The National Insurance Co. Ltd. vs Smt. Aisha Bibi And Others
2023 Latest Caselaw 2296 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Case :-FIRST APPEAL FROM ORDER No. - 504 of 2001
 

 
Appellant :-The National Insurance Co. Ltd.
 
Respondent :-Smt. Aisha Bibi And Others
 
Counsel for Appellant :-R.C.Sharma
 
Counsel for Respondent :-Alok Kirti Mishra,Narendra Pratap Mishra
 

 
Hon'ble Alok Mathur, J.

1. Heard Sri R. C. Sharma, learned counsel for the appellant as well as learned counsel for the respondents.

2. This is first appeal preferred against the judgment and order dated 23.7.2001 whereby the claim preferred by the respondents has been allowed.

3. The brief conspectus of facts is that on 13.8.1999 at 3.30 p.m. the deceased Mohd. Akhtar Khan along with Mr. Rafatullah was proceeding through Allahabad - Faizabad Road by scooter having registration No.U.P. D.N.K. 8007 near Payagipur Crossing at P.S. Kotwali Nagar when one jeep having registration No.U.P. 44A/5939 which was being rashly and negligently driven hit the scooter from the front. The result of the said accident was that the deceased and Mr. Rafatullah both fell down and were rushed to the hospital. Mr. Mohd. Akhtar Khan was seriously injured while Mr. Rafatullah was also seriously injured where his right hand was fractured and leg was also injured. Injured Akhtar Khan was referred to Lucknow on 14.8.1999 and was admitted in Gandhi Memorial and Associated Hospitals, K.G.M.U., Lucknow where he succumbed to his injuries on 18.8.1999.

4. The deceased was 32 years of age at the time of the incident and was survived by his wife, one son and one daughter, who were dependent upon him. It is submitted that he worked at a motor spare parts shop. The jeep was insured by National Insurance Corporation Ltd., branch Sultanpur and the duration of the insurance was from 30.6.1999 to 29.6.2000. The jeep was being driven by one Mahendra Narain Gupta, who on the date of the accident had valid license from 6.12.1996 to 31.7.2007. With regard to the same incident a first information report was also lodged by one Abdul Jabbar Khan on 21.8.1999.

5. The motor accidents Claims Tribunal had formulated five points for determination and returned a finding that the deceased and Sri Rafatullah were involved in the incident on 13.8.199 at 3.30 p.m. on Allahabad Faizabad National Highway when the jeep No. UP 44A/5939 hit the scooter driven by the deceased bearing registration No. DNK  8007 where the deceased received very serious injuries  and succumbed to the same on 18.8.1999.

6. Statement of Abdul Jabbar Khan, father of the deceased, was recorded as P.W.-1, who stated that age of the deceased at the time of the incident was 32 years. He has further stated that the on receiving information about the accident he reached the site and Mohd. Akhtar died on 18.8.1999 after having been referred to Gandhi Memorial and Associated Hospitals, Lucknow. Autopsy report was also submitted as evidence including the injuries caused to the deceased in the said incident. The death book relating to the treatment  given to the deceased by the Gandhi Memorial and Associated Hospitals, Lucknow was also produced in evidence, which proved that the death of the deceased was caused due to the accident. It was also recorded that with regard to the same incident an F.I.R. bearing Case Crime No.702/1999 under Sections 279, 338, 304 A IPC was lodged in Kotwali Nagar, which also proved the said incident.

7. The Appellant has urged two grounds assailing the order of the Tribunal. The first is that Mr. Rafatullah in his deposition had stated that someone had put a note in the pocket with regard to the registration number of the jeep and only on the basis of the said note the jeep has been identified. It has been submitted that there was no independent and conclusive proof that the said accident was caused by the said jeep No.UP44A 5939 and, hence, in absence of any cogent evidence in this regard, it cannot be said that the said jeep was involved in the said accident and, Secondly the offending vehicle was registered as a maxicab which is a commercial vehicle, and the driver did not have commercial driving license hence, there was violation of the condition of insurance and the appellant cannot be saddled with the liability in the facts of the present case. The appellant presses only on the aforesaid facts which is based on the statement given by Rafatullah, the injured.

8. Having heard learned counsel for the parties, the only question which falls for determination and which has been urged by the appellant is as to whether  there was sufficient evidence of the involvement of Jeep No.UP 44A 5939 having caused the accident resulting in death of Akhtar Khan.

