National Insurance Co Ltd v. Maya & Ors

ORDER

25.10.2010 : REV A KHETRAP AL, J. (ORAL)

¶1This appeal under Section 173 of the Motor Vehicle Act, 1988 has been preferred by the appellant against the award dated 06.07.2010 passed by the learned Motor Accident Clain1s Tribunal in the sun1 of' 9,72,000/- with the direction to the appellant Cmnpany to pay the aforesaid mnount to the respondents No.1 to 4.

¶2The respondents No.1 to 4 arc the legal representatives of the MAC APP.697/2010 Page 1 o(7 I Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. CD deceased Dil Bahadur, who tnet with a fatal accident on 19.04.2009 while crossing the road under Metro Line near Apsra Border Red Light, Delhi, where he was hit by a tnaruti van bearing No.DL-lLE-6634 being driven by the respondent No.5 and owned by the respondent No.6 herein. An FIR in respect of the aforesaid accident under Sections 239/304A IPC was registered at Police Station SeeJna Puri, Delhi on the smne date. I-Iis post-1norte1n was conducted and the cause of his death was opined to be 'shock as a result of ante-tnortmn injuries to the head produced by blunt force i1npact'. The Motor Accident Clai1ns Tribunal having proceeded to pass the afore1nentioned award in favour of the legal representatives of the deceased, the present appeal has been filed by the Insurance Cmnpany on the sole ground that the Tribunal was not justified in not granting recovery rights to appellant Cmnpany, despite the fact that there was a violation of the condition of i:he insurance policy with respect to the category of vehicle being driven by the respondent No.5 at the ti1ne of the accident.

¶3Ms. Sonia Sharma, the leatned counsel for the Insurance Cmnpany contends that the ilnpugned award is liable to be set aside as the Tribunal cmnpletely ignored the fact that the vehicle driven by the driver (the respondent No.5 herein) was a LMV transport vehicle and the insurance policy had been issued by the appellant Cmnpany for a cmn1nercial vehicle whereas the licence possessed by the driver (the respondent No.5 herein) was for LMV (NT) ard was not valid for the Page 2 o(7 }_ said vehicle. Her sub1nission is that the vehicle could have been driven only by a person holding a valid and effective licence to drive the particular class of vehicles and that in the instant case there was a clear violation of the tenns and conditions of the policy. Consequently, the award was liable to be set aside.

¶4The relevant pottion of the award, which is ilnpugned, reads as under: "28. So far as this issue is concerned, respondent no.3 examined one Sh. Dinesh Kumar, LDC, North Eash Zone Transport Deptt. lie deposed that he has brought the attested record of driving licence of Sh. Flem Singh vide IJL No.P-05112007352810 for the period from 21.11.07 to

20.11.2027 for the categ01y Motorcycle and LMV

(NT) only. The same is Ex.R3WJIJ. ]Juring cross-examination he admitted that it is not specifically mentioned anywhere in Ex.R3Wlll that LJL was issued for private or cornmercial vehicle. Fie fitrther in his cross exam.ination admitted that it is correct that any person who can drive a maruti van can drive similar type of maruti van of same category. R3 W2 Sh. Jaspal Singh testified that vehicle no.IJL-JLE-6634 is registered in the name of Sh. Rakesh Vats for the period

22.12.08 to

21.12.09 for omni-cargo/commercial vehicle. R2 WI 5"h. Rakesh Vats clearly made a statement that before the grant of employment to respondent no.l his driving test was taken and he verified the DL of the driver. Significant to mention here that he has not been cross exam-ined on this aspect and nothing has been brought on record that the statement made by the owner has been rebutted by insurance company by any cogent evidence.

¶29Section 2(21) defines 'light Motor Vehicle' as under:-LMV means a transport vehicle or omnibus the gross weight of either of which or a m.otor car or a tractor or road roller the unladen weight of Page 3 o(7 any, which, does not exceed 7,500 kg. 3 0. Section 3 of the Act provides for the necessity of driving licence. Necessity of driving licence:-

¶1No person shall drive a nwtor vehicle in any public place unless he holds the effective driving licence i,.,·sued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle other than a 1notorcab or motorcycle hired for his own use or rented under any schenle made under sub-section (2) ofsection 75 unless his driving licence specifically entitles him so to do.

