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Himachal Pradesh High Court · body

2017 DIGILAW 711 (HP)

Gurpreet Singh v. Kapil Dev

2017-06-22

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, appellant/owner has assailed the award passed by the Court of learned Motor Accident Claims Tribunal, Solan, in MAC Petition No. 17-NL//2 of 2008/07, dated 26.06.2010, vide which learned Tribunal below while allowing the claim petition, held the owner and driver of the vehicle involved in the accident jointly and severally liable to indemnify the claimant. 2. Brief facts necessary for the adjudication of the present case are that a claim petition was filed before Motor Accidents Claims Tribunal, Solan, by present respondent No. 1 on the ground that on 21.11.2006 while he was going to Baddi on a motorcycle which was being driven by his brother Navdeep, at around 10:45 a.m., when they reached near village Bhud, a vehicle bearing registration No. PB-12- 9722 by came from the opposite side being driven by its driver Mohan Singh rashly and negligently which hit the motor cycle of the petitioner, on account of which, he as well as his brother fell down and suffered multiple injuries. As per the claimant, he took preliminary treatment from Civil Hospital Nalagarh and thereafter got his right leg operated upon in PGI Chandigarh and thereafter twice at Ortho Hospital, Anandpur Sahib. On these bases, he filed the claim petition mentioning therein that he was disabled on account of accident which took place due to rash and negligent driving of the offending vehicle by its driver. He claimed compensation to the tune of Rs. 5,00,000/- from the respondents. 3. Learned Tribunal vide its award dated 26.06.2010 allowed the claim petition with costs and awarded compensation in favour of claimant in the following terms. “In view of my discussion and conclusions on aforesaid issues, the petition is allowed with costs assessed at Rs. 1000/- and an award of Rs. 1,92,800/- (Rupees one lac ninety two thousand eight hundred only) with interest at the rate of 7.5 % per annum from the date of petition i.e. 16-6-2007 till its deposit in this Tribunal, inclusive of the amount of interim compensation, if any paid or payable under section 140 of the Motor Vehicles Act is passed in favour of the petitioner and against respondents 1 and 2 jointly and severally. However, this account of compensation shall be paid by respondent No. 1, the owner of the offending vehicle. However, this account of compensation shall be paid by respondent No. 1, the owner of the offending vehicle. Memo of costs be prepared and the file after due completion be consigned to records.” 4. Thus while allowing the claim petition, it was held by the learned Tribunal that the amount of compensation shall be paid by respondent No. 1, i.e. owner of the vehicle. 5. Feeling aggrieved by the award so passed by the learned Tribunal, the owner of the vehicle has filed this appeal. 6. Mr. Deepak Kaushal, learned Counsel for the appellant/owner has argued that the conclusion arrived at by the learned Tribunal that in the absence of there being any endorsement on the licence of the driver to the effect that he was entitled to drive heavy transport vehicle there was breach of the terms of the Insurance Policy and that the driver in issue was not holding valid and effective driving licence, are perverse findings because while arriving at the said conclusion, learned Tribunal has erred in not appreciating the statutory provisions of Section 10 of the Motor Vehicle Act, as they stood post amendment carried out in the same in the year 1994, as well as the endorsements in the licence of the driver which clearly and categorically demonstrated that the driver in fact was possessing a valid and effective driving licence, as on the date of the accident, to drive a “Transport Vehicle” and the vehicle which was involved in the accident happened to be a “Transport Vehicle”. 7. On the other hand, Mr. Raman Sethi, learned Counsel for respondent No. 3/Insurance Company has argued that there is no infirmity in the findings so returned by learned Tribunal because in the absence of there being any endorsement on the driving licence of the driver to the effect that he was entitled to drive a ‘Heavy Transport Vehicle’, the Insurance Company could not have been ordered to indemnify the amount of the compensation as the offending vehicle was being driven on the date of the accident in breach of the terms of the Insurance Policy. 8. I have heard learned Counsel for the parties and also gone through the records of the case as well as the award passed by the learned Tribunal below. 9. 8. I have heard learned Counsel for the parties and also gone through the records of the case as well as the award passed by the learned Tribunal below. 9. Learned Tribunal in para 17 of the award under challenge has held that Registration Certificate of the offending vehicle demonstrated that it was a Heavy Transport Vehicle. Learned Tribunal further held that driving licence Ext. RW1/A does not reveal that the driver, by virtue of the said licence, at the relevant time, was authorized to drive heavy transport vehicle as there was no endorsement on the same to this effect. On these bases, it was further held by the learned Tribunal the driver was not holding valid and effective driving licence to drive the offending vehicle and therefore compensation was liable to be paid by the owner of the vehicle. 