Ramesh Kumar Nayak, son of Sri Yudhisthir Nayak, resident of At – 10, Pupunki v. 1. Janu Devi wife of Late Sudhir Rawani 2. Amrit Rawani son of Late
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI M.A. No.563 of 2017 Ramesh Kumar Nayak, son of Sri Yudhisthir Nayak, resident of At – 10, Pupunki, P.O. – Chas, Bokaro, District – Bokaro, Pin Code – 827013 (Jharkhand) (Owner of Auto Reg No. JH09L-5154) Versus 1. Janu Devi wife of Late Sudhir Rawani 2. Amrit Rawani son of Late Sudhir Rawani 3. Shakti Rawani son of Late Sudhir Rawani (represented through … … Appellant respondent no.1) 4. Parwati Devi wife of Late Shibu Rawani All resident of Upar Deoghara Basti, P.O. – Mahuda, P.S. – Dharmabandh, District – Dhanbad (Jharkhand) (Plaintiffs) 5. The Branch Manager, National Insurance Co. Limited, Natraj Mansion, Bypass Road Chas, Bokaro, P.O. and P.S. – Chas, Pin code – 827013, Jharkhand, also Having its office at B.P. Agarwalla Building, P.O. – Dhansar, P.S. – Dhansar, District – Dhanbad, Jharkhand (Defendant no.2/Insurer of Auto) CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY … … Respondents --- 11/26.07.2024 2. For the Appellant For the Respondents
Legal Reasoning
--- : Mr. Saibal Kr. Laik, Advocate : Mr. Alok Lal, Advocate --- Heard the learned counsels for the parties. This appeal has been filed against the judgment and award dated 19.07.2017 passed by the learned District Judge-II-cum-MACT Judge, Dhanbad in Motor Accident Claim Case No. 309 of 2015 whereby the learned Tribunal has fixed the liability to pay compensation upon the appellant who is the owner of Auto. The specific case of the appellant is that the liability ought to have been fixed upon the respondent No. 5 (insurance company) as the vehicle of the appellant was validly insured with the insurance company. Arguments of the appellant 3. The specific case of the appellant is that the learned court erred in law in refusing to fasten the liability upon the insurance company on two grounds; (a) the accident took place beyond the territorial jurisdictional limit as permissible under the permit (Ext-A/1) and (b) the driving licence (Ext. A/4) of the driver of the offending tempo was issued only for ‘transport vehicle’. The certificate of insurance policy was marked as (Ext.-A/2) which showed that the vehicle was APE passenger and in the insurance certificate, it has been specifically given that the drivers must have the driving licence to drive the category of the vehicle which was insured. He submits that the driver was having the licence to drive the category of vehicle he was driving. Further, the learned court recorded that the driver of Tempo had exceeded the territorial jurisdiction and thereby the owner of the vehicle had violated the terms and conditions of the insurance policy, and therefore, the owner of the offending vehicle, the appellant has been held to be liable to pay compensation. 4. The learned counsel for the appellant has submitted that the aforesaid approach of the learned court is contrary to the provisions of the Act and the rules made thereunder and has relied upon the following judgments: - (i) New India Assurance Company Limited vs. Basanti Devi & Others reported in 2023 (4) JBCJ 170 (HC) passed in M.A. No. 167 of 2016 dated 14.07.2023; and (ii) National Insurance Company Limited vs. Swaran Singh reported in (2004) 3 SCC 297, Para 47 and 89 (iii) The learned Counsel has referred to Section 2(31), 2(47), 2(35), 66 and 149 of the Motor Vehicles Act and has referred to Rule 70 of the Motor Vehicle Rules in order to assail the impugned judgment. (iv) The learned counsel has also relied upon the judgment passed by the Hon’ble Punjab & Haryana High Court reported in 2017 ACJ 168 (ICICI Lombard General Insurance Co. Ltd. vs. Vijaya Chhabra & Others) and also 2017 ACJ 635 (National Insurance Co. Ltd. vs. Paramjit Kaur & Others). 5. No other point has been argued on behalf of the appellant. Arguments of the respondent(s) 6. Learned counsel appearing on behalf of the respondents while opposing the prayer has relied upon the judgment passed by the Hon’ble Supreme Court in the case of Oriental Insurance Co. vs. 2 Zaharulnisha & Others reported in AIR 2008 SC 2218 to submit that the insurer can defend action on any of the grounds mentioned under Section 149(1) of the Motor Vehicles Act. He submits that if a person has been given a licence for a particular type of vehicle as specified therein, he could not be said to have no licence driving another type of vehicle of the same category but of different type. The valid driving licence is one of the conditions of contract of insurance. He has relied upon para 18 of the judgement which is quoted as under:- “18. In the light of the above-settled proposition of law, the appellant-insurance company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of scooter by Ram Surat who admittedly had no valid and effective licence to drive the vehicle on the day of accident. 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.” Findings of this Court 7. The learned tribunal fastened the liability upon the appellant- owner of the vehicle vide paragraph 18 of the impugned judgement in the following manner: “18. Ext-2 is the F.I.R. and Ext-3 is the charge sheet of Putki P.S. Case No.34/15. So, the accident took place at the territorial jurisdiction of Putki P.S. which comes under the Dhanbad district. But the Permit Ext-A/1 shows the permit was granted only within 16 km from the stand of Bokaro. The accident took place in the Dhanbad district which shows clearly the driver of the offending Tempo exceeds the territorial jurisdiction limit which is permitted by the permit. Ext-A/4 is the driving licence of driver of offending Tempo and this licence was issued to the Driver only for the transport vehicle and Ext-A/2 is the certificate of Insurance policy shows the vehicle was APE passenger and in the Ext-A/2 of the Insurance certificate in which it has been given that the driver must have the driving licence to drive the category of vehicle which was insured. Also the driver of this Tempo has exceeds the territorial jurisdiction and also he does not hold the licence to drive the passenger vehicle. So, the owner has violated the terms of Insurance policy and hence, the owner of the offending vehicle i.e. Defendant No.1 is liable to pay the compensation. Because, it is admitted by the defendant no.1 3 himself that he is the owner and he has produce the certificate of registration which is marked as Ext-A/5.” 