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Himachal Pradesh High Court · body

2006 DIGILAW 178 (HP)

NEW INDIA ASSURANCE COMPANY v. SUDESH KUMARI

2006-06-23

DEEPAK GUPTA

body2006
JUDGMENT Deepak Gupta, J.—This judgment shall dispose of two appeals being FAO Nos. 306 of 2001 and 299 of 2003, as they arise out of the same award made by the Motor Accident Claims Tribunal-I, Sirmour District at Nahan in MAC Petition No. 32-MAC/2 of 2000/1998, decided on 18th June, 2001. 2. Brief facts of the case are that deceased Parminder Kumar is alleged to have died as a result of accident of tractor No. HR-02A-7259. According to the claimants, Parminder Kumar was travelling on the tractor alongwith his goods and Rs. 50/- as fare was agreed to be paid to the driver of the tractor. The claim petition was filed by the parents of Parminder Kumar and was instituted in the Court of Motor Accident Claims Tribunal, Sirmour at Nahan on 6th November, 1933. Smt. Hema Devi, widow of deceased was shown as proforma respondent, but vide order dated 29th July, 1999 on an application for transposition having been moved by Smt. Hema Devi, she was allowed to be arrayed as petitioner No. 3. 3. The claim petition was contested by the owner and driver of the tractor and they denied their liability to pay compensation. A plea was also taken by the owner and the driver that the petition was not maintainable in view of the fact that a previous petition filed by Smt. Hema Devi in the Court of Shri Shekhar Dhawan, Motor Accident Claims Tribunal, Jagadhari had been withdrawn by her. The Insurance Company also contested the claim petition mainly on two grounds firstly that it is not liable to pay compensation since the deceased was a gratuitous passenger on a tractor and secondly that the driver of the tractor did not hold a valid driving licence at the time of accident. Issues were framed and evidence was led. The learned Tribunal has dismissed the claim petition on behalf of the parents and has awarded compensation in favour of the widow Smt. Hema Devi to the extent of Rs. 2,46,000/-. 4. Aggrieved against this award, the Insurance Company has filed FAO No. 306 of 2001 and the parents have filed FAO No. 299 of 2003. 5. The appeal of the Insurance Company is first taken up. I find that from the averments made in the claim petition itself it is alleged that the deceased was travelling on a tractor. 2,46,000/-. 4. Aggrieved against this award, the Insurance Company has filed FAO No. 306 of 2001 and the parents have filed FAO No. 299 of 2003. 5. The appeal of the Insurance Company is first taken up. I find that from the averments made in the claim petition itself it is alleged that the deceased was travelling on a tractor. Shri Sanjeev Sood, appearing on behalf of the Insurance Company submitted that the Insurance Company cannot be held liable to pay compensation and is to be exonerated of the liability to pay the amount on the ground that the deceased was a passenger in a tractor and the tractor was being used in violation of the terms of the policy. 6. Admittedly, the vehicle in question insured with the Insurance Company was a tractor. The sitting capacity of the vehicle was only one. It was meant to be used only for agricultural purpose and not for carrying of passengers. 7. A tractor is not a goods vehicle. Section 2(44) defines "tractor" as under: " "Tractor" means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); it excludes a road-roller". It is, thus, clear that a tractor is not meant to carry any passengers or to carry any load. A trailer has been defined in Section 2(46) as under: " "trailer" means any vehicle, other than a semi-trailer and a sidecar, drawn or intended to be drawn by a motor vehicle". 8. When a trailer is attached to the tractor, the trailer can be used for carriage of goods. However, the trailer cannot be used for carriage of passengers. The question whether the tractor becomes a goods vehicle when a trailer has been attached to* it has been left open by the Apex Court in National Insurance Company v. V. Chinnamma, (2004 (8) SCC 697). The Apex Court considered these questions and held as follows:— "16. A tractor fitted with a trailer may or may answer the definition of goods carriage contained in Section 2 (14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purposes, unless registered otherwise. "It may be, as has been contended by Mrs. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purposes, unless registered otherwise. "It may be, as has been contended by Mrs. K. Sharda Devi, that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. The deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to the market for the purpose of sale thereof and not for any agricultural purpose. The tractor and trailer, therefore, were not being used for agricultural purposes. However, even it be assumed that the trailer would answer the description of "goods carriage" as contained in Section 2(14) of the Motor Vehicles Act, the case would be covered by the decision of this Court in Asha Rani and other decisions following the same, as the accident had taken place on 24.11.1991 i.e. much prior to coming into force of the 1994 amendment." 9. In the present case, admittedly, the vehicle in question was a tractor and the insurance policy has been proved on record as Ext. RC. As per the insurane policy, the risk cover is only for the driver and not the passenger and there is no liability on the Insurance Company with regard to pay compensation to any passenger sitting on the said tractor. Therefore, the Insurance Company cannot be held liable. 