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2019 DIGILAW 313 (ORI)

Sasmita Behera v. Duryodhan Behera

2019-04-12

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. Aggrieved by and dissatisfied with the award dated 03.2.2018, passed by the learned District Judge-cum-Motor Accident Claims Tribunal, Kandhamal, Phulbani, in MAC No.21 of 2016, the claimant has filed this appeal claiming higher compensation. 2. The case of the claimant was that on 22.06.2016, her five years old daughter Jyoti was travelling in an auto-rickshaw bearing registration no.OD-12-9140 from Bandaguda to Gandapada. Due to rash and negligent driving of the driver, at about 1.00 P.M. the auto-rickshaw overturned near village Rabingia. She succumbed to the injuries. Phiringia police lodged an FIR against the driver of the auto-rickshaw. With this factual scenario, the claimant has filed an application u/s.166 of the Motor Vehicles Act claiming Rs.4,00,000/- towards compensation. 3. Though the owner of the offending auto-rickshaw filed written statement, but subsequently, he was set ex parte. The insurer of the vehicle entered appearance and filed written statement denying the assertions made in the claim application. The case of the insurer was that the deceased was not travelling in the auto-rickshaw as a passenger. The offending vehicle was not insured at the time of accident. The driver did not have a valid and effective driving licence. Neither the owner of the vehicle, nor police had informed the insurer about the accident. The insurer is exonerated from its liability. The amount claimed is too high. 4. Stemming on the pleadings of the parties, learned Tribunal framed three issues. Parties led evidence, oral and documentary. On an anatomy of evidence on record and pleadings of the parties, learned Tribunal came to hold that the accident occurred due to rash and negligent driving by the driver of the auto-rickshaw bearing registration no.OD-12-9140. The driver of the vehicle did not have a valid and effective driving licence at the time of accident. Held so, it awarded an amount of Rs.2,50,000/- with interest @9% per annum from the date of filing of the claim application and mulcated liability on the owner of the vehicle. 5. Heard Mr. P. K. Mishra, learned counsel for the claimant and Mr. G.P. Dutta, learned counsel for the Insurance Company. None appears for respondent no.1. 6. Mr. Mishra, learned counsel for the appellant argues with vehemence that the driver of the offending vehicle had valid driving licence at the time of accident. 5. Heard Mr. P. K. Mishra, learned counsel for the claimant and Mr. G.P. Dutta, learned counsel for the Insurance Company. None appears for respondent no.1. 6. Mr. Mishra, learned counsel for the appellant argues with vehemence that the driver of the offending vehicle had valid driving licence at the time of accident. Learned Tribunal fell into patent error of law in mulcating liability on the owner of the vehicle, instead of insurer. He places reliance on the decision of apex Court in the case of Mukund Dewangan Vrs. Oriental Insurance Company Ltd., 2017(4) T.A.C. 11 (S.C.). 7. Per contra, Mr. Dutta, learned counsel for the respondent no.2 submits that the auto-rickshaw was a transport vehicle. The driver was authorized to drive non-transport three wheeler vehicles. He was not authorized to drive transport vehicle. The driver did not have a valid driving licence at the time of the accident. The insurer is exonerated from its liability. 8. In Mukund Dewangan (supra), the question arose before the apex Court whether a driver who is having a licence to drive light motor vehicle and is driving transport vehicle of that class is required additionally to obtain an endorsement to drive a transport vehicle? Since there was a conflict of decisions, the matter was referred to the Larger Bench. 8.1 On a survey of earlier decisions, the apex Court held : "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, 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. 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." 9. In view of the authoritative pronouncement of the apex Court in the case of Mukund Dewangan (supra), the inescapable conclusion is that the insurer is liable to pay the compensation to the claimants. 10. The interest as awarded by the learned Tribunal appears to be on the higher side. The same should be 7.5% per annum from the date of filing of the claim application. The award is modified to the aforesaid extent. The appeal is disposed of. There shall be no order as to costs.