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2016 DIGILAW 1243 (HP)

Sanjeev Kumar v. Manmohan Singh

2016-07-01

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. Subject matter of this appeal is the award, dated 30th September, 2010, passed by the Motor Accident Claims Tribunal, Fast Track Court, Una, District Una, H.P. (for short, “the Tribunal”) in Claim Petition No.5 of 2006, titled Manmohan Singh vs. Sanjiv Kumar and another, whereby compensation to the tune of Rs.1,47,000/-, alongwith interest at the rate of 7% per annum from the date of filing of the claim petition till the payment is made, came to be awarded in favour of the claimant and the insurer was saddled with the liability, with right of recovery, (for short the “impugned award”). 2. The claimant and the insurer have not questioned the impugned award on any ground, thus, the same has attained finality so far as it relates to them. 3. Feeling aggrieved, the insured/owner has challenged the impugned award by the medium of instant appeal on the ground that the Tribunal has fallen into an error in granting right of recovery to the insurer. 4. Thus, the only question to be determined in this appeal is – Whether the insurer has rightly granted right of recovery in favour of the insurer. The answer is in the negative for the following reasons. 5. Admittedly, the appellant i.e. original respondent No.1, namely, Sanjiv Kumar was driving the offending vehicle (Mahindra Pick Up) bearing No.HP-36-3685 and was having a valid and effective driving licence to drive LMV (TPT) vehicles. Copy of the driving licence has been placed on record as Mark X, which would show that the driver was competent to drive a light motor vehicle transport and the said license was valid at the time of accident. The offending vehicle involved in the accident was Jeep, registration certificate of which has been placed on record as Mark Y, wherein it is mentioned that the unladen weight of the offending vehicle was 1610 kg. Thus, the offending vehicle, in terms of Section 2(21) of the Motor Vehicle Act, which is reproduced hereinbelow, comes under the definition of “light motor vehicle”. “2. ………………… ………………. (21) “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either or which or a motor car or tractor or roadroller the unladen weight of any of which, does not exceed 7,500 kilograms.” 6. “2. ………………… ………………. (21) “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either or which or a motor car or tractor or roadroller the unladen weight of any of which, does not exceed 7,500 kilograms.” 6. The above provision clearly shows that the vehicle, with unladen weight not exceeding 7,500 kilograms, would fall within the definition of “light motor vehicle”. 7. As has been discussed supra, the driver of the offending vehicle was having driving license to drive vehicles falling within the definition of “light motor vehicle”, thus, can be said to have a valid and effective driving licence, as has been held by this Court in catena of judgments, i.e. FAO No.125 of 2006, titled Oriental Insurance Company vs. Shashibala and others, FAO No.312 of 2012, titled Sukhvinder Singh and another vs. The New India Assurance Ltd. and others, etc. 8. This Court in series of cases i.e. FAO No.320 of 2008, titled Dalip Kumar and another vs. New India Assurance Company Ltd. & another, decided on 6th June, 2014, FAO No.306 of 2012, titled Prem Singh and others vs. Dev Raj and others, decided on 18th July, 2014 and FAO No.54 of 2012, titled Mahesh Kumar and another vs. Smt. Priaro Devi and Others, decided on 25th July, 2014, has discussed the issue and held that the driver having driving licence to drive Light Motor Vehicle is not required to have endorsement of “PSV” i.e. public service vehicle. 9. The Apex Court in latest decision, in Kulwant Singh and others vs. Oriental Insurance Company Limited, (2015) 2 SCC 186 , has held that the driver who is having valid and effective driving licence to drive a Light Motor Vehicle is not required to have endorsement to drive a light commercial vehicle. It is apt to reproduce paragraphs No.10 and 11 hereunder:- “10. In S. Iyyapan (supra), the question was whether the driver who had a licence to drive ‘light motor vehicle’ could drive ‘light motor vehicle’ used as a commercial vehicle, without obtaining endorsement to drive a commercial vehicle. It was held that in such a case, the Insurance Company could not disown its liability. It was observed :- “18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. It was held that in such a case, the Insurance Company could not disown its liability. It was observed :- “18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment (Civil Misc. Appeal No.1016 of 2002, order dated 31.10.2008 (Mad) is, therefore, liable to be set aside.” No contrary view has been brought to our notice. 11. Accordingly, we are of the view that there was no breach of any condition of insurance policy, in the present case, entitling the Insurance Company to recovery rights.” 10. In view of the above discussion, it is apparent that the Tribunal has wrongly decided issue No.3 against the owner/insured and in favour of the insurer. Accordingly, the findings returned on issue No.3 are set aside and it is held that the driver of the offending vehicle was having a valid and effective driving licence at the time of accident. 11. The findings returned by the Tribunal on issue No.4 are also required to be set aside for the reason that the onus to prove the said issue was on the insurer, which it has not discharged. It is apt to record that the factum of insurance was admitted. It was for the insurer to plead and prove that the vehicle, at the relevant time, was being driven in violation of the terms and condtions of the insurance policy and thus the insurer was in breach, has failed to do so. Accordingly, the findings returned by the Tribunal on this issue are also set aside and this issue is also decided against the insurer and in favour of the owner/insured. 12. Having said so, the appeal is allowed, the impugned award is modified and the insurer is saddled with the liability. 13. At this stage, the learned counsel for the claimant stated that the insurer has already deposited the amount before the Tribunal. 12. Having said so, the appeal is allowed, the impugned award is modified and the insurer is saddled with the liability. 13. At this stage, the learned counsel for the claimant stated that the insurer has already deposited the amount before the Tribunal. He placed on record the particulars of bank account of the claimant and prayed that the Tribunal be directed to release the amount in favour of the claimant through the said bank account. Accordingly, the Tribunal is directed to release the amount in favour of the claimant through his bank account. The Registry is directed to send down the record forthwith alongwith a copy of this judgment and a copy of the claimant’s bank account particulars to the Tribunal forthwith. 14. The appeal stands disposed of.