Delhi High Court
M/S. New India Assurance Co. Ltd. vs Smt. Savitri Devi & Ors. on 6 March, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 6th March, 2012
+ MAC.APP. 31/2009
M/S. NEW INDIA ASSURANCE CO. LTD. .....Appellant
Through: Mr. D.K. Sharma, Advocate
versus
SMT. SAVITRI DEVI & ORS. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellants impugn the judgment dated 03.10.2008 whereby
while awarding a compensation of ` 6,88,000/-, the Motor
Accident Claims Tribunal (the Claims Tribunal) denied
recovery rights to the Appellant on the ground that the holder of
LMV (NT) driving licence is competent to drive a transport
vehicle which in this case was a Mahindra Jeep (Phat Paht Sewa
meant for carrying passengers for hire) bearing registration
No.DL-1Q-0277.
2. Admittedly, the accident took place on 16.10.2004. Driver of
the offending vehicle Shyam Singh (the fifth Respondent)
possessed a driving licence No.P05042004257258 valid for the
period from 26.04.2004 to 25.04.2024.
3. Since no Appeal has been filed by the Claimants, the owner and
the driver of the offending vehicle, I am not to go into the
question of quantum or the negligence. While dealing with the
question of liability, the Claims Tribunal held as under:-
"LIABILITY (IN BOTH THE CASES):
Ld. Counsel for the Ins. Co. had argued that the driving
licence possessed by the driver did not permit him to
drive the passenger vehicle. Ins. Co. thus insist for
recovery rights. R3W1 stated that he got verified the
licence number 4267258 for motorcycle and LMV (NT).
He further deposed that the driver was driving
commercial vehicle. Therefore, he submits that Ins. Co.
is not liable to indemnify.
R3W2 official from the transport department deposed
that the licence issued on 26.04.2004, for LMV (NT) was
to expire by 25.04.2024. Ex.R3W2 is the verification
report. He also deposed that this licence is not valid for
driving commercial vehicle. Per contra, Ld. Counsel for
R-1 relied on the following rulings a) Ashok Gangadhar
Maratha v. Oriental Ins. Co. Ltd. SC 2000 (1) RCR
(Civil) 437 b) Jeet @ Ajeet Singh v. Poonam & Ors. 2006
(4) RCR (Civil) 640 P&H Court c) Nirmala & Ors. v.
Satish DB 2005 (4) RCR (Civil) P&H Court 827 d)
National Ins. Co. Ltd. v. Shankar Lal 2005 (1) RCR
(Civil) 550 MP.
Ld. Counsel for Ins. Co. relied on the ruling of New India
v. Suraj Parkash, 2001 ACJ 85 HP.
I have gone through the above rulings. The controversy
is now resolved by the Hon'ble Supreme Court in
National Insurance Company Ltd. v. Annappa Irappa
Nasaria and Ors., 2008 IV AD (SC) 358.
The date of accident is 16.10.2004. While rendering the
above recent ruling, the Hon'ble Supreme Court has
noted that Section 2 (21) of the MV Act, which defines
light motor vehicle. It also discussed Section 3 and the
Central Motor Vehicles Rule, 1989. The application
form for licence at rule 2 (c) show the licence for MLV,
MGV, HGV, motor vehicles of other descriptions. Para
16 is very clear as held by the Hon'ble Supreme Court.
Para 16. "From what has been noticed
hereinbefore, it is evidence 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."
In view of the above law, the licence to drive LMV covers both
light passenger vehicles and light goods vehicle also.
Therefore, the ruling in New India Ass. Co. Ltd. v. Suraj
Parkash of HP High Court, is of no help to the Ins. Co. Hence,
no recovery rights can be granted in both the cases to the Ins.
Co. the Ins. Co. having admitted the policy shall make good the
payment."
4. It is urged by the learned counsel for the Appellant that the
Claims Tribunal erred in holding that a person possessed of a
licence for LMV was competent to drive a transport vehicle.
Reliance on the judgment in National Insurance Company
Limited v. Annappa Irappa Nesaria & Ors., 2008 IV AD (SC)
358 was also misplaced.
5. I tend to agree with the contention raised on behalf of the
Appellant. My Lord Hon'ble Mr. Justice S.B. Sinha while
writing judgment drew a distinction between the validity of a
licence for LMV to drive a light goods carriage or a light
passenger vehicle before amendment in form 4 prescribed under
Rule 2 (e) in the Central Motor Vehicles Rules, 1989 (the
Rules). Before the amendment in 2001 the entries Medium
Goods Vehicles and Heavy Goods Vehicles existed which have
been substituted by a "transport vehicle". It was held that a
person holding a licence for Light Motor Vehicle after
28.03.2001 would not be competent to drive a "transport
vehicle". In the said case, the accident occurred on 09.12.1999.
