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2022 DIGILAW 170 (TRI)

Partha Pratim Bhattacharjee v. Suku Debbarma

2022-04-02

S.G.CHATTOPADHYAY

body2022
JUDGMENT 1. The short question which arises for consideration in this appeal is whether possessor of a licence to drive a non-transport light motor vehicle (LMV NT) as well as transport vehicle (trans) is authorized to drive a heavy goods vehicle. 2. Heard Mr. S. Lodh, learned counsel appearing for the appellant. Also heard Mr. A. Gan Chowdhury, learned counsel appearing for the respondent-insurance company. Despite service of notice, original claimants did not turn up. 3. Factual context of the case is as under: Pabitra Debbarma died in a road traffic accident which occurred at Longtharai Hill, Ambassa on 20.08.2012 at about 4 O' clock in the afternoon. Offending truck bearing registration No. NL-01K-1263 was on its way from manu to Ambassa. The deceased was an Assistant of the vehicle. He received fatal injuries by falling on the road from the vehicle. Immediately, he was taken to Kulai hospital where he succumbed to his injuries. After the matter was reported to police, Ambassa P. S. Case No. 54 of 2012 under Sections 279 and 304A IPC was registered. In police investigation, accused driver of the vehicle was found guilty and charge sheet was laid against him for having committed offence punishable under Sections 279 and 304A IPC. 4. His parents, Sri Suku Debbarma and Smt. Swarnamala Debbarma claimed compensation of a sum of Rs.12,00,000/-(rupees twelve lakhs) by filing a petition under Section 166 of the Motor Vehicles Act, 1988. In their petition they impleaded the owner of the vehicle as respondent No.1 and the insurer as respondent No.2. 5. The claimants pleaded that their son died at the age of 25 years due to the negligence of the accused driver. The owner of the vehicle asserted that his vehicle had a valid registration. Even the driver had a valid driving licence and moreover, the vehicle was insured and insurance policy was in force on the date of occurrence. The owner, therefore, claimed that liability of paying compensation, if any, would be borne by the insurance company. The insurance company (respondent No.2) also appeared and pleaded that liability of the company in paying compensation would arise only in the event of submission of valid documents by the owner including a valid insurance policy. 6. The owner, therefore, claimed that liability of paying compensation, if any, would be borne by the insurance company. The insurance company (respondent No.2) also appeared and pleaded that liability of the company in paying compensation would arise only in the event of submission of valid documents by the owner including a valid insurance policy. 6. In view of the pleadings of the parties, trial court framed two issues: Whether Pabitra Debbarma died as a result of negligent driving of the offending vehicle and whether his parents were entitled to any compensation for the accidental death of their son and if so, who would be held liable to pay the compensation? 7. In the course of trial, the claimants examined only one witness viz. PW-1 and adduced certified copy of the FIR, post mortem report, charge sheet, age proof of the deceased etc. which were taken into evidence and marked as exhibits. The owner of the offending vehicle on the other hand examined himself as OPW-1 and submitted documents viz. original registration certificate of his vehicle, insurance policy, driving licence of accused driver Mitan Dey etc. which were also taken into evidence and marked as Exbt. A, B and C respectively. The insurance company, however, did not adduce any evidence at all. 8. On appreciation of evidence, the Motor Accident Claims Tribunal (No.3), West Tripura, Agartala awarded a sum of Rs.13,90,000/- along with 9% annual interest thereon to the claimants by judgment and order dated 27.05.2016 delivered in T.S(MAC) 430 of 2012. Tribunal held that the driver was authorized to drive light motor vehicle whereas the vehicle involved in the instant case was a truck. Therefore, the tribunal held that since there was a breach of the insurance policy, the insurer would not be held liable to pay the compensation. Tribunal therefore, directed the owner of the offending vehicle to pay the compensation to the parents of the deceased. Each of the parents were given equal share of the compensation. 