(Insurer) v. The Oriental

Single Bench : Hon'ble Mr. Justice Sanjay K. Agrawal M.A. (0 No. 940/2008 APPELIANT (Insurer) : The Oriental Company Limited Insurance Versus RESPONDENTS Mewa Lal and others M.A. (C) No. 1422/2007 APPELLANT Applicant Love Kumar RESPONDENTS Non-applicants Versus Malikram others. Shrivas M.A. (0 No. 308/2009 APPEIiIANT Oriental The Company Limited Insurance Versus BESPONDENTS Jeevanlal and others And M.A.(C) No. 266/2009 APPEI.IANT Insurer Oriental The Company Limited Insurance •w ^- Versus ^- BESPONDENIS Love Kumar and others MISCELIANEOUS APPEAL ONDER SECTION 173 OF THE W3TOK VEHICIiE ACT, 1988 Shri Aooearances of the counsel : - Patel, Ghanshyam appellant Oriental Insurance Company Limited in all the appeals. counsel Shri R.K. Jain, counsel for the claimants in all the appeals. Nonefor respondent owner/driver. O RD E R (Passed on ITUt. 12.2013) (1) By this common order, Misc. Appeal (C) No. filed by the claimant, Misc. Appeal No. 940/2009, Misc. Appeal (C) No. 308 / 2009 & Misc. Appeal (C) No. 266 of 2009 filed by the Oriental Insurance Company Limited disposed of as the common question of fact & law are involved in all the appeals and they arise out of one and same accident. (2) The facts, as projected and necessary for adjudication of these appeals, are as under : (2.1) In a road traffic accident occurred on 26.09.2005 , respondent/ driver - Malik Ram while driving the offending vehicle Jeep bearing . registration no. C.G.-10-ZB-0141 ^ rashly negligently, respondent/ owner- Sanjay Kumar Ghore and insured by the Oriental Insurance Company Limited, caused grievous injuries respondents/claimants leading to the filing of claim petitions claiming compensation as mentioned in the respective claim petitions. The respondents/claimants claimed compensation owner, driver Insurance Company of the offending vehicle jointly and severally. (2.2) On being noticed , owner and driver appeared before Tribunal proceeded ex-parte they did not their written statement, whereas Insurance Company filed its written statement before the Claims Tribunal stating, inter alia, at the time of accident , the offending vehicle insured Maxi Cab being transport vehicle and the respondent/ driver did have licence only to drive Light Motor Vehicle (non-transport) and, entitled to offending vehicle Jeep and, therefore , the Insurance Company is ''••^ 1 '^p- .<{•• A/' i'-' % A—ly^' --^^::'' I liable compensation claimants. (3) On the other hand, Shri R.K. Jain, learned counsel appearing for claiman.ts supported the award impugned and would submit that, circumstances case, Tribunal has rightly fastened the liability upon the appellant/ insurance, which does not call for any interference. He would further submit that in M.A. (C) No. 1422/2007 the compensation awarded by the Tribunal is shockingly on lower side which deserves to be suitably enhanced. (4) The Claims Tribunal, by its award impugned, granted compensation of Rs.30,000/- (M.A. ( C) No. 1422/2007), Rs. 15,000/- (M.A. (C ) No. 308/2009), Rs.30,000/- (M.A. ( C) No. 266/2009) & Rs.10,000/- (M.A. No. 940/2008) and held that the Insurance Company is liable to indemnify the award to the claimants and the driver did have valid and effective driving licence to drive the offending vehicle on the date of accident. (5) I have heard learned counsel appearing for the parties and perused the material available on record including award impugned. ^ (6) On behalf of Insurance Company, Mr. Arvind Khalko, (NAW-2) Officer of the Insurance Company has been examined, who has proved the insurance policy stating that the offending vehicle was insured as passenger carrying vehicle and to passenger carrying vehicle, licence to drive transport vehicle is necessary. He further stated in his evidence that passenger carrying capacity of the vehicle was 1+5 = 6. Other witness I/C Mr. Premnarayan Gupta, (NAW-1) Clerk RTO Office, examined on behalf of Insurance Company, who has proved respondent / driver - Malikram was granted licence Light Motor Vehicle (non-transport) on 04.10.2000 and on the basis of said licence only Light Motor Vehicle (non-transport) can be driven. He has further deposed that respondent/ driver Malikram has not been declared disqualified from driving the offending vehicle. (7) There is no dispute between the parties that the offending vehicle is Mahendra and Mahendra Jeep is a passenger carrying vehicle insured for commercial purpose and on the date of accident and seating capacity was. five + one. It is also "'^•. :& ^•"^y ^-7 ^' %l£?"'::s-\ '•~<^^'i-i.^';.^ ^?' ^ y/s! (, Y) not in dispute that respondent no. 1 was holding valid driving licence to drive the light motor vehicle (non transport) on the date of accident i.e. 26.09.2005. (8) Section

2. (21) defines "light vehicle" and section 2 (47) defines "transport vehicle" as under :

