Gujarat High Court
Lakhmanbhai Rambhai Barad vs Ravjibhai Ranchhodbhai Parmar on 1 December, 2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2375 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or NO
any order made thereunder ?
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LAKHMANBHAI RAMBHAI BARAD
Versus
RAVJIBHAI RANCHHODBHAI PARMAR
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Appearance:
MR Y J PATEL(3985) for the Appellant(s) No. 1,2
for the Defendant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 01/12/2023
ORAL JUDGMENT
The present appeal is filed at the instance of the original
claimants, who are the heirs and legal representatives of the deceased
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- Mensibhai Lakhmanbhai Barad, who unfortunately passed away at
the age of 19 years in the motor accident.
2. The original claimants are the appellants of the deceased-
Mensibhai Lakhmanbhai Barad (hereinafter to be referred as "the
deceased"). In the present appeal preferred under Section 173 of the
Motor Vehicles Act, 1988, the original claimants have challenged the
judgment and award dated 10.08.2018 passed by the learned M.A.C.T.
(main) & Principal District Judge, Gir-Somnath at Veraval in M.A.C.P.
Case No.94 of 2010.
3. By the said judgment and award, the learned Tribunal was
pleased to partly allow the claim petition preferred by the present
appellants awarding the compensation of an amount of Rs.3,40,000/-
along with the interest at the rate of 7.5% per annum from the date of
registration of the claim petition, till its actual realization within a
period of one month thereafter. While passing the aforesaid judgment
and award against the owner-original opponent No.1, the Tribunal has
dismissed the claim petition against the original opponent No.2- HDFC
ERGO General Insurance Co. Ltd. (for short "Insurance Company").
4. Being aggrieved and dissatisfied with the aforesaid judgment
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exonerating the respondent-Insurance Company from the liability to
pay compensation towards the untimely death of their son in the
accident, the original claimants have approached this Court by
presenting this appeal.
5. In nutshell, the case put forward by the original claimants
before the Tribunal, was that on 10.10.2009 at around 19:00 hours,
while the deceased was going on the road side as pedestrian towards
bus, at that point of time, the driver of the offending motorcycle
bearing registration No.GJ-6-BH-5901 suddenly came on wrong side
and hit the deceased from his back, resulting into the serious injuries
on head and on chest, causing death. It is further contended by the
original claimants that at the time of the accident, the driver
conducted in negligent manner violating the traffic rules and
endangering the human life.
5.1 The criminal complaint was also lodged against the driver of the
vehicle vide C.R. No.I-197 of 2009 registered with Vaghodiya Police
Station. It was further contended that the deceased was studying in
first year of P.T.C. and was on picnic on the fateful day, while he met
with the accident and succumbed to the injuries.
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5.2 It was further contended that the deceased though studying
used to assist the family in the agricultural activity and was earning an
amount of Rs.10,000/- every month. The claim of an amount of
compensation of Rs.6 Lakhs was raised seeking compensation under
different heads.
5.3 The claim petition was presented on 27.07.2010. In response to
the summons issued by the Tribunal, the opponent No.2-Insurance
Company appeared before the Tribunal, whereas the opponent No.1
being the owner of the offending vehicle refused acceptance of the
summons vide (Exh.41). Though served, opponent No.1 chose not to
contest the claim petition.
5.4 The Insurance Company contested the claim by filing written
statement vide Exh.14. At the outset, while admitting the insurance
coverage of the offending vehicle, disputed its liability by contending
that the driver of the offending vehicle was not holding valid and
effective licence on the fateful day of the accident. The specific
ground was raised as defence as reflected in Para-6 of the written
statement elaborating the submissions by referring to the definition
of various terms appearing in Section 3 read with Section 10 of the
Motor Vehicles Act. Apart from the aforesaid ground, the Insurance
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Company had also disputed the computation of the claim put forward
by the original claimants under the different heads.
5.5 Since, the driver of the offending vehicle was not joined as party
respondent, a separate application vide Exh.18 was preferred by the
Insurance Company to join the driver as party respondent in the
original claim petition. The notice sent by the Insurance Company was
responded as unserved, which has been placed for consideration on
record vide Exh.40. Simultaneously, the Insurance Company had also
given separate application vide Exh.19 calling upon the driver as well
as the owner of the offending vehicle to produce the licence as on the
date of the accident. Since the driver and the owner have not
appeared before the Tribunal, the application under Section 170 of
the Motor Vehicles Act was filed by the Insurance Company seeking
permission of the driver to raise all the contentions available. The
aforesaid application came to be allowed by the Tribunal vide order
dated 01.09.2017.
