Jaywant Dattatraya Zite And Anr vs Shobha Dashrath Khamkar And Ors
2017 Latest Caselaw 7450 Bom

                               1     fa618.13

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

                  FIRST APPEAL NO. 618 OF 2013

1] Jaywant s/o Dattatraya Zite,
   age major, occ. Driver,

2] Jaysingh s/o Chandrakant Mhaske,
   age major, occ. Agril.,

       Both R/o Chandgaon, 
       Tq.Shrigonda,
       District Ahmednagar              ... Appellants

                VERSUS

1] Shobha w/o Dashrath Khamkar,
   age major, occ. Household,

2] Shailesh s/o Dashrath Khamkar,
   age major, occ. Education,

3] Komal d/o Dashrath Khamkar,
   age 15 years, occ. Education,

4] Sheetal d/o Dashrath Khamkar,
   age 13 years, occ. Education,

       Respondent nos. 3 and 4 are 
       minor through Natural Guardian
       Mother i.e. Respondent no.1

5] Laxmibai w/o Dattatraya Khamkar,
   age 65 years, occ. Household,

6] Dattatraya s/o Appa Khamkar,
   age 70 years, occ. Labour work,

       All R/o Takli Kadevalit,
       Taluka Shrigonda, 
       District Ahmednagar




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7] The Oriental Insurance Company
   Ltd., Notice to be served
   on Branch Manager,
   Branch Office, Municipal
   Council, 2nd Floor,
   Kalkai Chowk Shrigonda,
   District Ahmednagar,

8] Ramesh Dattatraya Khamkar,
   age major, occ. Agril.,

9] Vitthal Dattatraya Khamkar,
   age major, occ. Agril.

       Respondents 8 and 9 deleted
       in view of Exh.40                         ... Respondents
                                                 R.Nos. 1 to 6
                                                 orig.claimants

                       .....
Mr. H.U.Dhage, advocate for the appellants
Mr. V.D.Hon, Senior advocate for Resps. 1 to 6
Mr. M.K.Goyanka, advocate for Resp. no.7
                       .....

                               CORAM : K.L.WADANE, J.

Reserved on : 20.9.2017 Pronounced on : 22.9.2017

ORAL JUDGMENT :

Heard learned counsel for the appellants

and the learned counsel for the respective

respondents.

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2. The parties are referred to their original

status.

3. Original respondent nos. 1 and 2 assail

the judgment and order passed by the Motor

Accident Claims Tribunal, Ahmednagar in

M.A.C.Petition No. 373 of 2002, dated 22.7.2010,

by which the claim of the original claimants was

partly allowed and respondent nos. 1 and 2

(present appellants) were held to be responsible

to pay compensation of Rs.3,60,000/- to the

claimants jointly and severally together with 7.5

per cent interest per annum.

4. Learned counsel appearing for original

respondent nos. 1 and 2 submits that the tractor

driver respondent no.1 was holding valid driving

licence. He was authorized to drive all kinds of

vehicles, including heavy goods vehicle, medium

goods vehicle and light motor vehicle.

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5. The appeal is restricted only to the issue

about exoneration of the Insurance Company on the

ground that there was no endorsement on the

driving licence of respondent no.1 to drive the

tractor.

6. To resolve the short controversy, question

raised in the appeal is squarely covered by the

decision of the Apex Court in the case of Mukund

Dewangan vs Oriental Insurance Company Limited,

reported in (2016) 4 SSC 298.

7. Learned counsel appearing for the

Insurance Company also submitted that the issue

involved in the present case is squarely covered

by the observations of the Apex Court (cited

supra).

8. The reasons recorded by the Tribunal, in

para 15 of its judgment, read as follows :

" 15. A perusal of licence (Exh.58) of respondent no.1 shows that there is no endorsement on the licence authorizing him to drive a tractor. In the absence

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of such an endorsement, it cannot be said that the driver i.e. respondent no.1 was holding effective and valid driving licence to drive the tractor at the time of accident. Submissions made by Advocate Shri A.R.Phadnis are liable to be rejected. Respondent No.2 having allowed respondent no.1 to drive tractor, respondent no.2 is guilty of breach of terms and conditions of the insurance policy. In the circumstances, respondent no.3 is not liable to compensate the petitioners."

9. Perusal of licence Exh.58 of respondent

no.1 shows that there is no endorsement on the

licence authorizing him to drive a tractor. The

Tribunal observed that in the absence of such an

endorsement, it cannot be said that the driver

respondent no.1 was holding effective and valid

driving licence to drive the tractor at the time

of accident. The observation of the Tribunal is

incorrect, because on perusal of copy of driving

licence produced on record vide Exh.58, it appears

that the driver of the vehicle was authorized to

drive "heavy goods vehicle, medium goods vehicle

and light motor vehicle". Hence, it is very much

clear that respondent no.1 was authorized to drive

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three types of vehicles. Therefore, what kind of

vehicle was involved in the accident is

immaterial, the category of vehicle is material,

since the tractor falls within one of the

categories specified in the driving licence.

Therefore, at the relevant time of accident,

respondent no.1 was holding valid driving licence

to drive the tractor. The observation of the

Tribunal to that extent is incorrect, and

therefore, same needs to be set aside.

10. Hence, the appeal is allowed.

Respondent nos. 1 to 3 i.e. appellant nos.

1 and 2 and the Insurance Company in the present

case respondent no.7, are jointly and severally

liable to pay the compensation to the claimants.

Award be modified to the extent indicated

above.

(K.L.WADANE, J.)

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