National Insurance Company Ltd vs Legal Heirs Of Decd. Nathabhai ...
2022 Latest Caselaw 4167 Guj

     C/FA/136/2014                              JUDGMENT DATED: 18/04/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 136 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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             NATIONAL INSURANCE COMPANY LTD.
                           Versus
LEGAL HEIRS OF DECD. NATHABHAI NARANBHAI SHINGALA & 1 other(s)
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Appearance:

MR NAGESH C SOOD, ADVCATE for the Appellant - Insurance Company

MR HEMAL SHAH, ADVCATE for the Original Claimants

MR NIRAJ J. SHAH, ADVCATE for
MR BHAVESH P TRIVEDI, ADVOCATE for the Respondent No. 2
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                            Date : 18/04/2022

                           ORAL JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - Insurance Company, being

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aggrieved and dissatisfied with the judgment and award dated 05.03.2013 passed by the Motor Accident Claims Tribunal (Aux.), Rajkot in Motor Accident Claim Petition No. 1320 of 2006, by which the Tribunal has awarded compensation of Rs. 6,12,900/- with 9% per annum interest to the claimants, holding Opponents liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 On 01.07.2006, one Nathabhai Naranbhai was driving his motorcycle bearing registration No.GJ-3-QQ-2707 and was going from Rajkot to Lodhika in slow speed and in careful manner. When he reached near village Chibhda, the driver of tractor drove the same in rash and negligence manner and dashed with the motorcycle and thereby caused accident. Due to that, said Nathabhai received serious injuries and ultimately, he succumbed to the injuries. Therefore, the claim petition is filed by the claimants to get the compensation of Rs. 10 lakhs with 9% p.a. interest.

2.2 Notices were served to the opponents i.e. driver and insurance company. Both have filed written statement before the Tribunal at Exh. 15 and 24, respectively, and denied all the averments made by the claimants in the claim petition.

2.3 The Tribunal has framed the issues. The oral as well as documentary evidence were led by the rival parties before the Tribunal. After considering the documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding Rs. 6,12,900/- compensation with 9% per annum interest to the claimants by holding both the opponents liable, jointly and severally.

       C/FA/136/2014                            JUDGMENT DATED: 18/04/2022



2.4     Being aggrieved and dissatisfied with the impugned judgment

and award passed by the Tribunal, the present appeal is preferred by insurance company.

3. Learned advocate Mr. Nagesh Sood for the appellant insurance company has submitted that the main issue involved in this appeal is that the driver was not holding valid and effective driving licence to drive the vehicle. He has submitted that in view of the judgments of Hon'ble Apex Court in the case of :- (i) National Insurance Company Limited versus Kusum Rai reported in (2006) 4 SCC 250 and (ii) The New India Insurance Company Limited versus Roshanben Rahemansha Fakir reported in (2008) 8 SCC 253, the driver of the insured vehicle was not holding valid and effective driving licence and therefore, the insurance company could not be held liable to pay the amount of compensation as there is a breach of condition of the insurance policy. He has further submitted that in view of the decision of the Hon'ble Apex Court in the case of National Insurance Company Limited versus Geeta Bhat reported in AIR 2008 SC 1837, the Tribunal has erred in not exonerating the insurance company as the driver of the vehicle was not holding valid and effective driving licence. He has further submitted that the judgment of Hon'ble Apex Court in the case of Mukund Dewangan versus Oriental Insurance Co. Ltd., reported in AIR 2017 SC 3668 is recently referred to the larger Bench and therefore, the present appeal is required to be allowed on the ground that the driver is not holding valid and effective driving licence.

4. Learned advocate Mr. Niraj J. Sharma for learned advocate Mr. B.P. Trivedi for the respondent No.2 has submitted that the Tribunal has erred in passing the impugned award. He has submitted that the

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respondent No.2 be exonerated considering the facts of the case.

5.1 Per contra, learned advocate Mr. Hemal Shah for the claimants has submitted that the only issue involved in the present appeal is as to whether the driver can drive the vehicle involved in the accident in view of the fact that he was holding the driving licence to drive only non transport vehicle. He has relied on the observations made in the judgment of Hon'ble Apex Court in the case of Mukund Dewangan (supra), more particularly para : 42, 43, 45 & 46, which are reproduced as under :

"42. In Nagashetty (AIR 2001 SC 3356) (supra), the vehicle involved was a tractor which was used for carrying goods. The goods were carried in a trailer attached to it. It was held that if a driver was holding an effective licence to drive a tractor, he could validly drive the tractor attached to a trailer. The contention that it was a transport vehicle, as the tractor was attached to a trailer and as such the driver was not holding a valid licence, was rejected. This Court has laid down thus:

"9. Relying on these definitions, Mr. S.C. Sharda submitted that admittedly the trailer was filled with stones. He submitted that once a trailer was attached to the tractor the tractor became a transport vehicle as it was used for carriage of goods. He submitted that Section 10(2) of the Motor Vehicles Act provides for grant of licences to drive specific types of vehicles. He submitted that the driver only had a licence to drive a tractor. He submitted that the driver did not have a licence to drive a transport vehicle.

He submitted that therefore it could not be said that the driver had an effective and valid driving licence to drive a goods carriage or a transport vehicle. He submitted that

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thus the driver did not have a valid driving licence to drive the type of vehicle he was driving. He submitted that as the driver did not have a valid driving licence to drive a transport vehicle, the Insurance Co. could not be made liable. He submitted that the High Court was right in so holding.