It was in that context that it was held that the driver by holding
a valid licence for LMV was authorized to drive Light Goods
Vehicle as well. In this case, the accident took place on
16.10.2004 and thus the driver who was holding a driving
licence to drive a Light Motor Vehicle was not competent to
drive a transport vehicle. Para 12 to 17 of the report are
extracted hereunder:-
"12. The Central Government has framed Rules known
as The Central Motor Vehicles Rules, 1989.
13. The word "Form" has been defined in Rule 2(e) to
mean a Form appended to the rules.
"I Apply for a licence to enable me to drive vehicles of
the following description:
(d) Light motor vehicle
(e) Medium goods vehicle
(g) Heavy goods vehicle
(j) Motor vehicles of the following description:...."
After amendment the relevant portion of Form 4 reads as
under:
"I Apply for a licence to enable me to drive vehicles of
the following description:
(d) Light motor vehicle
(e) Transport vehicle
(j) Motor vehicles of the following description:...."
14. Rule 14 prescribes for filing of an application in
Form 4, for a licence to drive a motor vehicle,
categorizing the same in nine types of vehicles.
Clause (e) provides for "Transport vehicle" which has
been substituted by G.S.R. 221(E) with effect from
28.3.2001. Before the amendment in 2001, the entries
"medium good vehicle" and "heavy goods vehicle"
existed which have been substituted by "transport
vehicle". As noticed hereinbefore, "Light Motor Vehicles"
also found place therein.
15. "Light Motor Vehicle" is defined in Section 2(21)
and, therefore, in view of the provision, as then existed, it
included a light transport vehicle. Form 6 provides for
the manner in which the licence is to be granted, the
relevant portion whereof read as under:
"Authorisation to drive transport vehicle
Number.... Date....
Authorised to drive transport vehicle with effect
from.... Badge number....
Signature.... ...
Designation of the licensing authority Name and
designation of their authority who conducted the
driving test."
16. 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 authorised to drive a light goods
vehicle as well.
17. The amendments carried out in the Rules having a
prospective operation, the licence held by the driver of
the vehicle in question cannot be said to be invalid in
law."
6. In National Insurance Co. v. Kusum Rai, (2006) 4 SCC 250
where a driver holding a driving licence to drive a Light Motor
Vehicle was held to be not entitled to drive a taxi.
7. In Natwar Pariksh & Co. Ltd. v. State of Karnataka & Ors.,
(2005) 7 SCC 364, a distinction was drawn between a transport
vehicle and non transport vehicle by a three Judges Bench of the
Supreme Court. I would extract Para 24 of the report
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."
8. 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.
9. 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."
10. 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.
.............................................................
11. The definition of LMV as given in Section 2(21) of the Motor
Vehicles Act (the Act) is very wide so as to include a transport
vehicle omnibus or a motor car or a tractor or a road roller, the
unladen weight any of which does not exceeds 7500 kg. For
driving a transport vehicle or a road roller, a separate
endorsement would be required on the LMV as can be seen
from Section 10 of the Act.
12. The Sixth Respondent Surinder Kumar, who was Respondent
No.2 before the Claims Tribunal filed a written statement
stating that the much prior to the date of the accident he
transferred the offending vehicle in favour of the fifth
Respondent. At the time of evidence, an affidavit Ex.R2W-1/A
was filed to this effect. No document of transfer has been
produced. Even if his Affidavit is accepted on face value, he
being the owner as defined under Section 2 (30) of the Act read
with Section 168 of the Act , he remains liable for payment of
compensation along with the driver, who is the tortfeasor. The
Sixth Respondent has not given any explanation as to the
circumstances under which the vehicle was entrusted to the
Fifth Respondent. The driving licence has been proved to be
not valid for driving the offending vehicle and in the absence of
any evidence produced by the Sixth Respondent as to the
circumstances under which the vehicle was entrusted to him, the
breach of the policy condition read with Section 149 (2) (a) (ii)
of the Act is established.
13. The Appellant was therefore entitled to the grant of recovery
rights on the basis of the law laid down in United India
Insurance Company Ltd. v. Lehru & Ors., (2003) 3 SCC 338
and National Insurance Co. Ltd. v. Swaran Singh & Ors., 2004
(3) SCC 297.
14. It is, therefore, directed that the Appellant shall be entitled to
recover the compensation paid from the driver and the owner fo
the offending vehicle, the Fifth and the Sixth Respondent
respectively.
15. The Appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
MARCH 06, 2012
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