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2017 DIGILAW 2432 (RAJ)

Shamim Bano W/o Late Firoz Khan v. Vinod Kumawat S/o Mohan Lal Kumawat

2017-11-06

ARUN BHANSALI

body2017
JUDGMENT : ARUN BHANSALI, J. This appeal filed by the claimants is directed against judgment and award dated 04.10.2016 passed by Motor Accident Claims Tribunal, Shahpura, District Bhilwara (‘the Tribunal’), whereby, the Tribunal has awarded a sum of Rs. 24,92,932/- as compensation alongwith interest @ 7.5% per annum from the date of application i.e. 01.06.2010, however, the Insurance Company has been exonerated. 2. At the outset, it is submitted by learned counsel for the appellants that the issue raised in the present appeal is squarely covered by judgment of Hon'ble Supreme Court in Mukund Dewangan v. Oriental Insurance Company Limited: C.A 5826/2011 decided on 03.07.2017, inasmuch as, the Insurance Company has been exonerated on account of the fact that as the vehicle involved in the accident i.e. a Loading Tempo is a light transport vehicle and the driver was in possession of driving licence authorized to drive light motor vehicle only, on account of the driver not being in possession of a valid driving licence, there was violation of policy condition and, as such, the Insurance Company was not liable for payment of compensation. 3. Learned counsel appearing for the respondent Insurance Company submitted that though the issue raised in the present appeal is covered by judgment in the case of Mukund Dewangan (supra), the said judgment itself is being reconsidered by Hon'ble Supreme Court. Reference, in this regard, has been made to order dated 31.10.2017 passed in Special Leave to Appeal (C) No. 27787/2017, Bajaj Alliance General Insurance Co. Ltd. v. Rambha Devi. 4. Learned counsel appearing for the appellants submitted that even in the order dated 31.10.2017, no interim order has been granted, rather the Court has noticed the contention of the Insurance Company that it was not questioning the award of compensation to the claimants and, therefore, on account of passing of the order dated 31.10.2017, it cannot said that the ratio laid down in the case of Mukund Dewangan (supra) would stand stayed. Further submissions have been made that the appellants, the victims of the accident by the insured vehicle are being deprived of the compensation, as even direction to pay & recover has also not been made by the Tribunal. 5. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. Further submissions have been made that the appellants, the victims of the accident by the insured vehicle are being deprived of the compensation, as even direction to pay & recover has also not been made by the Tribunal. 5. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. The Tribunal while deciding issue No. 3 pertaining to the liability of the Insurance Company, came to the conclusion that the vehicle involved in the accident was a light transport vehicle and as the driver was in possession of driving licence authorized to drive light motor vehicle only, there was violation of policy condition and exonerated the Insurance Company from payment of compensation. 6. Hon'ble Supreme Court in the case of Mukund Dewangan (supra) while dealing with the said issue, laid down as under:— “46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001 Any other interpretation would be repugnant to the definition of “light motor vehicle” in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of ‘light motor vehicles’ and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act ‘Transport Vehicle’ would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus: (i) ‘Light motor vehicle’ as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No. 54/1994. (ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, ‘unladen weight’ of which does not exceed 7500 kg. and holder of a driving licence to drive class of “light motor vehicle” as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form. (iii) The effect of the amendment made by virtue of Act No. 54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained “medium goods vehicle” in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and “heavy passenger motor vehicle” in section 10(2)(h) with expression ‘transport vehicle’ as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle. (iv) The effect of amendment of Form 4 by insertion of “transport vehicle” is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of “light motor vehicle” continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.” 7. The issue raised in the present appeal is squarely covered by the ratio laid down in the case of Mukund Dewangan (supra), against the respondent Insurance Company. 8. So far as the order dated 31.10.2017 in the case of Bajaj Alliance General Insurance Company Co. Ltd. (supra) passed by Hon'ble Supreme Court is concerned, a look at the order only reveals that the matter has been posted for 16.01.2018 after appointing Amicus Curiae and noticing the issue raised in the appeal, the Hon'ble Court has not granted any interim order in favour of the Insurance Company during the pendency of the special leave petition based on the submissions made by learned counsel for the petitioner - Insurance Company itself that it was not pressing for such an order. 9. Passing of the order dated 31.10.2017 by Hon'ble Supreme Court by itself cannot be termed as staying the ratio laid down in the case of Mukund Dewangan (supra). 10. In view thereof, the appeal filed by the appellants is allowed. The judgment and award dated 04.10.2016 passed by the Tribunal is modified to the extent that the finding on issue No. 3 recorded by the Tribunal is reversed and it is held that alongwith driver and owner of the vehicle, the Insurance Company would be jointly and severally liable for payment of compensation. 11. The requisite amount of compensation, in terms of the award, be paid by the respondent Insurance Company to the appellants within a period of six weeks from the date of this judgment.