5.6 The Tribunal while considering the application of the original
claimants under Section 140 of the Motor Vehicles Act, considering
the limited aspects to be taken into consideration while dealing with
such application, vide order dated 27.07.2018, directed the Insurance
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Company to pay Rs.50,000/- to the applicants-original claimants as
interim compensation with interest at the rate of 7.5 % per annum.
The opponents were jointly and severally held liable to pay such
amount of compensation with interest.
5.7 Noticing the pleadings raised by the respective parties, the
Tribunal proceeded to frame the issues vide Exh.23(A). The same are
reproduced as under:
"(1) Whether the claimants proves that
deceased had died due to injuries sustained by him
in a vehicular accident occurred on account of rash
and negligent driving of the driver of the vehicle
involved in the accident?
(2) Whether the claimants are entitled to get
compensation? If yes, what amount and from
whom?
(3) What award?"
5.8 The evidence of the father of the deceased/original applicant
No.1 namely Lakhmanbhai Ramabhai Barad has come on record vide
Exh.24. The opponent No.1 has failed to appear before the Tribunal.
The Insurance Company has proceeded to cross-examine the said
claimant, however, on limited aspect of negligency, the driver and the
earning capacity of the deceased, which was contended by the
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claimant to be of Rs.10,000/-.
5.9 To substantiate the grounds of invalid and ineffective licence in
order to resist their liability, the Insurance Company has placed on
record the copy of licence vide mark 44/1. Later on, the Assistant
Inspector of R.T.O, Vadodara has been examined as witness by the
Insurance Company, whose evidence has come on record vide Exh.48.
The said witness has also laid two documentary evidence on record,
which includes the certificate issued by Licensing Authority in the
name of the driver of the offending vehicle vide Exh.49 and the
computer generated slip, the copy of driving licence in the name of
the said driver vide Exh.50.
5.10 In his evidence before the Tribunal, the said witness has
submitted that the said licence is issued only for four wheeler (LMV
vehicles) and heavy vehicles and not for two wheeler vehicles. In his
cross-examination, the said witness has confirmed that the driver was
holding licence for transport. In light of the aforesaid evidence, which
has been laid by the Insurance Company, the Tribunal while examining
the issue of liability, though has arrived at a finding that the driver of
the offending vehicle was negligent, which had resulted into the
death of son of the original claimants in the accident, however, has
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proceeded to exonerate the Insurance Company.
5.11 The reliance was placed upon the various judgments of Hon'ble
Supreme Court in cases of (1) Sardari vs. Sushil Kumar reported in
2008 ACJ 1307, (2) United India Insurance Co. Ltd. vs. Sujata Arora
and others reported in 2013-ACJ-2129; and (3) National Insurance
Co. Ltd. vs. Swaran Singh and other reported in 2004 (2) GLR 989, to
hold that at the time of the accident, the driver of the vehicle did not
possessed any valid and effective driving licence of two wheeler
vehicle. The defence raised by the Insurance Company was duly
proved by leading evidence. Hence, considering the ratio of the
Hon'ble Supreme Court in the case of Swaran Singh (supra), the
Insurance Company was directed to be exonerated from its liability to
pay the compensation.
5.12 The original claimants being aggrieved by the aforesaid order
have approached before this Court in the present appeal.
6. Learned advocate Mr. Y.J. Patel for the appellants- original
claimants and Ms. Kirti Pathak, learned advocate on record for the
respondent No.2-Insurance Company were heard at length.
7. The only ground, which is urged by the learned advocate for the
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appellants-original claimants, is the issue of holding of valid and
effective licence and the consequential liability of Insurance Company
to pay compensation.
8. The appellants have placed strong reliance upon the judgment
of the Hon'ble Supreme Court in the case of S. Iyyapan vs. United
India Insurance Company Limited reported in 2013 (7) SCC 62,
wherein the Hon'ble Supreme Court has taken into consideration the
judgment of Swaran Singh (supra) and has laid down summary of
findings on the issues raised.
