Mukund Dewangan Vs. Oriental Insurance Company Ltd. etc.
[Civil Appeal No.5826 of 2011 SLP [C] Nos.32828, 32833 and 32835/2010, 8709-8710 and 8712- 8713/2014, 20072, 3300 and 3302/2015, 887-890/2013, 16082/2012, 28455- 28456/2013]
[CA No. 6379/2013, SLP (C) Nos.13008, 15759-15760 and 14333 - 14334/2014, 6429/2015, 36364-36365/2014, 15924/2015]
[CA No.9990/14, SLP (C) Nos. 8704-8706/2014]
[CA Nos. 4068-4069/2012, SLP (C) No. 32827/2010]
[CA No.8992/2012]
ORDER
ARUN MISHRA, J.
1. The question raised is whether for the drivers having licence to drive light motor vehicles there is a necessity of obtaining endorsement to drive the transport vehicle when the transport vehicle is of class of light motor vehicle.
2. We have heard learned counsel for the parties at length. For consideration of aforesaid question, it is necessary to refer to various provisions and decisions.
3. Driving licence has been defined in section 2(10) of the Act of 1988. The provision is extracted hereinbelow :
"2(10) "driving licence" means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description."
Gross vehicle weight has been defined in section 2(15) thus :
"2(15) "gross vehicle weight" means in respect of any vehicle the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle;"
Heavy goods vehicle has been defined in section 2(16) to mean:
"2(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;"
Heavy passenger motor vehicle has been defined in section 2(17) thus :
"2(17) "heavy passenger motor vehicle" means any public service vehicle or private service vehicle or educational institution bus or omnibus the gross vehicle weight of any of which; or a motor-car the unladen weight of which, exceeds 12,000 kilograms;"
Light motor vehicle has been defined in section 2(21) of the Act thus :
"2(21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor-car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms;"
Medium goods vehicle has been defined in section 2(23) to mean :
"2(23) "medium goods vehicle" means any goods carriage other than a light motor vehicle or a heavy goods vehicle;"
Medium passenger motor vehicle is defined under section 2(24) thus :
"2(24) "medium passenger motor vehicle" means any public service vehicle or private service vehicle, or educational institution bus other than a motor- cycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle;"
Motor car has been defined in section 2(26) of the Act of 1988 thus :
"2(26) "motor-car" means any motor vehicle other than a transport vehicle, omnibus, road-roller, tractor, motor-cycle or invalid carriage;"
"Omnibus" has been defined in section 2(29) thus :
"2(29) "omnibus" means any motor vehicle constructed or adapted to carry more than six persons excluding the driver;"
"Tractor" has been defined in section 2(44) of the Act thus :
"2(44) "tractor" means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller;"
"Transport vehicle has been defined in section 2(47) thus :
"2(47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;"
"Unladen weight" has been defined in section 2(48) thus :
"2(48) "unladen weight" means the weight of a vehicle or trailer including all equipments ordinarily used with the vehicle or trailer when working, but excluding the weight of a driver or attendant; and where alternative parts or bodies are used the unladen weight of the vehicle means the weight of the vehicle with the heaviest such alternative part or body;"
4. The provisions under section 2 define heavy goods vehicles, heavy passenger motor vehicle, medium goods vehicle, medium passenger motor vehicle and light motor vehicle separately. Section 2(21) deals with class of Light Motor Vehicle which includes a transport vehicle or omnibus, the gross vehicle weight of either of which does not exceed 7500 kgs. or a motor car or tractor or road roller, the unladen weight of any of which does not exceed 7500 kgs. The transport vehicle has been defined in section 2(47), omnibus has been defined in section 2(29).
However, the transport vehicle or omnibus the gross vehicle weight of which does not exceed 7500 kgs., has been included in section 2(21) of the Act of 1988. The gross vehicle weight has been defined in section 2(15).
In the case of Light Motor Vehicle, the total weight of the transport vehicle or omnibus, the load certified by the Registering Authority should not exceed 7500 kgs. and in case of motor car, tractor or road roller, it is necessary that unladen weight as defined in section 2(48) of the Act of 1988 should not exceed 7500 kgs.
5. To dilate further upon the issue, it is necessary to take note of other provisions of the Act. Public service vehicle, goods carriage, an educational institution bus and private service vehicle are included in transport vehicles. They are defined in Sections 2(35), 2(14), 2(11) and 2(33) respectively. The provisions are extracted hereunder:-
"2(35) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxi-cab, a motor-cab, contract carriage, and stage carriage;"
"2(14) "goods carriage" means any 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;" "2(11) "educational institution bus" means an omnibus, which is owned by a college, school or other educational institution and used solely for the purpose of transporting students or staff of the educational institution in connection with any of its activities;"
"2(33) "private service vehicle" means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes;"
6. Section 3 of the Act of 1988 deals with the necessity for driving licence. Same is extracted below :
"3. Necessity for driving licence.-
(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle [other than a motor cab or motor cycle hired for his own use or rented under any scheme made under sub-section (2) of section 75] unless his driving licence specifically entitles him so to do. (2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government."
