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2017 DIGILAW 812 (JK)

Trilochan Dutt v. New India Assurance Co. Ltd.

2017-09-07

B.S.WALIA

body2017
JUDGMENT : B.S. Walia, J. 1. This judgment will decide six appeals i.e. CIMA No. 186, 187 & 188/2010, filed by the owner of the offending vehicles, CIMA No. 190/2010, filed by Geeta Devi (Claimant), CIMA No. 191/2010, filed by Anita Devi and Another (Claimants) and CIMA No. 443/2010, filed by Pinki Devi and Others (Claimants). Prayer in CIMA No. 186, 187 and 188/2010 is for accepting the appeal, setting aside the award against the appellant, for passing the same against the New India Assurance Company Limited and holding it to be under legal obligation to indemnify the appellant owner against third-party. 2. Prayer in CIMA No. 190, 191 & 443/2010, filed by Geeta Devi (Claimant), Anita Devi and another and Pinki Devi and 3 others (Claimants) respectively is for setting aside the finding of the MACT on issue Nos. 3 & 4 and to hold the insurer alone to be liable for payment of compensation as also for enhancing the compensation to Rs. 45 lakhs, Rs. 45 lakhs and Rs. 35 lakhs respectively. 3. At the very outset, learned counsel for the parties state that they are in agreement that the decision of Hon'ble the Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Ltd. in Civil Appeal No. 5826 of 2011 squarely covers the matter in issue i.e. it is not necessary that there should be an endorsement of PSV on LMV licence for same class of vehicle i.e. the weight of which does not exceed 7500 kg and which falls under LMV category, therefore, the findings of the MACT on issue Nos. 3 and 4 are liable to be reversed. 4. On query with regard to the weight of the offending vehicle, learned counsel for the appellants very fairly conceded that the weight of the vehicle was not on record. He, however, produced copy of certificate of registration of the offending vehicle reflecting the gross vehicle weight as certified by the manufacturer to be 5300 kg and prayed that copy of certificate of registration of the offending vehicle reflecting the total weight of the vehicle be taken on record. Prayer made is not opposed by the learned counsel for the Insurance Company. Prayer made is not opposed by the learned counsel for the Insurance Company. In the circumstances, copy of certificate of registration of the offending vehicle reflecting the gross weight of the offending vehicle as 5300 kg which is below the limit of 7500 kg for LMV vehicle is taken on road. 5. Learned counsel for the appellants contend that since admittedly the driver of the offending vehicle was having a licence for driving a LMV Vehicle of which the gross vehicle weight was 5300 kg, therefore, in the light of the decision of Hon'ble the Supreme Court In Mukund Dewangan's case (supra), findings on issue Nos. 3 and 4 were liable to be reversed and the Insurance Company held liable to make payment of compensation to the claimants as against the earlier requirement of the owner of the vehicle to make the payment of compensation. Learned counsel for the claimant contends that he does not press the relief for enhancement and confines the relief claimed only to the prayer for reversing the findings recorded by the learned MACT on issue Nos. 3 and 4. No other point has been addressed by either of learned counsel for the parties. 6. Brief facts of the case leading to the filing of the aforementioned appeals are that claim petition U/S. 166/140 of the Motor Vehicles Act was filed by Geeta Devi widow of Shri Somnath, Anita Devi widow and minor child of Shri Swaran Singh and by Pinky Devi widow, 2 minor children and parents of Shri Kuldeep Kumar respectively seeking compensation on account of death of Shri Somnath, Shri Swaran Singh and Shri Kuldeep Kumar respectively in an accident on 24.05.2006 involving motorcycle No. JK 02V 2717 on which the deceased were travelling and Matador No. JK 02X 9427 driven by respondent No. 1 i.e. Khem Raj in a rash and negligent manner at excessive speed. All 3 deceased were serving in the Indian Army and were aged 27, 27 and 31 years respectively and were drawing Rs. 9000/-, Rs. 9500/- and Rs. 9000/- respectively besides getting various perquisites from the government, viz. ration, uniform, accommodation, medical care, children education loans, railway fare etc. Compensation claimed was Rs. 45 lakhs, Rs. 45 lakhs and Rs. 25.14 Lacs in each of the claim petitions respectively. 