Oriental Insurance Co Ltd vs Puniben Kaliyabhai Gamit
2022 Latest Caselaw 4169 Guj

     C/FA/2931/2014                                 JUDGMENT DATED: 18/04/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 2931 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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                         ORIENTAL INSURANCE CO LTD
                                    Versus
                      PUNIBEN KALIYABHAI GAMIT & 2 other(s)
==========================================================
Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3
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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 aggrieved and dissatisfied with the judgment and award dated 08.08.2013 passed by the Motor Accident Claims Tribunal (Aux.), Vyara in Motor Accident Claim Petition No.132 of 2008, by which the

C/FA/2931/2014 JUDGMENT DATED: 18/04/2022

Tribunal has awarded compensation of Rs. 2,59,600/- with 8% per annum interest to the claimants, holding Opponents i.e. driver, owner and insurance company liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 On 21.07.2007 at about 5:50 p.m., the deceased - Rangjibhai Kaliyabhai Gamit was going in Chhakdo Rickshaw bearing registration No.GJ-19-U-6246 with his goods on rent from Songadh to Medhsigi. At that time, when they reached near the Sim of Village Tokarva, the driver of the Chhakdo Rickshaw drove his vehicle in rash and negligent manner and due to that, his Chhakdo turned turtle and Rangjibhai received serious injuries and ultimately, he succumbed to the injuries during the treatment. Therefore, the claim petition is filed by the claimants to get the compensation of Rs. 4 lakhs with interest.

2.2 Notices were served to the opponents i.e. driver, owner and insurance company. Driver and Owner were not remained present before the Tribunal. However, the insurance company has filed its written statement before the Tribunal at Exh. 15 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 as noted above.

2.4 Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the present appeal is preferred by insurance company.

C/FA/2931/2014 JUDGMENT DATED: 18/04/2022

3. Learned advocate 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.

4.1 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 : 43, 45 & 46, which are reproduced

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as under :

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

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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 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

C/FA/2931/2014 JUDGMENT DATED: 18/04/2022

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 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

C/FA/2931/2014 JUDGMENT DATED: 18/04/2022

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 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.

4.2     He has further submitted that though recently, the Hon'ble





       C/FA/2931/2014                               JUDGMENT DATED: 18/04/2022

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 (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.

5.1 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.

5.2 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-

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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."

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

5.3 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.

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

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

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

6.2 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.

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

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