7. Section 9 deals with grant of driving licence which reads as under :
"9. Grant of driving licence.-
(1) Any person who is not for the time being disqualified for holding or obtaining a driving licence may apply to the licensing authority having jurisdiction in the area-
(i) in which he ordinarily resides or carries on business, or in which the school or establishment referred to in section 12 from where he is receiving or has received instruction in driving a motor vehicle is situated, for the issue to him of a driving licence.
(2) Every application under sub-section (1) shall be in such form and shall be accompanied by such fee and such documents as may be prescribed by the Central Government.
(3) If the applicant passes such test as may be prescribed by the Central Government, he shall be issued the driving licence:
Provided that no such test shall be necessary where the applicant produces proof to show that -
(i) the applicant has previously held a driving licence and that the period between the date of expiry of that licence and the date of such application does not exceed five years; or the applicant holds or has previously held a driving licence to drive such class of vehicle issued under section 18; or the applicant holds a driving licence to drive such class of vehicle issued by a competent authority of any country outside India, subject to the condition that the applicant complies with the provisions of sub -section (3) of section 8,
(b) the applicant is not suffering from any disease or disability which is likely to cause the driving by him to be a source of danger to the public; and the licensing authority may, for that purpose, require the applicant to produce a medical certificate in the same form and in the same manner as is referred to in sub-section (3) of section 8.
Provided further that where the application is for a driving licence to drive a motor vehicle (not being a transport vehicle), the licensing authority may exempt the applicant from the test of competence to drive prescribed under this sub-section, if the applicant possesses a driving certificate issued by an automobile association recognised in this behalf by the State Government.
(4) Where the application is for a licence to drive a transport vehicle, no such authorisation shall be granted to any applicant unless he possesses such minimum educational qualification as may be prescribed by the Central Government and a driving certificate issued by a school or establishment referred to in section 12.
(5) Where the applicant does not pass the test, he may be permitted to reappear for the test after a period of seven days: Provided that where the applicant does not pass the test even after three appearances, he shall not be qualified to reappear for such test before the expiry of a period of sixty days from the date of last such test.
(6) The test of competence to drive shall be carried out in a vehicle of the type to which the application refers: Provided that a person who passed a test in driving a motor cycle with gear shall be deemed also to have passed a test in driving a motor cycle without gear.
(7) When any application has been duly made to the appropriate licensing authority and the applicant has satisfied such authority of his competence to drive, the licensing authority shall issue the applicant a driving licence unless the applicant is for the time being disqualified for holding or obtaining a driving licence:
Provided that a licensing authority may issue a driving licence to drive a motor cycle or a light motor vehicle notwithstanding that it is not the appropriate licensing authority, if the licensing authority is satisfied that there is good and sufficient reason for the applicant's inability to apply to the appropriate licensing authority:
Provided further that the licensing authority shall not issue a new driving licence to the applicant, if he had previously held a driving licence, unless it is satisfied that there is good and sufficient reason for his inability to obtain a duplicate copy of his former licence.
(8) If the licensing authority is satisfied, after giving the applicant an opportunity of being heard, that he-
(a) is a habitual criminal or a habitual drunkard; or
(b) is a habitual addict to any narcotic drug or psychotropic substance within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985; (61 of 1985); or is a person whose licence to drive any motor vehicle has, at any time earlier, been revoked, it may, for reasons to be recorded in writing, make an order refusing to issue a driving licence to such person and any person aggrieved by an order made by a licensing authority under this sub-section may, within thirty days of the receipt of the order, appeal to the prescribed authority.
(9) Any driving licence for driving a motor cycle in force immediately before the commencement of this Act shall, after such commencement, be deemed to be effective for driving a motor cycle with or without gear."
8. The application has to be made in such form as may be prescribed. Section 10 deals with the form and contents of the licence to drive. Section 10 before its amendment made in 1994 by Act 54 of 1994 provided as under :
"10. Form and contents of licences to driver.-
(1) Every learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.
(2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:--
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) medium goods vehicle;
(f) medium passenger motor vehicle;
(g) heavy goods vehicle;
(h) heavy passenger motor vehicle;"
(i) road-roller;
(j) motor vehicle of a specified description. "
9. It is clear from the provisions of section 10(2) that the classes of vehicles have been separately provided. Light motor vehicle has been provided in section 10(2)(d). Transport vehicle had been inserted in 1994 in place of sections 10(2)(e) to 10(2)(h), in place of medium goods vehicle as provided in section 10(2)(e), medium passenger motor vehicle provided in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and heavy passenger motor vehicle in section 10(2)(h). Thus it is apparent that transport vehicles were included under the Act of 1988 under the category of
"light motor vehicle",
"heavy motor vehicle" etc. as per gross vehicle weight or unladen weight, as the case may be, is apparent from a bare reading of the aforesaid classification given in section 10(2) of the Act read with definition of light motor vehicle as defined in section 2(21) of the Act. The provisions contained in section 10 of the Act had been amended vide Amendment Act 54 of 1994. The Statement of Objects and Reasons of the Amendment Act 54 of 1994 reads :
"Amendment Act 54 of 1994 - Statement of Objects and Reasons.
