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2008 DIGILAW 559 (HP)

ANUPAMA RAJU v. ANANT RAM

2008-11-10

SANJAY KAROL

body2008
JUDGMENT : Sanjay Karol, J. 1. The owner Anupama Raju has filed the present appeal assailing the impugned award dated 3.1.2003 passed by the Motor Accidents Claims Tribunal, Mandi, H.P. in Claim Petition No. 22 of 1999 titled as Anant Ram v. Anupama Raju. 2. Mr. Rakesh Jaswal, learned Counsel for appellant, while restricting the grounds of challenge, has made a submission that while deciding issue No. 4, the Tribunal wrongly fastened the liability upon the owner by holding that the driver Tilak Raj was not holding a valid and effective licence to drive the vehicle in question. 3. No appeal or cross-objections have been filed by the claimant insurance company or other persons arrayed as respondents in the claim petition. Therefore, the scope of controversy in the present appeal is limited. 4. Claim petition u/s 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') was filed by Anant Ram (in short, 'the claimant'), claiming compensation on account of grievous injuries which he suffered in accident between vehicle Nos. HP 33-4215 and HP 34-1146 on 8.6.1998. 5. Based on the pleadings of the parties, the Tribunal framed the following issues: (1) Whether the petitioner sustained injury due to rash and negligent driving on the part of respondent No. 2, as alleged? OPP (2) Whether the alleged mishap took place due to rash and negligent driving on the part of respondent No. 5, as alleged? OPR 1 (3) Whether the petition is not maintainable against respondent Nos. 4 and 5, as alleged? OPR 4&5 (4) Whether respondent No. 3-insurance company is not liable to indemnify the insured as alleged? OPR 3 (5) Whether the insurer-respondent No. 6 is also not liable to indemnify the insured owner of bus bearing registration No. HP 34-1146 as alleged? OPR 6 (6) To what amount the petitioner is entitled to receive as compensation? OPP (7)Relief. 6. Appreciating the material on record, the Tribunal found that Tilak Raj, who was driving vehicle (bus) No. HP 33-4215 owned by Anupama Raju (in short, 'the owner'), was negligent and it was due to his fault that the accident took place with bus No. HP 34-1146 in which the claimant received injuries. The vehicle in question was insured by Oriental Insurance Co. Ltd. (in short, 'the insurer'). 7. The vehicle in question was insured by Oriental Insurance Co. Ltd. (in short, 'the insurer'). 7. The Tribunal held that the driver of vehicle No. HP 34-1146 Suresh Kumar was not negligent and, as such, neither its owner Bharti Bus Service nor its insurer United India Insurance Co. Ltd. were liable. The petition was found to be maintainable against respondent Nos. 4 and 5. 8. On the question of compensation, taking into account the age, loss of income and the injuries sustained, a total sum of Rs. 1,05,000 along with interest at the rate of 9 per cent per annum plus costs was awarded in favour of the claimant. 9. While deciding the issue No. 4, the Tribunal held that the driver Tilak Raj (in short, 'the driver') was possessing a driving licence to drive the vehicle of the category 'heavy goods vehicles', therefore, in the absence of any endorsement, he was not authorised to drive the 'heavy passenger motor vehicle'. As such, the driver was found to have not possessed a valid and effective driving licence to drive the vehicle resulting into breach of the insurance policy. 10. I have heard the learned Counsel for the parties and also perused the record. 11. That the vehicle was insured is not in dispute and is also evident from the insurance cover, Exh. RY. That driver was possessing a valid and effective driving licence and entitled to drive vehicle of category 'heavy goods vehicle' is also not in dispute. The same is evident from the driving licence mark 'X'/mark 'Y' and also the statement of the driver, Tilak Raj, RW1/2. However, from the statement of Roshan Lai, RW1/3, it is evident that on the licence there is no specific endorsement authorising him to drive the 'passenger motor vehicle'. 12. Section 10 of the Act provides that the driving licence has to be in such form and contain such information as may be prescribed by the Central Government. The licence must also disclose the entitlement of the holder to drive a motor vehicle falling within one or more of the categories specified therein. 13. 12. Section 10 of the Act provides that the driving licence has to be in such form and contain such information as may be prescribed by the Central Government. The licence must also disclose the entitlement of the holder to drive a motor vehicle falling within one or more of the categories specified therein. 