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2016 DIGILAW 1644 (HP)

Hans Raj v. Bajaj Allianz Insurance Company Ltd.

2016-08-09

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the award, dated 28.8.2014, rendered by learned Motor Accident Claims Tribunal, Ghumarwin, District Bilaspur, H.P. in M.A.C. No.06/2 of 2010/09. 2. The key facts necessary for the adjudication of the appeal are that the respondents No.2 to 5 filed a claim petition under Section 166 of the Motor Vehicles Act against the appellants, respondents No.1 and 6 seeking compensation to the tune of Rs.20 lac on account of death of Suresh Kumar in a road accident on 18.9.2009 involving truck bearing registration No.HP- 69-5591 owned by appellant No.1, driven by appellant No.2 and insured with respondent No.1. On 18.9.2009 at about 7.00 P.M., Suresh Kumar was driving truck bearing registration No.HP-51B- 4433. It was going to Delhi from Chirgaon. The auto-start button of the truck stopped functioning and the vehicle did not start. He asked appellant No.2, driver of truck bearing No. HP-69-5591 to help him in starting his truck by tow-chaining the same with his truck. Appellant No.2 reversed his truck and after tow-chaining, truck of Suresh Kumar started functioning. Truck driven by Suresh Kumar again stopped functioning. Appellant No.2 again brought his truck to tow-chain the truck of Suresh Kumar. While the truck was being reversed by appellant No.2, foot of Suresh Kumar came under the tyre of his truck. He sustained injuries. Thereafter, he succumbed to the injuries in the Hospital. The accident has taken place due to rash and negligent driving of appellant No.2. FIR No.123/09 dated 18.2.2009 was registered under Sections 336 and 304-A of the Indian Penal Code. The deceased was earning Rs.10,000/- per month. 3. The appellants contested the claim petition and filed the reply. It is admitted that the truck of the deceased developed some starting problem and appellant No.2 on his request helped him to start the truck. But, the deceased might have skidded and fallen down on the pucca portion the road and due to head injuries, he died. The vehicle was insured with respondent No.1. 4. Respondent No.1-Insurance Company also filed the reply. According to respondent No.1, drivers of both the trucks were not holding valid and effective driving licenses at the time of accident. The accident has taken place due to negligence of the deceased. 5. The vehicle was insured with respondent No.1. 4. Respondent No.1-Insurance Company also filed the reply. According to respondent No.1, drivers of both the trucks were not holding valid and effective driving licenses at the time of accident. The accident has taken place due to negligence of the deceased. 5. The learned Tribunal framed the issues on 19.2.2013 and allowed the claim petition by awarding a sum of Rs.24,75,000/- to respondents No.2 to 5 along with interest @ 9% per annum vide award dated 24.3.2015. 6. Respondent No.1-Insurance Company filed an appeal (FAO (MVA)) No.404/2014 against the award dated 28.8.2014 before this Court. The impugned award was modified and the claimants were held entitled to a sum of Rs.20,17,340/-. The present appeal has been filed by the appellants being owner and driver of the truck No. HP-69-5591 since as per the award, the insurance company was permitted to recover the amount of compensation from them. 7. Mr. Desh Raj Thakur, learned counsel appearing for the appellants, has vehemently argued that appellant No.2 was holding valid and effective driving license at the time of accident. 8. Mr. Jagdish Thakur, learned counsel appearing for respondent No.1-Insurance Company, has submitted that the impugned award dated 28.8.2014 has already been modified by this Court in FAO (MVA) No. 404/2014. 9. Mr. Dheeraj K. Vashisth, Advocate, has supported the impugned award dated 28.8.2014. 10. I have heard learned counsel for the parties and have also gone through the record carefully. 11. The claimants have duly proved that the deceased died due to negligence of driving of appellant No.2. Copy of FIR is Ext. PC. 12. PW1, Asha Sharma, testified that the deceased was her husband. He was 39 years old. He was deployed as driver on Truck No.HP-51B-4433. The accident took place on 18.9.2009. They had spent a sum of Rs.60,000/- towards last rites of the deceased. The deceased was 10+2. He was having valid and effective driving licence. He was earning Rs.10,000/- per month. He was hale and hearty. They were dependent on his income. On 18.9.2009, he was driving the truck. He was taking potatoes to Delhi. The truck developed snag. He asked appellant No.2 to help him. When appellant No.2 started reversing his truck, foot of her husband came under the tyre. He fell down and received injuries. He was taken to hospital, where he was declared dead. 13. On 18.9.2009, he was driving the truck. He was taking potatoes to Delhi. The truck developed snag. He asked appellant No.2 to help him. When appellant No.2 started reversing his truck, foot of her husband came under the tyre. He fell down and received injuries. He was taken to hospital, where he was declared dead. 13. PW2, Naresh Kumar, was cleaner in Trcuk No. HP-69- 5591. He also deposed the manner in which the deceased received the injuries, resulting in his death. 14. PW3, Dr. Raj Kumar Daroch, conducted the postmortem of the deceased and issued post-mortem report, Ext. D2. 15. RW1, Hans Raj, is the owner of Truck No. HP-69- 5591. According to him, his driver, Subhash Chand, had informed him that Suresh Kumar had received the injuries. He has proved on record Insurance policy, Ext.R2. 