8.1 Learned advocate for the appellants has submitted that in the
case of S. Iyyapan (supra), the question that arose for consideration
before the Hon'ble Supreme Court, was whether the driver who hold
licence of driving light motor vehicle used as a commercial vehicle,
without obtaining endorsement to drive a commercial vehicle, can be
considered to be holding valid and effective licence? The Hon'ble
Supreme Court quashed the order of the High Court by holding that
grave error of law was committed by the High Court while exonerating
the Insurance Company on the ground that the driver was not holding
the licence to driver the commercial vehicles. In facts of the case, the
Court further observed that there was no breach of any condition of
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Insurance Company, which permits the Insurance Company to recover
the compensation.
8.2 Lastly, the learned advocate has alternatively urged to pass pay
and recovery order against Insurance Company by placing reliance
upon the judgment of the Hon'ble Supreme Court in the case of
Kulwant Singh vs. Oriental Insurance Company Limited reported in
2015 (2) SCC 186. He has submitted that even in case of accident by a
tempo, the direction of payment of compensation was issued and
right of recovery was granted by the Tribunal in favour of the
Insurance Company. He urged that in absence of the owner and the
driver of the offending vehicle and admittedly, when the insurance
policy covers the period of accident, the Insurance Company may be
directed to compensate the claimants and liberty to recover such
amount be directed in favour of the Insurance Company.
8.3 Learned advocate for the appellants- original claimants has
placed reliance upon the following authorities:
(1) In the case of S. Iyyapan vs. United India
Insurance Company Limited reported in 2013 (7) SCC
62;
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(2) In the case of Kulwant Singh vs. Oriental
Insurance Company Limited reported in 2015 (2) SCC
186;
(3) In the case of National Insurance Co. Ltd. vs.
Smt. Kusum Rai & Ors. reported in 2006(2) GLH 15;
(4) In the case of Pappu vs. Vinod Kumar Lamba
reported in 2018 (3) SCC 208;
(5) In the case of New India Insurance Co. Ltd. vs.
Heirs of Decd. Sandhya @ Hema Ramananoj & Ors.
delivered in First Appeal No.3510 of 2012 decided on
22.03.2021;
(6) In the case of The United India Insurance Co.
Ltd. vs. Gamirbhai @ Gamirabhai @ Gambhirbhai @
Gemarbhai Panglabhai Meda delivered in First Appeal
No.2645 of 2020 with Civil Application (For Stay)
No.01 of 2020 on 28.06.2021.
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9. On the other hand, the aforesaid submissions of the learned
advocate for the original claimants-appellants herein have been
vehemently objected by the learned advocate Ms. Kirti Pathak
appearing for the respondent-Insurance Company.
9.1 At the outset, learned advocate for the Insurance Company has
invited my attention to the relevant provisions appearing under the
Motor Vehicles Act. The attention of this Court was invited to the
definition of the various terms provided under the Act, to contend
that the different categories of vehicles appearing under Section 10
of the Act i.e. "light motor vehicle" and "motorcycle", are required to
be treated separate and distinct for the purpose of holding of
authority to drive the same. Learned advocate has submitted that
even if a person knows how to drive a "light motor vehicle", does not
mean that he also knows how to drive the "motorcycle".
9.2 Learned advocate has further referred to Section 10 of the Act,
which prescribes the issuance of driving licence as against different
categories of vehicles. She has further submitted that Section 3 of the
Act strictly prohibits driving of a motor vehicle at public place without
any effective driving licence authorizing him to drive the particular
category of vehicle.
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9.3 The attempt was made to distinguish the transport vehicles and
non-transport vehicles categories, to emphasize on the fact of the
issuance of authorization as per 18(1) and 18(4) of the Gujarat Motor
Vehicles Rules. By referring to the aforesaid provisions, she has
further contended that in fact, it was the responsibility of the owner
of the motor vehicle to see to it that there is no contravention of
Sections 3 and 4 while permitting any person to drive his vehicle.
9.4 By referring to the aforesaid provisions, she has submitted that
necessary steps were taken by the Insurance Company before the
Tribunal to join the driver of the offending vehicle and to call upon the
respective parties to place on record the licence in force on the date
of accident. Even in absence of the driver and the owner of the
offending vehicle, the Insurance Company has successfully brought on
record the vital documents in support of their case that the driver of
the offending vehicle was not possessing any valid and effective
licence on the date of the accident.
9.5 Lastly, the attention of this Court was invited to the relevant
observations of the Tribunal and has submitted that no error can be
attributed to the Tribunal in exonerating the Insurance Company, in
light of the evidence, which has come on record.
