New India Assurance Co Ltd vs Jashiben Bhulabhai Patel
2022 Latest Caselaw 2441 Guj

     C/FA/160/2013                                 JUDGMENT DATED: 04/03/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 160 of 2013


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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                        NEW INDIA ASSURANCE CO LTD
                                   Versus
                     JASHIBEN BHULABHAI PATEL & 3 other(s)
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
MR MTM HAKIM(1190) for the Defendant(s) No. 1,2
MR.DIPAK B PATEL(3744) for the Defendant(s) No. 3,4
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 04/03/2022

                               ORAL JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by appellant - insurance company, being aggrieved and dissatisfied with the judgment and award dated 29.08.2012 passed by the Motor Accident Claims Tribunal (Aux.), Panchmahals at Godhra in Motor Accident Claim Petition No.1192 of

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2006, by which the Tribunal has awarded Rs.2,60,000/- with 9% per annum interest to the claimants, by 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 25.07.2006, the deceased - Bhulabhai Haribhai Patel had hired the Chhakdo bearing registration No.GJ-17-X-9119 for rent of Rs.200/- for bringing buffalo from village More to Chavdibai na Muvada. The said Chhakdo was driven by opponent No.1 in rash and negligent manner. At about 8:00 p.m., near Sarasva village at turning, suddenly a buffalo came on the road and therefore, the opponent had applied breaks and lost control over the Chhakdo. The said Chhakdo got turn turtle and the deceased sustained serious injuries and ultimately, he succumbed to the injuries. Therefore, the claimants - widow and son have filed a claim petition before the Tribunal for getting compensation.

2.2 Notices were served to the opponents i.e. driver, owner and insurance company of the Chhkado. Opponent No.1 - driver has filed his written statement at Exh.11 and denied the averments made by the claimants. Opponent No.3 - insurance company has filed its written statement at Exh.15 and denied the averments made in the claim petition. The Tribunal has framed the issues at Exh.15. The oral as well as documentary evidence have been led before the Tribunal. After considering the submissions made by the rival parties, the Tribunal has passed the impugned judgment and award by awarding compensation of Rs.2,60,000/- with 9% p.a. interest to the claimants, holding opponents liable, jointly and severally.

2.3     Hence, this appeal by the claimants for enhancement of the





      C/FA/160/2013                            JUDGMENT DATED: 04/03/2022



compensation before this Court.

3. Learned advocate Mr. Palak Thakkar for the appellant - insurance company has submitted that the driver of the offending vehicle is holding driving licence of Autorickshaw of 50 CC, however as per the RC Book of Chhakdo Rickshaw which was driven by the driver, the same was mentioned as 510 CC. Therefore, he has submitted that there is clear breach of condition of insurance policy and the claimants are not entitled for any compensation. He has pointed out from the driving licence at Exh.32 and the information of driving licence at Exh.33 that, the driver was not holding effect and valid driving licence to driver the Chhakdo Rickshaw. He has submitted that there was violation of conditions of the insurance policy and also violation of Section 3 of the Motor Vehicles Act, 1988. In support of his submissions, he has relied on the decision of Hon'ble Apex Court in the case of National Insurance Co. Ltd., versus Swarna Singh reported in (2004) 3 SCC 397. Therefore, he has submitted that as the driver is not holding valid driving licence, the Tribunal has wrongly fixed the liability upon the insurance company. Expect these submission, no other submission is made by the learned advocate for the appellant. He has submitted that this appeal may be allowed.

4. Per Contra, Mr. MTM Hakim, learned advocate for the respondents No.1 and 2 and Mr. Dipak S. Patel, learned advocate for respondents No.3 and 4 have supported the impugned judgment and award passed by the Tribunal. They have submitted that the issue raised by the learned advocate for the appellant - insurance company is settled by the Hon'ble Apex Court in the case of Mukund Dewangan versus Oriental Insurance Co. Ltd., reported in AIR 2017 SC 3668. They have submitted that in view of this decision,

C/FA/160/2013 JUDGMENT DATED: 04/03/2022

the Tribunal has rightly held liable the insurance company to pay the amount of compensation to the claimants. They have submitted that this appeal may be dismissed.

5.1 I have heard learned advocates for the respective parties. I have perused the record and proceedings of the Tribunal. I have also gone through the impugned judgment and award passed by the Tribunal. I have considered the pleadings of the parties. The core issue involved in the present appeal is that the driver of the offending vehicle was not holding valid and effective driving licence at the time of accident. This issue has been settled by the Hon'ble Apex Court in the case of Mukund Dewangan (supra), as submitted by the learned advocates for the respondents - claimants and therefore, no interference is required by this Court. The observations made in the said decision, more particularly paras : 45 and 46, are as under :

"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 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

C/FA/160/2013 JUDGMENT DATED: 04/03/2022

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 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

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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 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

C/FA/160/2013 JUDGMENT DATED: 04/03/2022

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."

5.2 In view of above, this Court finds that the Tribunal has not committed any error which requires any interference by this Court. I found that the impugned judgment and award is just, proper and reasonable. Therefore, this appeal needs to be dismissed as meritless.

6. In view of above, the following order is passed.

6.1 The present appeal is dismissed. No order as to costs.

6.2 The Tribunal is directed to pay the entire awarded amount lying with it and/or lying in the FDR, as per the order of this Court if any, to the claimants, by account payee cheque, after proper verification and after following due procedure.

       C/FA/160/2013                       JUDGMENT DATED: 04/03/2022




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

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