- The Motor Vehicles Act, 1988 (59 of 1988) consolidated and rationalised various laws regulating road transport. The Act came into force with effect from 1st July, 1989 replacing the Motor Vehicles Act, 1939.
2. After the coming into force of the Motor Vehicles Act, 1988, Government received a number of representations and suggestions from the state govt. transport operators and members of public regarding the inconvenience faced by them because of the operation of some of the provisions of the 1988 Act. A Review Committee was, therefore, constituted by the Government in March, 1990 to examine and review the 1988 Act.
3. The recommendations of the Review Committee were forwarded to the State Governments for comments and they generally agree with these recommendations. The Government also considered a large number of representations received, after finalisation of the Report of the Review Committee, from the transport operators and public for making amendments in the Act. The draft of the proposals based on the recommendation of the Review Committee and representations from the public were placed before the Transport Development Council for seeking their views in the matter.
The important suggestions made by the Transport Development Council relate to, or are on account of, -
(a) The introduction of newer type of vehicles and fast increasing number of both commercial and personal vehicles in the country.
(b) Providing adequate compensation to victims of road accidents without going into longdrawn procedure;
(c) Protecting consumers' interest in Transport Sector;
(d) Concern for road safety standards, transport of hazardous chemicals and pollution control;
(e) Delegation of greater powers to State Transport Authorities and rationalising the role of public authorities in certain matters;
(f) The simplification of procedures and policy liberalisation in the field of Road Transport;
(g) Enhancing penalties for traffic offenders.
4. Therefore, the proposed legislation has been prepared in the light of the above background. The Bill inter alia provides for -
(a) modification and amplification of certain definitions of new type of vehicles ;
(b) simplification of procedure for grant of driving licences;
(c) putting restrictions on the alteration of vehicles;
(d) certain exemptions for vehicles running on non-polluting fuels;
(e) ceilings on individuals or company holdings removed to curb "benami" holdings;
(f) states authorised to appoint one or more State Transport Appellate Tribunals;
(g) punitive checks on the use of such components that do not conform to the prescribed standards by manufactures, and also stocking / sale by the traders;
(h) increase in the amount of compensation of the victims of hit and run cases;
(i) removal of time limit for filling of application by road accident victims for compensation;
(j) punishment in case of certain offences is made stringent;
(k) a new pre-determined formula for payment of compensation to road accident victims on the basis of age/income, which is more liberal and rational.
5. The Law Commission in its 119th Report had recommended that every application for a claim be made to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, at the option of the claimant.
The bill also makes necessary provision to give effect to the said recommendation."
Section 10 has been amended vide Act 54/1994 to the following effect :
"10. Form and contents of licences to drive.-
(1) Every learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government. A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:-- motor cycle without gear; motor cycle with gear; invalid carriage; light motor vehicle; transport vehicle;
(i) road-roller; (j) motor vehicle of a specified description."
10. Form 4 which was in vogue till 28.3.2001 as prescribed under Rule 14 of the Central Motor Vehicles Rules, 1989 (hereinafter referred to as 'the Rules of 1989'), is extracted hereunder :
"FORM 4
[See Rule 14]
Form of Application for Licence to drive a Motor Vehicle
To,
THE LICENSING AUTHORITY, ............................................
[passport size Photograph]
I apply for a licence to enable me to drive vehicles of the following description:-
Motor cycle without gear
Motor cycle with gear
Invalid Carriage
Light Motor Vehicle
Medium Goods Vehicle Medium
Passenger Motor Vehicle
Heavy Goods Vehicle
Heavy Passenger Motor Vehicle
Road roller
Motor Vehicle of the following description.
Particulars to be furnished by the Applicant
1. Name ....................................
2. Son/wife/daughter of .....................................
3.Permanent address .................................... (Proof to be enclosed)
4.Temporary address/ Official address (if any) .............
5. Date of birth ........................................... (Proof to be enclosed)
6. Educational qualification .............................
7. Identification mark
(1)...........................
(2)...........................
8. Optional/Blood Group -- RH factor.....................
9. Have you previously held driving licence?...............
If so, give details.
10. Particulars and date of every conviction which has been ordered to be endorsed on any licence held by the applicant.....................
11. Have you been disqualified for obtaining a licence to drive? If so, for what reason?..............
12. Have you been subjected to a driving test as to your fitness or ability to drive a vehicle in respect of which a licence to drive is applied for? If so, give the following details :-
Date of test
Testing Authority
Result of test
(1)
(2)
(3)
13. I enclose three copies of my recent [passport size photographs](where laminated card is used, no photographs are required) ... .....................
14. I enclose Learner's licence No. .............. dated ................ issued by Licensing Authority.
15. I enclose the Driving Certificate No. ....................dated ............issued by.................
16. I have submitted along with my application for learner's licence the written consent of parent / guardian. 17. I have submitted along with the application for learner's licence./I enclose the medical fitness certificate. 18. I am exempted from the medical test under rule 6 of the Central Motor Vehicles Rules , 1989.
