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2021 DIGILAW 145 (JK)

National Insurance Company Limited v. Abdul Majeed

2021-04-01

VINOD CHATTERJI KOUL

body2021
Judgment Vinod Chatterji Koul, J.-Impugned in this Appeal is Award dated 24th December 2014, passed by Motor Accident Claims Tribunal, Kargil (for short “Tribunal”) on a Claim Petition bearing File no. 08/Claim titled Abdul Majeed and Others v. Showkat Ahmad Dar and others, directing appellant Insurance Company to pay compensation in the amount of Rs. 19,42,092/- along with 6% interest per annum from the date of institution of claim till realization, on the grounds made mention of therein. 2. A claim petition, as is discernible from perusal of the file, was filed by claimants/respondents 1 to 5, before the Tribunal on 1st July 2007, averring therein that deceased, Niyaz Ahmad S/o Abdul Majeed R/o Bearas Troungen Drass, Kargil, aged 28 years, died in an accident, which took place on 20th November 2009, at Drass, due to rash and negligent driving of driver of offending vehicle, bearing Registration no.JK01K-5324, which was insured with appellant Insurance Company. Claimants/Respondents 1 to 5, in their claim petition before the Tribunal, sought grant of compensation of Rs.35.00 Lakhs along with interest. 3. Appellant Insurance Company resisted the claim before the Tribunal on the ground that the driver of offending vehicle was not having valid and effective driving licence at the time of alleged accident. It was also stated that offending vehicle at the time alleged accident was being driven in violation of terms and conditions of the policy of insurance, permit and provisions of the Motor Vehicle Act. It was admitted that the offending vehicle stood insured with the appellant-Insurance Company and the particulars of insurance as recorded in the records of the company were not same as mentioned in the claim petition, but the involvement of the said vehicle in the alleged accident was vehemently denied. 4. The Tribunal, in view of pleadings of parties, framed five Issues for determination, which are: 1. Whether the deceased Niyaz Ahmad S/o Abdul Majeed R/o Bearas Troungen Drass, Kargil, died in a vehicular accident at Drass on 20th November 2009, when he was hit by vehicle no. JK07/5324 was being driven by its driver (respondent no.2) in a rashly and negligently? OPP. 2. In case issue no.1 is proved in affirmative then to what quantum of compensation the petitioners are entitled to and from whom? OPP. 3. Whether the offending vehicle bearing registration no. JK07/5324 was being driven by its driver (respondent no.2) in a rashly and negligently? OPP. 2. In case issue no.1 is proved in affirmative then to what quantum of compensation the petitioners are entitled to and from whom? OPP. 3. Whether the offending vehicle bearing registration no. JK01K-5324 was being driven by the driver without possessing a driving licence and if so what is its effect? OPD 3. 4. Whether the vehicle was being driven in violation of conditions of policy of insurance permit and provisions of Motor Vehicles Act and if so, what is its effect? OPD 3. 5. Relief. OP Parties. 5. Claimants produced and examined two witnesses before the Tribunal; besides claimant/respondent no.1. Appellant Insurance Company has produced two witnesses in support of its stand. 6. By impugned Award, the Tribunal found claimants/respondents entitled to receive compensation of Rs. 19,42,092/- along with 6% interest per annum. 7. Heard and considered. 8. Learned counsel for appellant Insurance Company has stated that the Tribunal has not dealt with Issue nos.3 and 4 in proper perspective. Respondent no.7, driver of offending vehicle, was not having valid and effective driving licence at the time of accident, but the Tribunal did not properly appreciate this aspect of the matter while deciding Issue nos.3 and 4. According to him, finding returned by the Tribunal on Issue no.4 is bad in law as there was breach on the part of owner of offending vehicle and, therefore, insurance company is not bound to prove terms and conditions of insurance policy. Offending vehicle was a transport vehicle and driver was not holding authorization to drive a transport vehicle on the date of accident. Vehicle is also stated to have been driven without any route permit and fitness certificate, and that is the reason that police registered case under Sections 56/192, 39/192, 190 (2) of Motor Vehicles Act. All these sections of Motor Vehicles Act prohibit owner to bring transport vehicle on road at a public place without a route permit and fitness certificate. And the said violations also exonerate appellant Insurance Company from any liability arisen under the policy of insurance. Framing of charges for violation of these sections of Motor Vehicles Act was sufficient to exonerate appellant insurance company from any liability. The Tribunal is stated to have not dealt with the status of deceased in offending vehicle properly. And the said violations also exonerate appellant Insurance Company from any liability arisen under the policy of insurance. Framing of charges for violation of these sections of Motor Vehicles Act was sufficient to exonerate appellant insurance company from any liability. The Tribunal is stated to have not dealt with the status of deceased in offending vehicle properly. The deceased was travelling as passenger in offending vehicle. Though offending vehicle was a transport vehicle meant for carrying load and not for carrying passenger, the Tribunal has presumed deceased to be owner of goods. There is no direct evidence on record to show that deceased was travelling as owner of goods in Tata Mobile, the offending vehicle. Therefore, finding returned on this point is stated to be bad in law and fixation of liability on the appellant is contrary to law and deserves to be set-aside. It is also contended by counsel for appellant Insurance Company that respondent no.6 as owner of the offending vehicle had allowed the deceased to travel in the goods vehicle as gratuitous passenger and for which the policy of insurance does not provide the cover. The finding, therefore, is contrary to law laid down in Section 147 of the Motor Vehicles Act and deserves to be set-aside. The above submissions of learned counsel for appellant Insurance Company, when examined in the context of impugned Award, more particularly when the Tribunal while deliberating upon and deciding Issue nos. 3&4, have taken care of all the aspects of the matter that were required to be looked into by it while rendering the judgment. Perusal of impugned Award reveals that driver of offending vehicle was having driving licence to ply (b and) type of vehicles, i.e., motor cycle with gear and Light Motor Vehicle with further endorsement of LTD vide no.2801 from RTO Kargil. Insofar gratuitous passenger is concerned, as is evident from perusal of impugned Award, the witnesses led by claimants have deposed that deceased was carried in offending vehicle as owner of goods. 9. It is pertinent to mention here that the Supreme Court in National Insurance Company Limited v. Annappa Irappa Nesara, 2008 AIR SC Weekly 906, has been held that a driver who has a valid licence to drive a light motor vehicle, can drive light goods vehicle as well. 9. It is pertinent to mention here that the Supreme Court in National Insurance Company Limited v. Annappa Irappa Nesara, 2008 AIR SC Weekly 906, has been held that a driver who has a valid licence to drive a light motor vehicle, can drive light goods vehicle as well. The similar view has also been reiterated and followed by this Court in National Insurance Company v. Rameez Ahmad, 2015 (1) SLJ 45. That apart, the Supreme Court in Mukund Dewangan v. Oriental Insurance Company Limited (2016) 4 SCC 298 , has held that ‘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. 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 60 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. The effect of the amendment made by virtue of Act No. 54/1994 w.e.f. 14th November 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. 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. 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. The relevant portion of the judgment is reproduced hereunder: “43. Section 10(2) (a) to (j) lays down the classes of vehicles to be driven not a specific kind of motor vehicles in that class. If a vehicle falls into any of the categories, a licence holder holding licence to drive the class of vehicle can drive all vehicles of that particular class. No separate endorsement is to be obtained nor provided, if the vehicle falls in any of the particular classes of section 10(2). This Court has rightly observed in Nagashetty (supra) that in case submission to the contrary is accepted, then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle it by itself does not mean that driver ceased to have valid driving licence. In our considered opinion, even if such a vehicle is treated as transport vehicle of the light motor vehicle class, legal position would not change and driver would still have a valid driving licence to drive transport vehicle of light motor vehicle class, whether it is a transport vehicle or a private car/tractor attached with trolley or used for carrying goods in the form of transport vehicle. The ultimate conclusion in Nagashetty (supra) is correct, however, for the reasons as explained by us. 44. In Natwar Parikh & Co. The ultimate conclusion in Nagashetty (supra) is correct, however, for