16. The learned Tribunal had assessed the salary of the deceased to be Rs.10,000/- per month, however, in FAO (MVA) No.404/2014, it was reduced to Rs.9500/- and the amount of compensation was also reduced to Rs.20,17,340/- from Rs. 24,75,000/-. 17. Now, the court will advert to whether appellant No.2 was possessing valid and effective driving license at the time of accident in question. The copy of driving license of appellant No.2 is Ext. R-6. The license was issued to w.e.f. 18.1.2006 upto 17.1.2012. The accident took place on 18.9.2009. The licence issued to the appellant was to drive MC, LMV, HGV and HTV, however, fact of the matter is that appellant No.2 was not holding valid and effective driving licence at the time of accident. According to Section 14(2) of the Motor Vehicles Act, license to drive a transport vehicle can be issued only for a period of three years. 18. Their Lordships of Hon’ble Supreme Court in Oriental Insurance Co. Ltd. vs. Angad Kol and others, 2009 ACJ 1411 have made the distinction between LMV and transport vehicle. When a license to the driver was granted for 20 years, a presumption arises that it was meant for the purpose of a vehicle other than a transport vehicle. Had the license been granted for transport vehicle, the tenure thereof could not have exceeded 3 year. Their Lordships have held as under:- 9. When a license to the driver was granted for 20 years, a presumption arises that it was meant for the purpose of a vehicle other than a transport vehicle. Had the license been granted for transport vehicle, the tenure thereof could not have exceeded 3 year. Their Lordships have held as under:- 9. Although the definition of the `light motor vehicle brings within its umbrage both `transport vehicle or `omnibus , indisputably, as would be noticed infra, a distinction between an effective licence granted for transport vehicle and passenger motor vehicle exists. Section 3 provides for the necessity of driveling licence, stating: 3. Necessity for driving licence. ? (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor car or moter cycle hired for his own use or rented under any scheme made under Sub-section (2) of Section 75 unless his driving licence specifically entitles him so to do. (2) ... Section 9 provides for grant of driving licence. Section 10 prescribes the form and contents of licences to drive which is to the following effect: 10. Form and contents of licences to drive.? (1) Every learner s licence and driving licence, except a driving licence issued under Section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government. (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) to (c) ... (d) light motor vehicle; (e) transport vehicle; (i) road Roller; (j) motor vehicle of a specified description. 10. The distinction between a `light motor vehicle and a `transport vehicle is, therefore, evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct licence is required to be obtained. The distinction between a `transport vehicle and a `passenger vehicle can also be noticed from Section 14 of the Act. 10. The distinction between a `light motor vehicle and a `transport vehicle is, therefore, evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct licence is required to be obtained. The distinction between a `transport vehicle and a `passenger vehicle can also be noticed from Section 14 of the Act. Sub-section (2) of Section 14 provides for duration of a period of three years in case of an effective licence to drive a `transport vehicle whereas in case of any other licence, it may remain effective for a period of 20 years. 15. Licence having been granted for a period of 20 years, a presumption, therefore, arises that it was meant for the purpose of a vehicle other than a transport vehicle. 16. Had the driving licence had been granted for transport vehicle, the tenure thereof could not have exceeded to three years. In National Insurance Co. Ltd. v. Annappa Irappa Nesaria, this Court noticed the aforementioned development in the matter of grant of licence to a transport vehicle stating that the same became effective from 28.3.2001 in the following terms: (16). From what has been noticed hereinbefore, it is evident that "transport vehicle" has now been substituted for "medium goods vehicle" and "heavy goods vehicle". The light motor vehicle continued, at the relevant point of time to cover both "light passenger carriage vehicle" and "light goods carriage vehicle". A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well. (17). The amendments carried out in the Rules having a prospective operation, the licence held by the driver of the vehicle in question cannot be said to be invalid in law. 19. Appellant No.1 is the registered owner of truck No. HP-69-5591. Though, the truck in question was insured with the respondent No.1-insurance company, but licence issued to appellant No.2 was not in conformity with Section 14(2) of the Motor Vehicles Act. Since the driving licence of the appellant No.2 was not valid and effective, there was breach of condition of insurance policy. Thus, the learned Tribunal has rightly held respondent No.1-Insurance Company entitled to recover the amount of compensation from the appellants. 20. Consequently, in view of analysis and discussion made hereinabove, there is no merit in the appeal and the same is dismissed. Thus, the learned Tribunal has rightly held respondent No.1-Insurance Company entitled to recover the amount of compensation from the appellants. 20. Consequently, in view of analysis and discussion made hereinabove, there is no merit in the appeal and the same is dismissed. Pending applications, if any, also stands disposed of. No order as to costs.