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Himachal Pradesh High Court · body

2014 DIGILAW 1464 (HP)

Manoj Kumar v. Sudarshana Kumari

2014-10-17

SURESHWAR THAKUR

body2014
JUDGMENT : Sureshwar Thakur, J. Both these appeals as also the cross-objections are being disposed of by a common order as common questions of fact and law are involved therein. Besides they arise out of the same accident. 2. These appeals are directed at the instance of the owner of the offending vehicle, who has been burdened with the liability to pay compensation to the respondents/claimants as assessed under awards of 21.03.2013 rendered in MACP No. 19 of 2011 and in MACP No. RBT 55/12/11 by the learned Motor Accident Claims Tribunal-II, Una, District Una, Himachal Pradesh. 3. The learned Motor Accident Claims Tribunal had proceeded to fasten the liability to defray compensation as assessed by it in favour of the claimants vicariously upon respondents No.1 and 3, on the score of the driver (respondent No.1 before the learned Tribunal) of the offending vehicle not holding a valid and effective driving licence to drive it, inasmuch, as though the registration certificate of the offending vehicle, comprised in Ex.RW1/B depicting it to be falling in the category of ?heavy goods vehicle?, yet the driving licence, comprised in Ex.RW1/A, authorizing its holder, who was respondent No.1 before the learned Tribunal, to drive a ?transport vehicle?, without an endorsement in it of his being authorized to drive a ?heavy goods vehicle?, hence the respondent No.1 was held not authorized at the relevant time to drive the offending vehicle i.e. ?heavy goods vehicle?. 4. The learned counsel appearing for the appellant has with force and vigour while relying upon a judgment of the Hon'ble Apex Court reported in National Insurance Company Ltd. versus Annappa Irappa Nesaria alias Nesaragi (2008) 3 SCC 464 canvassed before this Court that in the face of Form No. IV, which is extracted hereinafter contemplating three categories of vehicles i.e. Light Motor Vehicles, Transport Vehicle and Motor vehicle of the following description and the driving licence held by respondent No.1 bearing an endorsement of its holder being authorized to drive a ?transport vehicle? constituted compliance with the mandate of the prescription envisaged in Form IV. In other words, the learned counsel for the appellant/owner has espoused before this Court that, hence, the non-revelation or non-enunciation in the driving licence held by respondent No.1 at the relevant time, of its holder being authorized to drive a ?heavy goods vehicle? is dispensable as well as inconsequential. In other words, the learned counsel for the appellant/owner has espoused before this Court that, hence, the non-revelation or non-enunciation in the driving licence held by respondent No.1 at the relevant time, of its holder being authorized to drive a ?heavy goods vehicle? is dispensable as well as inconsequential. As a corollary he contends that the driving licence held by respondent NO.1 at the relevant time and its marking an endorsement of his being authorized to drive a ?transport vehicle? was sufficient and did not debar him to drive a ?heavy goods vehicle? as was the category of the offending vehicle. However, the said contention of the learned counsel appearing for the appellant has no succor or strength. The reason which constrains this Court to do so is comprised in the fact of the judgment as relied upon by the learned counsel appearing for the appellant when omits to divulge that the category of the vehicle as driven by the driver in the case relied upon was of a category analogous to the one as was being driver by the driver in the instant case, inasmuch, as it fell in the category of a heavy goods vehicle, rather the category of the vehicle as driven by the driver in the case relied upon the learned counsel appearing for the appellant was a Matadoor Van having an unladen weight of 3500 kilograms, hence constituted it to fall in the category of ?Light Motor Vehicle?, as such, when the offending in the instant case falls in the category of ?heavy goods vehicle? the judgment relied upon by the learned counsel appearing for the appellant is inapplicable to the driving licence qua the vehicle at hand. Thereupon the Hon'ble Appex Court in the judgment relied upon construed that even in the absence of the driver of the offending vehicle in the case aforesaid having a driving licence to drive a ?light motor vehicle? without an endorsement in it of his being authorized to drive even a transport