Delhi High Court
Balwan Singh vs United India Insurance Co. Ltd. & ... on 6 February, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 18th January, 2012
Pronounced on: 6th February, 2012
+ MAC.APP. 741/2011
BALWAN SINGH ..... Appellant
Through: Mr. Bhupesh Narula, Adv.
versus
UNITED INDIA INSURANCE CO. LTD. & ORS.
..... Respondents
Through: Mr. K. L. Nandwani, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant Balwan Singh impugns the judgment dated
17.04.2007 passed by the Motor Accident Claims Tribunal (the
Claims Tribunal) whereby while awarding a compensation of `
3,08,000/- in favour of the Second Respondent, the Claims
Tribunal granted right to the First Respondent (the Insurer) to
recover the compensation paid from the Appellant who was the
owner of the offending vehicle number HR-14-A-5846.
2. By the impugned judgment, the Tribunal held that the driver i.e.
the Third Respondent by virtue of driving licence Ex.PW-1/4
was authorized to drive a motor cycle and LMV(NT) and thus,
he was not authorized to drive a tractor trolley (tractor +
trolley).
3. The Learned counsel for the Appellant referred to a decision of
this Court in Oriental Insurance Company Limited v. Smt.
Sushma & Ors. MAC APP. 503/2006 (decided on 01.09.2008)
wherein this Court while analyzing the definition of Light
Motor Vehicle (LMV) as given in Clause 21 of Section 2 of the
Motor Vehicles Act (the Act) held that wherever unladen
weight of a vehicle is less than 7,500/- kg., it would be covered
within the definition of LMV irrespective of the fact that it was
a transport vehicle or a non-transport vehicle. Though, it was
not disputed before the Claims Tribunal that a tractor while
pulling trolley would be a transport vehicle, I would like to
refer to the Notification number 1248 (E), dated 05.11.2004
issued by the Central Govt. whereby the transport vehicles have
been differentiated from the non-transport vehicles. The
Notification is extracted hereunder:-
Sr. Transport Vehicles Sr. Non-Transport Vehicles
No. No.
i Motor cycle with side car for i Motor cycle with or without car
carrying goods. for personal use.
ii Motor cycle with trailer to Ii mopeds and Motorised Cycle
carry goods (Engine Capacity exceeding
125 cc.)
iii Motor cycle used for hire to iii Invalid carriage.
carry one passenger on pillion
and motorised cycle -
rickshaws for goods or
passengers on hire.
iv Luxury cabs iv Three wheeled vehicles for
personal use.
v Three wheeled vehicles for V Motor car
transport of passenger/goods
vi Goods carrier trucks or vi Fork lift
tankers or mail carriers (N1 -
N3 category)
vii Power tiller and Tractors vii Vehicles/trailors fitted with
using public roads. equipments like
Rig,generator,compressor
viii Mobile Clinic or X-Ray Van viii Crane mounted vehicle
or Library Van.
ix Mobile workshops. ix Agriculture Tractor and power
tiller.
x Mobile canteens x Private Service Vehicle,
Registered in the name of an
individual and if declared to be
used by him solely for personal.
xi Private Service Vehicle xi Camper Van or trailer for
private use.
xii Public Service Vehicle such xii Tow trucks, Brakedown van
as Maxi cab, Motor cab, stage and Recovery vehicles
carriages and contract
carriages including tourist
vehicles.
xiii Educational Institution buses xiii Tower Wagons and tree
trimming vehicles owned by
Central, State and local
authority.
xiv Ambulances xiv Construction Equipment
Vehicles as defined in rule 2
(ca).
xv Animal ambulances
xvi Camper vans/trailers
xvii Cash Vans
xviii Fire tenders, snorked, ladders,
auxillary trailers and fire
fighting vehicles
xix Articulated Vehicles
xx Hearses
xxi Omnibus
4. In Natwar Pariksh & Co. Ltd. v. State of Karnataka & Ors.,
(2005) 7 SCC 364, a three Judges Bench of the Supreme Court
held that even though a trailer was drawn by motor vehicle, it
by itself being a motor vehicle the tractor trolley would
constitute a goods vehicle under Section 2(14) and would
consequently be a transport vehicle under Section 2(47). Para
24 of the report is extracted hereunder:-
"24. Section 2(28) is a comprehensive definition of the
words "motor vehicle". Although, a "trailer" is
separately defined under section 2 (46) to mean any
vehicle drawn or intended to be drawn by motor vehicle,
it is still included into the definition of the words "motor
vehicle" under section 2 (28). Similarly, the word
"tractor" is defined in section 2 (44) to mean a motor
vehicle which is not itself constructed to carry any load.