10. In my considered view, the findings so returned by the learned Tribunal are perverse and not sustainable either on facts or law. A perusal of the driving licence which was being possessed by driver as on the date when the accident took place demonstrates that the driver was authorized to drive both a ‘light motor vehicle’ as well as a ‘transport vehicle’. This is per se evident from the perusal of the driving licence itself in which it is clearly mentioned that the licensee was licensed to driver throughout India a vehicle of the description mentioned therein i.e. “Light Motor Veh., Transport Veh.” 11. Section 10 of the Motor Vehicle Act as it stands post amendment carried out in the year 1994 reads as under:- “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) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) transport vehicle; (i) road-roller; (j) motor cycle of a specified description. 12. It is not in dispute that the vehicle involved in the accident which was being driven by the driver was in fact a transport vehicle. 12. It is not in dispute that the vehicle involved in the accident which was being driven by the driver was in fact a transport vehicle. However, because the said vehicle was a heavy motor vehicle, therefore, as per learned Tribunal, endorsement to this effect ought to have been on the licence. 13. Subsection 2 of Section 10 of the Motor Vehicle Act stipulates that a driving licence should expressly mention that it entitles the holder of the same to drive a motor vehicle of one or more of classes mentioned therein. Now, the classes in said sub Section have already been quoted above. This does not include a heavy motor vehicle as a different and distinct category. After the amendment carried out in the year 1994 in Section 10 supra, the un-amended provisions which contained four clauses of vehicle i.e. (a) Light motor vehicle (b) Light Goods Vehicle (c) Heavy Goods vehicle and (d) Heavy passenger vehicle have been confined/converted to one class/category i.e. “transport vehicle”. This very important aspect of the matter has not been taken into consideration by the learned Tribunal while fastening the liability upon the present appellant. In my considered view, as the licence possessed by the driver as on the date when the accident took place authorized him to drive the transport vehicle and admittedly the vehicle involved in the accident was a transport vehicle, the liability to pay the compensation was not that of the owner but it was for the Insurance Company to have had indemnified the said liability of the owner as no breach of conditions of the Insurance Policy was there. 14. Accordingly, in view of the discussion held hereinabove, this appeal is allowed and the impugned award is modified to the extent that the compensation so awarded by the learned Tribunal shall be paid by the Insurance Company i.e. respondent No. 3 before the learned Tribunal and as well before this Court and not by the present appellant. 15. The Registry is directed to release the amount so deposited by the appellant in the bank account of the appellant with up-to-date interest, details of which shall be furnished by the appellant to the Registry. 16 . The appeal stands disposed of in the above terms, so also pending miscellaneous applications, if any. Cross Objection No. 245 of 2011. 17. The Registry is directed to release the amount so deposited by the appellant in the bank account of the appellant with up-to-date interest, details of which shall be furnished by the appellant to the Registry. 16 . The appeal stands disposed of in the above terms, so also pending miscellaneous applications, if any. Cross Objection No. 245 of 2011. 17. Primarily, by way of the cross objections, the objector has assailed the compensation awarded by the learned Tribunal on the ground that the compensation so awarded is on the lower side as learned Tribunal erred in not considering the income tax return which was filed by the claimant pertaining to the year 2009-10. 18. I have heard learned Counsel for the parties and also gone through the averments made in the cross objections as well as the award passed by learned tribunal below. A perusal of para 13 of the award passed by learned Tribunal demonstrates that learned Tribunal has not only taken into consideration the income tax return so filed by the claimant before it for the year 2009-10, Ext. PA, but it also discussed therein as to why the same has not been made basis for determining the compensation. The reasoning which has been given by learned Tribunal for the same was that the accident took place in the year 2006 whereas the income tax return pertained to the year 2009-10 and there was no cogent material placed on record by the claimant from which it could be inferred as to what was his income as on the date when the accident took place. 19. In my considered view, the findings so returned by the learned Tribunal are duly borne out from the records of the case and the same are not perverse, neither can it therefore be said that the compensation so assessed by the leaned Tribunal is on the lower side, as has been urged by the learned Counsel for the objector. Accordingly, as there is no merit in the cross objections, the same are dismissed. No orders as to costs.