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9.6 Learned advocate for the respondent-Insurance Company has
placed reliance upon the following authorities:
(1) In the case of M/s. Bajaj Alliance General
Insurance Co. Ltd. vs. Rambha Devi & Ors. reported
in 2022 LiveLaw (SC) 270;
(2) In the case of N.K. Sadashivappa vs. The
Branch Manager, M/s. Bajaj Allianz General
Insurance Co. Ltd. & Anr. delivered in Civil Appeal
No.1786 of 2023 decided on 20.03.2023;
(3) In the case of National Insurance
Company Limited through Its Ahmedabad
Regional Office vs. Babulal Mohanbhai Vala & 3
others delivered in R/First Appeal No.529 of 2012
and allied matters decided on 03.10.2022; and
(4) In the case of Oriental Insurance Co. Ltd.
vs. Zaharulnisha and Ors. reported in (2008) 12 SCC
385.
10. This Court, vide order dated 08.11.2023, had reserved the
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matter for orders and had also permitted the learned advocates on
record to submit the written submissions along with the authorities in
support of their case. The same has been placed on record by the
respective learned advocates.
ANALYSIS:
11. Having heard the learned advocates appearing for the
respective parties and upon perusal of the record & proceedings, the
question, which arose for consideration is:
" Whether in the facts of the case, the Tribunal was
justified in exonerating the Insurance Company from
reimbursing the compensation to the original
claimants?"
12. The aforesaid issue is required to be examined, in light of the
facts that, whether the driver of the offending vehicle was holding
licence of light motor vehicle and the transport vehicle, can be
considered to possess the licence to drive the motorcycle at the time
of the accident. In this regard, I have carefully examined two vital
documents, which has emerged on record, as laid by the Insurance
Company, (1) certificate issued by the Licensing Authority, Vadodara in
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the name of the driver of the offending vehicle (Exh.49); and (2) the
computer generated copy of extract of driving licence of driver of the
offending vehicle (Exh.50).
13. On appreciation of the aforesaid documents, it is evident that
the driver of the offending vehicle was issued licence for Light Motor
Vehicle (L.M.V.). The date of issuance of such certificate is referred as
05.11.1996. The validity period of the aforesaid licence is shown as
15.12.2009 to 14.12.2012.
14. Indisputably, the accident had taken place on 10.10.2009. Again
the extract of driving licence produced vide Exh.50 goes to indicate
the period of the aforesaid driving licence in the category of non-
transport vehicle is mentioned as 15.12.2012 to 31.01.2025 and for
transport vehicle, it is mentioned as 14.12.2015 to 14.12.2018. Under
the head of the transaction history, the date of renewal of driving
licence, the endorsement date of renewal of driving licence is
mentioned as 21.12.2012, whereby the validity period is extended in
case of non-transport to 31.01.2025 and for transport up to
14.12.2015. On close examination of the aforesaid evidence, no
material has been brought on record to indicate the existence of the
effective licence to drive motorcycle i.e. on the date of the accident.
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15. Having noticed so and considering the arguments canvassed by
the learned advocate for the appellants, more particularly, the
summary of findings of the Hon'ble Supreme Court in the case of S.
Iyyapan (supra), there cannot be any dispute to the legal position
that burden is upon the Insurance Company to prove his case with
regard to breach of terms of policy to resist the liability of payment of
compensation. Relevant observations of the Hon'ble Supreme Court in
the case of S. Iyyapan (supra) are as under:
"14. In the case of National Insurance Co. Ltd. v. Swaran
Singh & Ors., (2004) 3 SCC 297, a 3-Judge Bench of this
Court held as under:-
"47. If a person has been given a licence for a particular type
of vehicle as specified therein, he cannot be said to have no
licence for driving another type of vehicle which is of the
same category but of different type. As for example, when a
person is granted a licence for driving a light motor vehicle,
he can drive either a car or a jeep and it is not necessary that
he must have driving licence both for car and jeep
separately.