9. Aggrieved by the award, owner of the offending vehicle challenged the judgment and award passed by the Tribunal by filing this appeal. The appeal was decided by this Court by a judgment and order dated 05.06.2020 by observing as under: '[3] This award the owner of the vehicle has challenged in the present appeal. Mr. 9. Aggrieved by the award, owner of the offending vehicle challenged the judgment and award passed by the Tribunal by filing this appeal. The appeal was decided by this Court by a judgment and order dated 05.06.2020 by observing as under: '[3] This award the owner of the vehicle has challenged in the present appeal. Mr. D.C. Roy, learned counsel appearing for the appellant submitted that the driver of the vehicle had a valid driving licence. Though it was a licence to drive a light motor vehicle, nevertheless it authorized the driver to drive a transport vehicle also. With amendments in the Motor Vehicles Act, 1988 the distinction between light motor vehicle and heavy vehicle has been obliterated. Counsel referred to the decision of this Court in case of National Insurance Company Ltd. v. Haradhan Das and others reported in (2019) 2 TLR 13 and of the Supreme Court in case of Mukund Dewangan v. Oriental Insurance Company Limited reported in AIR 2017 SC 3668 and in case of National Insurance Company Ltd. v. Annappa Irappa Nesaria alias Nesaragi and others reported in (2008) 3 SCC 464 to contend that the Claims Tribunal committed an error in absolving the insurance company of its liability to satisfy the award. [4] On the other hand, Mr. A. Gan Choudhury, learned counsel appearing for the insurance company opposed the appeal contending that the driver had a licence to drive a light motor vehicle of non-transport category. The Claims Tribunal, therefore, committed no error. The decisions cited by the counsel for the appellant would not apply in the present case. [5] The licence held by the driver of the truck was produced before the Claims Tribunal. This licence authorized the holder to drive a light motor vehicle for non-transport. Clearly thus the licence was for non-transport vehicles. Additionally, the licence authorized the holder to drive a light motor vehicle. The vehicle involved in the accident was a heavy motor vehicle and a goods carriage vehicle. The decisions cited by the counsel for the appellant, therefore, would not apply to the facts of the present case. The Claims Tribunal, in my opinion, committed no error in absolving the insurance company of its liability to satisfy the award. [6] In the result, the appeal, is therefore, dismissed. Pending application(s), if any, also stands disposed of. Records may be transmitted to the Claims Tribunal.' 10. The Claims Tribunal, in my opinion, committed no error in absolving the insurance company of its liability to satisfy the award. [6] In the result, the appeal, is therefore, dismissed. Pending application(s), if any, also stands disposed of. Records may be transmitted to the Claims Tribunal.' 10. The owner of the offending vehicle then filed a review petition against the said judgment and order dated 05.06.2020. The review petition was numbered as Rev. Ptn. No.22 of 2020 which was decided by this Court by an order dated 29.04.2021 which is as under: 'Petitioner is original appellant. His appeal was dismissed by the judgment dated 5th June, 2020 in MAC APP. No.67/2018 thereby confirming the decision of the Motor Accident Claims Tribunal exonerating the insurance company from the liability to satisfy the award on the ground that the driver of the vehicle did not have a valid driving licence to drive a heavy commercial vehicle. Learned counsel for the petitioner owner of the vehicle submitted that at the time of hearing of the appeal certain aspects and important judgments could not be brought to the notice of the Court. He further submitted that in the category of the vehicle being a goods carriage vehicle which would require a separate licence does not survive. Without expressing any opinion on the contention of the review petitioner, I find that this is a case which requires a further and fuller hearing for which purpose, the judgment dated 5th June, 2020 in MAC APP. No.67/2018 is recalled. Let the appeal be placed for final hearing before an appropriate an appropriate Court as per current roster. Review petition is disposed of. Pending application(s), if any, also stands disposed of.' 11. Pursuant to the order passed in the review petition the appeal was further taken up for hearing. The original claimants did not turn up despite receiving notice. Therefore, case was heard ex-parte against them. As stated, Mr. S. Lodh, learned advocate appeared for the appellant owner of the offending vehicle and Mr. A. Gan Choudhury, learned advocate appeared for the insurance company. 12. The original claimants did not turn up despite receiving notice. Therefore, case was heard ex-parte against them. As stated, Mr. S. Lodh, learned advocate appeared for the appellant owner of the offending vehicle and Mr. A. Gan Choudhury, learned advocate appeared for the insurance company. 