8. Considering the submissions of both the parties, this Court finds that only two grounds were taken by the court concerned to refuse to fix the liability on the insurance company. (A) The driver was not having the driving licence of the category of the vehicle which was insured, and (B) The permit was granted for radius of only 16 kms from the stand of Bokaro and the accident had taken place in Dhanbad district. 9. The learned counsels for the parties have perused the driving licence of the driver which was exhibited as Exhibit-A/4 and it is not in dispute during the course of arguments that the driving licence clearly reveals that the driver, Parash Nath Singh, had licence for ‘light motor vehicle’ as well as ‘transport vehicle’. 10. This Court finds that the vehicle involved in the present case is APE passenger. “Transport vehicle” as defined under Section 2(47) of Motor Vehicles Act of 1988, means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. “Public service vehicle” has been defined under 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 maxi-cab, a motor-cab, contract carriage, and stage carriage. 11. These definitions of “Transport Vehicle” and “Public Service Vehicle” were subject matter of consideration by the Hon’ble Supreme Court in the judgment passed in the case of Mukund Dewangan v. Oriental Insurance Company Limited reported in (2017) 14 SCC 663. It has been held in Paragraph 58 thereof, that when a driver is having licence to drive ‘light motor vehicle’, he can drive a ‘transport vehicle’ of ‘light motor vehicle’ class, and there is no necessity to obtain separate endorsement. Paragraph 58 and 59 of the judgment passed in the case of Mukund Dewangan (Supra) is quoted as under: “58. “Transport vehicle” has been defined in Section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an 4 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 maxi cab, 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 Amendment Act 54 of 1994. 59. 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 1989 Rules, 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 Sections 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed.” 12. It is also important to note that earlier view taken by the Hon’ble Supreme Court in the case of New India Assurance 5 Company Ltd. v. Prabhu Lal reported in (2008) 1 SCC 696 has been overruled, which is apparent from Paragraph 48 of the judgment passed in the case of Mukund Dewangan (supra), which is quoted as under: interpreted “48. In our considered opinion Prabhu Lal question has not been decided correctly. The intendment and definition of the light motor in Ashok Gangadhar vehicle which was clearly Maratha [Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., (1999) 6 SCC 620: 1999 SCC (Cri) 1170] in para 10 have not been taken into consideration in the correct perspective. Interpretation of Form 6 was also not correctly made. Even assuming that Ashok Gangadhar Maratha [Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., (1999) 6 SCC 620 : 1999 SCC (Cri) 1170] did not lay down that the driver holding licence to drive a light motor vehicle need not have an endorsement to drive a transport vehicle, but what emerges from the aforesaid discussion made by us it is clear that there is no necessity of such an endorsement for driving a transport vehicle of the category of light motor vehicle, which is not statutorily enjoined or provided for. The intendment of Section 3 has also not been correctly appreciated. It has to be read along with Sections 10(2)(d) and (e) and those classes of vehicles which are included in Categories 10(2)(a) to (j) can be driven by a person without any further specific endorsement to drive a particular vehicle. Thus, the decision in Prabhu Lal does not lay down correct proposition of law and is hereby overruled.” 13. In the present case, the driver of the vehicle was having a driving licence of ‘light motor vehicle’, and the vehicle used in the present case is that of APE passenger (Auto Rickshaw), and therefore, considering the judgment passed by the Hon’ble Supreme Court in the case of Mukund Dewangan (supra), it cannot be said that the driver was not in possession of the valid driving licence. The judgment passed in the case of Mukund Dewangan (supra) was not placed before the learned court. The Hon’ble Supreme Court has decided the case of Mukund Dewangan (supra) on 03rd July 2017, and the impugned judgment has been passed on 19th July 2017. Therefore, one of the grounds to refuse insurance coverage with regard to the driver not having appropriate driving licence is not sustainable in the eyes of law. 6 14. So far as the permit is concerned, the permit has been exhibited before the learned court as Exhibit-A/1, which reveals as under: “within the 16 km from the Stand Bokaro”. 15. This Court has perused the evidence of the witnesses, and none of the witnesses have deposed that the place of occurrence was beyond 16 km from the stand. However, the learned court has taken into consideration that the point of accident was in different district i.e. at Dhanbad. Merely because the district happens to be Dhanbad district, the same does not mean that the point of accident is more than 16 km stand Bokaro and hence outside the area of operation of the permit. 16. In view of the aforesaid facts and circumstances which appears from the records of this case, this Court is of the considered view that the finding of the learned court that the accident having taken place in Dhanbad district, and therefore, it was beyond 16 kms is perverse and calls for interference. Both the grounds of refusal to give insurance coverage is accordingly held to be not sustainable in the eyes of law. 17. Consequently, the impugned award/judgment dated 19.07.2017, whereby the appellant, being the owner of the offending vehicle, has been directed to pay compensation of Rs.6,17,000/- to the claimant with interest at the rate of 6% per annum from the date of filing of the case in terms of impugned award is now required to be complied with by the Respondent No.5 - insurance company. 18. The statutory amount deposited by the appellant is directed to be refunded to the appellant after due identification. 19. The impugned award/judgment is accordingly modified in the
Decision
aforesaid terms and this miscellaneous appeal is disposed of. Saurav/- (Anubha Rawat Choudhary, J.) 7