Ved Pal Bhatia vs Balbeer Joshi & Ors.
2009 Latest Caselaw 3272 Del

2
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                         +      MAC.APP.47/2009

%                                   Date of decision: 20th August, 2009



      VED PAL BHATIA               ..... Appellant
               Through : Mr. Narender Kumar Singh, Adv.


                      versus


      BALBEER JOSHI & ORS.         ..... Respondents
               Through : Mr. Pradeep Gaur, Adv.



CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?

3.      Whether the judgment should be
        reported in the Digest?

                               JUDGMENT (Oral)

CM No.1171/2009

1. For the reasons stated in the application and also noting

that the appellant has very good case on merits, the delay in

filing of this appeal is condoned.

2. CM stands disposed of.

MAC.APP. 47/2009

1. The appellant has challenged the award of the learned

Tribunal whereby the award for Rs.10,00,000/- has been passed

in favour of the claimants and against respondent No.6.

Respondent No.6 has been given right to recover the award

amount from the owner/driver of the offending vehicle which is

under challenge in this appeal by the owner of the offending

vehicle.

2. Respondent No.6 has paid the award amount to the

claimants and has initiated the recovery proceedings against the

appellant.

3. The accident dated 18th January, 2000 resulted in the death

of Kapil Dev Joshi. The accident was caused by tractor bearing

No.HR-10-C-4807 which was driven by respondent No.5 and

owned by the appellant. Respondent No.5 appeared in the

witness box as R1W1 and deposed that he was holding a valid

driving licence - Ex.PW1/11. Ex.PW1/11 is the certified copy of

the driving licence No.T-2969 which is valid to drive Motorcycle

and LMV (Transport Vehicle).

4. Respondent No.6 filed the written statement before the

learned Tribunal in which a preliminary objection was raised that

they have been informed by the authority that driving licence

issued to respondent No.5 was for driving Motorcycle and LMV

(Transport Vehicle) only and not tractor trolley. Respondent No.6

produced their record clerk before the learned Tribunal as R3W1

who deposed that the offending vehicle was validly insured with

them vide policy - Ex.R3W1/1. However, respondent No.6 did not

lead any evidence to substantiate the preliminary objection

raised in the written statement. The statement of R3W1 is

reproduced hereunder:-

"R3W1, Dhruv Nanda, Record Clerk, National Insurance Co., DRO - II, Jhandewalan, Delhi.

On SA.

I have brought the office copy of insurance policy of vehicle No.HR 10 C 4807 - tractor which was issued by our company valid from 15.4.99 to 4.4.2000 in the name of Ved Pal Bhatia. The copy of the policy is Ex.R3W1/1.

XXXXXXXXby Sh. Gaurav counsel for petitioner.

Nil (opp. Given).

RO & AC. Judge/MACT/28.3.2005"

5. Although respondent No.6 did not lead any evidence in the

matter to prove that respondent No.5 was not competent to drive

the tractor, the learned Tribunal surprisingly accepted the

objection raised by respondent No.6 and gave a finding in

para 14 of the award that respondent No.5 was not authorized to

drive the tractor.

6. The learned counsel for the appellant submits that

respondent No.5 was authorized to drive LMV (Light Motor

Vehicle).

7. The Light Motor Vehicle defined in Section 2(21) of the

Motor Vehicles Act, 1988 is reproduced hereinunder:-

"Section 2(21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road - roller the unladen weight of any of which, does not exceed 7,500 kilograms."

8. According to Section 2(21) of the Motor Vehicles Act, 1988,

Light Motor Vehicle includes a tractor whose unladen weight does

not exceed 7,500kgs.

9. The learned counsel for the appellant has placed on record

a certificate of registration of the tractor which shows that the

unladen weight of the tractor is 1,650kgs.

10. It is thus clear that the tractor in question is light motor

vehicle within the definition of Section 2(21) of the Motor Vehicles

Act and respondent No.5 is authorized to drive the same.

11. The learned counsel for respondent No.6 submits that the

driving licence - Ex.PW1/11 contains a column giving the

description of various types of motor vehicles in which the

Motorcycle and Light Motor Vehicle have been ticked whereas the

word tractor has been crossed and, therefore, respondent No.5

was not authorized to drive the offending vehicle in terms of

Section 10(2)(j) of the Motor Vehicles Act which provides that a

licence holder should hold a licence to drive a motor vehicle of a

specified description. It is submitted that since the tractor has

been specifically scored out on the licence, respondent No.5 was

not authorized to drive the tractor with trolley. The learned

counsel for respondent No.6 refers to and relies upon the

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

Insurance Co. Ltd. vs. Kusum Rai, 2006 ACJ 1336 where the

driving licence to drive the light motor vehicle was held to be

invalid to drive the commercial vehicle. The judgment referred to

by the learned counsel for respondent No.6 is not applicable to

the present case.

12. This Court is of the view that by virtue of Section 2(21) of

the Motor Vehicles Act, respondent No.5 was authorized to drive

the tractor having unladen weight of less than 7,500kgs. In the

present case, admittedly the unladen weight of the tractor was

1,650kgs and, therefore, respondent No.5 was authorized to drive

the tractor. It is also noted that although respondent No.6 raised

a preliminary objection before the learned Tribunal but it did not

lead any evidence whatsoever on the preliminary objection raised

and, therefore, the finding of the learned Tribunal accepting the

plea on which no evidence was led by respondent No.6 is clearly

erroneous.

13. For all the aforesaid reasons, the finding of the learned

Tribunal that respondent No.5 was not authorized to drive the

tractor in question is set aside.

14. The appeal is allowed and the award of the learned Tribunal

in so far as respondent No.6 has been given the right to recover

the award amount from the appellant and respondent No.5 is set

aside. No costs.

CM No.1170/2009

1. Since the appeal has been allowed, the stay application has

become infructuous.

2. CM is dismissed as infructuous.

J.R. MIDHA, J

AUGUST 20, 2009 aj