12. Counsel appearing for the appellant having relied on the judgment of the Apex Court in the case of National Insurance Company Ltd. v. Annappa Irappa Nesria alias Nesragi and others; reported in (2008) 3 SCC 464 and the decision of this Court in National Insurance Company Ltd. v. Haradhan Das and Others; reported in (2019) 2 TLR 13 has contended that in view of these two decisions, a driver who had a valid driving licence to drive a transport vehicle was authorised to drive medium goods vehicle as well as heavy goods vehicle. Counsel argued that in view of the law laid down by the Apex Court in the case of Annappa Irappa Nesria (supra), there cannot be any doubt that possessor of a licence to drive a transport vehicle can also drive a heavy goods vehicle. Counsel contends that this High Court followed the ratio decided in the case of Annappa Irappa Nesria (supra) while deciding the MAC appeal in the case of Haradhan Das and Others (supra). Counsel therefore, argues that in view of the settled proposition of law, the driver of the offending vehicle cannot be said to have committed a breach of the insurance policy by unauthorisedly driving a heavy goods vehicle and therefore, liability to pay compensation cannot be shifted to the appellant-owner in the instance case. 13. Counsel appearing for the insurance company on the other hand has argued that in no circumstances a driver who is authorised to drive a light motor vehicle (LMV) and transport vehicle can be said to have been authorised to drive a truck. Counsel contends that possessor of a driving licence for driving light motor vehicle can only drive light motor vehicle and light motor transport vehicle. He is not authorised to drive a heavy goods vehicle like truck. Counsel therefore, submits that for breach of the conditions of driving licence the indemnity provided to the owner of the vehicle under the insurance policy shall not operate and, therefore, the owner of the offending vehicle is liable to pay the whole compensation. He is not authorised to drive a heavy goods vehicle like truck. Counsel therefore, submits that for breach of the conditions of driving licence the indemnity provided to the owner of the vehicle under the insurance policy shall not operate and, therefore, the owner of the offending vehicle is liable to pay the whole compensation. Counsel therefore, argues that the award of the tribunal calls for no interference in appeal. 14. Undisputedly, the driver was authorised to drive a 'transport vehicle' on the date of occurrence by virtue of the driving licence issued to him. There is no challenge, either by the claimants or by the insurance company to the amount of compensation awarded by the Tribunal. The only ground on which the owner of the offending vehicle has filed this appeal is that liability to pay compensation lies with the insurance company because the insurance policy was operative on the date of accident and there was no breach of the policy on the part of the owner. It has been contended by the appellant-owner that driver of his vehicle was authorised to drive the offending truck since he was possessing a licence for driving a 'transport vehicle'. According to the appellant, truck is a 'heavy goods vehicle' and under the Central Motor Vehicles Rules, 1989 transport vehicle' has been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. As stated, counsel of the appellant has referred to the decision of the Apex Court in the case of Annappa Irappa Nesria (supra) and the decision of this High Court in the case of Haradhan Das and Others (supra) to nourish the contention of the appellant. 15. It has been contended by Mr. Lodh, learned counsel of the appellant that truck is a heavy goods vehicle within the meaning of the Motor Vehicles Act, 1988 and heavy goods vehicle has been defined under Section 2(16) of the Motor Vehicles Act, 1988 which is as under: '2. Definitions. - In this Act, unless the context otherwise requires. ****** (16) 'heavy goods vehicle' means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms;' Counsel has contended that Rule 14 of the Central Motor Vehicles Rules, 1989 has prescribed form for obtaining driving licence. - In this Act, unless the context otherwise requires. ****** (16) 'heavy goods vehicle' means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms;' Counsel has contended that Rule 14 of the Central Motor Vehicles Rules, 1989 has prescribed form for obtaining driving licence. A person desirous of obtaining a licence to drive a motor vehicle has to apply in Form 4 which has been prescribed under Rule 14(1) of the said rules. Counsel contends that before amendment of the said Rules in 2021 there were separate entries in this form as 'medium goods vehicle' and 'heavy goods vehicle' which after amendment in 2021 has been substituted by 'transport vehicle' in Clause (e) of Form 4. 