Bombay High Court

The New India Assurance Co. Ltd vs Nana @ Nanasaheb Bhausaheb Aher & ... on 7 June, 2016

Bench: V.K. Jadhav

                                                                         F.A.136/2002
                                            1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         BENCH AT AURANGABAD

                               FIRST APPEAL NO.136 OF 2002




                                                                           
    The New India Assurance
    Company Ltd., having its




                                                   
    Registered and Head office
    at New India Assurance
    Building, 87, M.G. Marg,
    Fort, Mumbai and Divisional
    Office at Aurangabad by its




                                                  
    authorised representative
    Shri Namdeo Gangaram Mali
    Age 49 years, Occu. Service
    R/o Aurangabad                                        ..Appellant




                                         
            Versus

    1.      Nana alias Nanasaheb s/o
                             
            Bhausaheb Aher, Age 32 years,
            Occu. Service, R/o Shivrai,
            Taluka Vaijapur,
                            
            District Aurangabad

    2.      Shirish s/o Purushottamrao Kathare,
            Age Major, Occu. Business,
            R/o House No.146/1, Dhangar Galli,
      

            Shindefal, Taluka Vaijapur,
            District Osmanabad
   



    3.      Ashok Shivaji Jadhave,
            Occu. Driver R/o Bavi,
            Taluka and Dist. Aurangabad





    4.      The Secretary,
            M.S.R.T.C. Bombay through
            its Divisional Controller,
            M.S.R.T.C. Divisional Office
            Aurangabad





    5.      Vijay s/o Pandurang Dabhade,
            Age 35 years, Occu. S.T. Driver,
            R/o Jafrabad, S.T. Depot,
            Taluka Jafrabad, District Jalna               ..Respondents

    Mr D.S. Kulkarni, Advocate h/f Mr S.L. Kulkarni, Advocate for appellant
    Mr Sudam Jawale, Advocate for respondent No.1
    Mr B.R. Sontakke Patil, Advocate for respondent No.2
    Smt. R.D. Reddy, Advocate for respondent No.4
    Respondent No.3 served




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                                                                           F.A.136/2002
                                         2


                                             CORAM : V.K. JADHAV, J.

                                             DATE      : 7th June 2016




                                                                            
    ORAL JUDGMENT




                                                    
            Heard.

2. Being aggrieved by the judgment and award passed by the

Member, Motor Accident Claims Tribunal, Aurangabad dated 9 th

November 2001 in Motor Accident Claim Petition No.158 of 1998, the

original respondent No.3 insurer has preferred this appeal.

3. Brief facts giving rise to the present appeal are as under :

4. On 11th August 1996 at about 7.30 a.m. claimant was traveling

in S.T. Bus bearing registration No.MH-20-D-2645 (Shirdi to Jafrabad)

and on way when the bus reached near kilo meter No.6 stone, one

truck bearing registration No.MTB-1791 came from Vaijapur side in

excessive speed and given dash to the S.T. Bus. In consequence of

which, the claimant has sustained crush injury fracture to both of his

legs. The injury sustained by the claimant also resulted into

permanent disablement. The claimant has, therefore, preferred claim

petition before the Tribunal for compensation under the various

heads.

5. The respondents No.1, 2, 4 and 5 have not filed any written

statement and, therefore, hearing of petition ordered to be proceeded

without their written statement. The respondent No.3 - insurer has

strongly resisted the petition by filing written statement. It has

contended that the driver of the truck was not holding valid and

F.A.136/2002

effective licence at the time of accident. It has also contended that

there was breach of condition of the policy. It is also contended that

the accident took place due to rash and negligent driving of driver of

the S.T. Bus. The learned Member of the Tribunal vide impugned

judgment and award dated 9th November 2001 partly allowed the

petition and thereby directed the respondents No.1 to 3 jointly and

severally to pay compensation of Rs.30,000/- and respondents No.4

and 5 jointly and severally to pay Rs.30,000/- to the claimant with the

interest and proportionate costs from the date of petition till

realisation of entire amount. Being aggrieved by the same, the

original respondent No.3 - insurer has preferred this appeal.