7. 9000/-, Rs. 9500/- and Rs. 9000/- respectively besides getting various perquisites from the government, viz. ration, uniform, accommodation, medical care, children education loans, railway fare etc. Compensation claimed was Rs. 45 lakhs, Rs. 45 lakhs and Rs. 25.14 Lacs in each of the claim petitions respectively. 7. New India Assurance Company Limited resisted the claim petitions inter-alia on the ground that at the time of accident, the driver of the offending vehicle was not holding a valid and effective driving licence with PSV endorsement, therefore the offending vehicle was being driven in contravention of the terms and conditions of the insurance policy, registration certificate, route permit and fitness. The driver and the owner of the offending vehicle in their joint disclaimer denied majority of the averments in the claim petition including negligence on the part of the driver of the offending vehicle in causing the accident. However they admitted the registration number, ownership and insurance of the offending vehicle on the date of accident. In the aforementioned background, the driver, owner and insurer of the offending vehicle prayed- for dismissal of the claim petitions. 8. That on the pleading of the parties the following issues were framed:- 1. Whether on 24.05.2006 an accident occurred at Kheri Tehsil Bishnah by rash and negligent driving of offending vehicle No. JK 02X 9427 being driven in a rash and negligent manner in the hands of erring driver in which deceased Som Nath, Swaran Singh and Kuldeep Kumar sustained fatal injuries? OPP 2. If issue No. 1 is proved in affirmative whether petitioners are entitled to the compensation in each case; if so to what amount and from who? OPP 3. Whether driver of offending vehicle at the time of the accident was not holding valid and effective driving licence and drove the vehicle in contravention of terms and conditions of insurance policy; if so how and what is the effect? OPR-NIAC 4. Whether driver Khem Raj at the time of accident did not possess a license with PSV endorsement; if so how? OPR-NIAC 5. Relief. OP Parties. 9. Khem Raj, driver of offending vehicle produced a copy of his driving licence bearing No. 1049/MVD/RTOJ/98 issued by the RTO, Jammu on 20.10.1998 while stating that he had brought the original of the same. He stated that he was illiterate and did not know whether he was competent to drive LMV, MGV and HGV. OPR-NIAC 5. Relief. OP Parties. 9. Khem Raj, driver of offending vehicle produced a copy of his driving licence bearing No. 1049/MVD/RTOJ/98 issued by the RTO, Jammu on 20.10.1998 while stating that he had brought the original of the same. He stated that he was illiterate and did not know whether he was competent to drive LMV, MGV and HGV. He stated that he could not tell when PSV endorsement was made on the license but the date of PSV was 29.12.2006. He stated that he did not know whether on 24.05.2006 his driving licence was valid or not, that prior to 29.12.2006 there was no PSV endorsement on the license. In cross-examination by counsel for respondent No. 2 he stated that he did not know whether prior to the year 2006 his driving licence was having PSV endorsement or not. In cross-examination by counsel for the insurer he stated that it was incorrect that on 24.05.2006 he was driving Matador which met with an accident in which some people died. He stated that a fake challan had been produced against him in the Court at Bishnah and that he did not know as per license which vehicle he was competent to drive. 10. RW Jagadish Raj, Clerk, RTO, Jammu stated that he had brought original record of driving licence No. 1049/MVD/RTOJ/98, the same was issued on 20.10.1998 for LMV/ HGV, PSV endorsement was made on the license on 29.12.2006. In cross-examination he stated that the driving licence was renewed from 28.10.2004 to 27.10.2007 and that PSV endorsement was not made on it. Regarding PSV endorsement he stated that same was maintained in a separate register which he had not brought with him. 11. The MACT took into account that immediately after the accident, case for causing accident by erring driver Khem Raj involving offending vehicle was lodged with the concerned police station and that the name of the erring driver, number of offending vehicle as well as names of deceased were mentioned in the challan, death of deceased had been proved from respective post mortem reports on the files and in the aforementioned background held driver Khem Raj guilty for causing the accident involving the offending vehicle resulting in fatal injuries to the deceased, accordingly decided issue No. 1 in favour of the claimants. 12. Regarding issue Nos. 12. Regarding issue Nos. 3 and 4, the MACT took into account the evidence of PW's Khem Raj, driver of the offending vehicle and Jagadish Raj Clerk, RTO Jammu and on the basis of the aforementioned evidence held that it stood clearly prove that the driver of the offending vehicle at the time of the accident was not holding a valid and effective driving licence. Photocopy of the D/L on file also revealed that PSV endorsement was made on it on 29.12.2006 i.e. after about 7 months of the accident. Accordingly issue Nos. 3 and 4 were decided in favour of the respondent insurer and against the claimants. 13. Regarding issue Nos. 2 and 5, the MACT on the basis of evidence awarded total compensation of Rs. 20,93,279/- to Geeta Devi widow of Shri Somnath in the light of decision of the Gujarat High Court and the Hon'ble Supreme Court, total compensation of Rs. 22,13,279/- to Anita Devi widow and minor child of Shri Swaran Singh and total compensation of Rs. 24,26,250/- to claimant Pinky Devi and her 2 minor children besides father and mother of deceased Shri Kuldeep Kumar. The aforementioned amount minus compensation received by the claimants in each case u/s. 140 of the Motor Vehicles Act on the basis of "No-Fault Liability" was accordingly awarded in favour of the claimants as against the owner of the offending vehicle to be satisfied by him along with interest at the rate of 7.5% per annum with effect from the date of filing of the claim petition till liquidation. 14. I have heard learned counsel for the parties and considered their submissions in the light of the decision of the Hon'ble Supreme Court as agreed by counsel for the parties to be covering the matter in issue in favour of the appellants. The matter is no longer res integra in view of the decision of the Hon'ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Co. Ltd. 2016 (4) JKJ 64 (SC) in Civil Appeal No. 5826 of 2011 decided on 11.02.2016. Hon'ble Supreme Court while framing the following questions referred the matter to the Larger Bench in Civil Appeal No. 5826 of 2011: 1. What is the meaning to be given to the definition of "light motor vehicle" as defined in Section 2(21) of the MV Act? Whether transport vehicles are excluded from it? 2. Hon'ble Supreme Court while framing the following questions referred the matter to the Larger Bench in Civil Appeal No. 5826 of 2011: 1. What is the meaning to be given to the definition of "light motor vehicle" as defined in Section 2(21) of the MV Act? Whether transport vehicles are excluded from it? 2. Whether 'transport vehicle' and 'omnibus' the "gross vehicle weight" of either of which does not exceed 7500 kgs. would be a "light motor vehicle" and also motor-car or tractor or a road roller, "un-laden weight" of which does not exceed 7500 kgs. and holder of licence to drive class of "light motor vehicle" as provided in Section 10(2)(d) would be competent to drive a transport vehicle or omnibus, the "gross vehicle weight" of which does not exceed 7500 kgs. or a motor-car or tractor or road roller, the "un-laden weight" of which does not exceed 7500 kgs.? 3. What is the effect of the amendment made by virtue of Act No. 54 of 1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of Section 10(2) which contained "medium goods vehicle", "medium passenger motor vehicle", "heavy goods vehicle" and "heavy passenger motor vehicle" by "transport vehicle"? Whether insertion of expression 'transport vehicle' under Section 10(2)(e) is related to said substituted classes only or it also excluded transport vehicle of light motor vehicle class from purview of Sections 10(2)(d) and 2(41) of the Act? 4. What is the effect of amendment of the Form 4 as to operation of the provisions contained in Section 10 as amended in the year 1994 and whether procedure to obtain driving licence for transport vehicle of class of "Light Motor Vehicle" has been changed" 15. The Hon'ble Supreme Court while answering the reference in Mukund Dewangan vs. Oriental Insurance Company Ltd. 2016 (4) JKJ 64 (SC) (Civil Appeal No. 5826 of 2011) held as under: 45. Transport vehicle has been defined in Section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in Section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxi cab, a motor cab, contract carriage, and stage carriage. Public service vehicle has been defined in Section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxi cab, a motor cab, contract carriage, and stage carriage. Goods carriage which is also a transport vehicle is defined in Section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994. 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. 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, 'un-laden 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 "un-laden 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. 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. 16. In the instant case, the driver of the offending "Passengers Carrying Commercial Vehicle" possessed driving licence No. 1049/MVD/RTOJ/98, dated 20/10/1998 authorising him to drive "Light Motor Vehicle", "Medium Goods Vehicle" and "Heavy Goods Vehicle" and the un-laden weight of the offending vehicle as mentioned in the Registration Certificate was 5300 KG's. As per Section 2 (10) driving licence means a licence issued by the competent authority authorising the person specified therein to drive otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description. Matador bearing registration No. JK 02X - 9427 registered as "Passenger Carrying Vehicle" is described as "Public Service Vehicle" therefore falls within the definition of "Transport Vehicle" as defined in Section 2 (47) of the Motor Vehicles Act, 1988. Transport Vehicle means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. 17. Matador bearing registration No. JK 02X - 9427 registered as "Passenger Carrying Vehicle" is described as "Public Service Vehicle" therefore falls within the definition of "Transport Vehicle" as defined in Section 2 (47) of the Motor Vehicles Act, 1988. Transport Vehicle means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. 17. No doubt PSV endorsement was made on the licence of the driver of the offending vehicle only on 29.12.2006 whereas the accident took place on 24.05.2006. However, the mere fact that there was no endorsement on the licence on the day of the accident authorising the driver of the offending vehicle to drive Passenger Carrying Commercial Vehicle No. JK 02X - 9427 will not absolve the insurance company of its liability to pay compensation to the claimant's in view of the decision of the Hon'ble Supreme Court in the case of Mukund Dewangan (Supra). 18. Hon'ble Supreme Court after taking note of the relevant provisions of law as well as various judgments held that a '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) and such transport vehicles were not excluded from the definition of light motor vehicle by virtue of Amendment Act No. 54/1994. Hon'ble Supreme Court also held that a transport vehicle and omnibus, the gross vehicle weight of either of which did not exceed 7500 kg. would be a light motor vehicle 'un-laden 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 "un-laden weight" of which does not exceed 7500 kg. In other words, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. 19. or a motor car or tractor or road-roller, the "un-laden weight" of which does not exceed 7500 kg. In other words, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. 19. In view of the aforesaid authoritative pronouncement of the Hon'ble Supreme Court in the case of Mukund Dewangan, there is no requirement for the driver of the offending vehicle to have an separate endorsement to drive the offending vehicle i.e. a transport vehicle, as he was holding a licence to drive a light motor vehicle, therefore he could drive the transport vehicle of such class without any endorsement to that effect. Besides, in S. Iyyapan vs. United India Insurance Co. Ltd. and Another, AIR 2013 SC 2262 it was held that mere absence of PSV endorsement would not exonerate the insurance of its statutory liability to pay compensation. Resultantly, the appeals are accepted. Findings of the learned MACT on issue Nos. 3 & 4 are reversed. The Insurance Company is held liable to compensate the claimant appellants. No other point has been argued nor claim for enhancement pressed. Appeals allowed in aforementioned terms.