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2010 DIGILAW 1095 (CAL)

C. H. Rama Rao v. United Insurance Company, Lt.

2010-08-30

DIPANKAR DATTA

body2010
JUDGMENT Dipankar Datta, J. 1. WHETHER or not the driver engaged by the petitioner was authorized to drive a transport vehicle is the principal issue that requires determination by this Court on this writ petition. The petitioner is the registered owner of an 'Indica XETA GLS' bearing registration no. AN 01 E 6880 (hereafter the said vehicle). The registration of the said vehicle is valid till 27th July, 2024. After purchase of the said vehicle, the petitioner applied before the respondent no.1 for insurance cover. Coverage was granted and certificate of insurance was issued in respect of the said vehicle having validity from 27th July, 2009 to 26th July, 2010. 2. THE petitioner intended to operate the said vehicle as a tourist vehicle and, accordingly, had applied for tourist permit from the competent authority in respect thereof for operating the same on all routes in the district of South Andaman, except Jarawa reserved area. Such application being granted by the competent authority, tourist permit in accordance with Rule 83 (2) of the Central Motor Vehicles Rule, 1989 was issued in respect of the said vehicle. The tourist permit issued on 29th January, 2010, is valid till 28th January, 2015. The petitioner hired one Vinod Kumar as his driver (hereafter the said driver). On 3rd March 2010, the said vehicle was being driven by the said driver when a bus owned by the State Transport Services, Andaman and Nicobar Administration collided with it, allegedly due to rash and negligent driving thereof by its driver. Consequent to the collision, the said vehicle was completely damaged. It is further alleged that the said driver succumbed to his injury. 3. THEREAFTER, the petitioner lodged insurance claim with the respondent no.1. By an order dated 20th July, 2010, the claim was repudiated by the respondent no.1 on the ground that the said driver on the fateful day did not possess effective licence for driving the said vehicle, which was registered as a taxi and consequently contravened the Driver's Clause of the policy. This order is the subject matter of challenge in the present petition. 4. MR. Jayapal, learned advocate representing the petitioner contended that the said driver was competent to drive the said vehicle and repudiation of the insurance claim by the respondent no.1 is arbitrary and unreasonable. This order is the subject matter of challenge in the present petition. 4. MR. Jayapal, learned advocate representing the petitioner contended that the said driver was competent to drive the said vehicle and repudiation of the insurance claim by the respondent no.1 is arbitrary and unreasonable. He referred to the driving licence of the said driver, annexure - P4, to contend that the said driver had been authorized to drive a LMV (light motor vehicle). That apart, the licence bore an endorsement viz., AN O1/PDL/0000798/2009. According to him, PDL suggests that the holder of the licence was issued a professional driving licence. Mr. Jayapal by referring to provisions contained in section 10 of the Motor Vehicles Act, 1988 (hereafter the Act), and section 2(21), 2(47), 2(35) and 2(33) thereof, contended that the said driver was authorized to drive a light motor vehicle, the gross vehicle weight of which does not exceed 7500 kg. A light motor vehicle in terms of section 2(21) would mean a transport vehicle. A transport vehicle, defined in section 2(47), means, inter alia, a public service vehicle. A public service vehicle, according to section 2(35), means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward. The said vehicle is not a private service vehicle, as defined in section 2(33) of the Act, because it's seating capacity excluding the driver is 4 (four). He referred to the registration certificate of the said vehicle to show that its unladen weight is 1400 kg. Therefore, it is contended, that the said driver who was authorized to drive a light motor vehicle having regard to the terms of the statute was also authorized to drive a transport vehicle being a public service vehicle. Consequently, the petitioner had not contravened any of the terms and conditions of the insurance policy by engaging the said driver to drive the said vehicle. 5. HE concluded by contending that the respondent no. 1 by failing to consider the matter in the correct perspective, has wrongly denied the petitioner the benefits of the insurance policy and, in the circumstances, the petitioner is entitled to relief as prayed for. Mr. Lall, learned advocate representing the respondents 1 and 2 contended that prior to repudiating the claim lodged by the petitioner, clarification was obtained from the licensing authority. Mr. Lall, learned advocate representing the respondents 1 and 2 contended that prior to repudiating the claim lodged by the petitioner, clarification was obtained from the licensing authority. It was clarified that the driver did not hold a valid licence to drive a tourist vehicle. 6. HE submitted that perusal of section 14 of the Act would reveal that a driving licence issued for driving a transport vehicle would be effective for a period of 3 years, whereas any other licence originally issued in favour of a person, who has not attained the age of 40 years on the date of issue, would be effective for a period of 20 years from the date of such issue. HE referred to the driving licence of the said driver to emphasise that the same was having a validity period of 20 years from the date of issue and, therefore, cannot be construed to be a licence issued for driving a transport vehicle. According to him, the respondent no.1 did not commit any error in repudiating the claim and, therefore, there is no merit in the writ petition. The issue that has been raised requires answer considering the provisions in the Act. In the considered view of this Court, sections 10 and 14 and various sub-sections of section 2 are relevant for deciding this writ petition. The said provisions read as follows: "10. Form and contents of licences to drive.? (1) Every learner's licence and driving licence, except a driving licence issued under Section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government. (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; (i) road-roller; (j) motor vehicle of a specified description. 14. Currency of licences to drive motor vehicles.? (1) A learner's licence issued under this Act shall, subject to the other provisions of this Act, be effective for a period of six months from the date of issue of the licence. (2) A driving licence issued or renewed under this Act shall,? 