vehicle, it did not constitute any breach of the insurance policy. Form IV is extracted herein below:- ?Form 4 * * * * * I apply for a licence to enable me to drive vehicles of the following description: * * * * * (d) Light motor vehicle (e) Medium goods vehicle * * * * * (J) Motor Vehicle of the following description.? Form IV is extracted herein below:- ?Form 4 * * * * * I apply for a licence to enable me to drive vehicles of the following description: * * * * * (d) Light motor vehicle (e) Medium goods vehicle * * * * * (J) Motor Vehicle of the following description.? After amendment the relevant portion of Form 4 reads as under: ?Form 4 I apply for a licence to enable me to drive vehicles of the following description: * * * * (d) Light motor vehicle (e) Transport vehicle * * * * * (J) Motor Vehicle of the following description. 5. Reiteratedly, given the definition of ?Light Motor Vehicle? as was the category of the offending vehicle driven by the driver in the judgment relied upon by the counsel appearing for the appellant and its divulging the fact that it encompasses both a ?transport vehicle? as well as a ?light motor 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, as was the weight of the offending vehicle in the said case, that hence, even in the absence of an endorsement in the driving licence held by the driver in the said case or its not carrying any endorsement in it authorizing its holder to drive a ?transport vehicle? that it was concluded that he was authorized to drive a ?light motor vehicle? especially given the fact that its gross unladen weight did not exceed 7500 kg. Preponderantly the factum of its weight not exceeding 7500 kg was, hence, held sufficient in the face of the definition of the light motor vehicle, which is extracted herein after, to authorize him to drive it even as a ?transport vehicle?. However, for the reasons hereinafter mentioned, the gross unladen weight of a ?heavy goods vehicle? is more than 7500 kilograms, as such, the judgment relied upon by the learned counsel for the appellant is inapplicable to the category of ?heavy goods vehicle?. Section 2(21) defines ?light motor vehicle? as under:- ?2. (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 7500 kilograms.? 6. Section 2(21) defines ?light motor vehicle? as under:- ?2. (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 7500 kilograms.? 6. Furthermore, the learned counsel for the appellant has also proceeded to further urge that obviously when in the case at hand, the R.C. of the offending vehicle comprised in Ex.RW1/B is loudly communicative of the fact that the offending vehicle falls in the category of ?heavy goods vehicle?. However, the driving licence held by respondent No.1 while driving it as divulged by Ex.RW1/A, though does bear an endorsement authorizing its holder to drive a ?transport vehicle?, which authorization comprised in the driving licence, has been contended to be sufficient and adequate to empower respondent No.1 to drive even a ?heavy goods vehicle? as was the category of the offending vehicle, yet it does not specifically carry any endorsement of its holder being authorized to drive a ?heavy goods vehicle?. The said argument is built upon the definition of ?transport vehicle? occurring in Section 2(47) of The Motor Vehicles Act, 1988, which definition is extracted hereinafter inasmuch as while its encompassing even a ?goods carriage vehicle? as was the category of the offending vehicle rendered the respondent No.1 fit and empowered to drive it even when the driving licence issued to him did not carry in it an apposite endorsement by the Authority concerned of its holder being fit to drive a ?heavy goods vehicle?. Nonetheless, the learned counsel for the appellant has remained oblivious to and aloof to the factum of a separate and distinct definition borne by the phrase ?heavy goods vehicle? existing in Section 2(16) of The Motor Vehicles Act, 1988, which is extracted hereinafter, vis-à-vis the definition of a ?Light Motor Vehicle? which distinct definitions borne by two separate categories of vehicles per se marks and voices the factum of the driver while driving any of the aforesaid categories of vehicle being enjoined to carry in the driving licence held by him an endorsement of his being fit to drive either a ?light motor vehicle?, a ?transport vehicle? or a ?heavy goods vehicle?. However, the said endorsement is amiss. The definition of the ?transport vehicle? defined in Section 2(47) of the Motor Vehicles Act, reads as under: ?2(47). or a ?heavy goods vehicle?. However, the said endorsement is amiss. The definition of the ?transport vehicle? defined in Section 2(47) of the Motor Vehicles Act, reads as under: ?2(47). ?transport vehicle? means a public service vehicle, a goods carrier, an educational institution bus or a private service vehicle;? The definition of the ?heavy goods vehicle? defined in Section 2(16) reads as under: ?2(16). ?heavy goods vehicle' means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms;? 