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2009 DIGILAW 675 (JK)

Kamal Gupta v. United India Insurance Co. Ltd.

2009-12-23

B.L.Saraf, G.D.Sharma

body2009
G.D. Sharma, J. 1. The complainant is the owner of Bajaj Tempo Traveller Model 2001, bearing registration No. JK02P-6691 and he had insured it for cover risk of Rs. 445500/-. The insurance policy was valid from 22.6.2002 to 21.6.2003. Sh. Dilip Singh was the driver of the motor vehicle and it was adapted and used as a transport vehicle for carrying passengers. On 27.1.2003; said vehicle met with accident at Prem Nagar Thathri, resulting into injuries to passengers and damage to the vehicle. The complainant raised the claim for the total loss which was repudiated on the sole ground that the driver was not possessing a valid and effective driving licence. 2. The complaint has been resisted by the OPs mainly on the ground that an invalid driving licence was being held by the driver at the time of accident. Heard the arguments. 3. Mr. Wazir, learned counsel for the complainant has contended that the driver had the driving licence to drive light motor vehicle which is defined under sub-head 21 of Sec. 2 of the Motor Vehicles Act and reads:- "light motor vehicle" means the 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 7500 kilograms" 4. He has also referred to sub-heading 35 of the section 2 which defines "public service vehicle" and it means :- "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage and stage carriage" 5. Furthermore, he has referred to sub-heading (47) of section 2 of the Act whereunder "transport vehicle" has been defined and it means:- "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle." While concluding his arguments, he has submitted that on the registration certificate unladen weight of the vehicle in question was 2050 K.Gs and thus the driver who was authorized to drive light motor vehicle could drive the transport vehicle which was being used for carriage of passengers as a "public service vehicle". 6. Mr. 6. Mr. Gupta has controverted the argument by submitting that on the licence of the driver a specific bar has been imposed to drive "transport vehicle" which means he was authorized to drive only private light motor vehicle. Since the driver was driving the motor vehicle at the time of accident, "as public service vehicle" so he was not holding a valid and effective driving licence. Heard the arguments. 7. Mr. V.R. Wazir, Advocate for the complainant, in support of his submissions has cited the case of National Insurance Company Ltd. v. Man Sidiq Bhat 2004(II)SLJ 623 and National Insurance Co. Ltd. v. Smt. Tsering Dolma and others 2001(1)SLJ 321 and stated that the ratio decidendi of the above stated two cases by the Hon'ble High Court of J&K is that insurance claim of vehicle damaged in road accident does not debar a claimant even if there is no P.S.V. endorsement on the licence of the driver. The case of Irfan Sidiq Bhat (supra) has been decided by Division Bench whereas, the case of Tsering Dolma is a Single Judge decision. Mr. Naresh Kumar, advocate appearing for the OPs has cited the case of Oriental Insurance Co. Ltd. v. Angad Kol & Ors 2009 ACJ 1411 and contended that ratio decidendi of the case decided by the Hon'ble Supreme Court is the definition of "light motor vehicle" brings within its umbrage both "transport vehicle" or "Omnibus" but a distinction between an effective licence granted for transport vehicle and passenger motor vehicles exists. In that case, the Hon'ble Supreme Court found that licence to the driver was granted for 20 years, a presumption arises that it was not meant for the purpose of a vehicle other than a transport vehicle. Had the licence been granted for transport vehicle, the tenure thereof could not have exceeded 3 years. In the case it was held that driver did not have valid and effective driving licence. 8. We have considered the respective contentions of the counsel for the parties and perused the record. A.R.T.O. Udhampur on 18.5.1999 had issued driving licence in favour of driver, Dalip Singh, and it was valid upto 17.5.2004. His licence was to drive a motor vehicle other than a "transport vehicle". Subsequently ARTO Rajouri vide his endorsement dated 30.11.1999 had authorized him to drive "public service vehicle". The authorization was upto 29.11.2002. A.R.T.O. Udhampur on 18.5.1999 had issued driving licence in favour of driver, Dalip Singh, and it was valid upto 17.5.2004. His licence was to drive a motor vehicle other than a "transport vehicle". Subsequently ARTO Rajouri vide his endorsement dated 30.11.1999 had authorized him to drive "public service vehicle". The authorization was upto 29.11.2002. The accident took place on 27.1.2003 i.e. within 2 months time after the said endorsement had expired. Now the question arises whether driver Dalip Singh was holding a valid and effective driving licence to drive the motor vehicle which had the unladen weight of 2050 K.Gs. It was a taxi cab (Tempo traveler). There is no dispute that it was a "light motor vehicle". The Hon'ble Supreme Court in the above stated case of Angad Kol & Ors. has held definition of "Light motor vehicle" brings within its umbrage both "transport vehicle" or "Omnibus". The only distinction between an effective licence granted for transport vehicle and passenger motor vehicle exits. On the facts of the case in hand the initial embargo imposed upon the licence of Dalip Singh driver had been lifted by ARTO Rajouri by making an endorsement to driver "public service vehicle". As has been held by the Hon'ble Supreme Court in the case of Angad Kol & Ors.(supra) and followed by the High Court in the aforementioned decisions, a "public service vehicle" could be driven by the driver Dalip Singh at the time of the accident even without any previous authorization to do so. The expiry of the date of endorsement on the driving licence to drive "public service vehicle" at the time of the accident makes no difference with regard to its effectiveness. 9. In view of the discussion made above, we allow the complaint and direct the OPs to reimburse the complainant to the extent of total loss of the vehicle in question which was covered to the extent of Rs. 445500, (Four lacs, forty-five thousands and five hundred) only, minus the value of salvage, covered under insurance policy No. 111800/31/02/00916, alongwith interest at the rate of 8% P.A. from the date of accident till final payment is made. The OPs are also liable to pay costs in the sum of Rs.5000/- to the complainant. 445500, (Four lacs, forty-five thousands and five hundred) only, minus the value of salvage, covered under insurance policy No. 111800/31/02/00916, alongwith interest at the rate of 8% P.A. from the date of accident till final payment is made. The OPs are also liable to pay costs in the sum of Rs.5000/- to the complainant. We find a lapse on the part of the OPs when they did not get the loss assessed from a competent surveyor after the receipt of investigator's report and themselves decided about the validity and effectiveness of the driving licence. The complaint is consigned to records.