Gujarat High Court
United India Insurance Company Limited vs Pravinbhai Danabhai Makvana & on 20 September, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/3219/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 3219 of 2017
With
CIVIL APPLICATION NO. 12349 of 2017
In
FIRST APPEAL NO. 3219 of 2017
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UNITED INDIA INSURANCE COMPANY LIMITED.....Appellant(s)
Versus
PRAVINBHAI DANABHAI MAKVANA & 1....Defendant(s)
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Appearance:
MR RATHIN P RAVAL, ADVOCATE for the Appellant(s) No. 1
MR. HEMAL SHAH, ADVOCATE for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 20/09/2017
ORAL ORDER
1. Heard Mr. Rathin Raval, learned advocate for the appellant and Mr. Hemal Shah, learned advocate for the original claimant.
2. Being aggrieved and dissatisfied by the judgment and award dated 09.01.2017 passed by the Motor Accident Claims Tribunal (Main), Rajkot in MACP No. 1222/12, the present appeal is filed under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").
3. The record indicates that on 21.03.2011, the claimant was driving motorcycle bearing registration No. GJ13R2657 at about 4.15 PM and was going from Limbdi to Panshina. The record indicates that when he reached near Choki village, the driver of the Bolero Pick Up Van Page 1 of 14 HC-NIC Page 1 of 14 Created On Mon Oct 02 02:01:43 IST 2017 C/FA/3219/2017 ORDER bearing Engine No. GHB1B14578 and Chasis No. BIB18361 came from the other side by driving the said vehicle in rash and negligent manner because of which the driver of Bolero car could not control his vehicle and dashed with the motorcycle. The claimant sustained injuries due to the negligence of the Bolero car and because of which accident took place. The respondent claimant received serious injuries. The offence was registered at Limbdi Police Station as C.R. No. II 30/11 and ultimately, the respondent no.1 claimant preferred the petition under section 166 of the Act and claimed compensation of Rs.10,00,000/.
4. The respondent no.1 claimant was examined at Exhibit 23 and he also led further documentary evidence by way of FIR at Exhibit 32, Extract from entry at Exhibit 33, panchnama of the place of accident at Exhibit 34, Arrest Panchnama at Exhibit 35, Injury Certificate issued by R.R. Hospital, Limbdi at Exhibit 36, Injury Certificate issued by Dr. Saurabh Shah at Exhibit 37, R.C. Book of the motorcycle at Exhibit 38, chargesheet at Exhibit 39, Disability certificate issued by Hospital at Surendranagar at Exhibit 40, School Leaving Certificate at Exhibit 41, Medical bills at Exhibit 42 and details regarding owner, engine number and chases number of Bolero Pick Up Van at Exhibit 50. It appears from the record that the appellant herein also brought on record the information of smart Page 2 of 14 HC-NIC Page 2 of 14 Created On Mon Oct 02 02:01:43 IST 2017 C/FA/3219/2017 ORDER driving license issued by RTO, Ahmedabad, Exhibit 49 and the insurance policy of the Bolero Pick UP Van at Exhibit 51 as well as chargesheet at Exhibit 52. The Tribunal after appreciating the evidence was pleased to partly allowed the appeal and awarded a sum of Rs.2,57,670/ with 9% interest from the date of the claim petition till its realisation. Being aggrieved by the said judgment and award, the present appeal is filed.
5. Mr Rathin Raval, learned counsel appearing for the appellant had raised the following contentions
1) That the driver of the Bolera Van, insured vehicle, was not having valid and effective license.
2) Mr. Raval further contended that the license which was possessed by the driver of the Bolero Van was meant only for driving Light Motor Vehicle and there was no endorsement of commercial transport vehicle and therefore, there was a clear cut breach of the condition of the policy and hence, the insurance company cannot be held liable.
3) Mr. Raval further contended that the learned Tribunal has failed to appreciate the provisions of Sections 3,4, and 5 of the Act and therefore, the impugned judgment and award deserves to be quashed.
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4) It was also contended that the Tribunal has also wrongly appreciated the evidence Exhibit 47 whereby the officer of the RTO was examined as witness and he has categorically stated that the driver of the Bolero Van was not holding a valid and effective license to drive commercial vehicle. It was therefore submitted that an unauthorised driver was driving the insured vehicle and the Tribunal has wrongly held that the insurance company is liable.
5) Mr. Raval also relied upon the judgment of the Apex Court in the case of New India Assurance Company Ltd. Vs. Roshanben Rahemansha Fakir and Anr. Reported in (2008) 8 SCC 253 and contended that in the case on hand also, the said judgment would apply and the insurance company deserves to be exonerated.
6) It was also further submitted that the Tribunal has not considered the aspect that the as far as validity of license for driving transport vehicle is concerned, the same is valid for 3 years. However, the license of the driver was valid for 20 years, which establishes the fact that the driver was not authorised to drive commercial vehicle.
6. Mr. Hemal Shah, learned counsel appearing for the claimant, on instructions, has supported the impugned judgment and award. Mr. Shah contended that the bifurcation to drive transport vehicle Page 4 of 14 HC-NIC Page 4 of 14 Created On Mon Oct 02 02:01:43 IST 2017 C/FA/3219/2017 ORDER is not sine qua non and the driver of the Bolero Van was holding license to drive Light Motor Vehicle and the Tribunal has rightly discarded the evidence more particularly of the witness of the insurance company at Exhibit 47.
