Oriental Isurance Company ... vs Heirs Of Decd. Yash Batukbhai ...

                                                                                   NEUTRAL CITATION




     C/FA/2872/2012                               JUDGMENT DATED: 22/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2872 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ILESH J. VORA
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1    Whether Reporters of Local Papers may be allowed                   Yes
     to see the judgment ?

2    To be referred to the Reporter or not ?                            Yes

3    Whether their Lordships wish to see the fair copy                  No
     of the judgment ?

4    Whether this case involves a substantial question                  No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

==========================================================
                 ORIENTAL ISURANCE COMPANY LIMITED
                               Versus
           HEIRS OF DECD. YASH BATUKBHAI PITHVA & 1 other(s)
==========================================================
Appearance:
MS AMI N BHATT(3372) for the Appellant(s) No. 1
MR NISARG M DESAI(6543) for the Defendant(s) No. 1.1,1.2
MR NM BHATT(180) for the Defendant(s) No. 1.1,1.2
RULE SERVED for the Defendant(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                              Date : 22/08/2023

                             ORAL JUDGMENT

1. This appeal is filed under section 173 of the Motor Vehicles Act, 1988 by the Oriental Insurance Company Limited, assailing the judgement and award dated 25.11.2011, passed in MACP No.427 of 2010, wherein the MACT (Aux.), Gondal at Upleta, District:

NEUTRAL CITATION C/FA/2872/2012 JUDGMENT DATED: 22/08/2023 undefined Rajkot by allowing the claim petition filed under section 163A of the Act, fastened the liability of the Insurance Company and directed the Company to pay the amount of compensation and recover it from the owner of the vehicle involved.

2. Facts and circumstances giving rise to file this petition are that deceased minor aged about 8 years was hit by the rickshaw GJ-3V- 6089 when he was on his foot going towards the market. The deceased succumbed to his injuries. The claimants respondents being legal heirs and representatives filed a claim case under section 163 of the Act. After adducing the evidence and hearing the parties, the Tribunal vide its judgement and award dated 25.11.2011 partly allowed the application and directed the Insurance Company to indemnify the amount of the award with interest at the rate of 9%. Before the Tribunal, the Insurance Company contested the claim raising the dispute about statutory liability, stating inter alia that the vehicle was driven by the driver without valid licence. The Tribunal, considering the defence raised by the Insurance Company, directed the Insurance Company to pay the amount of compensation and granted liberty to recover it from the owner.

3. Learned counsel Ms.Ami N.Bhatt appearing for and on behalf of the appellant-Insurance Company, has submitted that the Tribunal failed in error, directing the Insurance Company to pay the amount of compensation as the driver of the vehicle was not holding a valid licence to drive a transport vehicle and, therefore, under section 149(2) of the Act, the Insurance Company cannot be held Page 2 of 6 Downloaded on : Sun Sep 17 02:04:31 IST 2023 NEUTRAL CITATION C/FA/2872/2012 JUDGMENT DATED: 22/08/2023 undefined liable, as there is breach of the terms and conditions of the insurance policy. She further submitted that the direction for pay and recover is only the province of the Supreme Court of India under Article 142 of the Constitution of India and, therefore, the order impugned is bad in law.

4. On the other hand, learned counsel Mr.Nisarg Desai, appearing for the original claimants submitted that the Insurance Company failed to discharge their burden to prove that the driver was not having valid licence to drive the vehicle. He submitted that the larger Bench of the Apex Court in the judgment of Mukund Dewangn vs. Oriental Insurance Company Limited reported in 2017 (14) SCC 663, has clarified on the issue, when driver holding a licence to drive LMV vehicle, he is competent to drive a transport vehicle of that category without specific endorsement to drive the transport vehicle.

5. In the aforesaid contention, learned counsel appearing for the respondents claimants submitted that the ground raised in the appeal is not sustainable in law and, thus, therefore, the appeal deserves to be dismissed.

6. Having heard the learned counsel for the respective parties, the issue for determination arise is whether Tribunal was justified in directing the Insurance Company to pay the amount of compensation and then recover it from the owner of the vehicle in question.

7. The factum of accident and the amount of compensation awarded Page 3 of 6 Downloaded on : Sun Sep 17 02:04:31 IST 2023 NEUTRAL CITATION C/FA/2872/2012 JUDGMENT DATED: 22/08/2023 undefined is not in dispute. On the day of incident, the valid policy was in existence. The driver of the vehicle was having a licence to drive LMV vehicle, but in the licence there was no any endorsement to drive the transport vehicle. This issue is settled by the larger Bench of the Supreme Court in the case of Mukund Dewangn(supra). Before the larger Bench, due to conflicting judgement on the issue, the reference was made on the question, (1) What is the meaning of Light Motor Vehicle (LMV), as defined in section 2(21) of the MV Act and holder of the licence to drive the class of LMV, as provided in section 10(2)(d) would be competent to drive a transport vehicle for which additionally an endorsement to drive a transport vehicle is required or not. The Apex Court, after considering all the earlier judgements on the issue, in paragraphs No. 60.1,60.2, 60.3 and 60.4 held as under:

"60.1."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 Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994.

60.2 A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be light motor vehicle and also motor care or tractor or a roadroller, " 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 1092)(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 roadroller, 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 of 1994 and 28- 32001 in the form.

NEUTRAL CITATION C/FA/2872/2012 JUDGMENT DATED: 22/08/2023 undefined 60.3 The effect of the amendment made by virtue of Act 54 of 1994 w.e.f. 14-1994 while substituting clauses (e) to (h) of Section 10(2) which contained "medium goods vehicle" in Section 10(2)(3), "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.

60.4. 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.

8. In the facts on hand, the driver of the rickshaw was holding a licence to drive LMV and it is not in dispute that the gross vehicle weight does not exceed 7500 kgs and he was competent to drive the vehicle. Thus, applying the legal proposition to the facts of the present case, there is no separate endorsement on the licence is required to drive a transport vehicle of LMV class. Even otherwise, the Insurance Company cannot escape from its liability towards the third party. The reference can be paid to the decision of the Swaran Singh's case 2004 ACJ 1SC, wherein it was held as under:

" 7. As per the decision of Swaran Singh's case, 2004 ACJ 1(SC), onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy condition. Where the driver did not possess the valid driving licence and there is breach of the policy conditions, ' pay and recover can be ordered in case of third party risks. The Tribunal is required to consider as to whether the owner has taken reasonabel care to find Page 5 of 6 Downloaded on : Sun Sep 17 02:04:31 IST 2023 NEUTRAL CITATION C/FA/2872/2012 JUDGMENT DATED: 22/08/2023 undefined out as to whether the driving licence produced by the driver fulfils the requirements of law or not will have to be determined in each case."

9. In the facts of the present case, the Insurance Company failed to discharge their burden to establish that the insured was guilty of negligence and failed to exercise reasonable care in fulfilling the condition of the policy. The Tribunal while fastening the liability of the Insurance Company to pay and recover, overlooked the ratio laid down by the Apex Court. Thus, instead of fastening the liability directly to pay the amount, the Tribunal has reserved the right of the Insurance Company to recover the amount from the owner of the vehicle and the same is beneficial to the appellant.

10.In view of the aforestated reasons, this Court does not find any legal grounds to interfere with the judgement and award and accordingly the appeal fails and is dismissed. The decree be drawn accordingly.

(ILESH J. VORA,J) SUDHIR Page 6 of 6 Downloaded on : Sun Sep 17 02:04:31 IST 2023