Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 185 (HP)

Oriental Insurance Company v. Battu

2012-04-12

DEV DARSHAN SUD

body2012
JUDGMENT : Dev Darshan Sud, J. This appeal has been preferred by the Insurance Company against the judgment and award of the learned Motor Accident Claims Tribunal, Solan. The factum of accident and the quantum of compensation which has been awarded have not been questioned before me. The ground urged by the Insurance Company in this appeal is that the driver of the accented vehicle did not possess a valid driving licence and in that event, the liability could not be apportioned on the Insurance Company. 2. Learned counsel appearing for the appellant relies upon Ext.RW1/C, which is the driving licence authorising Kamlesh Kumar respondent to drive LMV-NT (light motor vehicle-Non transport). Additional evidence was permitted to be brought on record by this Court by its order dated 12.9.2011 in CMP No. 599 of 2011 filed by the Insurance Company under Order 41 Rule 27 of the Code of Civil Procedure. On 27.9.2011, statement of Rameshwar Singh, Registration Assistant in the office of Registration and Licensing Authority, Shimla Urban was recorded. Opportunity was given to the respondents to lead evidence in rebuttal but no evidence was led. The plea of the Insurance Company was that the endorsement on the licence Ext.RW1/C authorising respondent Kamlesh Kumar to drive light motor vehicle was made for the first time on 23.7.2005 and before this date, there was no such endorsement. The evidence of Rameshwar Singh has established this fact. 3. Learned counsel appearing for the appellant relies upon the decision of this Court in Oriental Insurance Company v. Lekh Ram and others 2011 (2) Shim.LC 419 . The facts therein are not any different from the facts of the present appeal as the vehicle involved in that accident is also Mahindera jeep which was registered as light motor vehicle pick-up. In the present case also the class, make and category of the vehicle is the same. Considering the totality of the facts and circumstances of the case, His Lordship Hon'ble Mr. Deepak Gupta, J. holds: "2. The accident, out of which the present petition arises, took place on 6.6.2005. It is also not disputed that the offending vehicle was a Mahindera Jeep, which was registered as a Light Motor Vehicle Pickup, as is apparent from the registration certificate Ext.RW-2/A. Therefore, it was a transport vehicle. Deepak Gupta, J. holds: "2. The accident, out of which the present petition arises, took place on 6.6.2005. It is also not disputed that the offending vehicle was a Mahindera Jeep, which was registered as a Light Motor Vehicle Pickup, as is apparent from the registration certificate Ext.RW-2/A. Therefore, it was a transport vehicle. It is also not disputed that the driver of the vehicle Vinod Kumar held a driving licence which specifically stated that he was entitled to drive "LMV-NT", which means Light Motor Vehicle Non-transport. This licence on the face of it did not entitle him to drive a transport vehicle and in fact the licence clearly indicated that he could only drive a non transport vehicle. The learned Tribunal, however, held the Insurance Company liable on the ground that a light motor vehicle is a motor vehicle and merely because the vehicle was a transport vehicle would not amount to violation of the terms of the Act and the Policy and therefore, the Insurance Company could not escape its liability. The learned Tribunal, in my view, committed a grave error and has not taken into consideration a number of judgments. There was some dispute with regard to this aspect earlier but this dispute now stand settled. 3. A Full Bench of this Court dealt with a similar question and disposed of the reference in view of the judgment of the Apex Court rendered in National Insurance Company Ltd. v. Kusum Rai and others, (2006) 4 SCC 250 and National Insurance Company Ltd. v. Annappa Irappa Nesria and others, (2008) 3 SCC 464 ." (at p. 420) 4. Thereafter, relying upon the decision of the Supreme Court in New India Assurance Company Ltd. v. Prabhu Lal (2008)1 SCC 696 , and National Insurance Company Ltd. v. Annappa Irappa Nesria and others, (2008)3 SCC 464 and Oriental Insurance Company Ltd. v. Angad Kol and others, 2009 ACJ 1411 , this Court holds that the liability will be that of the owner and not of the Insurance Company. In the totality of the facts and circumstances of this case and considering the fact that class, manufacturer and category of the vehicle is the same as also that on the date when the accident occurred, the licence Ext.RW1/A did not authorise Kamlesh Kumar to drive light motor vehicle, this appeal is allowed. In the totality of the facts and circumstances of this case and considering the fact that class, manufacturer and category of the vehicle is the same as also that on the date when the accident occurred, the licence Ext.RW1/A did not authorise Kamlesh Kumar to drive light motor vehicle, this appeal is allowed. However, keeping in view of the decision in Laljiram v. Shyamkumar and others, 2012 ACJ 312 it is directed that the award shall firstly be satisfied by the Insurance Company and thereafter it will be open to recover it from the owner. Appeal stands disposed of. No order as to costs.