7. Mr. Shah has also relied upon the recent judgment of the Apex Court in the case of Mukund Dewangan vs. Oriental Insurance Company reported in AIR 2017 SC 3668 and has contended that as decided by the Apex Court, no such bifurcation is there in the Motor Vehicle Act. It was therefore submitted that the appeal is meritless and the same deserves to be dismissed.
8. No other or further submissions have been made by the learned counsel appearing for the parties.
9. Perused the record of the appeal and upon considering the impugned judgment and also examining the observations made more particularly on the liability issue by the Tribunal, it clearly appears that the Tribunal has taken into consideration the evidence at Exhibit 47 and the relevant provisions of the Act. It is an admitted position and even clearly mentioned in the memo of the appeal that the driver of the Bolero Van was having valid license to drive Light Motor Vehicle. The grounds which are raised by the learned counsel for the appellant in this appeal centers around the contention that in order to drive a transport vehicle, either Page 5 of 14 HC-NIC Page 5 of 14 Created On Mon Oct 02 02:01:43 IST 2017 C/FA/3219/2017 ORDER endorsement to that effect has to be there or there has to be a special license for driving the transport vehicle.
10. In light of the aforesaid therefore, it is not the case of the appellant that driver of the Bolero Van did not possess any license. However, the contention which is raised is that the license was only meant for driving Light Motor Vehicle.
11. The aforesaid contention in opinion of this Court is squarely covered by the recent decision of the Apex Court in the case of Mukund Dewangan (supra) wherein the Apex Court has considered catena of decisions on the said aspect and considered the provisions of the Act "37. In New India Assurance Company Ltd. v. Roshanben Rahemsha Fakir & Anr. (2008) 8 SCC 253 the driver was the holder of a licence to drive a threewheeler. This Court noted that the licence was not meant to be used to drive a transport vehicle. The vehicle involved was an autorickshaw delivery van and was a goods carrier. It was contended that the driver was not the holder of a legal and valid licence. This Court came to the conclusion that since the licence was issued or renewed for a period of 20 years from the date of issuance or renewal, the driver was not holding the licence to drive a transport vehicle as transport licence is not issued for such duration. The decision in the aforesaid case also cannot hold the field in the light of the law discussed in the instant matters and as the driver driving such a vehicle i.e. threewheeler was holding the licence to drive a light Page 6 of 14 HC-NIC Page 6 of 14 Created On Mon Oct 02 02:01:43 IST 2017 C/FA/3219/2017 ORDER motor vehicle, the restricted duration of renewal would not be applicable to the light transport vehicle. The discussion to the contrary in Roshan Lal (Roshanben) (supra) cannot hold the field."
"42. In Nagashetty (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. 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 Page 7 of 14 HC-NIC Page 7 of 14 Created On Mon Oct 02 02:01:43 IST 2017 C/FA/3219/2017 ORDER 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 Page 8 of 14 HC-NIC Page 8 of 14 Created On Mon Oct 02 02:01:43 IST 2017 C/FA/3219/2017 ORDER 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 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 licenceholder. Thus a permanent licenceholder 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 Page 9 of 14 HC-NIC Page 9 of 14 Created On Mon Oct 02 02:01:43 IST 2017 C/FA/3219/2017 ORDER provided, if the vehicle falls in any of the particular classes of section 10(2). This Court has rightly observed in Nagashetty (supra) 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 (supra) is correct, however, for the reasons as explained by us.
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 Page 10 of 14 HC-NIC Page 10 of 14 Created On Mon Oct 02 02:01:43 IST 2017 C/FA/3219/2017 ORDER 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 preamended position as well the postamended 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 Page 11 of 14 HC-NIC Page 11 of 14 Created On Mon Oct 02 02:01:43 IST 2017 C/FA/3219/2017 ORDER 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 roadroller, 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 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 Page 12 of 14 HC-NIC Page 12 of 14 Created On Mon Oct 02 02:01:43 IST 2017 C/FA/3219/2017 ORDER 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."
12. In view of the judgment of the Apex Court in the case if Mukund Dewangan (supra), the judgment relied upon by the learned counsel for the appellant in the case of New India Assurance Company Ltd. Vs. Roshanben Rahemansha Fakir (supra) is not a good law and the same is overruled.
13. In light of the judgment of the Apex Court in the case of Mukund Dewangan (supra) therefore, as per the provisions of the Act as it stands today and even on the date of the accident, there was no requirement to obtain separate endorsement to drive a transport vehicle and in case on hand also, the driver of the insured vehicle Bolero Pick Up Van, being a commercial vehicle, was Page 13 of 14 HC-NIC Page 13 of 14 Created On Mon Oct 02 02:01:43 IST 2017 C/FA/3219/2017 ORDER holding a valid license to drive Light Motor Vehicle and therefore he was authorised to drive the said vehicle without their being any endorsement to that effect.
14. Following the ratio laid down by the Apex Court in the case of Mukund Dewangan (supra) therefore, all grounds raised by Mr. Raval, and as observed hereinabove, mainly centering around the aspect that the driver was not holding valid license deserves to be negatived.
15. In light of the aforesaid therefore, it cannot be said that there was any breach of terms and conditions of the policy because of the alleged invalid license and as observed hereinabove in the memo of the appeal itself, the appellant has stated that driver was holding license for driving Light Motor Vehicle.
16. Resultantly, the appeal fails and is hereby rejected. However, there shall be no order as to costs. As the appeal is rejected no order in Civil Application. Civil Application stands disposed of.
(R.M.CHHAYA, J.) bjoy Page 14 of 14 HC-NIC Page 14 of 14 Created On Mon Oct 02 02:01:43 IST 2017