Therefore, the words "motor vehicle" have been defined
in the comprehensive sense by the legislature. Therefore,
we have to read the words "motor vehicle" in the
broadest possible sense keeping in mind that the Act has
been enacted in order to keep control over motor
vehicles, transport vehicles, etc. A combined reading of
the aforestated definitions under section 2, reproduced
hereinabove, shows that the definition of "motor vehicle"
includes any mechanically propelled vehicle apt for use
upon roads irrespective of the source of power and it
includes a trailer. Therefore, even though a trailer is
drawn by a motor vehicle, it by itself being a motor
vehicle, the tractor-trailer would constitute a "goods
carriage" under section 2(14) and consequently, a
"transport vehicle" under section 2(47). The test to be
applied in such a case is whether the vehicle is proposed
to be used for transporting goods from one place to
another. When a vehicle is so altered or prepared that it
becomes apt for use for transporting goods, it can be
stated that it is adapted for the carriage of goods.
Applying the above test, we are of the view that the
tractor-trailer in the present case falls under section
2(14) as a "goods carriage" and consequently, it falls
under the definition of "transport vehicle" under section
2(47) of the M.V. Act, 1988."
5. Subsequently, in New India Assurance Company Limited v.
Roshanben Rahemansha Fakir & Anr., (2008) 8 SCC 253; the
Supreme Court differentiated between a transport vehicle and
non transport vehicle and held that a driver who had a valid
licence to drive a Light Motor Vehicle was not authorized to
drive a light goods vehicle. It was further held that the person
must possess the licence for the class of vehicle involved in the
accident.
6. A Light Motor Vehicle is defined under Section 2 (21) to mean
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 kg. A
"transport vehicle" on the other hand has been defined under
Section 2 (47) to mean a public service vehicle, a goods
carriage, an educational institution bus or a private service
vehicle. Section 10 of the Act says every learner's licence and
driving licence, except a driving licence issued under Section
18, shall be in such form and shall contain such information as
may be prescribed by the Central Government. A learner's
licence shall also be expressed as entitling the holder to drive a
motor vehicle on one or more of the following class. Section 10
of the Act is extracted hereunder:-
"10. Form and contents of licences to drive.
(1) Every learner's licence and driving licence, except a
driving licence issued under section 18, shall be in such
form and shall contain such information as may be
prescribed by the Central Government.
(2) A learner's licence or, as the case may be, driving
licence shall also be expressed as entitling the holder to
drive a motor vehicle of one or more of the following
classes, namely:-
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) transport vehicle;
(i) road-roller;
(j) motor vehicle of a specified description."
7. Rule 16 (1) of the Central Motor Vehicles Rules, 1989 provides
Form 6 for issuance of a driving licence, which is extracted
hereunder:-
FORM 6
[See rule 16(1)]
(To be printed in Book Form of the size six centimeters into eight
centimeters)
Form of Driving Licence
Name of the Licence Holder ............................................................
Son/Wife/Daughter of ....................................................................
Passport size
photograph
Name to be written across the photograph (Part of the seal and signature of the
Licensing Authority to be on the Photograph and part of the driving licence).
Specimen signature/Thumb impression
of the Holder of the Licence.
Signature and designation of the
Licensing Authority.
Driving Licence number ..........................................
Date of issue ..........................................
Name ..........................................
Son/wife/daughter of ..........................................
Temporary address/Official address (if any)
..........................................
Permanent address ..........................................
Date of Birth ..........................................
Educational qualifications ..........................................
Optional
Blood group ..........................................
RH factor ..........................................
The holder of this licence is licensed to drive throughout India vehicles of the
following description:-
Motor cycle without gear
Motor cycle with gear
Invalid carriage
Light motor vehicle.
Transport vehicle.
Road roller
Motor vehicle of a specified description, namely
The licence to drive a motor vehicle other than transport vehicle is valid
from............. to ..........................
The licence to drive transport vehicle is valid
from.......................to ..........................
Name and designation of the authority who conducted the driving test.
...............................................................................
Signature .................
Designation of the Licensing Authority
Name & designation of the authority who conducted the driving test.
Space for addition of other classes of vehicles
Number ...........................
Date.................................
Also authorised to drive the following class of or description of motor vehicles :
Name & designation of the Authority who conducted the driving test.
.............................................................
.............................................................