14. Currency of licences to drive motor vehicles.? (1) A learner's licence issued under this Act shall, subject to the other provisions of this Act, be effective for a period of six months from the date of issue of the licence. (2) A driving licence issued or renewed under this Act shall,? (a) in the case of a licence to drive a transport vehicle, be effective for a period of three years: Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus; and] (b) in the case of any other licence,? (i)if the person obtaining the licence, either originally or on renewal thereof, has not attained the age of fifty years on the date of issue or, as the case may be, renewal thereof,? (A) be effective for a period of twenty years from the date of such issue or renewal; or (B) until the date on which such person attains the age of fifty years, whichever is earlier; (ii) if the person referred to in sub-clause (i), has attained the age of fifty years on the date of issue or as the case may be, renewal thereof, be effective, on payment of such fee as may be prescribed, for a period of five years from the date of such issue or renewal:] 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. 2. Definitions. ? In this Act, unless the context otherwise requires,? 2. Definitions. ? In this Act, unless the context otherwise requires,? (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; (47) 'transport vehicle' means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle; (33) 'private service vehicle' means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes; (35) '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 maxi-cab, a motor-cab, contract carriage, and stage carriage; (43) 'tourist vehicle' means a contract carriage constructed or adapted and equipped and maintained in accordance with such specifications as may be prescribed in this behalf; (7) 'contract carriage' means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum? (a) on a time basis, whether or not with reference to any route or distance; or (b) from one point to another, and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey, and includes? (i) a maxi-cab; and (ii) a motor-cab notwithstanding that separate fares are charged for its passengers; (25) 'motor cab' means any motor vehicle constructed or adapted to carry not more than six passengers excluding the driver for hire or reward;" 7. IT is true as contended by Mr. (i) a maxi-cab; and (ii) a motor-cab notwithstanding that separate fares are charged for its passengers; (25) 'motor cab' means any motor vehicle constructed or adapted to carry not more than six passengers excluding the driver for hire or reward;" 7. IT is true as contended by Mr. Jayapal that a light motor vehicle means a transport vehicle but it has to be borne in mind that section 2 of the Act, alike other definition clauses of statutes, is prefaced with the words 'In this Act, unless the context otherwise requires'. The word light motor vehicle, wherever it occurs in the Act, would not always denote a transport vehicle. If the context in which the word light motor vehicle is used in the Act does not so require, it would be safe not to read the word transport vehicle as denoting a light motor vehicle. The definition of light motor vehicle, as in section 2(21), may not be applied mechanically wherever the word light motor vehicle occurs in the Act. 8. IN the considered view of this Court, provisions contained in section 10(2)(e) read with section 14 thereof, would be decisive. A driving licence in terms of section 10 may be obtained in respect of a light motor vehicle as well as a transport vehicle. Clause (e) of section 10(2), referring to transport vehicle, has been introduced by way of an amendment effective from 14th November, 1994. When the Parliament in its wisdom has introduced 'transport vehicle' in section 10 (2) in respect whereof a licence is to be obtained, the conclusion is irresistible that a holder of a licence authorized to drive light motor vehicle, ipso facto, is not entitled to drive a transport vehicle. If the holder of a licence authorized to drive light motor vehicle intends to drive a transport vehicle, he must obtain an authorisation separately therefor, which may be endorsed in his driving licence. If the driver does not possess the requisite licence for driving a transport vehicle but is only authorized to drive a light motor vehicle like the said driver engaged by the petitioner, he would be committing an act not authorized by the Act and consequences are bound to follow. The dispute can be viewed from another angle. The said vehicle of the petitioner has been operating on the basis of a tourist permit. The dispute can be viewed from another angle. The said vehicle of the petitioner has been operating on the basis of a tourist permit. The said vehicle can safely be categorized as a tourist vehicle. Section 2(43) defines a tourist vehicle to mean a contract carriage. A contract carriage, in view of section 2(7), includes a motor-cab. The said vehicle of the petitioner answers the definition of a motor-cab [see section 2(25) supra]. Motor-cab is included in the definition of public service vehicle and, again, transport vehicle means a public service vehicle. 9. THERE can, therefore, be no escape from the conclusion that the said vehicle of the petitioner is a transport vehicle and for driving it, an authorization in accordance with section 10(2)(e) of the Act was required to be obtained, which admittedly was not obtained by the said driver. 10. IT is evident from the driving licence of the said driver that the alphabets NT have been inserted in a column before the alphabets LMV, which appear in a separate column. Although, it was suggested by Mr. Jayapal that the alphabets NT have been wrongly inserted, this Court is inclined to accept the submission of Mr. Rehman, learned advocate for the Transport Department, that the alphabets NT denote Non-Transport. This finding stands fortified if one refers to section 14 of the Act. If indeed the licensing authority had issued licence authorizing the said driver to drive a transport vehicle, the same should have been valid for a period of 3 years in terms of section 14(2)(a). However, it is clear from the driving licence that the same has a life of 20 years from the date of issue, meaning thereby that the same was issued authorizing the holder thereof to drive a non-transport vehicle. The endorsement of PDL in the driving licence, for reasons discussed above, does not lend any assistance to the petitioner. The petitioner by engaging the said driver for driving his tourist vehicle, without due authorization, contravened not only the provisions of the Act but also the terms and conditions of the insurance policy. By repudiating the claim, the respondent no.1 has neither acted unreasonably nor in an arbitrary manner as alleged. There is no merit in the petition. The same stands dismissed without any order for costs.