10. Furthermore, I find that in the present case, the driving licence Ext. RB was issued in favour of the driver Paramjit Singh on 14th January, 1980. The same was valid till 13th November, 1990. Thereafter the driving licence was not renewed. The accident in question took place on 29th May, 1995 and thereafter the licence was renewed on 9th August, 1995. At the time when the accident took place there was no valid existing licence entitling the driver to drive the tractor. 11. An argument has been raised that since the licence has been renewed, the renewal shall enure from the back date and the Insurance Company would be liable. At the time when the accident took place there was no valid existing licence entitling the driver to drive the tractor. 11. An argument has been raised that since the licence has been renewed, the renewal shall enure from the back date and the Insurance Company would be liable. Section 14 of the Motor Vehicles Act deals with the currency of licence to drive motor vehicles. It provides different time periods for which different licenses for different classes vehicles shall be valid. In the present case, the licence issued was valia only for three years and admittedly it has been issued to drive a transport vehicle. The proviso to this Section reads as follows: "Provided that every driving licence shall, notwithstanding its expiry under this sub-section, continue to be effective for a period of thirty days from such expiry." 12. Section 15 of the Motor Vehicles Act provides for renewal of driving licenses. Section 15 (1), insofar as it is relevant to the present case, reads as follows: "15(1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry: Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal." 13. The case of the appellant is that the driving licence expired on the date of expiry mentioned in the driving licence. However, in view of the provisions of Sections 14 and 15 of the Motor Vehicles Act, the same is deemed to be valid for a period of 30 days thereafter and in case the same is renewed within 30 days of the date of expiry then the renewal shall relate back to the date of its expiry. However, in case the renewal is done after 30 days then the driving licence is deemed to be renewed with effect from the date of its renewal. 14. Mr. Sanjeev Sood, learned Counsel appearing on behalf if the Insurance Company, contends that if the renewal is not done within 30 days then thereafter the licence holder holds no driving licence and it cannot be said that he either holds an effective driving licence or that he is duly licensed to drive the vehicle. 14. Mr. Sanjeev Sood, learned Counsel appearing on behalf if the Insurance Company, contends that if the renewal is not done within 30 days then thereafter the licence holder holds no driving licence and it cannot be said that he either holds an effective driving licence or that he is duly licensed to drive the vehicle. He submits that, in fact, the driver holds no licence at all after the expiry of 30 days and the renewal of licence after 30 days can be effective only from the date the licence is renewed. Both sides have cited a number of judgments in support of their case. 15. The Apex Court in Malla Prakasarao v. Malla Janaki and others, (2004) 3 Supreme Court Cases 343, decided by a three Judge Bench, held as follows : "1. It is not disputed that the driving licence of the driver of the vehicle had expired on 20.11.1982 and the driver did not apply for renewal within thirty days of the expiry of the said licence, as required under Section 11 of the Motor Vehicles Act, 1939. It is also not disputed that the driver of the vehicle did not have driving licence when the accident took place. According to the terms of the contract, the Insurance Company has not liability to pay any compensation where an accident takes place by a vehicle, driven by a driver without a driving licence. In that view of the matter, we do not find any merit in the appeal." 16. The observations of the Apex Court in National Insurance Co. Ltd. v. Sivaran Singh and others, (2004) 3 Supreme Court Cases 297, on this issue are also relevant. In para-4, the Apex Court has clearly stated that one of the questions raised before it was of cases where although licence was granted to the driver concerned but on expiry thereof the same had not been renewed. The relevant observations of the Apex Court relatable to the present case are in paras-41, 45 and 46. These paragraphs read as follows : "41. However, clause (a) opens with the words "that there has been a breach of a specified condition of the policy", implying that the insurers defence of the action would depend upon the terms of the policy. These paragraphs read as follows : "41. However, clause (a) opens with the words "that there has been a breach of a specified condition of the policy", implying that the insurers defence of the action would depend upon the terms of the policy. The said sub-clause contains three conditions of disjunctive character, namely, the insurer can get away from, the liability when (a) a named person drives the vehicle; (b) it was being driven by a person who did not have a duly granted licence; and (c) driver is a person disqualified for holding or obtaining a driving licence. xxxx xxxx xxxxx xxxxx 45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefore. Proviso appended to Section 14 in unequivocal terms states that the licence remains valid for a ponod of thirty days from the day of its expiry. 46. Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving licence has lapsed, as in the meantime the provisions for disqualification of the driver contained in Sections 19, 20, 21, 22, 23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry." 17. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry." 17. This Court considered this matter in detail in National Insurance Company v. Amar Chand and others, (FAO No. 355 of 1998) decided on 18th August, 2005 and after consideration of the aforesaid provisions of law and the judgments of the Apex Court held as follows : "From a perusal of the bare provisions of the Motor Vehicles Act as well as the judgments of the various Courts and especially the observations of the Apex Court in Swaran Singhs case (supra), it is clear that the Insurance Company can defend an action on the ground that the petitioner was not duly licensed on the date of the accident. The Apex Court in Swaran Singhs case (supra) in paras-45 and 46 quoted above has clearly laid down that the licence remains valid only for a period of thirty days from the date of its expiry. The question as to what happens if the licence is not renewed within thirty days has not been answered in this judgment. From the bare reading of the provisions as well as the interpretation given by the Honble Supreme Court it can be said that after thirty days of the expiry there is no driving licence. The driver has neither an effective driving licence nor can be said to be duly licensed. It would run counter to the vary provisions of the Motor Vehicles Act if it is held that though the licence had expired and not been renewed even within the time allowed in law, the driver is duly licensed. A driver, who permits his licence to expire and does not get it renewed till after the accident, cannot claim that it should be deemed that the licence is renewed retrospectively. The proviso to Section 15 of the Motor Vehicles Act clearly provides that, if the licence is not renewed within thirty days of its expiry, the driving licence shall be renewed with effect from the date of its renewal. This renewal can never be retrospective. Therefore, it has to be held that, if the driving licence is not renewed within thirty days it will only be a valid driving licence from the date of its renewal. This renewal can never be retrospective. Therefore, it has to be held that, if the driving licence is not renewed within thirty days it will only be a valid driving licence from the date of its renewal. The driver cannot be deemed to be duly licensed on the date of accident if thirty days have already expired from the date of expiry of his licence and the same has not been renewed within thirty days." 18. Therefore, the Insurance Company on both counts cannot be held liable to pay compensation. 19. As far as the appeal filed by Smt. Sudesh Kumari and Khajan Singh is concerned. Shri Pankaj Sharma on their behalf submits that it is apparent from the perusal of Ext. P. 4 that the widow Smt. Hema Devi had previously filed a claim petition in the Court of Shri Shekhar Dhawan, Motor Accident Claims Tribunal, Jagadhri, which claim petition was withdrawn by her on 2nd September, 1998 without seeking permission of the Court to file a fresh petition. He, therefore, submits that in the petition filed by the parents Smt. Hema Devi could not have been awarded any compensation since she had unconditionally withdrawn her earlier claim petition without reserving any right to file a fresh petition. He further submits that the learned Tribunal has .gravely erred in dismissing the claim petition of the parents. 20. The evidence on record led before the learned Tribunal shows that the deceased was cultivating the land belonging to his parents. It is not understood how ihe learned Tribunal held that the deceased was not contributing any amount whatsoever to the parents. In my view, the learned Tribunal gravely erred in holding that Smt. Hema Devi alone was entitled to the compensation to the exclusion of the parents. In fact, as is apparent from Ext.P.4, Smt. Hema Devi had earlier filed a claim petition before the Motor Accident Claims Tribunal, Jagadhri, which was dismissed as withdrawn. She did not reserve the right to file a fresh petition before any other Court. Thereafter she did not oven file the claim petition and the claim petition was filed by the parents of the deceased. During the course of proceedings she moved an application that she may be transposed as petitioner which application was allowed. She did not reserve the right to file a fresh petition before any other Court. Thereafter she did not oven file the claim petition and the claim petition was filed by the parents of the deceased. During the course of proceedings she moved an application that she may be transposed as petitioner which application was allowed. Though, strictly speaking second claim petition on behalf of Smt. Hema Devi may not have been maintainable since she had earlier withdrawn the claim petition filed by her, but keeping in view the entire facts of the case and the fact that a petition under Section 166 of the Motor Vehicles Act is filed in representative capacity and enures for the benefit of all the legal representatives, I hold that Smt. Hema Devi alongwith the parents would be entitled to compensation. The amount of compensation awarded by the learned Tribunal is not under challenge before this Court. Keeping in view the entire facts of the case into consideration. In hereby apportion the compensation of Rs. 2,46,000./- as follows:— 1. Smt. Sudesh Kumari, mother Rs. 1,00,000/-; 2. Shri Khajan Singh, father Rs. 46,000/-; and 3. Smt. Hema Devi, widow Rs. 1,00,000/-. The appeals are accordingly allowed in the aforesaid terms. The award of the learned Tribunal is set aside and it is held that the claimants are entitled to a sum of Rs. 2,46,000/- from the owner and driver of the tractor. The original owner of the tractor was Des Raj and he is survived by his legal heirs. The liability of the legal heirs shall be limited to the extent of estate of Des Raj inherited by them. No costs.