19. I am exempted from preliminary test under rule 11 (2) of the Central Motor Vehicles Rules 1989.
20. I have paid the fee of Rs. I hereby declare that to the best of my knowledge and belief the particulars given above are true.
Note : Strike out whichever is inapplicable.
Date : .................
Signature/Thumb impression of applicant.
Certificate of test of competence to drive
The applicant has passed the test prescribed under rule 15 of the Central Motor Vehicles Rules, 1989. The test was conducted on (here enter the registration mark and description of the vehicle)................. on (date). The applicant has failed in the test.
(The details of deficiency to be listed out.)
Date_________________
Signature of Testing Authority
Full name and designation
Two specimen signatures of applicant:
Strike out whichever is inapplicable."
11. It is apparent from the Form prescribed under Rule 14 till 28.3.2001, the aforesaid classification of vehicles remained the same As provided in Section 10(2) of the Act of 1988 for the first time transport vehicle was inserted w.e.f. 28.3.2001 by deleting the existing classes, medium passenger and goods vehicle, heavy goods vehicle and heavy passenger motor vehicles to bring in tune with Section 10(2)(e) to (h). Form 4 has undergone other changes with respect to item 'a' motorcycle without gear which was substituted vide GSR 684(E) on 5.10.1999 w.e.f. 22.10.1999 and again substituted by GSR 76(E) dated 31.1.2000 w.e.f. 31.1.2000. With aforesaid changes brought about by notifications in 1989 and 2000 in Section 10(2)(a) we are not concerned here. Amended Form '4' is extracted hereunder:
"FORM 4
[See Rule 14(1)]
Form of Application for Licence to Drive a Motor Vehicle To
To,
THE LICENSING AUTHORITY, ............................................
[passport size Photograph]
I apply for a licence to enable me to drive vehicles of the following description:-
(a) Motor cycle without gear
(b) Motor cycle with gear (c) Invalid carriage
(d) Light Motor vehicle
(e) Transport vehicle
(f) Medium passenger motor vehicle
[*****] Road roller
(j) Motor vehicles of the following description: Particulars to be furnished by Applicant
1.Full Name........................
2.Son/Wife/Daughter of .............................. ...........
3.Permanent address ........................... ...............
(Proof to be enclosed) .............................. .............
4.Temporary address/ Official address (if any)..................
5.Date of birth.............................. ..
(proof to be enclosed) ................. ................................
6. Educational qualification ............................ .......
7. Identification mark(s)
1................... .........
2.............................
8. Optional Blood Group RH FACTOR
9. Have you previously held driving Licence? If so, give details. .................. ...
10. Particulars and date of every conviction which has been ordered to be endorsed on any licence held by applicant ........................... ..
11. Have you been disqualified for obtaining a Licence to drive? If so, for what reason? ...........................
12. Have you been subjected to a driving test as to your fitness or ability to drive a vehicle in respect of which a licence to drive is applied for ? If so, give the following details. ..............................
Date of test
Testing Authority
Result of test
(1)
(2)
13. I enclose 3 copies of my recent (passport size photograph)
(where laminated card is used no photographs are required).
14. I enclose the learner's Licence No .................. dated ............ issued by Licensing Authority.
15. I enclose the Driving Certificate No. ............. Dated ................ issued by ........................
16. I have submitted along with my application for Learner's Licence the written consent of parent/guardian.
17. I have submitted along with the application for learner's licence/I enclose the medical fitness certificate.
18. I am exempted from the medical test under rule 6 of the Central Motor Vehicles Rules, 1989.
19. I am exempted from preliminary test under rule 11(2) of the Central Motor Vehicles Rules. 1989.
20. I have paid the fee of Rs..............
I hereby declare that to the best of my knowledge and belief the particulars given above are true. * Strike out whichever is inapplicable.
Date ...................
Signature/Thumb impression of Applicant
Certificate of test of competence to drive
The applicant has passed the test prescribed under rule 15 of the Central Motor Vehicles Rules 1989. The test conducted on (here enter the registration mark and description of the vehicle)..................................... on (date) ..............
The applicant has failed in the test.
(The details of the deficiency to be listed out) '
Date ..................
Signature of Testing Authority
Full name & designation
Two specimen signatures of Applicant:
1.
2.
Strike out whichever is inapplicable."
12. Thus, as per Amendment of Section 10 vide Act 54 of 1994, there is deletion of categories of medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle and heavy passenger motor vehicle and these have been substituted by the classification "transport vehicle".
It is pertinent to note here that the definition and classification of light motor vehicle in the Act remains intact as it existed. It is also apparent from the Statement of Objects and Reasons of the Amendment Act No.54 of 1994 that the transport operators and members of public faced inconvenience because of operation of some of the provisions of the Act of 1988. It was intended for simplification of procedures and policy liberalization and it became necessary due to introduction of newer type of vehicles and faced increasing numbers of both personal and commercial vehicles in the country.
