Delhi High Court
The Oriental Insurance Co. Ltd vs Shamim Khan & Ors on 22 April, 2016
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 22nd April, 2016
+ MAC.APP. 383/2009
THE ORIENTAL INSURANCE CO. LTD ..... Appellant
Through: Mr. A K Soni, Adv.
versus
SHAMIM KHAN & ORS ..... Respondents
Through: Mr. Deepak Kohli, Adv. for R-2 and
LRs of R-3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On 09.07.2001, Shamim Khan (first respondent herein) suffered
injuries in motor vehicular accident involving negligent driving of motor
vehicle described as truck tanker bearing registration No.HR 38C 5029 (the
offending vehicle) which was admittedly registered in the name of third
respondent herein (the owner), it being concededly driven at the given point
of time by the second respondent herein (the driver). The offending vehicle
was insured against third party risk with the appellant insurance company
(insurer) for the period in question.
2. The first respondent (the claimant) instituted an accident claim case
(petition No.967/2004) under Sections 166 & 140 of Motor Vehicles Act,
1988 (MV Act) seeking compensation. The petition was contested, inter
alia, by the insurer, it pleading that there was a breach of terms and
conditions of the insurance policy as the driver was not holding a valid or
effective driving licence for purposes of the offending vehicle.
3. The tribunal by judgment dated 24.04.2009 upheld the case of the
claimant about the injuries having been suffered by him in the accident
caused due to negligent driving of the offending vehicle. It awarded
compensation in the sum of ₹1,65,920/- with interest at 9% per annum from
the date of filing of the petition till realization. The contention of the
insurer about breach of terms and conditions of the insurance policy was
rejected and the insurer was held liable to indemnify.
4. By appeal at hand, the insurer presses for recovery rights reiterating
that the driving licence produced by the driver (Ex.R3W1/5) was not valid
or effective for purposes of offending vehicle. It is pointed out that the said
driving licence authorized the driver to drive motor vehicles in the nature of
a motorcycle or tractor (non-transport). It is the submission of the
insurance company that the offending vehicle here falls in the category of
medium goods vehicle within the meaning of the expression defined in
Section 2(23) of MV Act and, therefore, the said driving licence cannot be
relied upon to contend that the driver was authorized.
5. Per contra, the owner resists the appeal placing reliance on National
Insurance Company v. Annappa Irappa Nesaria 2008 (1) TAC 812 (SC)
submitting that since the unladen weight of the offending vehicle was 3,150
kgs only, the offending vehicle falls in the category of light motor vehicle,
as defined in Section 2(21) of MV Act. On this basis it is argued that the
vehicle would not fall in the medium goods vehicle as defined in Section
2(23) and thus, the licence (Ex.R3W1/5) was valid and effective.
6. When the matter was heard on the last date of hearing, it was found
that no document had been brought on record during inquiry before the
tribunal to indicate the particulars of the offending vehicle. The owner and
driver were, thus, directed by order dated 06.04.2016 to discover on oath
the copy of the registration certificate of the offending vehicle. Strict
compliance with the said order has not been made as the document has not
been discovered on oath. None the less, at the hearing the counsel for the
third respondent (owner) submitted photocopies of three pages of the
registration certificate of the offending vehicle which have been taken on
record. He points out from the said document that the unladen weight of
the offending vehicle was 3,150 kgs. On the other hand, the counsel for the
appellant insurer pointed out that the same document shows the gross
weight to be 9,000 kgs. This, in his submission shows that the offending
vehicle would not fall in the category of light motor vehicle within the
meaning of Section 2(21) of MV Act.
7. The expression light motor vehicle is defined by Section 2(21) of
MV Act as under :
"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 7500 kilograms".
8. Even a plain reading of the provision shows that the factor of
"unladen weight" is relevant only in cases of vehicles in the nature of
"motor car, or tractor or road roller" whereas in the case of other motor
vehicles it is the "gross vehicle weight" which is relevant to determine as to
whether it would fall in the category of light motor vehicle or not. Since
according to the document filed by the owner himself, the gross vehicle
weight of the offending vehicle is 9,000 kgs, it not being a motor car or a
tractor or a road roller, it goes out of the category of light motor vehicle and
would fall within the category of "medium goods vehicle" as defined in
Section 2(23) of MV Act, it admittedly not being "a heavy goods vehicle"
as defined in Section 2(16) of MV Act, inasmuch as the gross vehicle
weight or the unladen weight here does not exceed 12,000 kgs.
9. Thus, it is found that the offending vehicle is a medium goods
vehicle and therefore, the contention that the driving license (Ex.R3W1/5)
would be valid and effective in its respect must be rejected.
10. In view of the above finding the contention of the insurance company
that there was a breach of terms and conditions of the insurance policy must
be upheld. Consequently, the impugned judgment insofar as it rejected the
contention to above effect raised by the insurer is set aside. Since the
above facts constitute a breach of terms and conditions of the policy, the
insurance company is held entitled to recovery rights against the third
respondent (the owner). The insurance company is given liberty to take out
appropriate proceedings before the tribunal to enforce the said right in
accordance with law.
11. The statutory amount, if deposited, shall be refunded.
12. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
APRIL 22, 2016/VLD
