-roller; (g) motor vehicle of a specified description.
The aforesaid classification does not give the description of all the vehicles but gives the description of type of vehicles. In the said backdrop the vehicle (Scorpio), in the context of definitions as given to transport vehicle, is held to be the vehicle of same type.
In paragraph 47 of the three Judge judgment as referred hereinabove, it has been held that if a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have no licence for driving another type of vehicle which is of the same category but of different type.
Applying the same ratio to the facts of the instant case, the driver, holder of licence to drive HTV(PE), while driving a Scorpio (Light Motor Vehicle) cannot be said to be having no licence for driving such type of vehicle which in effect is not different and more so when in terms of Section 7 of the Act pre-condition for obtaining licence for driving transport vehicles, means heavy vehicle, is to possess licence for driving light motor vehicle at least for one year.
In the above referred judgments, position was not same as the category of vehicles involved in the accident were different whereas drivers were holders of licence for different type of vehicles which were not of the same category. In the instant case category of the vehicle is same but of different type, therefore, driver who was driving the vehicle (Scorpio), though holding licence for HTV(PE), in view of the category of vehicles being same, cannot be said to be not having valid and effective licence. In shall be quite apt to quote from the insurance cover as to what is provided for entitlement to drive:
Any person includes the insured provided that the person driving holds an effective and valid driving license to drive the category of vehicle insured hereunder at the time of accident and is not disqualified from holding or obtaining such a license. Provided also that a person holding an effective and valid learners license to drive the category of vehicle insured hereunder may also drive the vehicle when not used for transport of passengers at the time of accident and that the person satisfies the requirements of Rule 3 of Motor Vehicle Rules, 1989.
The category of the vehicle is of essence and then to hold license for driving a particular category of vehicles having different types can be driven by the driver who possesses driving license for driving such type of vehicles.
For the stated reasons, the driver, holder of licence to drive HTV(PE) while driving vehicle (Scorpio) cannot be said to be not holding the licence to drive such type of vehicle, so is held to be having valid and effective license, resultantly there being no violation of specified condition, the insurer is held liable to pay the compensation.
For the reasons and the law as referred to hereinabove, the decision rendered by the Divisional Forum dated 23.3.2006 and up-held by State Commission vide decision dated 5.8.2009 sustain, therefore, need no interference. Petition, as such, is found devoid of merit so dismissed. No order as to costs.
Srinagar (Mohammad Yaqoob Mir) 08.02.2011 Judge Mohammad Altaf