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2001 DIGILAW 189 (KAR)

MOHAN v. THOMAS K. V.

2001-02-26

T.N.VALLINAYAGAM

body2001
T. N. VALLINAYAGAM, J. ( 1 ) AGGRIEVED by the denial of liability of the insurance company on the quantum of compensation granted by ii addl. Civil Judge and C. J. M. , mangalore in M. V. C. No. 771 of 1990, the appellants-claimants are before this court. ( 2 ) THE point raised in the above appeal preferred by the claimants in M. V. C. No. 771 of 1990 is: whether the insurance company is liable in respect of the vehicle involved in the accident that took place on 7. 5. 1990 at 12. 30 noon, namely, the vehicle bearing No. Cng 6967, resulting in injuries to the claimants? ( 3 ) THE facts disclose that the vehicle was insured with the respondent No. 2 and the respondent No. 2 denied the liability on the ground that the driver had licence only to drive light motor vehicle and the tempo is not a light motor vehicle and consequently the insurance company is not liable. It is not in dispute that as per exh. P-3 the extract of rc book of the vehicle No. Cng 6967 (sic.) That the driver is having licence to drive light motor vehicle. ( 4 ) SECTION 140 (2) of the Motor Vehicles Act, 1988 reads as follows:" (2) the amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees. " ( 5 ) VARIOUS decisions were relied upon, namely, Manohar Jamatmal Sindhi V. Ranguba, 1994 ACJ 1280 (gujarat); United India Insurance Co. Ltd. V. K. Subramaniam, 1991 ACJ 625 (Madras); National Insurance Co. Ltd V. Masabi, 1991 ACJ 173 (karnataka); M. Sammamma V. Syed Kaja Maunuddin, 1992 ACJ 375 (ap); new India assurance co. Ltd. V. Mandar madhav tambe, 1996 ACJ 253 (SC) and e. Enjanadevi V. Arumugham, 1983 ACJ 625 (Madras ). ( 6 ) CONTRA the decision in United India Insurance Co. Ltd. V. Lakshmamma, 1997 ACJ 170 (karnataka), was relied upon to show that this court has classified light motor vehicle and heavy motor vehicle on the basis of the load. If the unladen weight does not exceed 7500 kg. ( 6 ) CONTRA the decision in United India Insurance Co. Ltd. V. Lakshmamma, 1997 ACJ 170 (karnataka), was relied upon to show that this court has classified light motor vehicle and heavy motor vehicle on the basis of the load. If the unladen weight does not exceed 7500 kg. Then it is a lorry and if the unladen weight is less than 7500 kg. Then it is a light motor vehicle. Conseuently, it is contended that the insurance company is liable. Finally, the dictum in National Insurance Co. Ltd V. Masabi, 1991 ACJ 173 (karnataka), was relied upon to hold that the driver not having valid driving licence to run transport vehicle cannot make the insurance company liable. In fact, it is seen that earlier the matter was taken up at the time of an interlocutory application under Section 140 and this court in m. f. a. No. 520 of 1991 held that the liability of the insurance company shall be decided at the time of final disposal of the case. Ultimately, the tribunal held that the insurance company is not liable. ( 7 ) 1 have considered the submissions made by the respective counsel. ( 8 ) IN the case of National Insurance Co. Ltd. V. Mahadevayya, ILR 1982 Madras 151, a division bench of the Madras High Court considered the question whether the driver of an autorickshaw who did not possess a valid driving licence can drive an autorickshaw as required under Section 3 (1) of the Motor Vehicles Act. ( 9 ) CONSIDERING sections 2 (5-a), 2 (13), 2 (18), 2 (33) and also Section 3 (1) of the Motor Vehicles Act, the division bench has held as follows:"the above Section prescribes two requirements: (1) a person should hold an effective driving licence authorising him to drive the vehicle in any public place; (2) no person is permitted to drive a motor vehicle as a paid employee or a transport vehicle unless his driving licence specially entitles him to do so. We have already noted the definition of a transport vehicle which includes a goods vehicle. Admittedly in this case, the vehicle has been used as a public service vehicle. As a matter of fact, at the time of the accident, the vehicle was found carrying passengers. We have already noted the definition of a transport vehicle which includes a goods vehicle. Admittedly in this case, the vehicle has been used as a public service vehicle. As a matter of fact, at the time of the accident, the vehicle