48. Furthermore, the insurance company with a view to
avoid its liabilities is not only required to show that the
conditions laid down under Section 149(2)(a) or (b) are
satisfied but is further required to establish that there has
been a breach on the part of the insured. By reason of the
provisions contained in the 1988 Act, a more extensive
remedy has been conferred upon those who have obtained
judgment against the user of a vehicle and after a
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certificate of insurance is delivered in terms of Section
147(3). After a third party has obtained a judgment against
any person insured by the policy in respect of a liability
required to be covered by Section 145, the same must be
satisfied by the insurer, notwithstanding that the insurer
may be entitled to avoid or to cancel the policy or may in
fact have done so. The same obligation applies in respect of
a judgment against a person not insured by the policy in
respect of such a liability, but who would have been covered
if the policy had covered the liability of all persons, except
that in respect of liability for death or bodily injury.
xxx xxx xxx
73. The liability of the insurer is a statutory one. The liability
of the insurer to satisfy the decree passed in favour of a
third party is also statutory.
xxx xxx xxx
110. The summary of our findings to the various issues as
raised in these petitions is as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing
compulsory insurance of vehicles against third-party risks is
a social welfare legislation to extend relief by compensation
to victims of accidents caused by use of motor vehicles. The
provisions of compulsory insurance coverage of all vehicles
are with this paramount object and the provisions of the Act
have to be so interpreted as to effectuate the said object.
(ii) An insurer is entitled to raise a defence in a claim
petition filed under Section 163-A or Section 166 of the
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Motor Vehicles Act, 1988, inter alia, in terms of Section
149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g. disqualification of
the driver or invalid driving licence of the driver, as
contained in sub-section (2)(a)(ii) of Section 149, has to be
proved to have been committed by the insured for avoiding
liability by the insurer. Mere absence, fake or invalid driving
licence or disqualification of the driver for driving at the
relevant time, are not in themselves defences available to
the insurer against either the insured or the third parties. To
avoid its liability towards the insured, the insurer has to
prove that the insured was guilty of negligence and failed to
exercise reasonable care in the matter of fulfilling the
condition of the policy regarding use of vehicles by a duly
licenced driver or one who was not disqualified to drive at
the relevant time.
(iv) Insurance companies, however, with a view to avoid
their liability must not only establish the available
defence(s) raised in the said proceedings but must also
establish "breach" on the part of the owner of the vehicle;
the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how the said
burden would be discharged, inasmuch as the same would
depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the
part of the insured concerning the policy condition
regarding holding of a valid licence by the driver or his
qualification to drive during the relevant period, the insurer
would not be allowed to avoid its liability towards the
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insured unless the said breach or breaches on the condition
of driving licence is/are so fundamental as are found to
have contributed to the cause of the accident. The Tribunals
in interpreting the policy conditions would apply "the rule
of main purpose" and the concept of "fundamental breach"
to allow defences available to the insurer under Section
149(2) of the Act.
(vii) The question, as to whether the owner has taken
reasonable care to find out as to whether the driving licence
produced by the driver (a fake one or otherwise), does not
fulfil the requirements of law or not will have to be
determined in each case.
(viii) If a vehicle at the time of accident was driven by a
person having a learner's licence, the insurance companies
would be liable to satisfy the decree.
(ix) The Claims Tribunal constituted under Section 165 read
with Section 168 is empowered to adjudicate all claims in
respect of the accidents involving death or of bodily injury
or damage to property of third party arising in use of motor
vehicle. The said power of the Tribunal is not restricted to
decide the claims inter se between claimant or claimants on
one side and insured, insurer and driver on the other. In the
course of adjudicating the claim for compensation and to
decide the availability of defence or defences to the insurer,
the Tribunal has necessarily the power and jurisdiction to
decide disputes inter se between the insurer and the
insured. The decision rendered on the claims and disputes
inter se between the insurer and insured in the course of
adjudication of claim for compensation by the claimants and
the award made thereon is enforceable and executable in
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the same manner as provided in Section 174 of the Act for
enforcement and execution of the award in favour of the
claimants.
(x) Where on adjudication of the claim under the Act the
Tribunal arrives at a conclusion that the insurer has
satisfactorily proved its defence in accordance with the
provisions of Section 149(2) read with sub-section (7), as
interpreted by this Court above, the Tribunal can direct that
the insurer is liable to be reimbursed by the insured for the
compensation and other amounts which it has been
compelled to pay to the third party under the award of the
Tribunal. Such determination of claim by the Tribunal will be
enforceable and the money found due to the insurer from
the insured will be recoverable on a certificate issued by the
Tribunal to the Collector in the same manner under Section
174 of the Act as arrears of land revenue. The certificate will
be issued for the recovery as arrears of land revenue only if,
as required by sub- section (3) of Section 168 of the Act the
insured fails to deposit the amount awarded in favour of
the insurer within thirty days from the date of
announcement of the award by the Tribunal.
(xi) The provisions contained in sub-section (4) with the
proviso thereunder and sub-section (5) which are intended
to cover specified contingencies mentioned therein to
enable the insurer to recover the amount paid under the
contract of insurance on behalf of the insured can be taken
recourse to by the Tribunal and be extended to claims and
defences of the insurer against the insured by relegating
them to the remedy before regular court in cases where on
given facts and circumstances adjudication of their claims
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inter se might delay the adjudication of the claims of the
victims."
15. In the case of National Insurance Co. Ltd. v. Kusum Rai
and Others, (2006) 4 SCC 250, the respondent was the
owner of a jeep which was admittedly used as a taxi and
thus a commercial vehicle. One Ram Lal was working as a
Khalasi in the said taxi and used to drive the vehicle some
times. He had a driving licence to drive light motor vehicle.
The taxi met with an accident resulting in the death of a
minor girl. One of the issues raised was as to whether the
driver of the said jeep was having a valid and effective
driving licence. The Tribunal relying on the decision of this
Court in New India Assurance Co. v. Kamla (supra) held that
the insurance company cannot get rid of its third party
liability. It was further held that the insurance company can
recover this amount from the owner of the vehicle. Appeal
preferred by the insurance company was dismissed by the
High Court. In appeal before this Court, the insurance
company relying upon the decision in Oriental Insurance Co.
Ltd. v. Nanjappan, 2004 (13) SCC 224 argued that the
awarded amount may be paid and be recovered from the
owner of the vehicle. The Insurance Company moved this
Court in appeal against the judgment of the High Court
which was dismissed."
16. In light of the aforesaid observations and in fact of the present
case, the breach of the policy condition i.e. invalid and effective
driving licence as contained in Sub-Section (2)(a)(i) of Section 149 of
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the Act has to be proved, to have been committed by the insured for
avoiding liability of the insurer. It is for the Insurance Company to
prove that the insured was guilty of negligence and had failed to
exercise reasonable care in fulfilling the aforesaid condition of the
policy with regard to use of the vehicle by a duly licenced driver. The
burden is upon the Insurance Company to establish the aforesaid fact
by leading cogent material, even where the insurer has proved the
fact of breach of policy condition. The further burden is placed on the
Insurance Company to establish the fact that such breach of condition
of driving licence had contributed to the cause of the accident. Thus,
as laid down by the Hon'ble Supreme Court, the Tribunals are
expected to interpret policy conditions in light of the aforesaid
provision to find out as to whether "fundamental breach" was there,
to allow such defence to be raised by the insurer.
17. For the purpose of the determination of the above issue, it
would be germane to look into the relevant provisions of the Motor
Vehicles Act. In the Act itself, the various terms appearing in different
provisions are defined under Section 2 "Definitions".The same are
reproduced as under:
"(9) "driver" includes, in relation to a motor vehicle which is
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drawn by another motor vehicle, the person who acts as a
steersman of the drawn vehicle;
(10) "driving licence" means the licence issued by a
competent authority under Chapter II authorising the
person specified therein to drive, otherwise than as a
learner, a motor vehicle or a motor vehicle of any specified
class or description;
(21) "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 1 [7500] kilograms;
(25) "motorcab" means any motor vehicle constructed or
adapted to carry not more than six passengers excluding
the driver for hire or reward;
(26) "motor car" means any motor vehicle other than a
transport vehicle, omnibus, road-roller, tractor, motor cycle
or invalid carriage;
(27) "motor cycle" means a two-wheeled motor vehicle,
inclusive of any detachable side-car having an extra wheel,
attached to the motor vehicle;
(29) "omnibus" means any motor vehicle constructed or
adapted to carry more than six persons excluding the driver;
Section 3. Necessity for driving licence.--(1) No person
shall drive a motor vehicle in any public place unless he
holds an effective driving licence issued to him authorising
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him to drive the vehicle; and no person shall so drive a
transport vehicle [other than 3 [a motor cab or motor cycle]
hired for his own use or rented under any scheme made
under sub-section (2) of section 75] unless his driving
licence specifically entitles him so to do.
(2) The conditions subject to which sub-section (1) shall not
apply to a person receiving instructions in driving a motor
vehicle shall be such as may be prescribed by the Central
Government.
Section 5. Responsibility of owners of motor vehicles for
contravention of sections 3 and 4.--No owner or person in
charge of a motor vehicle shall cause or permit any person
who does not satisfy the provisions of section 3 or section 4
to drive the vehicle.
Section 10. Form and contents of licences to drive.--(1)
Every learner's licence and driving licence, except a driving
licence issued under section 18, shall be in such form and
shall contain such information as may be prescribed by the
Central Government.
(2) A learner's licence or, as the case may be, driving licence
shall also be expressed as entitling the holder to drive a
motor vehicle of one or more of the following classes,
namely:--
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) 2 [Adapted vehicles]
(d) light motor vehicle;
2 [(e) transport vehicle;]
(i) road-roller;
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(j) motor vehicle of a specified description.
Section 11. Additions to driving licence.--(1) Any person
holding a driving licence to drive any class or description of
motor vehicles, who is not for the time being disqualified
for holding or obtaining a driving licence to drive any other
class or description of motor vehicles, may apply to the
licensing authority having jurisdiction in the area in which he
resides or carries on his business in such form and
accompanied by such documents and with such fees as may
be prescribed by the Central Government for the addition
of such other class or description of motor vehicles to the
licence.
(2) Subject to such rules as may be prescribed by the Central
Government, the provisions of section 9 shall apply to an
application under this section as if the said application were
for the grant of a licence under that section to drive the
class or description of motor vehicles which the applicant
desires to be added to his licence.
Rule 18(1) and 18(4) of the Gujarat Motor Vehicles
Rules, 1989 are reproduced as under:
18. Grant of authorization to drive a transport vehicle.-
(1) No person shall drive a transport vehicle unless an
authorization in the driving licence shall have been granted
by the licensing authority.
(4) The holder of a driving licence may at any time apply to
the licensing authority in Form T.V.A. for the grant of
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authorization to drive a transport vehicle. Such application
shall be accompanied by - (a) a report of moral character
obtained from the police station or the Gazetted officer or
Sarpanch of Gram Panchayat or President of Municipal
Borough or President of Municipality or Councilor of
Municipality Corporation or Member of Legislative
Assembly or Member of Parliament of the area in which the
applicant resides; (b) a proof of educational qualification as
may have been prescribed by the Central Government
under sub-section (4) of section 9; (c) a fee for test,
prescribed under rule 6."
18. This Court in the case of National Insurance Company Limited
through Its Ahmedabad Regional Office vs. Babulal Mohanbhai
Vala& 3 others delivered in R/First Appeal No.529 of 2012 and
allied matters, had an occasion to examine the aforesaid provisions in
light of the issue of holding valid and effective licence to drive the
motorcycle. The Court has held as under:
"9. As per Section 2(10) of the Act, "driving licence" means
the licence issued by the competent authority under
Chapter II, authorizing the person specific therein to drive a
motor vehicle of any specified class or description. As per
Section 2(27) "motor cycle" means two-wheeled motor
vehicle inclusive of any detachable side-car attached to the
motor vehicle. As per Section 2(28) "motor vehicle" adapted
for use upon roads whether the power of propulsion is
transmitted thereto from an external or internal source and
includes a chassis to which a body has not been attached and
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a trailer; but does not include a vehicle running upon fixed
rails or a vehicle of a special type adapted for use only in a
factory or in any other enclosed premises or a vehicle having
less than four wheels fitted with engine capacity of not
exceeding[twenty-five cubic centimeters].
9.1. Therefore, in my opinion when the motorcycle has been
specifically defined under the Act and in view of Section 2
(10) when a stipulation is made that driving licence means
the licence issued by the competent authority authorizing
the person specified in the driving licence, to drive a motor
vehicle of any specified class or description, a general
meaning to a motor vehicle cannot be made applicable to
hold the driving licence as valid and effective licence. In
other words, once the "driving licence", "motorcycle" and
"motor vehicle" or "vehicle" has been defined under the Act,
a specific meaning in this regard is to be given to the phrases
used in the section. The conjoint reading of all the three
definitions makes it clear that a specific licence, authorised
by the competent authority to drive the motor vehicle of a
specific class or description is the requirement of the
Section to describe valid and effective licence.
10. Section 3 of the Act, refers to necessity of driving
licence. It stipulates that no person shall drive a motor
vehicle, in any public place unless, he holds effective driving
licence issued to him, authorising him to drive that vehicle.
Section 10 of the Act, refers to the Form and contents of
licence to drive. Section 10, sub section (2), clause (a) and (b)
of the act, states that the driving licence shall also be
expressed as entitling holder to drive a motor-vehicle of one
or more of the classes, where clause (a) classifies motor
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cycle without gear and clause (b) classifies motorcycle with
gear. Therefore, in my opinion, conjoint reading of section 3
with section 10 (2) mandates the driver to hold licence to
drive motor cycle with or without gear. Moreover, a driver is
not stated to have valid and effective licence if he does not
possess the same for the class of vehicle which he is to
drive."
19. Upon cumulative reading of the aforesaid provisions of the Act,
it is incumbent upon a person driving a motor vehicle in any public
place to hold a valid and effective driving license issued to him by the
competent authority for each of the specified categories appearing
under Section 10 of the Act. The plain language of the aforesaid
provision and the distinct categories specified herein, being defined
under the Act, clearly reflects the intention of legislation. The
aforesaid view is fortified from the procedure envisaged under
Section 11 of the Act permitting the holder of license of a particular
class or description of motor vehicle, to apply for addition of other
class or description of motor vehicle. Further considering the
definition of the term "light motor vehicle" as provided under Section
2(21) of the Act, I am of the view that the class or category of vehicle
of "motorcycle" cannot be treated as inclusive in category of "light
motor vehicle". In such circumstances, the skills of the driver to drive
vehicle of class of "motorcycle" are bound to be tested by competent
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authority to issue such licence or authorization to drive such class of
vehicle. In absence of such licence or authorization, there cannot be
presumption of such fact that the driver is competent to drive
"motorcycle" though holding valid and effective licence for driving
"light motor vehicle".
20. In light of the aforesaid interpretation of the various provisions
referred to above, indisputably, the certificate of the driving licence
brought on record by the Insurance Company if examine in light of the
evidence of the RTO Inspector at Exh.48, clearly goes to indicate that
the driver of the motorcycle was not holding any valid or effective
licence to drive the motorcycle. In absence of any endorsement being
made on the driving licence, the close examination of the driving
licence goes to indicate that the driver was holding licence to drive
"light motor vehicle" and "transport vehicle" for relevant period and
not "motorcycle".
21. Having held so, thus, in absence of any valid and effective
licence to drive the motorcycle, the driver and the owner of the
offending vehicle committed not only breach of condition of policy
issued by the Insurance Company but also had violated the statutory
provision of Section 10 of the Motor Vehicles Act.
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22. In such circumstances, considering Section 149 of the Act, I am
of the view that the learned Tribunal has rightly not held respondent-
Insurance Company liable to pay compensation.
23. In the opinion of this Court, the aforesaid breach of the
statutory provision amounts to the fundamental breach, which has
contributed to the cause of the accident. Having held so the
submission of the learned advocate for the appellants to direct the
Insurance Company to reimburse the amount of compensation to the
original claimant in absence of availability of the driver and the owner
of the vehicle, cannot be accepted. There can not be dispute to the
settled proposition of the law that Insurance Company cannot flee
away of its third party liability. The reliance placed on various
decisions, by the learned advocate for the appellants in support of the
aforesaid submissions, would not be applicable in the facts of the
case, having noticed the fundamental breach of the statutory
provision, which has ultimately contributed to the occurrence of the
accident. In such circumstances, the alternative submission of learned
advocate for the appellants to direct for pay and recovery of
compensation against Insurance Company cannot be issued.
24. In light of the aforesaid discussion, the present First Appeal is
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hereby dismissed. Notice stands discharged.
25. Record & proceedings be sent back to the concerned Tribunal
forthwith.
26. Needless to clarify that amount paid by the Insurance Company
under Section 140 of the Act is directed to be retained by the original
claimants.
(NISHA M. THAKORE,J)
FURTHER ORDER
After the order was pronounced, Mr. Y. J. Patel, learned
advocate for the appellants has submitted that execution petition
filed against the respective opponents is pending consideration. He
further submitted that the award passed against the owner is pending
adjudication since long. He, therefore, urged this Court that the same
may be decided qua the owner in accordance with law without there
being influenced by any of the observations made by this Court in the
present appeal.
Considering the fact that the original claim petition relates to
the year 2010, the concerned Court is directed to expedite the
proceedings and to dispose of the same preferably within a period of
three months from the date of receipt of the present order.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