Hence, it was intended to modify and amplify certain definitions of new types of vehicles for simplification of procedure for grant of driving licences as provided in para 4(a) and (b) of the Statement of Objects and Reasons. The question is whether intendment appears not to touch the classification of light motor vehicle which has to be understood in the light of the definition in section 2(21) of the Act of 1988 and it was never intended that the transport vehicles of light motor vehicle category should be taken out of the purview of the existing classification of light motor vehicles and the transport vehicles as inserted in section 10 has to be understood in the light of the amendment brought about vide deletion of the provisions of medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle and heavy passenger motor vehicle. Thus, no change had been brought about with respect to the transport vehicles of class of light motor vehicle as defined in section 2(21) of the Act of 1988.
13. To consider further on the issue, certain rules and forms are also required to be referred to. Rule 8 provides for minimum educational qualification for driving transport vehicles which is 8th standard. However proviso makes it clear that the qualification of 8th standard shall not apply in the case of renewal of driving licence to drive a transport vehicle and/or addition of another class of transport vehicle to the driving licence already held before the commencement of the Motor Vehicles Act, 2007. Rule 8 of the Rules of 1989 inserted on 10.4.2007 is quoted below :
"8. Minimum educational qualification for driving transport vehicles.-
The minimum educational qualification in respect of an applicant for obtaining a licence to drive a transport vehicle shall be a pass in the eighth standard:
Provided that the minimum educational qualification specified in this rule shall not apply in the case of -
renewal of a driving licence to drive a transport vehicle :
or addition of another class of transport vehicle to the driving licence, already held before the commencement of the Motor Vehicles (Amendment) Rules, 2007."
14. Earlier Rule 8 was omitted by GSR No.933(E) dated 28.10.1989 w.e.f. 28.10.1989. The Rule has been inserted in the year 2007 and it is provided that Eighth standard qualification will not apply in the case of addition of another class of transport vehicle to the driving licence. Thus, it is clear that Rule 8 contemplates addition of transport vehicle of other category than the existing one in the licence. Question arises whether that refers to the addition to light motor vehicle's category, and gross vehicle weight or the unladen weight of vehicle in section 2(21) does not exceed 7500 kgs. would remain a light motor vehicle. Section 10 of the Act contains the provisions as to class of vehicles of the transport vehicle and light motor vehicle separately.
The question arises whether the transport vehicle insertion in Section 10(2)(e) is confined to the category of substitution made by deleting existing sections 10(2)(e), (f), (g) and (h) which were for medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle and heavy passenger motor vehicle, and in case "transport vehicle" even of the weight of light motor vehicle is treated in one category under section 10(2)(e) in that case whether any purpose would be left behind insertion of Rule 8 again in the year 2007.
15. Rule 16 provides for the Form of driving licence. Same shall be issued or renewed by licensing authority in Form 6. Rule 16 and Form 6 are quoted below :
"16. Form of driving licence.-
(1) Every driving licence issued or renewed by a licensing authority shall be in Form 6.
(2) Where the licensing authority has the necessary apparatus, [for the issue of a laminated card type or Smart Card type driving licence, such card type or Smart Card type driving licence, as may be specified in the Notification issued by the concerned State Government or Union Territory Administration] shall be in Form 7.
(3) On and from the date of commencement of this sub-rule, every driving licence issued or renewed by the licensing authority shall be in Form 7.
(4) Every International Driving Permit issued by a licensing authority shall be in Form 6-A and shall be valid for a period of not more than one year from the date of issue, as the case may be, or till the validity of the driving licence, whichever is earlier.
(5) The automobile associations authorised by the State Government/ Union Territory Administration shall be allowed to issue International Driving Permit to their own members as also others subject to counter-signature by competent authority."
"FORM 6
[See Rule 16(1)]
(To be printed in book form of the size six centimeters by eight centimeters)
FORM OF DRIVING LICENCE Name of the Licence holder................................
Son/wife/daughter of ................................
[Passport size photograph]
Name to be written across the photograph...................
(Part of the seal and signature of the Licencing Authority to be on the photographand part on the driving licence)
Specimen signature/Thumb impression of the holder of the icence
1. Driving Licence Number .......................
2. Date of issue .......................
3. Name ........................
4. Son /Wife/ Daughter of .......................
5. Temporary address/ official .......................
address (if any)
6. Permanent address .......................
7. Date of Birth .......................
8. Educational Qualifications ......................
9. Optional ...................... Blood Group RH Factor
10. The holder of this licence is licenced to drive throughout India vehicles of the following description:-
Motor Cycle without gear
Motor Cycle with gear
Invalid Carriage
Light Motor Vehicle [Transport vehicle]
Medium passenger motor vehicle
11. A Motor vehicle of the following description :
The licence to drive a motor vehicle other than transport vehicle is valid from ....... to.........
The licence to drive transport vehicle is valid from .... to.....
Name and designation of the Authority who conducted the driving test.
Signature and designation of the Licencing Authority
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.
Space for addition of other classes of vehicles
Number........................
Date...............
Also authorized to drive the following class or description of motor vehicles:-
Name and designation of the Authority who conducted the driving test.
