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Madhya Pradesh High Court · body

2006 DIGILAW 827 (MP)

Devobai v. Jalim Singh

2006-07-10

A.K.GOHIL, SUBHASH SAMVATSAR

body2006
JUDGMENT Gohil -- 1. This judgment shall govern the disposal of aforesaid both the appeals as both the appeals arise out of the same award. Claimants have filed Miscellaneous Appeal No. 149/2003 challenging the quantum of compensation as well as the findings recorded by the Claims Tribunal on issues No.2 to 4 regarding valid driving licence and breach of the terms and conditions of the policy. Insurance Company has filed Miscellaneous Appeal No. 849/2002 on the ground of its liability that looking to the breach of conditions of the policy, the insurance company is not liable, therefore, the Claims Tribunal has wrongly given right to recovery from the owner of the vehicle. 2. Brief facts of the case are that on 10.6.2001 deceased Bhagwan Singh was coming from Hazira on a bicycle and going towards Padav at Gwalior. Near a dustbin at Loco, one truck carrying crane bearing its registration No. MPW 8169, which was being driven by respondent No.1 Jalim Singh and owned by respondent No. 2 Anoop Singh and insured with respondent No.3 Oriental Insurance Company Ltd., was coming from the side of Padav. It was alleged that the said truck (crane) was being driven rashly and negligently. It came on the wrong side and hit cyclist Bhagwan Singh. In the accident Bhagwan Singh received injuries in the head and in the various other parts of the body; The respondent No.1 driver ran away from the spot leaving the offending truck on spot. The crime No. 224/2001 was registered against the driver of the said vehicle. During treatment deceased died. Initially he was admitted in J.A. Group of Hospitals at Gwalior and thereafter on 12.6.2001 the deceased was referred to Delhi. At Delhi he was admitted in Vibhan Hospital where he died on 18.6.2001. Apart from the criminal case, claimants who are the widow and sons have filed claim petition. Before the Claims Tribunal it was objected by the respondent insurance company that the driver was not having valid driving licence for driving the said truck bearing crane, which was a special type of vehicle and thereby committed breach of the terms and conditions of the policy. The Tribunal recorded the finding in favour of the insurance company but directed the insurance company to pay the amount of compensation and thereafter to recover the same from the owner of the vehicle. The Tribunal recorded the finding in favour of the insurance company but directed the insurance company to pay the amount of compensation and thereafter to recover the same from the owner of the vehicle. The Tribunal considering the income and age of the deceased, which was around 50 years and the fact that since the deceased was working on the post of Dusting Operator in the Food Corporation of India and was getting salary of Rs. 11,182/- per month and Rs. 1,34,184/- per year, considered the dependency of Rs. 81,456/- and after applying the multiplier of 10 awarded compensation of Rs. 8,14,560/-. Against the said award, claimants have filed Miscellaneous Appeal No. 149/2002 on the ground that the multiplier is on lower side, and insurance company has filed Miscellaneous Appeal No. 849/2002 on the ground that the insurance company is not liable for payment of compensation as per the findings recorded by the Tribunal. 3. We have heard the learned counsel for the parties and perused the evidence on record. 4. Shri K.S. Rochalani, learned counsel for the insurance company, vehemently argued and submitted that the vehicle was insured as "Miscellaneous and Special Type of Vehicle Policy A Act Only", Make of the vehicle has been mentioned in the policy as "Delivery Truck". It is not in dispute before us that the respondent No.1 driver was having driving licence which was of Light Motor Vehicle only and valid from 9.12.1998 to 14.2.2003 and thereafter there was an endorsement of Heavy Goods Vehicle w.e.f. 15.2.2000. These particulars of driving licence have been mentioned in Ex. D-3, according to which it is clear that on the date of accident the driver was having licence to drive the light motor vehicle as well as heavy goods vehicle. 5. We have also perused the registration of the offending vehicle. Photocopy of the registration has been marked as Ex. D/5-C. According to the registration of the said vehicle, in the column "Type of Body", "open truck" has been mentioned; thereafter word "recovery van" has also been mentioned and the weight of the vehicle has been mentioned as 5560 Kgs. 5. We have also perused the registration of the offending vehicle. Photocopy of the registration has been marked as Ex. D/5-C. According to the registration of the said vehicle, in the column "Type of Body", "open truck" has been mentioned; thereafter word "recovery van" has also been mentioned and the weight of the vehicle has been mentioned as 5560 Kgs. Shri Rochalani argued that the owner has not filed any appeal, therefore, he has no right to challenge the aforesaid finding on issues No.2 to 4, and since the vehicle was insured as "Miscellaneous and Special Type of vehicle", under section 10 of the Motor Vehicles Act the driver should have a licence to drive the specified motor vehicle of a notified description as has been defined in clause (j) of sub-section (2) of the section 10. 6. Learned counsel for the respondents have refuted the submissions and their submission is that since the driver was having licence to drive the heavy goods vehicle, as per the registration and looking to the weight of the vehicle the said vehicle will come within the purview of section 2 (21) "light motor vehicle" or section 2 (14) "goods carriage" or "transport vehicle" as defined in section 2 (47) of the Motor Vehicles Act, and submitted that in fact the vehicle will come within the purview of "light motor vehicle" and since the driver was having licence to drive the light motor vehicle as well on heavy goods vehicle and on the basis of the said licence he can also drive the transport vehicle as well as goods carriage, therefore, the driver was having a valid driving licence. 7. 