The New India Insurance Co.Ltd. vs Ganga Singh & Others
2017 Latest Caselaw 3892 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						A.F.R.
 
Court No. - 34
 

 
Case :- FIRST APPEAL FROM ORDER No. - 617 of 1996
 

 
Appellant :- The New India Insurance Co.Ltd.
 
Respondent :- Ganga Singh & Others
 
Counsel for Appellant :- V.Swarup
 
Counsel for Respondent :- H.N. Pandey
 
With 
 
Case :- FIRST APPEAL FROM ORDER No. - 618 of 1996
 

 
Appellant :- The New India Insurance Co.Ltd.
 
Respondent :- Ganga Singh & Another
 
Counsel for Appellant :- V.Swarup
 
Counsel for Respondent :- H.N. Pandey
 

 
Hon'ble Saumitra Dayal Singh,J.

These two appeals arise from an accident that occurred on 30.12.1994 involving death of two minor children, who were riding a bicycle, when a mini truck insured by the present appellant, bearing registration no. UP 84-9010 (hereinafter referred to as 'the offending vehicle'), dashed the bicycle causing grievous injuries to the minor children resulting in their death.

First Appeal From Order No. 617 of 1996 has been filed by the insurer against the award of Motor Accident Claims Tribunal, Mainpuri dated 21.05.1996 in Motor Accident Claim Petition No. 45 of 1995, whereby an award of Rs. 75,000/- has been made on account of death of Dharmendra Kumar.

First Appeal From Order No. 618 of 1996 has been filed by the insurer against the award of Motor Accident Claims Tribunal, Mainpuri dated 21.05.1996 in Motor Accident Claim Petition No. 46 of 1995, whereby an award of Rs. 75,000/- has been made on account of death of Arvind Kumar.

While the appellant does not dispute the occurrence of the accident or the finding of the Tribunal as to negligence or the amount of compensation awarded, solitary ground raised in the present appeals is that the ultimate liability of compensation should have been fixed on the owner of the offending vehicle.

Learned counsel for the appellant insurer submits, admittedly the offending vehicle was a LMV (Light Motor Vehicle) being operated for transport purpose, whereas the driving licence of Umesh Chandra who was driving that vehicle at the time of accident was in respect of LMV (private vehicle only) and that the same had not been endorsed for LMV for transport and or commercial purpose.

According to learned counsel for the appellant, in view of clear stipulation contained in Section 3 read with Section 2(21) of the Motor Vehicles Act, 1988, in absence of endorsement of the driving licence of said Umesh Chandra authorizing him to drive a light motor vehicle for commercial/transport purpose, he was driving the offending vehicle in violation of the terms and conditions of the contract of insurance.

Accordingly, learned counsel for the appellant submits that there was a clear case of breach of terms and conditions of the contract of insurance. Therefore, the liability for compensation should have been fixed on the owner of the offending vehicle to the exclusion of the insurer or in the least right to recover should have been granted to the appellant against the owner of the vehicle.

No other ground or dispute has been raised in this appeal.

The submission made by learned counsel for the appellant, is no longer res-integra in view of the categorical pronouncement of larger bench of the Supreme Court on 03.07.2017, made upon reference made in the case of Mukund Dewangan Vs. Oriental Insurance Company Ltd. and another (2016) 4 SC 298. By that order, upon consideration of divergence of views expressed in different judgements of the Supreme Court, following questions were referred to the larger bench of the Supreme Court:

"59.1. What is the meaning to be given to the definition of "light motor vehicle" as defined in Section 2(21) of the MV Act? Whether transport vehicles are excluded from it?

59.2. Whether "transport vehicle" and "omnibus" the "gross vehicle weight" of either of which does not exceed 7500 kg would be a "light motor vehicle" and also motor car or tractor or a road-roller, "unladen weight" of which does not exceed 7500 kg and holder of licence to drive class of "light motor vehicle" as provided in Section 10(2)(d) would be competent to drive a transport vehicle or omnibus, the "gross vehicle weight" of which does not exceed 7500 kg or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg?

59.3. What is the effect of the amendment made by virtue of Act 54 of 1994 w.e.f. 14-11-1994 while substituting clauses (e) to (h) of Section 10(2) which contained "medium goods vehicle", "medium passenger motor vehicle", "heavy goods vehicle" and "heavy passenger motor vehicle" by "transport vehicle"? Whether insertion of the expression "transport vehicle" under Section 10(2)(e) is related to the said substituted classes only or it also excluded transport vehicle of light motor vehicle class from the purview of Sections 10(2)(d) and 2(41) of the Act?

59.4. What is the effect of amendment of Form 4 as to operation of the provisions contained in Section 10 as amended in the year 1994 and whether procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" has been changed?"

The larger bench of the Supreme Court has vide judgement dated 03.07.2017 answered the reference above made. The aforesaid four questions have been answered as below:-

"(i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.

(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of 60 light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.

(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.

(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."

(emphasis supplied)

Thus, in view of the aforesaid categorical pronouncement made by the Supreme Court there remains no doubt that the licence issued to Umesh Chandra to drive light motor vehicle (private only) which was otherwise valid and effective on the date of accident did not require further endorsement to drive light transport vehicle or omnibus (whose weight did not exceed 7500 Kg), for transport or commercial purpose.

The procedure to obtain driving licence for transport vehicle for class of light motor vehicle, even after the amendment made to the Act in 1994, continues to be the same as it was earlier and it has not been changed. Thus there was no requirement to obtain separate endorsement to drive private vehicle.

Since Umesh Chandra, driver of the offending vehicle admittedly held the driving licence to drive light motor vehicle, he could drive transport vehicle of that class for transport purpose without a further endorsement to that effect.

The necessary conclusion therefore is, there was no breach of the terms and conditions of contract of insurance as pleaded by the insurer appellant in this case.

On 20.08.1996 the following interim order was passed in this appeal:

"Hon.S.K.Phaujdar,J.

Statutory deposit has been made. The appeal stands admitted. The record be called for. The respondents be noticed and the matter be listed in the second week of November, 1996, for hearing.

On deposit of the rest of sum amounting of Rs. 50,000/- with the Tribunal within two months from today, the execution of the award against the appellant shall remain stayed. However, only half of that sum as also the whole of the sum deposit in the High Court may be withdrawn by the claimants. The sum in the High Court may be remitted down to the Tribunal immediately.

Dt/- 20.08.96"

Consequently, any part of the award that may be still outstanding against the appellant may be deposited by the appellant within a period of two months from dismissal of this appeal today. It shall be released in favour of the claimant-respondents forthwith.

Accordingly, the appeals lack merit and are dismissed. No order as to costs.

Order Date :- 1.9.2017

Lbm/-