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Himachal Pradesh High Court · body

2008 DIGILAW 16 (HP)

New India Assurance Company Ltd. v. Vikash Sharma

2008-01-10

KULDIP SINGH

body2008
JUDGMENT (Kuldip Singh, J.) - The insurer of bus No. HP-37-3882, is in appeal against the award, dated 1.2.2001, passed by learned Motor Accident Claims Tribunal, Hamirpur in MAC Case No. 71 of 1998, awarding Rs. 95,000/- compensation to respondent No. 1, which has been made payable by the appellant-insurer of the bus. 2.The brief facts of the case are that on 26.9.1996, respondent No. 1 boarded bus bearing registration No. HP-37-3882 owned by respondent No. 2 and insured with the appellant. The respondent No. 3 was driving the bus in a rash or negligent manner and, therefore, at place Galma, he rammed the bus with other vehicle and in the accident respondent No. 1 sustained injuries and fractured his right arm. The respondent No. 1 was taken to Primary Health Centre, Balh and then to hospital at Mandi and ultimately to P.G.I., Chandigarh. On these facts, respondent No. 1 filed claim petition against respondents No. 2, 3 and appellant, claiming Rs. 4,00,000/- insurer alongwith 12% interest. 3.The petition was contested by respondents No. 2 and 3 by filing joint reply. They denied the accident, dated 26.9.1996, involving bus No. HP-37-3882. The insurer of the bus filed separate reply and took the plea that respondent No. 3 was not holding a valid and effective driving licence on the date of accident and, therefore, insurer is not liable to indemnify the owner of the bus. The learned Tribunal framed the following issues :- 1. Whether the petitioner suffered injuries on account of rash and negligent driving by respondent No. 2 an employee of respondent No. 1, who caused this accident on 26.9.1996 at a place Galma Tehsil Bahl, District Mandi while driving bus No. HP-37-3882 ? If so, its effect ? OPP 2. Whether respondent No. 2 was not holding a valid driving licence at the time of accident, if so, its effect ? OPR-3 3. If issue No. 1 is proved, to what amount the petitioner is entitled as compensation and from whom ? OPP 4. Relief. 4.It has been held that accident took place due to rash or negligent driving on the part of respondent No. 3, who was holding valid and effective driving licence at the time of the accident, and, therefore, an award of Rs. 95,000/- was passed in favour of respondent No. 1 and against owner, driver and insurer of the bus. Relief. 4.It has been held that accident took place due to rash or negligent driving on the part of respondent No. 3, who was holding valid and effective driving licence at the time of the accident, and, therefore, an award of Rs. 95,000/- was passed in favour of respondent No. 1 and against owner, driver and insurer of the bus. The appellant being the insurer of the bus (wrongly observed as Oriental Insurance Company by the Tribunal) was directed to indemnify the owner and to pay 12% interest w.e.f. 20.2.1999 the date when Insurance Company was impleaded as party in the petition. 5.I have heard Mr. Sanjeev Sood, Advocate appearing vice Mr. K.D. Sood, learned Counsel for the appellant, Mr. N.K. Thakur, learned Counsel for respondent No. 1 and Mr. Ramakant Sharma, learned Counsel for respondent No. 2, and gone through the record. On behalf of the appellant, it has been submitted that respondent No. 3 was not holding a valid and effective driving licence at the time of accident, and, therefore, learned Tribunal has erred in fastening the liability on the insurer to indemnify the owner of the award amount alongwith interest. 6.The controversy in the present appeal is very short. The question is the validity of the driving licence of respondent No. 3 at the time of accident of the bus in which respondent No. 1 was injured. In the reply filed by the insurer, no doubt a plea has been taken that driver was not holding a valid and effective driving licence to drive the category of vehicle involved in the accident, but this plea has not been elaborated. On behalf of the appellant, it has been submitted that driving licence Ex.RB of the driver was valid for driving heavy motor vehicles (HMV) and not heavy passenger motor vehicles on the date of accident, i.e. 29.6.1996. The endorsement of heavy passenger motor vehicles (HPMV) was made only on 16.3.1998 on the driving licence Ex.RB. A contention has been raised that there is no category of heavy motor vehicle in the definition clause of the Motor Vehicles Act, 1988 (for short, the Act). As per clause (17) of Section 2 of the Act, there is heavy passenger motor vehicle. The driver was not holding a valid and effective driving licence, therefore, insurer is not liable to pay any compensation. As per clause (17) of Section 2 of the Act, there is heavy passenger motor vehicle. The driver was not holding a valid and effective driving licence, therefore, insurer is not liable to pay any compensation. 