the reasons as explained by us. 44. In Natwar Parikh & Co. Ltd. v. State of Karnataka & Ors. (2005) 7 SCC 364 , this Court was concerned with the taxation under the Karnataka Motor Vehicles Taxation Act, 1957 and question arose whether the tractor along with trailer for transporting goods was to constitute distinct category of goods carrier which requires permission under Section 2(14) of the Motor Vehicles Act, 1957 and absence thereof would render it liable to tax under Section 3(2). This court held that the tractor when attached with the trailer carrying goods, would become a transport vehicle for the purpose of taxation. This Court has discussed the question thus: “Section 2(28) is a comprehensive definition of the words “motor vehicle”. Although a “trailer” is separately defined in Section 2(46) to mean any vehicle drawn or intended to be drawn by a motor vehicle, it is still included in the definition of the words “motor vehicle” under Section 2(28). Similarly, the word “tractor” is defined in Section 2(44) to mean a motor vehicle which is not itself constructed to carry any load. Therefore, the words “motor vehicle” have been defined in the comprehensive sense by the legislature. Therefore, we have to read the words “motor vehicle” in the broadest possible sense keeping in mind that the Act has been enacted in order to keep control over motor vehicles, transport vehicles, etc. A combined reading of the aforestated definitions under Section 2, reproduced hereinabove, shows that the definition of “motor vehicle” includes any mechanically propelled vehicle apt for use upon roads irrespective of the source of power and it includes a trailer. Therefore, even though a trailer is drawn by a motor vehicle, it by itself is a motor vehicle, the tractor-trailer would constitute a “goods carriage” under Section 2(14) and consequently, a “transport vehicle” under Section 2(47). The test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods, it can be stated that it is adapted for the carriage of goods. The test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods, it can be stated that it is adapted for the carriage of goods. Applying the above test, we are of the view that the tractor-trailer in the present case falls under Section 2(14) as a “goods carriage” and consequently, it falls under the definition of “transport vehicle” under Section 2(47) of the MV Act, 1988.” There is no dispute with the aforesaid proposition, that tractor if drawing a trailer with goods would constitute goods carrier and consequently would be a transport vehicle. The aforesaid discussion was with respect to taxation and not with respect to the competence of driver holding light motor vehicle licence to drive the tractor attached with trailer/trolley carrying goods. The driver had the competence to drive such a vehicle, tractor with a trailer carrying goods being of light motor vehicle category transport vehicle which is the question involved in the instant case. Therefore, the decision renders no help with the cause espoused by the insurer. 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 maxicab, 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. 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 59 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. 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 60 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.” 10. In view of the above reproduced excerpt of the judgement in Mukund Dewangan (supra), there is no substance in the submission of learned counsel for appellant qua validity of driving licence of offending vehicle. Thus, the Tribunal has rightly decided Issue nos.3&4 against appellant Insurance Company. 11. In view of the above reproduced excerpt of the judgement in Mukund Dewangan (supra), there is no substance in the submission of learned counsel for appellant qua validity of driving licence of offending vehicle. Thus, the Tribunal has rightly decided Issue nos.3&4 against appellant Insurance Company. 11. Learned counsel for appellant Insurance Company also states that quantum of compensation for loss of estate, funeral expenses, and loss of consortium is excessive and deserves to be set-aside. This submission of learned counsel for appellant is also misconceived, in view of law laid down by the Supreme Court in National Insurance Company v. Pranay Sethi AIR 2017 SC 5157 , followed by a catena of judgments, reiterating the said dictum. Resultantly impugned Award need not be interfered with and Appeal on hand is liable to be dismissed. 12. For the reasons discussed above, the instant Appeal is dismissed. Interim direction, if any, shall stand vacated. 13. Record of the Tribunal, if summoned/received, be sent down along with copy of this judgement.