7. In the legislature while affording diverse and distinct definitions to distinct categories of vehicle did so, to mark the fact that the driving licences issued qua each of the distinct categories of the vehicle compatibly too, distinctly and lucidly voicing in them, besides being communicative of the fact of its holder being specifically authorized to drive each of the distinctly defined categories of the vehicles. The mere fact of an endorsement of ?transport vehicle? occurring in the driving licence held by respondent No.1, in the absence of an endorsement in it authorizing him to drive a ?Heavy Goods Vehicle?, does not constitute the driving licence held by the respondent No.1 to be an effective and valid driving licence. The import of the phrase ?transport vehicle?, though encompassing within its amplitude even a ?goods carriage?, which even a ?heavy goods vehicle? may be so as to foist a tenable inference that the contention as raised by the learned counsel for the appellant to fasten it with legality may be tentatively vindicable. Nonetheless, the factum of a ?transport vehicle? encompassing within its scope and amplitude a ?goods carriage? is to be read in conjunction with a compatible phraseology occurring in the definition of a ?light motor vehicle?. Now given the fact that the phraseology ?transport vehicle? occurs in the definition of a light motor vehicle, whereas, it does not occur in the definition of ?transport vehicle?. Hence, given its existence in the definition of light motor vehicle and its non reflection in the definition of ?heavy goods vehicle?, as a sequel its implication and import is to convey that the legislature while defining a ?transport vehicle? in Section 2(47) of the Motor Vehicles Act, 1988 has proceeded to amplify the signification borne by the phraseology ?transport vehicle? in Section 2(47) of the Motor Vehicles Act, 1988 has proceeded to amplify the signification borne by the phraseology ?transport vehicle? with its occurring only in the definition of a ?light motor vehicle?. The omission of the phrase ?transport vehicle? in the definition of ?heavy goods vehicle? is also with an obvious intention of the legislature to its signification being not carried forth or un-importable/un-introducible qua the definition of a ?heavy goods vehicle?. In other words, the amplitude, scope and import of the phrase ?transport vehicle? is circumscribed to a ?light motor vehicle' or it amplifies the scope of the definition of a light motor vehicle as also it further elucidates the fact that the import of a transport vehicle is to be restricted to its being a ?goods carriage? bearing or carrying an unladen weight of 7500 kilogram. Obviously its import does not extend to or amplify the signification borne by words ?goods carriage? occurring in the definition of ?heavy goods vehicle? as a ?heavy goods vehicle? is constituted by a ?goods carriage? whose unladen weight exceeds 12000 kg. Consequently, the factum of a ?transport vehicle? taking within its ambit a ?goods carriage? as may be category of the offending vehicle driven by the respondent No.1 while its being a ?heavy goods vehicle?, nonetheless, when the weight of the different categories of the vehicle, inasmuch, as of vehicles constituting ?heavy goods vehicles? and of vehicles constituting ?light motor vehicles? too is also significant for testing the signification conveyed by the phrase ?transport vehicle? especially when its amplitude is limited to the definition of a ?light motor vehicle? wherein it occurs, as a corollary, the driver of each of the distinct categories of vehicles bearing different unladen weights was enjoined to possess diverse skills and proficiency, which skills and proficiency possessed by the driver driving a heavy goods vehicle was to be higher vis-à-vis the skills and proficiency possessed by a driver of a ?light motor vehicle?. Obviously, then the driving licence held by the respondent No.1 had to explicitly contain an expression of the driver being, prior to its issuance, tested for his possessing skill and proficiency to drive a ?heavy goods