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2014 DIGILAW 62 (CHH)

Nareshku Sahu v. Kumari Sahu

2014-02-12

PRITINKER DIWAKER

body2014
ORDER Pritinker Diwaker, J. 1. This is owner's appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the award dated 29th June, 2010 passed by 11th Motor Accident Claims Tribunal (FTC), Durg (in short "the Tribunal") in Claim Case No. 96/2008 awarding compensation of Rs. 2.89 lacs in favour of the claimants for the death of Ishulal. In this appeal, the appellant/owner has challenged the liability fastened upon him and exoneration of the insurance company by the impugned award. 2. Brief facts of the case are that on 16.4.2008 when Ishulal was riding his motorcycle along with one Chintaram Sahu, his motorcycle was dashed by a Matador Eicher bearing registration No. C.G.04-J/3106 (hereinafter referred to as "offending vehicle") resulting in number of injuries to Ishulal which ultimately led to his death on 27.4.2008 in hospital while he was undergoing treatment. 3. In a claim case filed by the claimants, who are widow and children of the deceased, the Tribunal by the impugned awarded granted a total compensation of Rs. 2.89 lacs fastening the liability, jointly and severely, upon the appellant/owner and driver/non-applicant No. 1, while exonerating the insurance company/respondent No. 7 herein. 4. Defence of the appellant/owner of the offending vehicle before the Tribunal was that the accident did not occur on account of negligence of the driver of the offending vehicle, the offending vehicle was duly insured with the insurance company, its driver was having a valid and effective driving licence to drive the offending vehicle and therefore, in case any liability is there, it is of the insurance company and not the owner of the offending vehicle. 5. Stand of the insurance company before the Tribunal was that the owner of the offending vehicle was not having valid fitness certificate and permit and as such, the offending vehicle was being plied in breach of terms and conditions of the insurance policy, therefore, the insurance company is not liable to indemnify the owner. 6. While passing the impugned award, the Tribunal has awarded a sum of Rs. 6. While passing the impugned award, the Tribunal has awarded a sum of Rs. 2.89 lacs in favour of the claimants, fastening the liability, jointly and severely, upon the driver & owner of the offending vehicle by recording a finding that though the driver of the offending vehicle was having licence to driver Light Motor Vehicle (LMV) but the offending vehicle was registered as transport vehicle, which the driver was not authorized to drive. 7. Learned counsel for the appellant submits that though he has taken some other grounds also in the memo of appeal, but he wants to confine his appeal against the award only to the point of fastening of liability upon the appellant/owner and exoneration of the insurance company. He submits that driver of the offending vehicle was having a valid and effective driving licence to drive LMV and the offending vehicle also comes in the category of LMV, though the same was registered as Light Goods Vehicle. He submits that the licence was issued in favour of the driver in the year 1997 for a period of 13 years and therefore, merely in absence of any endorsement on his licence for driving the transport or goods vehicle, it can not be held that on the date of accident the driver was not having a valid and effective licence to drive the offending vehicle. He further submits that amendment in Rule 14 of the Central Motor Vehicle Rules, 1989 came into effect on 28th March, 2001 with prospective operation and therefore, the driver can not be faulted with for driving the goods vehicle. Reliance has been placed on the judgments of the Apex Court in the matters of Ashok Gangadhar Maratha Vs. Oriental Insurance Co. Ltd. AIR 1999 SC 3181 National Insurance Co. Ltd., Vs. Annappa Irappa Nesaria and others AIR 2008 SC 1418 and Oriental Insurance Co. Ltd. Vs. Angad Kol and others AIR 2009 SC 2151 and order dated 17th December, 2013 passed by this Court in M.A. (c) No. 940/08 in the case of Oriental Insurance Co. Ltd. Vs. Mewa Lal and others and other connected matters and the judgment of this Court in Oriental Insurance Co. Ltd., Vs. Karimuddin 2013 Law Suit (Chh) 225. 8. Angad Kol and others AIR 2009 SC 2151 and order dated 17th December, 2013 passed by this Court in M.A. (c) No. 940/08 in the case of Oriental Insurance Co. Ltd. Vs. Mewa Lal and others and other connected matters and the judgment of this Court in Oriental Insurance Co. Ltd., Vs. Karimuddin 2013 Law Suit (Chh) 225. 8. On the other hand, supporting the impugned award it has been argued by learned counsel for the insurance company that the purpose of obtaining licence for goods/transport vehicle is different and unless the person possesses a valid licence for driving such vehicle, he is not authorized to drive the said vehicle. He has further argued that there was no endorsement on the licence of the driver authorising him to drive the offending vehicle i.e. transport/goods vehicle and therefore, the Tribunal has rightly exonerated the insurance company of its liability and fastened the same upon the appellant/owner and driver. Lastly he submits that the judgments relied upon by counsel for the appellant are of no help to him in view of judgment of the Apex Court in the matters of New India Assurance Co. Ltd. Vs. Prabhu Lal (2008) 1 SCC 696 , Oriental Insurance Co. Ltd. Vs. Angad Kol and others AIR 2009 SC 2151 , and order passed by this Court in the case of Bajaj Allianz Insurance Co. Ltd. Vs. Satya Kumar Harivyasi and others 2011 (1) CGLJ 67 . 9. Learned counsel appearing for respondents No. 1 to 6/claimants has supported the arguments advanced on behalf of the appellant. 10. Heard learned counsel for the parties and perused the material available on record. 11. In its entire pleading, the insurance company has not taken a defence that on the date of accident, the driver of the offending vehicle was not having a valid licence nor any such evidence has been adduced by it through examination of any of the officials of the concerned RTO. Thus in absence of any such specific pleading and the evidence, this Court finds it difficult to accept the contention raised by the insurance company. 12. Thus in absence of any such specific pleading and the evidence, this Court finds it difficult to accept the contention raised by the insurance company. 12. From the definition of transport vehicle and the earlier provisions it is evident that the transport vehicle has now been substituted by Medium Goods Vehicle and Heavy Goods Vehicle w.e.f. 28th March, 200] and that a Light Motor Vehicle at the relevant point of time continued to cover both Light Passenger Carnage Vehicle and Light Goods Vehicle. This is what has been laid down by the Apex Court in the case of Ashok Gangadhar Maratha (supra). 13. In the present case, admittedly the driver was holding a valid licence to drive LMV. The said licence was issued on 1.7.1997 i.e. prior to 28.3.2001 when amendment in Rule 14 of the Central Motor Vehicle Rules, 1989 came into effect with prospective operation, according to which the offending vehicle also falls in the category of LMV. As such, it can not be said that on the date of accident, the driver having a licence to drive LMV was not authorized to drive the offending vehicle. Merely because the driver did not get any endorsement on his licence to drive transport/goods vehicle, which also falls in the category of LMV, by fastening the liability upon the driver and owner and exonerating the insurance company, the Tribunal has committed a grave error of law. 14. Considering the facts and circumstances of the case, the findings recorded by the Tribunal, so far as it relate to fastening of liability upon the driver & owner, can not be allowed to stand, the same are liable to be set aside and are set aside accordingly. In the result, the appeal is allowed. The insurance company along with driver and owner of the offending vehicle are held, jointly and severely, liable to satisfy the award. The impugned award stands modified to the above extent.