10. We are unable to accept the submissions of Mr. S.C. Sharda. It is an admitted fact that the driver had a valid and effective licence to drive a tractor. Undoubtedly Under Section 10, a licence is granted to drive specific categories of motor vehicles. The question is whether merely because a trailer was attached to the tractor and the tractor was used for carrying goods, the licence to drive a tractor becomes ineffective. If the argument of Mr. S.C. Sharda is to be accepted, then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make that tractor or motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid driving licence to drive a tractor or a motor vehicle, he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words, a person having a valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle.

11. In this case, we find that the Insurance Company when issuing the insurance policy, had also so understood.

The insurance policy has been issued for a tractor. In this

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insurance policy, an additional premium of Rs.12 has been taken for a trailer. Therefore the insurance policy covers not just the tractor but also a trailer attached to the tractor. The insurance policy provides as follows for the "persons or classes of persons entitled to drive":

'Persons or classes of persons entitled to drive - Any person including insured provided that the person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence:Provided also that the person holding an effective learner's licence may also drive the vehicle when not used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989, limitations as to use.'

12. The policy is for a tractor. The "effective driving licence" is thus for a tractor. The restriction on a learner driving the tractor when used for transporting goods shows that the policy itself contemplates that the tractor could be used for carriage of goods. The tractor by itself could not carry goods. The goods would be carried in a trailer attached to it. That is why the extra premium for a trailer. The restriction placed on a person holding a learner's licence i.e. not to drive when goods are being carried is not there for a permanent licence-holder. Thus a permanent licence-holder having an effective/valid licence to drive a tractor can drive even when the tractor is used for carrying goods. When the policy itself so permits, the High Court was wrong in coming to the conclusion that a person having a valid driving licence to drive a tractor would become disqualified to drive the tractor if a trailer was attached to it."

"43. Section 10(2) (a) to (j) lays down the classes of vehicles to be driven not a specific kind of motor vehicles in

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that class. If a vehicle falls into any of the categories, a licence holder holding licence to drive the class of vehicle can drive all vehicles of that particular class. No separate endorsement is to be obtained nor provided, if the vehicle falls in any of the particular classes of section 10(2). This Court has rightly observed in Nagashetty (AIR 2001 SC 3356)(supra) that in case submission to the contrary is accepted, then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle it by itself does not mean that driver ceased to have valid driving licence. In our considered opinion, even if such a vehicle is treated as transport vehicle of the light motor vehicle class, legal position would not change and driver would still have a valid driving licence to drive transport vehicle of light motor vehicle class, whether it is a transport vehicle or a private car/tractor attached with trolley or used for carrying goods in the form of transport vehicle. The ultimate conclusion in Nagashetty (AIR 2001 SC 3356) (supra) is correct, however, for the reasons as explained by us.

45. Transport vehicle has been defined in section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab, a motor cab, contract carriage, and

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stage carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994.

46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and

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also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of 'light motor vehicles' and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act 'Transport Vehicle' would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:

(i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.

(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act

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54/1994 and 28.3.2001 in the form.

(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)

(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.

(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."

He has submitted that the issue involved in the present appeal is now settled by the judgment of Hon'ble Apex Court as above.

5.2 He has further submitted that though recently, the Hon'ble Apex Court has referred the matter to the larger Bench about the question arising from the judgment of Mukund Dewangan (supra), but there is no stay and since judgment of Mukund Dewangan

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(supra) is rendered by three Hon'ble Judges of the Bench and still holding the field, this appeal is required to be dismissed on this count only.

6.1 I have heard learned advocates for the respective parties. I have considered the impugned judgment and award passed by the Tribunal. I have perused the record and proceedings of the Tribunal. I have also considered the fact that the driver of the vehicle is holding the driving license to drive the non-transport vehicle and therefore, his case is squarely covered by the observations of the Hon'ble Apex Court in the case of Mukund Dewangan (supra). I agree with the submissions made by learned advocate for the claimant(s) that in absence of any stay order or direction by the Hon'ble Apex court, the judgment of Hon'ble Apex Court in the case of Mukund Dewangan (supra) still holds the field and therefore, the present appeal is required to be dismissed on that count only.

6.2 The Hon'ble Supreme Court of India in the case of M.S. Bhati versus National Insurance Company Limited reported in (2019) 12 SCC 248 has observed as under on the said aspect :

"10. The learned counsel further submitted on the alternative plea that the decision in Mukund Dewangan has been reserved for reconsideration by a larger Bench in Bajaj Alliance General Insurance Co. Ltd., v. Rambha Devi by a two-Judge Bench of this Court on 3.5.2018.

11. The law which has been laid down by a three- Judge Bench of this Court in Mukund Dewangan binds this Curt. AS a matter of judicial discipline, we are duty-bound to follow that decision which continues to hold the field."

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In view above, the present appeal is required to be dismissed on that count only.

6.3 Except above, there is no other ground urged by the insurance company. It is noted that respondent No.2 has not challenged the impugned judgment and award before this Court separately.

6.4 In view of above, this appeal is required to be dismissed.

7. For the reasons recorded above, the following order is passed.

7.1 The present appeal is dismissed, with no order as to costs.

7.2 The Tribunal is directed to disburse the entire amount, which is lying in the FDR and/or with the Tribunal, along with accrued interest thereon if any, to the claimant(s), by account payee cheque, after proper verification and after following due procedure.

7.3 Record and proceedings be sent back to the concerned Tribunal, forthwith.

(SANDEEP N. BHATT,J) M.H. DAVE