vehicle? and its then carrying an endorsement in it of his being fit to drive it. Necessarily, then given the definition of a ?transport vehicle? and its then carrying an endorsement in it of his being fit to drive it. Necessarily, then given the definition of a ?transport vehicle? and its occurrence in the driving licence of its holder, is to be construed to be voicing the mere fact or it authorizing him only to drive a ?light motor vehicle? and not a ?heavy goods vehicle?. Furthermore, the mere fact of Form No. IV as extracted hereinabove classifying three categories of vehicle and a transport vehicle being one of the categories enunciated in it and the driving licence held by respondent No.1 carrying an endorsement of his being authorized to drive a ?transport vehicle?, whereas the category of ?heavy goods vehicle? not existing in it would not constrain this Court to conclude that there was no necessity of an endorsement in his driving licence of his being authorized to drive even a ?heavy goods vehicle?. The narration of the category of vehicles in Form IV does not govern or regulate the purpose and objective of the legislature. Consequently, necessity is enjoined of its holder to held a licence specifically authorizing him to drive a separately and distinctly defined category of vehicle in the Statute. 8. Even otherwise the non occurrence of the term ?heavy goods vehicle? in Form No. IV extracted hereinabove does not curtail the power of the Licensing Authority to issue a driving licence qua a vehicle specifically falling within the description or definition of ?heavy goods vehicle?. A perusal of Section 10(2) of the Motor Vehicles Act, which is extracted hereinafter when divulges that it enjoins a necessity upon the Licencing Authority while issuing a driving licence to communicate in it of its holder to be, besides his driving licence authorizing him to drive a ?transport vehicle?, his being also specifically authorized to drive a motor vehicle of a specified description. Consequently, since the category of ?heavy goods vehicle? falls in the category of a motor vehicle of a specified description, hence, even if it is not explicitly enunciated in Section 10(2) of the Act, yet it being a statutory category of motor vehicle, concomitantly, the said expression had to be lucidly communicated in the driving licence held by respondent No.1, inasmuch as of his being authorized to drive the aforesaid statutorily specified/described category of a motor vehicle. Section 10(2) of the Motor Vehicles Act reads as under: ?10(2). Section 10(2) of the Motor Vehicles Act reads as under: ?10(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 cuycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) transport vehicle (i) road roller; (j) motor vehicle of a specified description.? 9. For the foregoing reasons the findings of the learned Tribunal on the issue relating to the fact of respondent No.1 not holding a valid and effective driving licence do not suffer from any infirmity or absurdity rather are anvilled upon mature and balanced appreciation of the evidence and material before it and apposite application of law to it. Cross Objection No. 4026 of 2013 in FAO No. 4094 of 2013. 10. Mr. Dheeraj Vashist, the learned counsel appearing for the claimants/respondents/cross-objector canvassed before this Court that the deceased Ram Swaroop at the time of the accident was 51 years of age as divulged by the post mortem report of deceased Ram Swaroop, hence, the learned Tribunal has erroneously applied a multiplier of 10 while assessing compensation payable under the head of the loss of dependency to the respondents/claimants. The contention of the learned counsel has succor as it is divulged by the post mortem report of the deceased that at the time of the accident he had attained the age of 51 years, hence, in the face of the principle laid down in judgment reported in Sarla Verma and others versus Delhi Transport Corporation and another, (2009) 6 SCC 121 , of a multiplier of 11, hence, being applicable to the multiplicand, the learned tribunal has erroneously and inappropriately applied a multiplier of 10 while assessing compensation to the petitioner/claimants under the head of the loss of dependency, as such, the impugned award to this extent suffers from an infirmity. Accordingly, that portion of awarded passed by the Learned Motor Accident Claims Tribunal is set aside and this Court proceeds to apply a multiplier of 11 to the multiplicand while assessing the compensation payable to the claimants/respondents under the head