7.It has been contended on behalf of the respondents that driving licence of the driver was valid at the time of accident. It is not the case of the insurer-appellant that possessing of HMV licence by the driver was the main or contributory cause of accident. The insurer has taken a vague plea of defective licence. The learned Counsel for the respondents have taken assistance from United India Insurance Company Limited v. Kamal alias Kamla Devi and others, 2000(1) ACC 52, wherein paras 4 and 5, it has been held as follows :- “4. It is undoubtedly correct that the Act defines different types of vehicles. It is also true that in Sections 2(16) and (17) `heavy goods vehicle’ and `heavy passenger motor vehicle’ have been separately defined. However, a perusal of these definitions shows that the parameters have been clearly laid down. The basic requirement is that the unladen weight should exceed 12,000 kilograms. Once this requirement is fulfilled, it cannot be said that there is any real and substantial qualitative difference between the two categories of vehicles so as to result in disqualifying the driver, having a licence for a heavy motor vehicle, from driving a bus. It is not the case of the appellant that this condition was not satisfied. Still further, it is true that the Act uses the expression `heavy passenger motor vehicle’. It is also true that the Act does not talk of `heavy motor vehicles’. While `light motor vehicles’ have been specifically defined in Clause (21), no separate definition of a `heavy motor vehicle’ has been given. Despite this, it is not disputed that a competent licensing authority had issued the driving licence, which has been produced on record as Ex.R1. According to this licence, the driver was entitled to drive a heavy motor vehicle. In the very nature of the things it has reference to a vehicle other than a `light motor vehicle’. 5. Still further the provisions of Section 10(2) of the Act clearly contemplates the issue of driving licence for a ‘motor vehicle of a specified description’. According to this licence, the driver was entitled to drive a heavy motor vehicle. In the very nature of the things it has reference to a vehicle other than a `light motor vehicle’. 5. Still further the provisions of Section 10(2) of the Act clearly contemplates the issue of driving licence for a ‘motor vehicle of a specified description’. While a separate provision in respect of ‘light motor vehicle’ has been made, no distinction between a ‘heavy motor vehicle’ has been made in sub-Section (2) of Section 10. Moreover, learned Counsel has not referred to any evidence which may indicate that a person, who has a licence to drive a heavy motor vehicle is not competent to drive a bus. In this situation, we find no ground to hold that the petitioner did not have a valid driving licence or to differ with the view taken by the Tribunal.” 8.In the present case, RW-1 Kulbhushan, Licensing Clerk has stated that endorsement was made on the register at Serial No. 1360 on 16.3.1998 of heavy passenger motor vehicle on the licence Ex.RB. In cross-examination, he has stated that on licence Ex.RB, the endorsement of HGV and HMV was already there. The case of the insurer is that there was no endorsement of heavy passenger motor vehicle on the licence Ex.RB, on the date of accident, therefore, driver was not holding a valid and effective driving licence. In United India Insurance Company Limited v. Kamal alias Kamla Devi and others (supra), it has been held that heavy goods vehicle and heavy passenger motor vehicle have been separately defined in the Act and for that parameters have been laid down. The basic requirement is that the unladen weight should exceed 12000 kilograms. Once this requirement is fulfilled, it cannot be said that there is any real and substantial qualitative difference between the two categories of vehicles so as to result in disqualifying the driver, having a licence for a heavy motor vehicle, from driving a bus. 9.The licence Ex.RB is for heavy motor vehicle and as per deposition of RW-1, the endorsement of HGV and HMV was on licence Ex.RB, before the endorsement of heavy passenger motor vehicle, which was made on 16.3.1998. 9.The licence Ex.RB is for heavy motor vehicle and as per deposition of RW-1, the endorsement of HGV and HMV was on licence Ex.RB, before the endorsement of heavy passenger motor vehicle, which was made on 16.3.1998. In view of United India Insurance Company Limited v. Kamal alias Kamla Devi and others (supra), it cannot be said that respondent No. 3 driver was not holding a valid and effective driving licence for driving bus bearing registration No. HP-37-3882 on the date of accident i.e. 26.9.1996. No fault can be found with the award passed by the learned Motor Accident Claims Tribunals, whereby, liability has been fastened on the appellant-insurer. 10.No other point was urged. 11.As a result of the above discussion, the appeal is dismissed. M.R.B.