¶31In the case of National Insurance Conzpany Vs. Annappa Irappa Nesaria and Others, it was observed by the !Ion 'ble Supreme Court in para 16 that:- "it is evident that transport vehicle has now been substituted for 'medium goods vehicle ' and 'heavy goods vehicle'. The light motor vehicle continues, 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 authorized to drive a light goods vehicle as well. "

¶32In view of the settled proposition of law, as discussed above and the fact that at the time of accident respondent no.1 was having a valid and effective driving licence, the insurance company cannot be absolved from its liability if the driving licence is valid and it makes no difference whether the licence is commercial or not ............................... "

¶5It would be appropriate at this juncture to refer to the case of National Insurance Contpany Ltd. vs. Annappa Irappa Nesaria and Others

(2008) 3 SCC 464, relied upon by the learned Tribunal. In the said case, it was sub1nitted on behalf of the National Insurance Cmnpany Ltd. that for the purpose of grant of licence for driving a vehicle, an Page 4 o{7 CD application has to be filed in Fonn No.4, whereafter only a licence is granted in Fonn No.6. The learned counsel for the Insurance Cmnpany contended that the said Fonns have been prescribed in tcnns of Rules 14 and 16 of the Central Motor Vehicle Rules, 1989 and on perusal thereof as also the aforesaid 1nentioned Fonns, it would be clear that a 'light 1notor vehicle' docs not answer the description of a 'transport vehicle'. Per contra, it was contended that keeping in view the definition of 'light 1notor vehicle' as contained in Section 2(21) of the Motor V chicles Act, 1988, a light goods carriage would cmne within the purview thereof. Strong reliance was placed in this regard on the case of Ashok Gangadhar Maratha vs. Oriental Insurance Co. Ltd., AIR 1999 SC 3181. The Supre1ne Court after reproducing the definition of 'light n1otor vehicle' and the definition of '1nediu1n goods vehicle' as defined in Section 2(21) and Section 2(23) of the Act and dwelling upon the relevant Central Motor Vehicle Rules, 1989, observed as under: "12. The word "]-<arm" has been defined in Rule 2 (e) to mean a Form appended to the rules. I Apply for a licence to enable me to drive vehicles of the following description:

(d) Light motor vehicle

(e) Mediwn goods vehicle

(g) Ileavy goods vehicle (;) Motor vehicles of the jhllowing description: .... After wnendment the portion of Form 4 reads as under: JlfAC. APP.697/2010 I Apply for a licence to enable tne to drive vehicles of the following description:

(d) Light motor vehicle

(e) Transport vehicle Page 5 o(7 I i II

(j) Motor vehicles of the following description: ....

¶13Rule 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. 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.

¶14''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 the authority who conducted the driving test. ·

15.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." Page 6 of7 I I q WI I i I il i II I

¶6In view of the above law laid down by the Suprmne Court, there is no substance in the present appeal. The sa1ne is accordingly dis1nissed, being without lnCI·it. CM No.l883 7/2010 also stands disposed of accordingly. October 25, 2010 knz Jl.fAC APP.697/2010 8 I I I I Oil l-- REVAKIIETRAPAL (JUDGE) Page 7 o{7 II i I

* IN THE HIG-H COURT OF DELHI AT NEW + MAC.APP. 697/2010 and CM No.18837/2010 NATIONAL INSURANCE CO LTD ..... Appellant Through: Ms. Sonia Shanna, Advocate versus MAYA&ORS ..... R.espondents , Through: Ne1no CORAM: HON'BLE MS. JUSTICE REV A AL 1. Whether reporters of local papers 1nay be allowed to see the judgtnent? 2. To be referred to the Reporter or not? 3. Whether judgtnent should be reported in Digest?