of loss of dependency. Accordingly, that portion of awarded passed by the Learned Motor Accident Claims Tribunal is set aside and this Court proceeds to apply a multiplier of 11 to the multiplicand while assessing the compensation payable to the claimants/respondents under the head of loss of dependency. While applying a multiplier of 11 to the annual income of the deceased as assessed by the learned Motor Accident Claims Tribunal, the total compensation payable to the respondents/claimants under the head of loss of dependency comes to {Rs.2,02,726/- (annual income) x 11}, Rs.22,29,986/-. Now adding a sum of Rs.10,000/- on account of loss of love and affection and another sum of Rs.10,000/- on account of funeral expenses and other conventional charges as assessed by the learned Motor Accident Claims Tribunal as compensation payable to the respondent/claimants under the head of loss dependency, the total compensation assessable in favour of the respondents/claimants is computed at Rs.22,49,986/-. Furthermore, the learned Tribunal has erroneously quantified interest payable at the rate of 7.5% whereas the rate of interest to be afforded is at a rate of 9% per annum from the date of the filing of the petition till the realization of compensation. Consequently, it is directed that the compensation as determined by this Court shall carry interest at the rate of 9% per annum from the date of filing of the petition till its realization. 11. Mr. Anil Kumar, learned counsel appearing for the respondents/claimants in FAO No. 4053 of 2013 submits that the learned Tribunal has erroneously afforded rate of interest at the rate of 7.5 % per annum from the date of filing of the petition whereas it has to afford the interest at the rate of 9% per annum from the date of filing of the petition and in support of his submission the learned counsel pressed into service the provisions of Order XLI, Rule 33 of the Code of Civil Procedure. The provisions of Order XLI, Rule 33 of the CPC clothe this Court with a plenary jurisdiction to pass or make such further and other decree or order as the case may require. The provisions of Order XLI, Rule 33 of the CPC reads as under: 33. The provisions of Order XLI, Rule 33 of the CPC clothe this Court with a plenary jurisdiction to pass or make such further and other decree or order as the case may require. The provisions of Order XLI, Rule 33 of the CPC reads as under: 33. Power of Court of Appeal- The Appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection [and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]:? 12. The said power vested in this Court under the provisions of Order XLI, Rule 33 of the CPC extracted hereinabove are open to be exercisable by the Court of Appeal as this Court is, even in the absence of any of the respondents in the memo of parties before the Appellate Court having omitted to file any cross appeal or cross-objections ventilating therein their grievance against the award impugned. Consequently, to afford parity of treatment to the respondents/claimants in FAO No. 4053 of 2013 with the respondents/claimants in FAO No. 4994 of 2013 in terms of provisions of Order XLI and Rule 33, even when the formers have not filed any cross-objections or appeal, as such, the impugned award passed in MACP No. RBT 55/12/11 by the learned Tribunal which is impugned in FAO No.4053 of 2013 before this Court is modified to the extent that the amount of compensation as assessed by the learned Tribunal shall carry interest at the rate of 9% per annum from the date of filing of the petition and till its realization. 13. 13. For the foregoing reasons, I find no merits in the appeals preferred by the appellant(s)/owner, which are accordingly dismissed and the cross-objections No. 4026 of 2013 preferred by the respondents/claimants in FAO No. 4094 of 2013 are allowed and the award of the learned Tribunal in MACP No. 19 of 2011 is modified to the extent that the respondents/claimants are entitled to a total compensation of Rs.22,49,986/- which shall also carry interest at the rate of 9% per annum from the date of filing of the petition till its realization. Further, the award passed by the learned Tribunal in MACP No. RBT 55/12/11 which is impugned before this Court in FAO No. 4053 is also modified with the direction that the compensation as awarded by the Learned Motor Accident Claims Tribunal in its award shall carry interest at the rate of 9% per annum from the date of filing of the petition till its realization. No costs. All the pending application(s) also stand disposed of.