was found carrying passengers. Therefore, in addition to the usual licence for driving a motor vehicle in a public place, there should be a further authorisation to the driver to drive the autorickshaw which falls admittedly under the definition of light motor vehicle as a public service vehicle or a passenger vehicle. The tribunal has not referred to the definition of the transport vehicle though it refers to the definition of the light motor vehicle, as also the special requirements under Section 3 for getting authorisation to drive the autorickshaw as a public service vehicle. If we read the definition of transport vehicle in Section 2 (33) into Section 3, it will clearly indicate that the mere licence to drive the light motor vehicle, which includes an autorickshaw, will not enable the holder of that licence to drive an autorickshaw as a public carrier, for, that requires a special authorisation under the later half of Section 3. But we are of the view that the expression 'the motor vehicle' can only be construed as the motor vehicle which is used as a passenger vehicle. As a matter of fact the policy itself contemplates user of the vehicle as a contract carriage. Therefore, the expression 'the motor vehicle' should have reference only to the vehicle which is expected to be used as a contract carrier. Unless the driver of the autorickshaw is shown to have had a licence to drive a contract carriage, he cannot be taken to have a valid licence to drive the vehicle which is insured as a contract carriage. " ( 10 ) A division bench of the Himachal Pradesh high court, headed by Justice d. Raju, as he then was, in new India assurance co. " ( 10 ) A division bench of the Himachal Pradesh high court, headed by Justice d. Raju, as he then was, in new India assurance co. Ltd. V. Suraj parkash, 2001 ACJ 85 (hp), has held to the following effect:"we find particularly in para 3 of the reply that an objection has been taken that the insurance company is not liable in view of the fact that the driver of vehicle, maruti van hpy 251 did not possess any valid licence to drive the taxi, as a paid driver and as such no liability can be fastened on the insurer. Exh. R-3, policy of insurance (the schedule) filed disclosed that the insurance was in respect of the vehicle in question which stood registered as a taxi. If that be the factual position, it would answer the description of 'public service vehicle' as 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. Section 3 (1) of the Motor Vehicles Act, 1988 stipulated that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him to drive the vehicle and that no person shall so drive a transport vehicle (other than a motor cab or motor cycle) hired for his own use or rented under any scheme made under Section 75 (2) of the act unless his driving licence specifically entitled him so to do. Section 2 (47) defines transport vehicle to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Therefore, the vehicle in question answers the description of public service vehicle even on the materials disclosed on record. The conclusion of the tribunal below to the contra is indicative of non-application of mind to a valid and relevant piece of material on record. Inasmuch as exh. R-l driving licence does not contain any specific endorsement to drive a transport vehicle, the driver who drove the vehicle at the time of accident must be held to be not possessed of a valid and effective driving licence. Inasmuch as exh. R-l driving licence does not contain any specific endorsement to drive a transport vehicle, the driver who drove the vehicle at the time of accident must be held to be not possessed of a valid and effective driving licence. The mandatory requirement of Section 3 (1) having not been satisfied by the driver, in not holding a licence to drive with a specific endorsement to drive the transport vehicle (public service vehicle) such a conclusion has become inevitable on the facts of the case. " ( 11 ) IN view of the dicta laid down by the above two decisions, I am of the view that the insurance company is not liable to pay the compensation as the licence of the driver concerned, does not authorise him to drive the vehicle involved in the accident. ( 12 ) CONSEQUENTLY, the appeal is disimed, confirming the finding of the tribur as no other point was argued. Appeal dismissed. --- *** --- .