Shreeji Gas Agency Through Its ... vs Jagdish Yadaorao Barapatre And 2 ...
2021 Latest Caselaw 11859 Bom

  6FA 916-2015.2015                               1



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                         FIRST APPEAL NO. 916 OF 2015

  Shreeji Gas Agency,
  through its Proprietor Mr. Ritesh Paliwal,
  R/o Sindi (Railway), Tal. Selu, Dist. Wardha.
                                                              ...APPELLANT
                    Versus

  1. Jagdish Yadaorao Barapatre,
     aged 37 years, Occ. Business,
     R/o Sindhi Railway, Rajendra Ward,
     Tal. Selu, Dist. Wardha.

  2. The Branch Manager,
     The United Indian Insur. Co. Ltd.
     'Sun Gul' Tower, Main Road, Wardha.

  3. Sharad s/o Prabhakar Zade,
     aged 31 years, Occ. Driver,
     R/o Sindhi Railway, Tah. Selu, Dist. Wardha.
                                                        ...RESPONDENTS


  Shri S.V. Deshmukh, Advocate for the appellant.
  Shri Asghar Hussain, Advocate for respondent No.1.
  None for respondent Nos.2 and 3.
                    .....

                                 CORAM : PUSHPA V. GANEDIWALA, J.

DATED : AUGUST 26, 2021.

ORAL JUDGMENT :

Present is an Appeal filed by the owner of the

offending vehicle under Section 173 of the Motor Vehicles Act,

1988 ("MV Act") challenging the judgment and award dated

01/06/2015 passed by the Member, Motor Accident Claims

Tribunal, Wardha in M.A.C.T. No. 110/2013, whereby the

Tribunal has directed the owner and driver, i.e., the appellant

and respondent No.3 herein to pay Rs.2,21,780/-, inclusive of

amount of compensation under "no fault liability" along with

interest @ 7.5% per annum from the date of application till

realisation, jointly and severally to the claimant.

2. The grievance of the appellant/ owner in the

instant Appeal is that the Tribunal could not have exonerated

the Insurance Company from the payment of compensation

considering the law laid down by the Hon'ble Supreme Court

in the case of Mukund Dewangan Vs. Oriental Insurance

Company Limited, (2017) 14 SCC 663, so also in the case of

Kulwant Singh & Ors. Vs. Oriental Insurance Company Ltd.,

2015(1) ALL MR 481 (S.C.).

The facts of the case, in nutshell, may be stated as

under :

3. On 21/01/2013, at about 19:00 hrs, respondent

No.1/ claimant while proceeding towards Sindhi (Railway)

from Seldoh on a motorcycle bearing No. MH-32-V-8291 as a

pillion rider along with one Pankaj Vasantrao Sorate, one

vehicle bearing No. MH-32-Q-0766 loaded with LPG cylinders

came from opposite direction in a high speed and gave dash to

the motorcycle from the front side, as a result of which, the

claimant sustained severe injuries to his right leg and other

parts of the body. That he came to be admitted to Kasturba

Hospital at Sewagram where he was treated from 21/01/2013

to 04/03/2013. The discharge summary reflects the entire

treatment given to him.

The injured thereafter filed Claim Petition before

the Chairman, Motor Accident Claims Tribunal, Wardha

claiming compensation of Rs.3,00,000/-. The Tribunal, on the

basis of oral and documentary evidence available on record, so

also on the basis of submissions made on behalf of both the

sides, though held the claimant entitled for compensation of

Rs.2,21,780/- along with interest, exonerated the Insurance

Company from payment of compensation mainly on the ground

of breach of policy conditions, thereby fastened the liability of

payment of compensation upon the owner and driver of the

offending vehicle. This judgment is impugned in this Appeal by

the owner of the vehicle.

4. Shri Deshmukh, learned counsel for the appellant,

submits that the Tribunal ought to have saddled the liability of

payment of compensation upon the Insurance Company as the

vehicle was insured for third party risks. The Tribunal has

wrongly observed that the driving license of respondent No.3

was issued for twenty years and not for three years, and

therefore, it cannot be held that it was an appropriate driving

license, and therefore, when there is a breach of terms of

policy, the Insurance Company cannot be held responsible for

payment of compensation. He further submitted that as per the

judgment of the Hon'ble Supreme Court in the case of Mukund

Dewangan (supra), the following question was referred for

consideration of the larger Bench :

"Whether a driver, who is having a license to drive the

Light Motor Vehicle and is driving transport vehicle of

that class, is required additionally to obtain an

endorsement to drive the transport vehicle ?"