Signature and designation of Licencing Authority
Dated:..............
Signature and designation of the Licencing Authority
Space for renewal of driving licence
The licence to drive motor vehicles other than vehicles is hereby renewed.
From........ to ............
The licence to drive transport vehicles is hereby renewed
From............to...........
Signature of Licencing Authority
Signature of Licencing Authority
From............to.............
From............to.............
Signature of Licencing Authority
Signature of Licencing Authority
From............to.............
Signature of Licencing Authority
Space for endorsement by Court
Date
Section and Rule
Fine or other punishment
Space for endorsement by licensing authority
Date
Proceedings number and date
Disqualification period
It is pertinent to mention that in the Form light motor vehicle and transport vehicle are separately given.
16. Rule 17 of the Rules deals with the additional driving licence.
Same has to be applied for in Form 8. Rule 17 and Form 8 read thus :
"17. Addition to driving licence.--
(1) An application for addition of another class of description of motor vehicle to the driving licence shall be made in Form 8 to the licensing authority and shall be accompanied by-
(a) an effective learner's licence and driving licence held by the applicant;
(b) in the case of an application for addition of a transport vehicle, the driving certificate in Form 5;
(c) [* * *]
(d) appropriate fee as specified in Rule 32.
(2) The provisions of sub-section (1), sub-section (3) and sub-section (4) of Section 9 shall, insofar as may be, apply in relation to an application under sub-section (1) as they apply in relation to an application for the grant of a driving licence."
Form 8 as provided in Rule 17(1) of the Rules reads as under :
"Form 8
[See Rule 17(1)]
Application for the Addition of a New Class of Vehicle to a Driving Licence
To
The Licensing Authority, ..............................
I, Shri/Smt./ Kumari...... hereby apply for the addition of the following class/classes of motor vehicles to the attached licence:-
(a) Motor cycle without gear
(b) Motor cycle with gear
(c) Invalid carriages,
(d) Light motor vehicles,
(e) Transport vehicle
(f) Medium passenger motor vehicles
(g) x x x
(h) x x x
(i) Road rollers,
(j) Motor vehicle of the following description : I enclose,
(a) a Medical Certificate in Form 1-A
(b) Learner's licence in Form 3,
(c) Driving licence in Form 6/7, I hereby apply for the addition of the following :
(d) Driving Certificate in Form 5 if the application is to drive a transport vehicle,
(e) I have paid the fee of Rs. ... ... ... ... ... ... ... ... ... ..
Dated: ........
Signature or thumb-impression of the Applicant
Certificate of Test of Competence to Drive
The applicant has passed/failed in the test specified in Rule 15 of the Central Motor Vehicles Rules, 1989.
The test was conducted on a ....(here enter description of vehicles) on date....
Signature of Testing Authority
Name & Designation"
17. Form 8 also separately provide the light motor vehicle and transport vehicle. Question arises whether in Forms 4, 5 and 8, transport vehicle has to be understood for the categories of vehicles for which substitution has been made in section 10(2) by deleting the existing provisions of section 10(2)(e), (f), (g) and (h).
However the form still contains the provision with respect to "medium passenger motor vehicles", notwithstanding the insertion of the changed classification of the vehicles in section 10(2) of the Act or it may be printer's omission to delete ?
18. Rule 34 has also been referred to which deals with the trade certificate. Rule 34(2) provides that separate application shall be made for the classes of vehicles prescribed therein. Rule 34 is quoted below:
"34. Trade certificate.-
(1) An application for the grant or renewal of a trade certificate shall be made in Form 16 and shall be accompanied by the appropriate fee as specified in Rule 81.
(2) Separate applications shall be made for each of the following classes of vehicles, namely:-
(a) motorcycle;
(b) invalid carriage;
(c) light motor vehicle;
(d) medium passenger motor vehicle;
(e) medium goods vehicle;
(f) heavy passenger motor vehicle;
(g) heavy goods vehicle;
(h) any other motor vehicle of a specified description."
Rule 34 also makes a distinction between light motor vehicle, medium passenger motor vehicle, medium goods vehicle, heavy passenger motor vehicle and heavy goods vehicle. As per Rule 126 of the Rules, proto-type of every motor vehicle is subject to test by the Vehicle Research & Development Establishment of the Ministry of Defence of the Government of India or Automotive Research Association of India.
Testing Agency has to conduct test as provided in Rule 126A to verify whether these vehicles conform to the provisions of the Rules made under section 110 of the Act. All the relevant information has to be inserted as per section 41 of the Act in the registration particulars as may be prescribed by the Central Government. Application for registration of motor vehicle has to be made in Form 20. Class of vehicle, gross vehicle weight as well as unladen weight are to be mentioned.
19. Rule 31 of the Rules contains a syllabus for imparting instructions in driving of motor vehicles in schools or establishments. That syllabus is divided in parts A to K. Part A deals with driving theory-1.
B- Traffic education-I. C-light vehicles driving practice.
D- Vehicle mechanism and repairs.
E- Medium and heavy vehicle driving.
F- Traffic education-II.