2. (21) "light motor vehicle " means a transpoit vehicle or omnibus the gross vehicle weight of either of which or a motox can or tractor or road roller the unladen weight of any of which , does not exceed 7500 kilograms ; (47) 'Transport Vehicle' a public service vehicle a carriage, education institutlon, jbus or a private service vehicle. (9) Section 3-(1) of the act requires holding of the driving licence , which reads as under :-

3. Necessity for drlving licence , - (1) No person a motor vehicle in any public place unless he effective driving licence issued to hlm authorizing him to drive the vehicle ; and no person shall so drive a transport vehicle other than a fflotor cab or motorcycle hired for his or rented under any scheme made under sub-sect-ion (2) of Section ?- 75 unless driving llcence speclfically entitles him so to do. (10) Section 5 of the Act declares that no owner or person in charge of a m'otor vehicle shall permit person satisfy the provisions of Section 3 to drive the vehicle. Section 10 deals with form and contents licences. It enacts driving licence issued under section 18 which provides driving vehicles belonging Central Government) shall be in such form and contain information prescribed by the Central Government. It also states that a driving licence shall be expressed as entitling the driver to drive a motor vehicle of one or more of the types of motor vehicles specified sub-section (2). Section 15 • provides for "renewal of driving licence". (11) Section 27 of the Act empowers the Central Government to make rule in respect of matters enumerated therein. Section 66 prohibits owner of motor vehicle to use or to permit the use of motor vehicle as a transport vehicle in , any public place save in accordance with the ^ y s '•?:^ F^ ''•^^-SQESSSS c? t} conditions of permit granted by an appropriate authority. (12) The Central Government framed known as the Central Motor Vehicle Rules , 1989 (hereinafter referred to as "the Rules"). (13) Rule 16 of the Rules prescribes the form in driving licence issued. The provides that the holder of a licence can drive vehicle description mentioned therein. Where authorization is granted to drive transport vehicle, it is expressly so provided by making an endorsement to that effect. (14) The word "form" has been defined in Rule 2 (e) to mean a form appended to the Rules : "Form - 4" J apply for a licnence to enable me to drive vehicles of the following descrlption. (d) Light motor vehicle (e) Medium goods vehicle (g) Heavy goods vehicle (i) Motor vehicle following desciiption". (15) The Central Motor Vehicle Rules , 1989 was amended Ministry Road Transport Highways Notification No. G.S.R. 221 (E) 28th March . 2001. .^ ~\l / C'~"t / X: 3 £" ';• '-tt After amendment the relevant portion of Form 4 reads as under : "Form - 4" I apply for a licence to enable me veA.ides of . the following desciiption (d) Light motor vehicle (e) Transport Vehicle Motor (j) descrj.pt.ton. " vehicle following Riile 14 prescribes for flling of application 4, a licence a vehlcle, categorizing the same In nlne types of vehlcles. Cause (e) provides foi "tiansport vehicle" which has been substituted by GSR 221 (E) effect

28.03.2002. Before amendment 2002 , entries vehicle" "heavy "medium vehicle" existed which have been substituted by "transport vehicle". As notlced "light motor vehicles " hereinbefore , also found place therein. (16) "Light vehicle defined Sectton 2 (21) and , therefore , in view of the provision , as then existed, it included a light transport vehicle. Form 6 provides manner licence granted , the relevant portion whereof reads as under : "Authorization to dnve transport vehicle Wumfcer ................... Date ................... AutAorized to drive transport vehicle with effect from ........... Bacfge number Slgnature the licensing Designation of authority. Wame and designation of tbe authoiity who conducted the driving test." (17) Thus, is evident the transport vehicle has now been substituted for medium goods vehicle and heavy goods vehicle w.e.f.

28.03.2001. The light motor vehicle continued at the relevant point of time to cover both light passenger carriage vehicle carriage vehicle. (18) In a decision Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd1., the appellant was the owner of a truck weighing less than the maximum limit prescribed in section 2 (21) of the Motor Vehicle Act. The said truck was , therefore , a light motor vehicle. It was registered with the respondent insurer a certain amount and for a certain period. Within 11999(6) SCC 620. <^iv the period of insurance , the truck met with an accident completely damaged. The appellant's against respondent rejected National Consumer Dispute Redressal Commission. The National commission accepted the respondent's contention that a carriage a transport carriage and that the driver of the truck , who was holding a driving licence in Form 6 to drive light motor vehicles only., was not authorized to drive a transport vehicle and , therefore , the insured having committed breach of the terms of insurance policy and provisions Act, respondent insurer liable to indemnify the insured. Allowing the appeal , Hon'ble Supreme Court held as under : \

14. Now the vehicle in the present driver bad the driving licence to drive kilograms weighed 5920 a light motor vehicle. It is not that, therefore , the insurance policy covered a transport vehicle which meant a goods carriage. The whole case of the insurer has been builf on a wrong premise. It is itself the case of the insurer that in vehicle non-transport was no statutory requirement to have a vehicle, /•• /^ specific authorization on the licence of the driver under Form 6 under the rules. It has , therefore , to be held that Jadhav was holding an effective valid licence on the date of the accident to a vehicle bearing Registration No. KA-28-567". ,(19) In a decision National Insurance caapany Itd. V. Annappa Irappa Nesaria alias Nesaragi and others2, the vehicle involved in the accident was a matador having a goods carriage permit and was insured with the Insurance Company. An issue was raised that the driver of the vehicle did possess effective driving licence a transport vehicle. The Tribunal held driver having a driving licence and allowed the claim. In appeal filed insurance company , High Court • dismissed the appeal holding that the claimants are third parties and even on the ground that •there is violation of terms and conditions of policy insurance company cannot permitted to contend that it has no liability. After considering the relevant provisions of the , Act and definition and meaning of light goods carriage, vehicles, 2 2008 (3) SCC 464 v ~% %. '^ vehicles, finally came to the conclusion that driver, who was holding the licence duly granted vehicle , entitled to drive the light .passenger carriage vehicle, namely , the matador. The Supreme Court held as under : "20. From what has been noticed hereinbefore , it is evident that "transport vehicle" has now been substltuted vehicle" "medium "heavy vehicle". The light motor vehicle contlnued , at the relevant point "light passenger carriage vehicle" and. "light goods carriage vehlcle". A driver who had a valid licence to a llght motor vehicle , therefore , authorlzed drive a light goods vehicle as well". (20) Recently , the Supreme Court in a decision S. lyyapan v. M/s. United India Insurance Coanpany Ltd.and another3 has held that Insurance company cannot disown liability ground that driver of the vehicle though duly licenced vehicle, merely because driver endorsemeht in ^the driving licence 32013(7) S.CC 62 commercial vehicle. The Supreme Court held 18 as under : "18. In Instant case, admittedly the drlver. was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question , jby which accident took , was Mahindra Maxi Cab. Meiely beca-ase the driver did not endorsement In driving llcence to drive Mahindia Maxl CaJb/ which is a light motor vehicle , High Court committed gra.ve error of. law in holding that the insurer is not llable compensation jbecause driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, theiefore , llable to be set aside". (21) In the instant case, driving licence to respondent driver was issued on 04.10.2000 , that

28.03.2001. That before amendmentsiithe Rules of 1989 , and the offending »— vehicle is a light motor vehicle , though insured as a passenger carrying vehicle, and driver had a driving licence to driver light motor vehicle (non-transport) =A ~^,. I, -^V/ Ij disqualified for driving the offending vehicle , It cannot be held the driver did not have a valid effective driving licence to drive the offending vehicle. (22) Apart from this, Mr. Arvind Khalko , witness appellant company statement before the court as under :- VS' V^t f f^ ?Wt gRT ^(#T W?^7?): ^ S^ <?//?o'/ ^ ^t y?wff ^ f f^ ^•y^/d* f iv ^of) w ?t (7'fr *"/'A tilPl^l^f ?W 1 (23) In the decision reported in S. Zyyapan v. M/s. United India Insurance Conpany Ltd, (Supra), the Supreme Court held as under :- "16. The heading 'Insurance Motor Vehicles against Third Party Risks' given in Chapter XI of the Motor Vehicles Act, 1988 (Chapter VIII 1939 Act) itself intention legislature paity insurance compulsory and to ensure victims accident arising out of use of motor vehicles would be able to get compensation for the death of injuries suffered. The provlslon inserted protect persons traveli.ng in vehicles or using ^ // ^ the road from tAe risA- attendant vehicles on the road. To overcome legislature situation, ' obligatory that no motor vehicle unless a party insurance is in force". "n. Readlng the provisions sections 146 and 147 of the Motor Vehlcles Act, It 1s evldently c-Iear that certain circumstances the insurer's right is safeguarded but in any event insurer compensation a certificate insurance issued notwithstanding the Insurer proceed against the insured for recovery of the amount. Onder section 149 of the Motor Vehicles Act, -z.nsurer can defend the action, interalia , giounds, namely, (1) the vehicles was not driven jby a named person , (11) it was being driven by a person who was not having a duly granted llcence, and (iii) person driving the vehicle disqaalified obtain a driving licence". IHs-ia ^c'i.'^u:^^ v^ ^ f %«^~US=:;T^^' :S*fS-:?';;KS- <e ^- (24) Thus for the forgoing reasons and keeping in view the claimants are third parties, finding of the learned claims tribunal cannot be faulted. I hereby affirm the said finding. M.A.No.1422/2007. (25) The compensation awarded to the claimants .':°. just proper fair. Thus, ground for enhancement of amount under award. (26) Resultantly, appeals are liable to be and hereby dismissed. Cross objection filed in M.A. No. 1422/2007 is also dismissed. No cost. Sd/- sanjay K. Agrawal Judge Dubey