The Hon'ble Supreme Court answered the above

question in para 60 of the said judgment. For ready reference,

the said para is reproduced below :

"60. Thus, we answer the questions which are referred to us thus :

60.1. "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 Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994.

60.2. 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 roadroller, "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 motorcar or tractor or roadroller, 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 54 of 1994 and 28-3-2001 in the form.

60.3. 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" 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.

XXXX".

The learned counsel further submits that in the

instant case, the driver was holding the license for Light Motor

Vehicle ("LMV") and at the relevant time, he was driving three

wheeler Tempo carrying cylinders. The weight of the said

vehicle was certainly not exceeding 7500 kg, and therefore, the

learned counsel submits that as per the ratio laid down by the

Hon'ble Supreme Court in the case of Mukund Dewangan

(supra), the finding recorded by the Tribunal is grossly

erroneous, and thus, he urged to set-aside the impugned

judgment and award exonerating the Insurance Company.

5. Shri Hussain, learned counsel for the claimant/

respondent No.1, supports the case of the appellant.

6. None appears for respondent Nos.2 and 3, though

served.

7. I have considered the submissions put forth on

behalf of both the sides and perused the record.

8. Considering the law laid down by the larger Bench

of the Hon'ble Supreme Court while answering the reference as

reproduced above, it is now well settled that LMV as defined in

Section 2(21) of the MV Act would include transport vehicle as

per the weight prescribed in Section 2(21) read with Sections

2(15) and 2(48). Such transport vehicles are not excluded

from the definition of the LMV by virtue of Amendment Act No.

54/1994.

9. In the case in hand, as there is no dispute with

regard to holding of effective driving license by the driver of

the offending vehicle for LMV and as per the aforesaid ratio, in

the absence of any endorsement on the license for driving the

transport vehicle, the driver is competent to drive the LMV

below weight 7500 kg. It appears that the Tribunal was

impressed by the fact that the offending vehicle was

transporting goods like cylinders which is highly inflammable.

The Tribunal even though considered Kulwant Singh (supra),

wherein it is held that the motor driver holding "LMV" license

can drive goods vehicle, however, the Tribunal found it

distinguishable on facts.

10. Considering the facts of this case, the only point

which the Court has to see is whether the unladen weight of

the vehicle is below the prescribed weight of 7500 kg, and not

the nature of the goods that the vehicle was carrying at the

relevant time. In the instant case, the occurrence of the

accident, the contract of insurance and valid and effective

license of the driver of the offending vehicle are not disputed.

The only question raised in this Appeal is with regard to the

competency of the driver to drive the transport vehicle, i.e.,

three wheeler auto. Considering the ratio laid down by the

Hon'ble Apex Court in the case of Mukund Dewangan (supra),

the driver was competent to drive the offending vehicle.

11. In the light of the above discussion, it cannot be

said that there was a breach of terms and conditions of the

Insurance Policy by the driver of the offending vehicle.

12. In such circumstances, the Tribunal has erroneously

held that the Insurance Company is not liable as there was a

breach of terms and conditions in the policy.

13. For the reasons aforestated, the finding with regard

to exonerating the Insurance Company from its liability of

payment of compensation is required to be quashed and set

aside, and hence, the impugned order stands modified as

under:

ORDER

i. The Appeal stands partly allowed.

ii. The appellant - owner of the Tempo, respondent

No.2 Insurance Company and respondent No.3 driver of the

offending vehicle shall jointly and severally pay the

compensation to the tune of Rs.2,21,780/- to the claimant with

interest @ 7.5% per annum from the date of petition till its

deposit.

iii. Respondent No.2 Insurance Company to deposit

Rs.2,21,780/- along with interest as above with the Registry of

this Court within a period of three months.

iv. The appellant is permitted to withdraw the amount

of Rs.1,11,000/- with interest @ 7.5% per annum from

10/03/2016 till realisation as and when the Insurance

Company deposits the enhanced amount of compensation.

v. Respondent No.1/ claimant is permitted to

withdraw the balance amount of enhanced compensation with

interest @ 7.5% per annum.

vi. The balance amount deposited by the appellant in

this Court is permitted to be withdrawn by respondent No.1/

claimant with accrued interest.

CIVIL APPLICATION (F) NO. 3002/2019.

14. In view of order passed as above, this application is

rendered infructuous. The same is disposed of accordingly.

JUDGE ******

Sumit