Iffco Tokio General Insurance Co. ... vs Parsan & Ors.
2015 Latest Caselaw 4034 Del

$~1
*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                      Date of decision: 20th May, 2015
+        MAC.APP. 532/2012
         IFFCO TOKIO GENERAL INSURANCE CO. LTD...... Appellant
                       Through: Ms. Shantha Devi Raman, Adv.

                                  versus

         PARSAN & ORS.                                            ..... Respondents
                                  Through:     Nemo.

         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL

G. P. MITTAL, J. (ORAL)

1. The Appellant IFFCO TOKIO General Insurance Company Limited

impugned the judgment dated 17.02.2012 passed by the Motor

Accident Claims Tribunal (the Claims Tribunal) whereby

compensation of `2,42,600/- was awarded in favour of Respondents

no.1 and 2 for the death of their bachelor son Shiv Karan in a motor

vehicular accident which occurred on 02.11.2008.

2. The only ground of challenge raised by the Appellant Insurance

Company is that the Appellant successfully proved the wilful breach

of the terms and conditions of the insurance policy by establishing that

the vehicle involved in the accident which was a commercial vehicle

was being driven without a valid permit and that the driver did not

possess a valid driving licence to drive the vehicle involved in the

accident, yet the Claims Tribunal not only fastened the liability on the

Insurance Company but also declined to grant any recovery rights to

the Appellant.

3. I have the Trial Court record before me.

4. It is not in dispute that the insured vehicle which caused the accident

was a TSR bearing registration No.DL-1RK-4195, it being the

commercial vehicle was a transport vehicle. It goes without saying

that there was a requirement to possess a valid permit to drive the

earlier said vehicle and also that the driver must possess a valid

driving licence to drive the category of vehicle which was involved in

the accident.

5. The Appellant Insurance Company made all efforts to obtain the

details of the permit and the driving licence held by the driver from

the owner (Respondent Balkishan) and the driver (Respondent

Paramjit Singh). In this connection, a reference may be made to the

order dated 14.07.2011 passed by the Claims Tribunal whereby notice

of the application to produce the permit in respect of the vehicle

involved in the accident was given to Respondent no.2, i.e. the owner

of the vehicle. On the next date, i.e. on 13.09.2011, the learned

counsel for the owner sought some extra time to produce the permit.

He(Respondent no.2), however, failed to produce the permit.

6. A notice under Order XII Rule 8 of the Code of Civil Procedure, 1908

(CPC) Ex.R3W2/2 (along with postal receipts) was duly proved to

have been served upon the owner and driver requiring them to produce

the driving licence, original insurance policy and copy of the permit in

respect of the vehicle involved in the accident. The owner and driver,

however, failed to produce the same. Thus, for want of production of

the permit, an adverse inference has to be drawn against Respondent

Balkishan, owner of the vehicle.

7. As far as driving licence is concerned, although no driving licence was

produced by the Respondents, but a copy of the driving licence

No.3119/F/97 which was valid for motorcycle and LMV only was

available on record. The same was got verified from the Transport

Authority. The validity of this driving licence is not disputed by the

learned counsel for the Appellant. At the same time, it is urged that on

the strength of this driving licence, Respondent Paramjit Singh was

not competent to drive TSR which is a transport vehicle. It is also

urged that the Claims Tribunal erred in relying on the report of the

Transport Authority to say that since gross weight of the vehicle was

less than 7,500/- kg., the driver was competent to drive a transport

vehicle. This question was gone into at great length by this Court in

Shashi Bhushan & Ors. v. National Insurance Co. Ltd. & Ors., MAC

APP.517/2007, decided on 31.05.2012. Para 9 to 11 of the report are

extracted hereunder:-

"9. In National Insurance Co. Ltd. v. Annappa Irappa Nesaria, (2008) 3 SCC 464, His Lordship Mr. Justice S.B. Sinha (as he then was) 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 Vehicle and Heavy Goods Vehicle 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 aforesaid 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 a Light Goods Vehicle as well. In this case, the accident took place on 21.04.2005 and thus the driver who was holding a driving licence to drive a Light Motor Vehicle was not competent to drive a transport vehicle. Paras 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."

10. In National Insurance Co. v. Kusum Rai, (2006) 4 SCC 250 a driver holding a driving licence to drive a Light Motor Vehicle was held to be not entitled to drive a taxi.

11. 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."

8. Since the driving licence which was available on the record was valid

for driving LMV only and not LMV (Transport) and no other licence

was produced by the insured, it has to be held that the driver possessed

valid driving licence to drive Light Motor Vehicle (LMV) only and

not a transport vehicle. Thus, in view of the judgment in Shashi

Bhushan & Ors. v. National Insurance Co. Ltd. & Ors., MAC

APP.517/2007, decided on 31.05.2012; National Insurance Co. v.

Kusum Rai, (2006) 4 SCC 250; and New India Assurance Company

Limited v. Roshanben Rahemansha Fakir & Anr., (2008) 8 SCC 253,

the driver was not competent to drive the vehicle involved in the

accident.

9. The owner has not come forward with any explanation as to under

which circumstances the vehicle was entrusted to the driver. The

Appellant discharged the initial onus of proving conscious and willful

breach on the part of the insured and is, therefore, entitled to recover

the amount of compensation paid from the insured in view of the

judgment of this Court in Oriental Insurance Company Limited v.

Rakesh Kumar & Ors., MAC APP.329/2010, decided on 29.02.2012.

10. The Appeal is accordingly allowed. It is directed that the Appellant

will be entitled to recover the amount of compensation paid in

execution of this very judgment without having recourse to

independent civil proceedings.

11. The amount deposited shall be released in favour of Respondents no.1

and 2.

12. Statutory amount, if any, deposited shall be refunded to the Appellant

Insurance Company.

(G.P. MITTAL) JUDGE MAY 20, 2015 vk