13. Originally Section 10(2) read as under: (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) medium goods vehicle; (f) medium passenger motor vehicle; (g) heavy goods vehicle; (h) heavy passenger motor vehicle; (i) road-roller; (j) motor vehicle of a specified description. 14. With effect from 14.11.1994 Section 10(2)(e) stood amended and aforesaid Clauses (e) to (h) were deleted and in their place a composite Clause (e) was substituted which read as under: (e) transport vehicle; The other Clauses remained as it is. 15. The 'transport vehicle' has been defined u/s 2(47) of the Act to include a 'public service vehicle'. 'Heavy passenger motor vehicle' has been defined u/s 2(17) to mean any 'public service vehicle', the gross vehicle weight of which exceeds 12000 kilogram and the 'medium passenger motor vehicle' has been defined u/s 2(24) to mean any 'public service vehicle' other than motor cycle, invalid carriage, light motor vehicle and heavy passenger motor vehicle. 16. The amended Clause (e), i.e., transport vehicle would include 'medium goods vehicles', 'medium passenger motor vehicles', 'heavy goods vehicles' and 'heavy passenger motor vehicles'. It is to be noted that the distinction in creating different categories of vehicles u/s 10(2)(e) to (h) stood obliterated by the subsequent amendment. 17. Therefore, as on 8.6.1998, the date of the accident, it could not be said that the driver was not possessing a licence to drive a transport vehicle. He was possessing an effective and valid driving licence. 18. This Court in New India Assurance Company Ltd. Vs. Vikash Sharma and Others, after taking into account the decision of Punjab and Haryana High Court in United India Insurance Company Ltd. Vs. He was possessing an effective and valid driving licence. 18. This Court in New India Assurance Company Ltd. Vs. Vikash Sharma and Others, after taking into account the decision of Punjab and Haryana High Court in United India Insurance Company Ltd. Vs. Kamal alias Kamla Devi and Others, has held that once the requirement of issuance of licence is fulfilled, then it cannot be said that there is any real and specific qualitative difference between two categories of vehicles, i.e., 'heavy goods vehicle' and 'heavy passenger motor vehicle', so as to result in disqualifying the driver having a licence for 'heavy motor vehicle', from driving a bus. The court was dealing with a person who was driving a passenger vehicle and was not having any endorsement to drive the same. 19. The facts of New India Assurance Co. Ltd. (supra) are similar to the facts of the present case. 20. The submission of Mr. Bagga that at the time of renewal of the driving licence, there is no endorsement enabling the driver to drive a transport vehicle, in my view, would be of no consequence for the reason that the same is not required to be carried out in view of the amendment carried out in Section 10 of the Act. 21. Even the subsequent endorsement would not have made any difference as the validity or effectiveness of the licence would be from the date of the endorsement and would not relate back to the date from which the licence was issued. 22. The ratio of New India Assurance Co. Ltd. Vs. Prabhu Lal, and National Insurance Co. Ltd. Vs. Kusum Rai and Others, would not apply as in those cases there was no endorsement to drive a vehicle from one category of vehicle to another category of vehicle as laid down u/s 10(2) Clauses (a) to (c). These are not the facts in the present case as the driver was not driving a vehicle other than the category of the licence for which he was authorised in law. 23. In spite of repeated queries Mr. Bagga could not point out any provisions of law under which the driver authorised to drive a transport vehicle is required to get an endorsement to drive a vehicle falling in the un-amended Clauses of Section 10(2)(e) to (h). 24. 23. In spite of repeated queries Mr. Bagga could not point out any provisions of law under which the driver authorised to drive a transport vehicle is required to get an endorsement to drive a vehicle falling in the un-amended Clauses of Section 10(2)(e) to (h). 24. Noticeably it is not that criterion for issuing the licence of the amendment of the Clauses has been changed. 25. The finding of the Tribunal on issue No. 4 to the extent that insured cannot recover the amount from the insurance company is interfered with and is set aside. Accordingly, the insurer is held liable to indemnify the insured and pay compensation so awarded by the Tribunal. For the aforesaid reasons, the appeal is allowed.