G- Public relations for drivers.
H- Heavy vehicle driving practice.
I- Fire hazards.
J- Vehicle maintenance.
K- First-aid.
20. It is apparent from the syllabus that there is a separate syllabus for light motor vehicle and for medium and heavy vehicle driving practice. No separate syllabus has been provided for transport vehicles. They are included in the aforesaid categories. Thus, it appears that as per the weight of the vehicles, the syllabus has been provided and different teaching is prescribed as per different weights of the vehicles. A driving licence has to be issued as per Rule 16 in Form 6. Form 6 also separately provides for light motor vehicle, transport vehicle.
21. The Central Government, inter alia, has the power to frame the rules provided under section 27 of the Act, regarding minimum qualification, regarding forms and contents of the licences referred to in sub-section (1) of section 10 and providing for authority to grant licences and other matters as provided in section 27. State Government is enjoined to maintain a register of motor vehicles under Rule 75 as provided in Form 41 which includes gross vehicle weight, unladen weight etc. Thus it is clear that the scheme of the Act, Rules and the Forms emphasise the gross vehicle weight and unladen weight which is required to be mentioned specifically in the State registration particulars etc. so as to ascertain the class of vehicle whether it is light, medium or heavy etc.
22. In Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan & Ors. (1987) 2 SCC 654, it was held that in order to consider the intention of the Legislature in the course of interpretation, motive and philosophy of the relevant provisions keeping in mind the goals to be achieved by enacting the same, has to be taken into consideration. It was observed thus :
"12. The defence built on the exclusion clause cannot succeed for three reasons, viz.: On a true interpretation of the relevant clause which interpretation is at peace with the conscience of Section 96, the condition excluding driving by a person not duly licensed is not absolute and the promisor is absolved once it is shown that he has done everything in his power to keep, honour and fulfil the promise and he himself is not guilty of a deliberate breach. Even if it is treated as an absolute promise, there is substantial compliance therewith upon an express or implied mandate being given to the licensed driver not to allow the vehicle to be left unattended so that it happens to be driven by an unlicensed driver.
(3) The exclusion clause has to be "read down" in order that it is not at war with the "main purpose" of the provisions enacted for the protection of victims of accidents so that the promisor is exculpated when he does everything in his power to keep the promise.
13. In order to divine the intention of the legislature in the course of interpretation of the relevant provisions there can scarcely be a better test than that of probing into the motive and philosophy of the relevant provisions keeping in mind the goals to be achieved by enacting the same. Ordinarily it is not the concern of the legislature whether the owner of the vehicle insures his vehicle or not. If the vehicle is not insured any legal liability arising on account of third party risk will have to be borne by the owner of the vehicle. Why then has the legislature insisted on a person using a motor vehicle in a public place to insure against third party risk by enacting Section 94?
Surely the obligation has not been imposed in order to promote the business of the insurers engaged in the business of automobile insurance. The provision has been inserted in order to protect the members of the community travelling in vehicles or using the roads from the risk attendant upon the user of motor vehicles on the roads. The law may provide for compensation to victims of the accidents who sustain injuries in the course of an automobile accident or compensation to the dependants of the victims in the case of a fatal accident. However, such protection would remain a protection on paper unless there is a guarantee that the compensation awarded by the courts would be recoverable from the persons held liable for the consequences of the accident.
A court can only pass an award or a decree. It cannot ensure that such an award or decree results in the amount awarded being actually recovered, from the person held liable who may not have the resources. The exercise undertaken by the law courts would then be an exercise in futility. And the outcome of the legal proceedings which by the very nature of things involve the time cost and money cost invested from the scarce resources of the community would make a mockery of the injured victims, or the dependants of the deceased victim of the accident, who themselves are obliged to incur not inconsiderable expenditure of time, money and energy in litigation.
To overcome this ugly situation the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force. To use the vehicle without the requisite third party insurance being in force is a penal offence (Section 94 of the Motor Vehicles Act). The legislature was also faced with another problem. The insurance policy might provide for liability walled in by conditions which may be specified in the contract of policy. In order to make the protection real, the legislature has also provided that the judgment obtained shall not be defeated by the incorporation of exclusion clauses other than those authorised by Section 96 and by providing that except and save to the extent permitted by Section 96 it will be the obligation of the insurance company to satisfy the judgment obtained against the persons insured against third party risk (vide Section 96).
In other words, the legislature has insisted and made it incumbent on the user of a motor vehicle to be armed with an insurance policy covering third party risks which is in conformity with the provisions enacted by the legislature. It is so provided in order to ensure that the injured victims of automobile accidents or the dependants of the victims of fatal accidents are really compensated in terms of money and not in terms of promise. Such a benign provision enacted by the legislature having regard to the fact that in the modern age the use of motor vehicles notwithstanding the attendant hazards, has become an inescapable fact of life, has to be interpreted in a meaningful manner which serves rather than defeats the purpose of the legislation. The provision has therefore to be interpreted in the twilight of the aforesaid perspective."
14. Section 96(2)(b)(ii) extends immunity to the insurance company if a breach is committed of the condition excluding driving by a named person or persons or by any person who is not fully licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. The expression "breach" is of great significance. The dictionary meaning of "breach" is "infringement or violation of a promise or obligation" (See Collins English Dictionary). It is therefore abundantly clear that the insurer will have to establish that the insured is guilty of an infringement or violation of a promise that a person who is duly licensed will have to be in charge of the vehicle.
The very concept of infringement or violation of the promise that the expression "breach" carries within itself induces an inference that the violation or infringement on the part of the promisor must be a wilful infringement or violation. If the insured is not at all at fault and has not done anything he should not have done or is not amiss in any respect how can it be conscientiously posited that he has committed a breach? It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is "guilty" of the breach of the promise that the vehicle will be driven by a licensed driver. It must be established by the insurance company that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement of the contract.
Unless the insured is at fault and is guilty of a breach the insurer cannot escape from the obligation to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promisor (the insured) committed a breach of his promise. Not when some mishap occurs by some mischance. When the insured has done everything within his power inasmuch as he has engaged a licensed driver and has placed the vehicle in charge of a licensed driver, with the express or implied mandate to drive himself it cannot be said that the insured is guilty of any breach.
And it is only in case of a breach or a violation of the promise on the part of the insured that the insurer can hide under the umbrella of the exclusion clause. In a way the question is as to whether the promise made by the insured is an absolute promise or whether he is exculpated on the basis of some legal doctrine. The discussion made in para 239 of Breach of Contract by Carter (1984 Edn.) under the head Proof of Breach, gives an inkling of this dimension of the matter. In the present case even if the promise were to be treated as an absolute promise the grounds for exculpation can be found from Section 84 of the Act which reads thus:
"84. Stationary vehicles-No person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver's seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measure taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver." In view of this provision apart from the implied mandate to the licensed driver not to place an unlicensed person in charge of the vehicle, there is also a statutory obligation on the said person not to leave the vehicle unattended and not to place it in charge of an unlicensed driver. What is prohibited by law must be treated as a mandate to the employee and should be considered sufficient in the eye of law for excusing non-compliance with the conditions.
It cannot therefore in any case be considered as a breach on the part of the insured. To construe the provision differently would be to rewrite the provision by engrafting a rider to the effect that in the event of the motor vehicle happening to be driven by an unlicensed person, regardless of the circumstances in which such a contingency occurs, the insured will not be liable under the contract of insurance. It needs to be emphasised that it is not the contract of insurance which is being interpreted. It is the statutory provision defining the conditions of exemption which is being interpreted.
These must therefore be interpreted in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life-aim. To do otherwise would amount to nullifying the benevolent provision by reading it with a non-benevolent eye and with a mind not tuned to the purpose and philosophy of the legislation without being informed of the true goals sought to be achieved. What the legislature has given, the Court cannot deprive of by way of an exercise in interpretation when the view which renders the provision potent is equally plausible as the one which renders the provision impotent.
In fact it appears that the former view is more plausible apart from the fact that it is more desirable. When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of "reading down" the exclusion clause in the light of the "main purpose" of the provision so that the "exclusion clause" does not cross swords with the "main purpose" highlighted earlier.
The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose. This theory which needs no support is supported by Carter's "Breach of Contract" vide paragraph 251. To quote: "Notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule, usually referred to as the "main purpose rule", which may limit the application of wide exclusion clauses defining a promisor's contractual obligations.
For example, in Glynn v. Margetson & Co (1893 AC 351, 357, Lord Halsbury, L.C. stated: It seems to me that in construing this document, which is a contract of carriage between the parties, one must in the first instance look at the whole instrument and not at one part of it only. Looking at the whole instrument, and seeing what one must regard ... as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract.'
Although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledged when the doctrine was rejected by the House of Lords in Suissee Atlantique Societe d' Armement Maritime S.A. v. N.V. Rotterdamsche Kolen Centrale (1967) 1 AC 361, 393, 412-413, 427-428, 430. Accordingly, wide exclusion clauses will be read down to the extent to which they are inconsistent with the main purpose, or object of the contract.
(emphasis supplied)"
23. A 3-Judge Bench of this Court in Sohan Lal Passi v. P. Sesh Reddy & Ors. (1996) 5 SCC 21 examined the correctness of the aforesaid view in Skandia's case (supra) and has laid down thus :
"12. ... According to us, Section 96(2)(b)(ii) should not be interpreted in a technical manner. Sub-section (2) of Section 96 only enables the insurance company to defend itself in respect of the liability to pay compensation on any of the grounds mentioned in sub-section (2) including that there has been a contravention of the condition excluding the vehicle being driven by any person who is not duly licensed. This bar on the face of it operates on the person insured. If the person who has got the vehicle insured has allowed the vehicle to be driven by a person who is not duly licensed then only that clause shall be attracted.
In a case where the person who has got insured the vehicle with the insurance company, has appointed a duly licensed driver and if the accident takes place when the vehicle is being driven by a person not duly licensed on the basis of the authority of the driver duly auth