8. A combined reading of Section 2(21), 2 (47), Section 10 of the
Act and Form 6 issued under Rule 16 (1) would clearly show
that a separate endorsement is needed for a person to drive
Light Motor Vehicle when it is a transport vehicle. The period
of validity of licence to drive a transport vehicle is also different
from the period of validity of any other licence. Section 14 lays
down that a driving licence for a transport vehicle shall be
effective for a period of three years whereas a licence issued in
any other case would be valid for 20 years or upto the age of 50
years of the holder of the licence.
9. In the present case, the licence was issued in the year 2008 and
it was valid up to the year 2014. (Perhaps on account of the
date of birth which is not available). It is also clear that the
licence was for LMV (NT) i.e. non-transport.
10. It would be relevant to extract Para 14 and 15 of the report of
the Supreme Court in Roshanben Rahemansha Fakir (supra)
hereunder:-
"14. In National Insurance Co. Ltd. v. Swaran Singh &
Ors.(2004) 3 SCC 297, this Court opined:
"89. Section 3 of the Act casts an obligation on a
driver to hold an effective driving licence for the
type of vehicle which he intends to drive. Section
10 of the Act enables the Central Government to
prescribe forms of driving licences for various
categories of vehicles mentioned in Sub-section (2)
of the said section. The various types of vehicles
described for which a driver may obtain a licence
for one or more of them are: (a) motorcycle
without gear, (b) motorcycle with gear, (c) invalid
carriage, (d) light motor vehicle, (e) transport
vehicle, (f) road roller, and (g) motor vehicle of
other specified description. The definition clause
in Section 2 of the Act defines various categories of
vehicles which are covered in broad types
mentioned in Sub-section (2) of Section 10. They
are "goods carriage", "heavy goods vehicle",
"heavy passenger motor vehicle", "invalid
carriage", "light motor vehicle", "maxi-cab",
"medium goods vehicle", "medium passenger
motor vehicle", "motor-cab", "motorcycle",
"omnibus", "private service vehicle", "semi-
trailer", "tourist vehicle", "tractor", "trailer" and
"transport vehicle". In claims for compensation for
accidents, various kinds of breaches with regard to
the conditions of driving licences arise for
consideration before the Tribunal as a person
possessing a driving licence for "motorcycle
without gear", [sic may be driving a vehicle] for
which he has no licence. Cases may also arise
where a holder of driving licence for "light motor
vehicle" is found to be driving a "maxi-cab",
"motor-cab" or "omnibus" for which he has no
licence. In each case, on evidence led before the
Tribunal, a decision has to be taken whether the
fact of the driver possessing licence for one type of
vehicle but found driving another type of vehicle,
was the main or contributory cause of accident. If
on facts, it is found that the accident was caused
solely because of some other unforeseen or
intervening causes like mechanical failures and
similar other causes having no nexus with the
driver not possessing requisite type of licence, the
insurer will not be allowed to avoid its liability
merely for technical breach of conditions
concerning driving licence."
The said decision has been considered by this Court in
National Insurance Co. v. Kusum Rai, (2006) 4 SCC 250.
15. In National Insurance Company Ltd. v. Annappa
Irappa Nesaria and Ors., (2008) 3 SCC 464, it was noticed that
the provisions of the Act have undergone a change. The
definition of `light motor vehicle' would not include a
light transport vehicle. In that case, keeping in view the
date on which the accident took place, it was held:-
"20. From what has been noticed hereinbefore, it
is evident that „transport vehicle‟ has now been
substituted for `medium goods vehicle' and `heavy
goods vehicle'. The light motor vehicle continued,
at the relevant point of time, to cover both, „light
passenger carriage vehicle‟ and „light goods
carriage vehicle‟. A driver who had a valid licence
to drive a light motor vehicle, therefore, was
authorized to drive a light goods vehicle as well."
11. In view of the above discussion, there is no escape from the
conclusion that the Third Respondent was not entitled to drive
the tractor trolley involved in the accident. The Claims
Tribunal rightly granted the recovery rights. It is not the case of
the Appellant that he was not aware of the licence held by the
Third Respondent and thus, it cannot be said that he was not
guilty of willful breach of the terms of the policy. Since the
First Respondent could avoid the liability on successfully
proving the breach of the terms of the policy, the Claims
Tribunal's order granting recovery rights to the First
Respondent cannot be faulted.
12. The Appeal is devoid of any merit; the same is accordingly
dismissed.
13. Pending applications also stand disposed of.
(G.P. MITTAL)
JUDGE
FEBRUARY 6, 2012
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