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2018 DIGILAW 478 (KER)

MOHAMMED SHERIFF, S/O. KOYA v. FATHIMA SHIFA @ SHIFA, D/O. SALIM M

2018-06-22

P.D.RAJAN

body2018
JUDGMENT These appeals are preferred against the award in O.P(MV) No.304/2012 & 305/2012 of the Motor Accidents Claims Tribunal, Tirur by the owner of the vehicle. The learned Tribunal awarded Rs.1,08,000/- in O.P(MV) No.304/2012 and Rs.28,100/- in O.P(MV) No.305/2012 as compensation with 9% interest and proportionate cost and directed the insurer to satisfy the award and recover the amount from the owner of the vehicle. Being aggrieved by that direction, the owner preferred these appeals. 2. In the lower court, there was no dispute with regard to the accident. The claimant's case in both cases was that they were travelling in an autorickshaw KL-10-K-5751 through the Bypass Junction, Kuttippuram and when they reached at the place of occurrence, the vehicle hit on the back side of a stationary Lorry. The owner of the vehicle raised a contention that the vehicle was sold to one Sunil. The third respondent admitted the insurance of the vehicle, but contended that the driver was holding no valid driving licence at time of accident. The second respondent driver was set ex-parte. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A13 and Ext.C1. Respondents document was marked as Ext.B1. 3. The learned counsel appearing for the appellant contended that the driver was holding valid driving licence at the time of accident. Ext.A9 is the copy of the driving licence, but the learned Tribunal failed to appreciate the validity of the driving licence. In this context, I have examined Annexure A1 (Ext.A9), which is the certified copy of the driving licence issued by the Motor Vehicle Inspector, Tirur, which shows that the driver was holding three wheeler licence from 2000 to 2020 and badge from 2014 to 2017. If that be the position, there was no badge on 14.05.2010, the date of accident. 4. An autorikshaw is a motor cab. According to Section 2(25) says that any motor vehicle constructed to adapted to carry not more than six passengers excluding the driver for hire or reward is a “motorcab”. According to Section 2(35) motorcab is also a public service vehicle adapted to be used for the carriage of passengers for hire or reward. 4. An autorikshaw is a motor cab. According to Section 2(25) says that any motor vehicle constructed to adapted to carry not more than six passengers excluding the driver for hire or reward is a “motorcab”. According to Section 2(35) motorcab is also a public service vehicle adapted to be used for the carriage of passengers for hire or reward. According to Section 2(17) “heavy passenger motor vehicle” means any public service vehicle or private service vehicle or educational institution bus or omnibus the gross vehicle weight of any of which, or a motor car the unladen weight of which, exceeds 12,000 kilograms. According to Section 2(47) “transport vehicle” means a public service vehicle, a good carriage, an educational institution bus or a private service vehicle. 5. Apex court in Mukund Dewangan v. Oriental Insurance Company Ltd, 2017(3) KLT 1000 (SC) held as follows: “The newly incorporated expression 'transport vehicle' in S.10(2)(e) would include only the vehicles of the category as defined in S.2(16)-heavy goods vehicle, S.2(17)-heavy passenger motor vehicle, S.2(23)- medium goods vehicle and S.2(24) medium passenger motor vehicle, and would not include the 'light motor vehicle' which means transport vehicle also of the weight specified in S.2(21).” If that be the position, in view of the the decision of the apex court in Mukund Dewangan (supra), the transport vehicle include only the vehicles of the category as defined in under Section 2(16), 2(17) and heavy goods vehicle, heavy passenger vehicle, medium goods vehicle and medium passenger vehicle and would not include the light motor vehicle. If that be the position, the direction to reimburse the amount from the owner is hereby set aside. The insurer is directed to satisfy the award of the Tribunal and these appeals are disposed of as above.