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2011 DIGILAW 2492 (RAJ)

Mahesh Kumar v. National Insurance Co. Ltd.

2011-11-17

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been filed by the appellant-owner aggrieved by the award of Motor Accident Claims Tribunal dated 25.4.2001. 2. Shri Sanjay Mehrishi, learned counsel for the appellants has argued that the insurance company has been wrongly absolved of its liability to indemnify the owner for payment of compensation to the claimant. It was argued that unladen weight of the vehicle, which was mini bus was 7500 kg and therefore in view of definition clause 2(21) of the Motor Vehicles Act, it would be a "light motor vehicle". The driver possessed the licence to drive a light motor vehicle and therefore it cannot be said that he was not authorised to drive a mini bus. Learned counsel for the appellants in support of his arguments referred to the judgment of Supreme Court in Ashok Gangadhar Maratha vs. Oriental Insurance Co. Ltd. (1999) 6 SCC 620 and argued that Supreme Court in that case was dealing with a case where the vehicle was neither having a permit for a goods carriage nor carrying any goods on the date of accident, such a vehicle even though designed to be used as a goods carrier or transport vehicle was held to be remained a light motor vehicle and was not a light goods vehicle or a transport vehicle. Hence licence to drive a light motor vehicle issued in Form 6, was held to be effective and valid licence to drive such a vehicle. This was held because unladen weight of that vehicle was 5920 kg. 3. Shri Prashant Chahar, learned counsel for the respondent opposed the appeal and submitted that judgment of Supreme Court relied on by learned counsel for the appellant has been held to be not a good law in the subsequent judgment in Oriental Insurance Co. Ltd. vs. Angad Kol-2009 RAR 204 (SC). It was argued that even otherwise unladen weight of the vehicle has not been proved in this case, besides the vehicle was used as a transport vehicle to carry the passengers. Counsel submits that the Tribunal for that reason exonerated the insurance company from the liability to pay the compensation. 4. I have considered the rival submissions of the learned counsel for the parties and perused the material on record. 5. Counsel submits that the Tribunal for that reason exonerated the insurance company from the liability to pay the compensation. 4. I have considered the rival submissions of the learned counsel for the parties and perused the material on record. 5. Even though in the present case the unladen weight of the mini bus in question has not been proved but even if it is presumed that its unladen weight was less than 7500 kg, that by itself would not determine the fact that the driver in the present case was holding an "effective driving licence" within the definition of Section 3 of the Act. The definition of "light motor vehicle" has been given in Section 2(21) and "heavy goods vehicle" in Section 2(16) of the Act. While it may be true that for "light motor vehicle", section 2(21) has given the unladen weight upto 7500 kg and "heavy goods vehicle" in Section 2(16) of the Act has been defined to be having more than 12000 kg. Nevertheless, in the scheme of the Act, especially after the amendment of Act No.54 of 1994 with effect from 14.11.1994 by which clause (e) was inserted in Section 10(2) which contains the word "transport vehicle". This indicated the intention of the legislature to group all the transport vehicles together irrespective of their unladen weight. 6. The Supreme Court in New India Assurance Co. Ltd. vs. Roshanben Rahemansha Fakir & Anr.-2009 RAR 139 (SC), was dealing with a case wherein the offending vehicle was an auto rickshaw. The registration certificate as also the policy of the insurance mentioned the vehicle to be a transport vehicle. The question was whether the driver who possessed the licence to drive a light motor vehicle had a legal, valid and effective driving licence. It was held that definition of "light motor vehicle" would not include a light transport vehicle. The finding of the High Court that three wheeled vehicle will fall in the category of light motor vehicle regardless of the fact whether it was meant for transporting goods or for transporting the passengers, was held to be perverse. 7. The Supreme Court in National Insurance Company Ltd. vs. Annappa Irappa Nesaria & Ors.-2008 (1) TAC 812 noticed that the provisions of the Act have undergone a change. The definition of "light motor vehicle" would not include a "light transport vehicle". 7. The Supreme Court in National Insurance Company Ltd. vs. Annappa Irappa Nesaria & Ors.-2008 (1) TAC 812 noticed that the provisions of the Act have undergone a change. The definition of "light motor vehicle" would not include a "light transport vehicle". In that case, keeping in view the date of incident, it was held by the Supreme Court that "medium goods vehicle" and "heavy goods vehicle" have now been substituted by "transport vehicle" vide amendment in Section 10(2) of the Act. The "light motor vehicle" at the relevant point of time covered both "light passenger carriage vehicle" and "light goods carriage vehicle". A driver who had a valid licence to drive a "light motor vehicle", was therefore authorised to drive a "light goods vehicle" as per the earlier scheme of the Act. In the present case, the accident has taken place on 3.5.1995, which is a date after the amendment. The judgment of Supreme Court in Ashok Gangadhar Maratha vs. Oriental Insurance Co. Ltd.- (1999) 6 SCC 620 on which reliance has been placed by the learned counsel for the appellant also arose out of an accident which took place on 26.11.1991, much before the amendment aforesaid. Similar view has been reiterated by the Supreme Court in Oriental Insurance Company Ltd. vs. Angad Kol & Ors.-2009 RAR 204 (SC), in which case also the offending vehicle was a mini bus, which dashed against another vehicle. The driver had licenced to drive motor cycle and light motor vehicle only. The licence was granted to the driver for a period of 20 years, therefore, a presumption was held to have arisen that it was for the purpose other than transport vehicle. The driver was held not to possess a valid driving licence and on that basis insurance company was not held liable to pay compensation. 8. The Supreme Court in National Insurance Co. Ltd. vs. Kusum Rai & Ors.- 2006 ACJ 1336 was dealing with a case where the driver had licence to drive light motor vehicle, but he was driving a jeep, which was being plied as a taxi and was thus a commercial vehicle. It was held to be breach of conditions of contract of insurance by the insured and the insurance company was exempted from liability. It was held to be breach of conditions of contract of insurance by the insured and the insurance company was exempted from liability. In the present case too, the driver did not possess a valid and effective licence to drive the vehicle and breached the conditions of policy, thus entitling the insurance company to exemption from any liability. 9. In Oriental Insurance Co. Ltd. vs. Zaharulnisha & Ors., Civil Appeal No.3055/2008 decided on 29th April, 2008 the facts were that the scooterist possessed driving licence to drive H.M.V. and was driving a two wheeler. The insurer was held to be not liable to pay the amount of compensation. The similar view has been expressed in the case of Oriental Insurance Co. Ltd. vs. Syed Ibrahim & Ors.- 2007 ACJ 2816 by the Supreme Court wherein while allowing the appeal of the insurance company and holding that insurance company may recover the amount paid from the owner by initiating proceedings before the executing Court. 10. In National Insurance Co. Ltd. vs. Vidhyadhar Mahariwala & Ors.-2008(4) TAC 378 (SC), the view of the High Court that merely because there was gap in renewal of driving licence, that cannot be a ground for exoneration of insurance company from its liability, was held to be unsustainable and the insurance company was held not liable to pay compensation. 11. In Iswar Chandra & Ors. vs. Oriental Insurance Co. Ltd. & Ors.-2007(2) TAC 393 (SC), it was held that insurance company would not be liable to reimburse amount of compensation payable by owner when driving licence was later on renewed because renewal application was not filed within 30 days from the date of expiry and driver did not have a valid licence on date of accident. 12. In view of above discussion, I do not find any merit in this appeal, which is accordingly dismissed.