'Medium goods vehicle' and 'heavy goods vehicle' are now substituted in 'transport vehicle'. Therefore, a person who has obtained a licence for driving 'transport vehicle' by making an application in Form 4 is authorised to drive both 'medium goods vehicle' and 'heavy goods vehicle'. Counsel has referred to paragraphs 17, 18, 19, 20 and 21 of the judgment of the Apex Court in the case of Annappa Irappa Nesria (supra) which read as under: '17. Rule 14 prescribes for filing of an application in Form 4, for a licence to drive a motor vehicle, categorizing the same in nine types of vehicles. 18. Clause (e) provides for 'Transport vehicle' which has been substituted by G.S.R. 221(E) with effect from 28.3.2001. Before the amendment in 2001, the entries 'medium good vehicle' and 'heavy goods vehicle' existed which have been substituted by 'transport vehicle'. As noticed hereinbefore, 'Light Motor Vehicles' also found place therein. 19. 'Light Motor Vehicle' is defined in Section 2(21) and, therefore, in view of the provision, as then existed, it included a light transport vehicle. Form 6 provides for the manner in which the licence is to be granted, the relevant portion whereof read as under: 'Authorisation to drive transport vehicle Number.................... Date........ Authorised to drive transport vehicle with effect from............... Badge number ......... Signature Designation of the licensing authority Name and designation of their authority who conducted the driving test.' 20. From what has been noticed hereinbefore, it is evident that 'transport vehicle' has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. Date........ Authorised to drive transport vehicle with effect from............... Badge number ......... Signature Designation of the licensing authority Name and designation of their authority who conducted the driving test.' 20. From what has been noticed hereinbefore, it is evident that 'transport vehicle' has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time, to cover both, 'light passenger carriage vehicle' and 'light goods carriage vehicle'. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well. 21. The amendments carried out in the Rules having a prospective operation, the licence held by the driver of the vehicle in question cannot be said to be invalid in law.' 16. Mr. S. Lodh, learned counsel of the appellant has also referred to paragraph-12 of the judgment of this High Court in the case of Haradhan Das and Others (supra) wherein this High Court after a detailed examination of the various provisions of the Motor Vehicles Act, 1988 and the Rules made thereunder in 1989 has held as under: '12. Having regard to the legal position, as emanated on the strength of the above decision, I am of the considered view, that, when an endorsement was made in a driving licence of the driver authorizing him to drive 'Transport Vehicle', that means, the driver of the vehicle was authorized to drive 'Heavy Goods Vehicle' as the licence to drive 'Transport Vehicle' include 'Heavy Goods Vehicle', even unladen weight of which exceeds 12,000 kgs., though, in the present case, the unladen weight of the vehicle is below 7,500 kgs.' 17. In the said judgment it was categorically held by this Court that there is no need of having a separate endorsement in the licence in regard to the eligibility of the driver to drive 'heavy goods vehicle' where the licence authorises the driver to drive a 'transport vehicle'. 18. The driving licence of the driver of the offending vehicle in the instant case indicates that he was authorised to drive 'transport vehicle' and his licence was valid on the date of accident. Therefore, in view of the judgments cited to supra, there was no breach of the insurance policy. 18. The driving licence of the driver of the offending vehicle in the instant case indicates that he was authorised to drive 'transport vehicle' and his licence was valid on the date of accident. Therefore, in view of the judgments cited to supra, there was no breach of the insurance policy. Since the policy was operative on the date of occurrence, the insurance company cannot deny its liability to pay the compensation awarded by the Tribunal. 19. In the result, the appeal succeeds. The New India Assurance Company Ltd. (respondent No.3) is directed to pay the whole amount of compensation in terms of the award dated 27.05.2016 passed by Motor Accident Claims Tribunal (No.3) in T.S (MAC) 430 of 2012 within a period of 6(six) weeks from today. Amount already paid, if any, shall be deducted from the total amount of compensation. 20. In terms of the above, the appeal stands allowed and disposed of. Send down the LCR to the Tribunal along with a copy of this judgment. Since the original claimants are not appearing, the Tribunal shall inform them about the result of this appeal through a special messenger and supply a copy of this judgment to them. Pending application(s), if any, shall also stand disposed of.