7. After, hearing the learned counsel for the parties, we have perused the definitions of "goods carriage", "heavy goods vehicle", "light motor vehicle" and "transport vehicle", as defined in the Motor Vehicles Act, which read as under: Section 2 (14) -- "goods carriage" means any 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; Section 2 (16) -- "heavy goods vehicle" means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which exceeds 12,000 kilograms; Section 2 (21) -- "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms; Section 2 (47) -- "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;" We have also gone through the provisions of section 10 (2) of the Motor Vehicle Act. The same is being reproduced hereinbelow for ready reference: Section 10 (2) -- A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely-- (a) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) transport vehicle; (f) road-roller; (g) motor vehicle of a special description." From bare reading of the aforesaid provisions of the Act and from the registration of the aforesaid vehicle which was registered as "open truck" (recovery van), and looking to its weight which was 5560 kgms., it is clear that the offending vehicle will come within the purview of "light motor vehicle" with transport vehicle and no specified driving licence is necessary for the same. 8. Learned counsel for the appellant has also produced the photographs of the vehicle before us. We have perused those photographs. From the photographs it is clear that over a truck one crane has been affixed to lift the vehicle with the help of crane. As per the registration, its weight is 5560 kgs. 8. Learned counsel for the appellant has also produced the photographs of the vehicle before us. We have perused those photographs. From the photographs it is clear that over a truck one crane has been affixed to lift the vehicle with the help of crane. As per the registration, its weight is 5560 kgs. As per the definition of "light motor vehicle" under section 2 (21) it means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does no.1 exceed 7,500 kilograms. If we consider the weight of the vehicle, the said truck will come within the purview of "light motor vehicle". It cannot come within the purview of "heavy goods vehicle" because a special machine to lift the vehicle is attached with the truck, therefore, it cannot be said that it was being used as a goods carriage or heavy goods vehicle but as per the definition of "heavy goods vehicle" under section 2 (16) any goods carriage the gross vehicle weight of which, or a tractor or a road roller the unladen weight of either of which, exceeds 12,000 kilograms will come within the purview of "heavy goods vehicle". As per section 2 (47), "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. The definition of "transport vehicle" appears to be more elaborate in which a public service vehicle and a goods carriage are covered. Therefore, looking to the registration which was for open truck or delivery van and looking to the weight of 5560 Kgs., the said vehicle will come within the purview of "light motor vehicle" coupled with "public transport". 9. It is true that as per the insurance policy Ex. D-l, the said vehicle was insured by the company as "Miscellaneous and Special Type of Vehicle" and its make was as "Delivery Truck". Therefore, it is true that this vehicle was somewhat a different vehicle from a truck which is used for the purpose of goods carriage as one crane is fitted over a truck and that crane is being used for lifting the vehicle. Therefore, it appears that it was insured as a special type of vehicle but from the perusal of the photographs basically it is a truck on which a crane was fitted. Therefore, it appears that it was insured as a special type of vehicle but from the perusal of the photographs basically it is a truck on which a crane was fitted. 10. Now the question is whether the driver having licence of driving light motor vehicle and heavy goods vehicle can drive such a truck fitted with crape or any separate motor vehicle licence of specified description is required to be used. 11. Though section 10 of the Motor Vehicles Act provides seven types of driving licences to be issued by the concerned authority, in which heavy goods vehicle licence is not mentioned but as per practice same is being issued which clearly means that a driver who is having driving licence to drive heavy goods vehicle, the weight of which exceeds more than 12,000 Kgs., can also drive the light motor vehicle, as the respondent No.1 driver was having a valid licence to drive the light motor vehicle as well as heavy goods vehicle. 12. It was also submitted by Shri Rochalani that the driver having a licence to drive light motor vehicle cannot drive a public transport but under the Act nowhere it has been provided that he cannot drive the transport vehicle or can only drive the private vehicles. 13. After considering the aforesaid legal position, we are of the considered view that the vehicle was insured as a special type of vehicle and its make is as "delivery truck" and this will come within the purview of "light motor vehicle" with a "transport vehicle" and the driver having licence to drive heavy goods vehicle can also drive delivery truck of special type. Therefore, it cannot be held that the driver was not having valid licence to drive the said vehicle. To that extent we do not agree with the findings recorded by the Tribunal and those findings deserve to be set aside. Accordingly, we set aside the aforesaid findings recorded by the Claims Tribunal and hold that the driver was having a valid driving licence to drive the said vehicle and the insurance company is liable to indemnify the third party claim as it is a third party claim. 14. Accordingly, we set aside the aforesaid findings recorded by the Claims Tribunal and hold that the driver was having a valid driving licence to drive the said vehicle and the insurance company is liable to indemnify the third party claim as it is a third party claim. 14. So far as the question of quantum of compensation is concerned, there is no dispute about the income as well as one third deduction made towards the personal expenses out of the said income and about the determination of dependency. For the age of deceased, which is around 50 years, the Tribunal has applied multiplier of 10. According to us and the Schedule provided under section 163A of the Motor Vehicles Act, the proper multiplier would be of 11. Accordingly, we apply multiplier of 11 and enhance the compensation by Rs. 81,456/-. This enhanced amount will carry further interest at the rate of 6% per annum from the date of appeal. 15. It was pointed out to us that in this case the Tribunal has awarded penal interest at the rate of 11 % per annum if the amount is not deposited within time. According to the Supreme Court decisions, the said penal interest is not statutory and the same is set aside. The claimants would be entitled for the interest at the rate of 9% per annum on the amount awarded by the Tribunal. We uphold that finding of the Tribunal on interest except the penal interest. 16. In view of the aforesaid discussion, Miscellaneous Appeal No. 149/2003 filed by the claimants and Miscellaneous Appeal No. 849/2002 filed by the insurance company are partly allowed and partly dismissed as indicated above. In the light of the controvery between the parties, the parties are directed to bear their own costs.