9. The father of the deceased was examined as P.W.-1. In his deposition he stated that with regard to the identity of the Jeep he had been informed by Rafatullah. This fact was also informed by Rafatullah to the wife of the decased Smt Aisa Bibi. Rafatullah was examined as P.W.-3. He deposed about the accident in which he was also injured. He stated that he was the witness to the entire accident and an unidentified person had put a slip in his pocket containing the registration number of the Jeep. In his examination in chief he had given the details of the accident, and even during cross examination he maintained his stand that he was witnessed to the entire accident. Apart from the statement of the injured, a first information report was lodged on 21.08.1999 by a neighbour of injured Rafatullah, where also the registration number of Jeep was given.

10. Rafatullah was examined as P.W. -3, who has clearly stated that the scooter No. D.N.K. 8007 was being driven by Mohd. Akhtar in a very slow speed on the left side of the road and the Jeep No.U.P. 44 A/5939 which was being rashly driven collided head on with the scooter  and the scooter  also got entangled to the bumper of the jeep. The driver of the jeep fled away after the accident. On being examined he has maintained that he had witnessed the entire incident himself though the number of vehicle was put into the pocket by some unidentified person but the entire incident has been very clearly narrated by P.W.-3 and there is no dispute about identity of the vehicle and the said accident.

11. The last ground urged by learned counsel for the appellant is that according to the registration certificate of the jeep No.UP 44 A/5939, the vehicle was registered as a maxi cab . It has been vehemently urged by learned counsel for the appellant - Insurance Company  that the same was being driven by Mahesh Narain Gupta, who had valid driving licence for driving Light Motor Vehicle  and not a commercial  vehicle and, hence, the Insurance Company would have no liability  in the present case and the liability, if any, would be of the owner.

12. This Court has perused the lower court record where the registration certificate of the said jeep was filed according to which  the said vehicle has been registered as s maxi cab. The license of the driver Mahesh Narain Gupta has also been filed which indicates that he authorized to driver Light Motor Vehicle only .

13. Learned counsel for the appellant has placed reliance upon the decision of Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Co. Ltd. Etc., 2017(14) SCC 663 in which in paras 45 and 46 it has been held as under:-

"45. Transport vehicle has been defined in section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab, a motor cab, contract carriage, and stage carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) to mean a 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. It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994.

46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of ''light motor vehicles' and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10 (2) (e) of the Act ''Transport Vehicle' would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10 (2) (e)

(h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:

(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 light motor vehicle class as enumerated above. A licence issued under section 10 (2)(d) continues to be valid after Amendment Act 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) 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 o 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."

14. Per contra, learned counsel for the respondent has placed reliance  upon the Full Bench decision of this Court in the case of United India Insurance Co. Ltd. VS. Smt. Shashi Prabha Sharma and others, AIR 2015 Allahabad 167. On the basis of the aforesaid ratio fixed in such cases like the present, the liability may be fastened upon the Insurance Company to pay the compensation initially but the same may be directed to be recovered from the owner of the vehicle.

15. Having considered the rival submissions and perusing the award it is noticed that the jeep was registered as a maxi cab which was a commercial vehicle and was being driven by a person holding the license of Light Motor Vehicle but without endorsement (on the license) driving commercial vehicle. The point raised on behalf of the owner appellant relates to the fact that the driver did not have a valid driving license to drive a commercial vehicle, hence, the Insurance company will not indemnify the owner.

16. The vehicle in question was a jeep which is undoubtedly a light motor vehicle but registered as a maxi cab. Undoubtedly, a maxi cab is a light commercial vehicle and a light commercial vehicle can be used as such, or it can be used for personal work by the owner. In case, it was being used for commercial purpose and the said fact is proved and the driver did not have valid driving license for driving a commercial vehicle then the Insurance Company will be absolved of its liability but in case the vehicle is being used for personal work then this analogy will no apply and, hence, the liability of the insurance company will depend on the facts of particular case. There is no evidence on record to indicate that at the time when the accident was caused it was being used for commercial purpose or was ferrying passengers. It is also possible that the jeep could have been used for personal purpose at the time of the accident and the onus lies upon the owner/Insurance Company to put forth their case and demonstrate that the vehicle was in fact being used for commercial/personal purposes. In absence of any evidence or any material on record, it cannot be concluded that the jeep was being used for commercial purposes at the time of the accident and accordingly in the present case, this Court is of the considered opinion that the liability is of the Insurance Company alone.

17. In light of the aforesaid, the appeal is devoid of merits and is accordingly dismissed.

18. The amount deposited before the court below is liable to be released in favour of the claimants forthwith.

Dt.23.01.2023                                                        (Alok Mathur, J.)
 
RKM