6. The learned Counsel for the appellant - insurer submits that the

driver of the truck was not holding valid and effective driving licence

at the time of accident and, therefore, insurer is not responsible to

pay the compensation. It was further pointed out that the licence

brought on record vide Exh.45 is issued to drive the light motor

vehicle and the same is not valid and effective to drive the truck. The

learned Counsel further submits that the Tribunal has not considered

the same while fastening the liability on the insurer along with owner

of the truck to pay the compensation. The learned Counsel, in order

to substantiate his submission placed reliance on the judgments of

Apex Court in the matters of S. Iyyapan Vs. United India

Insurance Co.Ltd., and anr., reported in (2013) 7 SCC 62 and

Mukund Dewangan Vs. Oriental Insurance Co.Ltd., reported in

LAWS (SC) 2016-2-29.

F.A.136/2002

7. The learned Counsel for the respondent No.1 - original claimant

submits that it is not the case that the driver of the truck was not

holding driving licence at all. He submits that the Tribunal has rightly

held that the driver of the truck has the valid and effective licence to

drive the truck also. The learned Counsel, in the alternate submits

that in view of the ratio laid down in the S. Iyyapan's case (cited

supra), the appellant - insurer may be directed to pay the amount of

compensation, as prescribed by the Tribunal and recover the same

from the owner of the truck.

8. The learned Counsel for the respondent - owner of the vehicle

submits that the appellant - insurer has failed to prove before the

Tribunal that the driver of the truck was not holding valid and

effective driving licence to drive the truck. It is submitted that in

absence of the said evidence, the Tribunal was right in fastening the

liability on respondents No.1 to 3 to pay the compensation of

Rs.30,000/- and on respondents No.4 and 5 to pay the compensation

of Rs.30,000/- jointly and severally to the claimant.

9. It is rather an admitted position that the driver of the truck was

not holding valid and effective driving licence to drive the truck. He

was having a licence, which is placed on record vide Exh.45 is

prescribed to drive the light motor vehicle.

10. In a case of Mukund Dewangan (cited supra), the question was

raised whether for the drivers having licence to drive the light motor

vehicle, there is a necessity of obtaining endorsement to drive the

transport vehicle when the transport vehicle is of class of light motor

F.A.136/2002

vehicle. In this case, the Apex Court has referred the questions to the

larger Bench to the following effect :

(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 ?

(2) Whether 'transport vehicle' and 'omnibus' the "gross

vehicle weight" of either of which does not exceed 7500 kgs. would be a "light motor vehicle" and also motor-car or tractor or a road roller, "unladen weight" of which does not

exceed 7500 kgs. 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 kgs. or

a motor-car or tractor or road roller, the "unladen weight" of which does not exceed 7500 kgs.?

(3) What is the effect of the amendment made by virtue of

Act No.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 expression 'transport vehicle' under section 10(2) (e) is related to said substituted classes only or it also excluded transport vehicle of light motor vehicle class from purview of Sections (10) (2)

(d) and 2(41) of the Act ?

(4) What is the effect of amendment of the 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 ?

F.A.136/2002

11. In the case in hand, the driver of the truck was having valid and

effective driving licence to drive the light motor vehicle. It is the case

that the said driver has driven the transport vehicle which is a class of

light motor vehicle.

12. The observations made by the Apex Court in the case of S.

Iyyapan's case (referred supra) squarely applies to the facts of the

present matter. The respondent - truck owner has not contested the

claim petition in any manner and it is rather an admitted position on

record that the driver of the truck was having the driving licence to

drive the light motor vehicle only.

13. In the light of observations made by Apex Court in the case of S.

Iyyapan's case (referred supra), the appellant - insurer may be

directed to satisfy the award passed against the insured and then

recover it from him. The impugned judgment and award is required to

be modified to that extent. Hence, I proceed to pass the following

order: