Reliance General Ins Co Ltd vs Pravinji Khengarji Thakor
2023 Latest Caselaw 1564 Guj

     C/FA/2335/2019                             ORDER DATED: 15/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/FIRST APPEAL NO. 2335 of 2019
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                   In R/FIRST APPEAL NO. 2335 of 2019
==========================================================
                      RELIANCE GENERAL INS CO LTD
                                  Versus
                       PRAVINJI KHENGARJI THAKOR
==========================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 1
NOTICE UNSERVED for the Defendant(s) No. 2
==========================================================
 CORAM:HONOURABLE MS. JUSTICE GITA GOPI
                  Date : 15/02/2023
                   ORAL ORDER

The claimant has been served in the present matter. However,

driver against whom, the issue has been raised could not be served.

Considering the legal issue involved the appeal could be heard in his

absence, hence finally heard.

1. Challenge has been made against the judgement and award

dated 16.11.2018 passed by the learned Motor Accident Claims

Tribunal (Main), Mehsana in MACP No. 953 of 2011.

2. The grounds raised in this petition are that learned Tribunal

has not appreciated the provisions of the Motor Vehicle Act more

particularly Section 41(4) read with Section 3,10, 14(2) & Section

2(47) of the Act and has completely by overlooking the provisions,

erred in observing that there is no breach of condition of policy by

C/FA/2335/2019 ORDER DATED: 15/02/2023

owner of the vehicle.

3. Mr. Maulik Shelat,learned advocate appearing for the

appellant has submitted that RTO officer who was examined by the

Insurance Company at Exh.39 has deposed that driver of the goods

carriage was not holding the license to drive the transport vehicle

and therefore, he is not entitled to drive the same. He has further

submitted that certified copy of the driving license was produced at

Exh.41 to substantiate that driver was not authorized to drive the

transport vehicle as he was holding only license to drive LMV (Light

Motor Vehicle) and submitted that the obligation upon the driver to

obtain necessary endorsement on the license to drive the transport

vehicle and ultimately though, it is duty of the owner to verify the

license of his driver before handing him over LMV Transport

vehicle and submitted that it is an act of complete violation of the

provisions of M.V.Act.

3.1 Mr.Shelat, learned advocate has referred to the observations

of the learned Tribunal. The contention was raised before the learned

Tribunal with regard to the driving license of respondent No.2 who

is owner of the Truck No. GJ-2-Z-390 and he was opponent No.1

C/FA/2335/2019 ORDER DATED: 15/02/2023

before the Tribunal in M.A.C.P. No. 953 of 2011. Before the

learned Tribunal the contention was raised that at the time of

accident, the driver of the truck was not possessing valid and

effective driving license to drive LCV/D.Van therefore, the

Insurance Company is not liable to pay the compensation. Before the

Tribunal, Insurance Company had examined-Bhaveshkumar

Somabhai Damor at Exh. 39 who at the relevant time was Assistant

Inspector in the office of the Regional Transport Officer, Mahesana

and according to the witness - Dilipji Mansangji Thakore was

holding driving license bearing No. GJ/02/113789/2002 issued for

the period from 10.7.2002 to 9.7.2022. As per his deposition, the

driving license was issued for the purpose of Non-Transport of two

wheeler and four wheeler. He has produced the certificate of driving

license of the driver vide exh. 41 while in cross-examination, the

witness- RTO Officer admitted that as per exh. 40 unladen weight

of the vehicle 3545 kgs. which is less than 7500 kg. is to be

considered as Light Motor Vehicle.

4. Learned Tribunal has referred the case of Mukund Dewangan

Vs. Oriental Insurance Company Ltd. reported in AIR 2017 SC

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3558 , the learned apex Court has observed 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 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

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'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 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.

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(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. Learned Tribunal while referring to the certificate at Exh.40

issued by the RTO Mehsana has observed that the truck

(LCV/D.Van) bearing Registration No. GJ-02-Z-390 and the

unladen weight of vehicle is 3545 kg. The certificate would reflects

the vehicle was registered as "Light Motor Vehicle". The contention

thus was raised by the person who is holding the license as LMV be

authorized to drive the transport vehicle without any special

endorsement on the license issued. Learned Tribunal thereafter, has

placed reliance the judgement in case of Oriental Insurance Co.

Ltd. Vs. Zaharulnisha & Others reported in (2008) 12 SCC 385

which has reference of the judgement of National Insurance Co.

Ltd. Vs. Swaran Singh reported in (2004) 3 SCC 297. The

Swaran Singh (Supra) case, a three bench Judge of the Hon'ble

Apex Court in para 47 has dealt with the meaning, application and

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interpretation of various provisions, including Sections 3(2), 4(3),

10(2) and 149 of the M.V.Act and the judgement at para 47, the

Apex Court has held that if a person has been given a license for a

particular type of vehicle as specified therein, he cannot be said to

have no license for driving another type of vehicle which is of the

same category but of different type and in para 48, it had been laid

down that 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.

5.1 The decision of Swaran Singh (Supra) in para 110 wherein,

the Apex Court has laid down the aspect of insurer entitlement to

raise a defence in a claim petition in terms of Section 149(2)(a)(ii)

of the said Act and has further laid down that the Court cannot lay

down any criteria as to how the said burden would be discharged, the

same would depend upon the facts and circumstances of each case.

Where, the insurer is able to prove breach on the part of the insured

concerning the policy condition regarding holding of a valid license

by the driver or his qualification to drive during the relevant period,

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the insurer would not be allowed to avoid its liability towards the

insured unless the said breach or breaches on the condition of

driving license is/are so fundamental as are found to have

contributed to the cause of the accident.

5.2 Learned Tribunal thereafter has referred to the judgement in

the case of S.Iyyapan Vs. United India Insurance Co. reported in

(2013) 7 SCC 62. wherein it has observed as under:-

18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside.

33. This Court in Kulwant Singh & Ors. Vs. Oriental Insurance Co.Ltd. (2015) 2 SCC 186, referring to the decisions of this Court in S.Iyyapan (Supra) and Annappa Irappa Nesaria (Supra) has laid down that when one driver is holding a license to drive light motor vehicle, he can drive commercial vehicle of that category. This Court has considered the question thus:

"8. We find that the judgements relied upon cover the issue in favour of the appellants. In Annappa Irappa Nesaria (2008) 3 SCC 464, this Court referred to the provisions of Sections 2(21) and (23) of the Motor Vehicle Act, 1988, which are definitions of "light motor vehicle" and "medium goods vehicle" respectively and the rules prescribing the forms of the licence i.e. Rule 14 and Form 14.

It was concluded : (SCC p.468, para 20)

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"20. From what has been noticed hereinbefore, it is evident that "transport vehicle" has now been substituted for "medium goods vehicle" and "heavy goods vehicle".

The light motor vehicle continued, at the relevant point of time to cover both "light passenger carriage vehicle" and "light goods carriage vehicle". A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well."

9. In S. Iyyapan (supra), the question was whether the driver who had a licence to drive 'light motor vehicle' could drive 'light motor vehicle' used as a commercial vehicle, without obtaining endorsement to drive a commercial vehicle. It was held that in such a case, the Insurance Company could not disown its liability. It was observed : (SCC P.77, para 18) "18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment (Civil Misc. Appeal No.1016 of 2002, order dated 31.10.2008 (Mad) is, therefore, liable to be set aside."

10. No contrary view has been brought to our notice.

11. Accordingly, we are of the view that there was no breach of any condition of insurance policy, in the present case, entitling the Insurance Company to recovery rights.

34. The decision in Nagashetty Vs. United India Insurance Co.Ltd. & Ors. (2001) 8 SCC 56 has also been referred in which it has been laid down that the tractor will be used for carrying goods. The goods will be carried in a trailer attached to it. Thus, it was held that the holder having an effective driving license can drive a

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tractor, if used for carrying goods. He would not become disqualified to drive a tractor if a trailer is attached to it. The contention that it was a transport vehicle, as trailer was attached to it, consequently, driver was not holding a valid license, was jected. This Court considered the submission and held as under:-

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 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 Company 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

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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 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 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

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having a 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.

35."Transport vehicle" as defined in Section 2(47) means 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 motorcab, contract carriage, and stage carriage. "Goods carriage" which is also a transport vehicle, is defined in Section 2(14) to mean any 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 submitted that a person holding license to drive Light Motor Vehicle who is driving a vehicle registered for private use, is driving a similar vehicle, which is registered or insured, for the purpose of carrying passengers for hire or reward, would require endorsement as to drive a "transport vehicle" is not contemplated by the provisions of the Act. There are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. It was also submitted that a driver who is competent to drive a vehicle for private use, would be entitled to drive the same vehicle if it is used for hire or reward or for even carrying the goods in the said vehicle. It was also submitted that it was intended by the Amendment Act 54.1994 to simplify the procedure not to make it complicated and invalidate the licence of light motor vehicle and its holder could drive transport vehicle of the weight specified in Section 2(21) of the Act. "

6. Here in this case, the vehicle was registered as "Light Motor

Vehicle" and the driving license admittedly has no endorsement of

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authorizing the driver to drive the transport vehicle. Driving license

from 10.7.2002 to 9.7.2022 is issued for the purpose of non-transport

two wheeler and four wheeler. It is admitted fact in the present

matter the vehicle used is having an unladen weight of the vehicle

3545 kgs.

7. Vide effect from amendment made by virtue of Act No.

54/1994 vide effect from 14.11.94. The expression "transport

vehicle" came to be substituted and observed in Mukund Dewangan

(Supra) case, the transport vehicle and omnibus, gross vehicle

weight 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

license to drive class of "light motor vehicle" as provided in Section

10(2)(d) is competent to drive a transport vehicle or omnibus,

provided the gross vehicle weight of which does not exceed 7500

kg. or a motor car or tractor or road-roller, the "unladen weight"

which does not exceed 7500 kg. Thus, it was observed in Mukund

Dewangan (Supra) case, that no separate endorsement on the

license is required to drive the transport vehicle of light motor

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vehicle as enumerated. A license issued under Section 10(2)(d)

continues to be valid after the amendment Act 54/1994 and in the

form.

8. The effect of amendment of Form 4 by insertion of "transport

vehicle" as observed is related only to the categories which were

substituted in the year 1994 and the procedure to obtain driving

license for transport vehicle of class of "light motor vehicle"

continues to be the same as it was and has not been changed and

therefore, there is no requirement to obtain separate endorsement to

drive transport vehicle, and if a driver is holding license to drive

light motor vehicle, he can drive transport vehicle of such class

without any endorsement to that effect.

9. Learned Tribunal thus on the same line has observed that the

ratio laid down of the judgement, would become applicable in the

present case and the contention raised by the opponent-Insurance

Company was not accepted by the Tribunal. This Court does not find

any reason to interfere with the reasons given by the tribunal.

10. The case is supported by the observations of the Apex Court,

the driver of the involved vehicle thus was authorized to drive the

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involved vehicle had possessed valid and effective driving license.

There is no reason to interfere with the reasons and judgement of the

learned Tribunal. The awarded amount is not disputed by the

Insurance Company therefore, the Insurance Company is directed to

deposit the awarded amount within period of eight weeks and let the

disbursement of the money be in accordance with the order of the

Tribunal.

Present First Appeal stands disposed of accordingly.

ORDER IN CIVIL APPLICATION NO. 1 OF 2019

In view of the disposal of the First Appeal No. 2335 of 2019,

this application does not survive and stands disposed of accordingly.

(GITA GOPI,J) BEENA SHAH