Gujarat High Court
Hdfc Ergo General Insurance ... vs Kaliben Lakhabhai Dodhiyar on 27 March, 2023
Bench: Gita Gopi
C/FA/962/2021 JUDGMENT DATED: 27/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 962 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/FIRST APPEAL NO. 962 of 2021
With
R/FIRST APPEAL NO. 1255 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/FIRST APPEAL NO. 1255 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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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HDFC ERGO GENERAL INSURANCE COMPANY LTD
Versus
KALIBEN LAKHABHAI DODHIYAR
==========================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2
HCLS COMMITTEE(4998) for the Defendant(s) No. 3
MR DHARMESH C GURJAR(5170) for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 27/03/2023
Page 1 of 11
Downloaded on : Wed Mar 29 20:39:29 IST 2023
C/FA/962/2021 JUDGMENT DATED: 27/03/2023
COMMON ORAL JUDGMENT
1. Both the appeals have been filed challenging
the judgment and award dated 6.8.2018 passed
by the MACT (Aux), Aravalli at Modasa in
MACP no.2019/13 (old no.501/12) and MACP
no.2021/23 (old no.503/12). The insurance
Company, as an appellant, has raised the
ground that the learned Tribunal has not
appreciated the oral evidence produced from
the side of the insurance Company and has
also not considered that the copy of the
driving license produced at Exh.48 was not
authorizing the driver to drive transport
vehicle - 3 wheeler as was holding only
license to drive autorickshaw (non-
transport).
2. Advocate Mr. Maulik J. Shelat, referring to
the observations of the Court, submitted
that the referred fact has not been
appreciated by the learned Tribunal and
C/FA/962/2021 JUDGMENT DATED: 27/03/2023
though the driver was not authorized to
drive the vehicle, the liability has been
laid down on the insurance Company.
3. The facts reflect that on 19.5.2011, the
claimants were going to Bhemapur Sathariya
to attend the marriage ceremony and they
were traveling in rickshaw bearing
registration no. GJ-9 Y-1325. At about 02:00
p.m., while passing from Bhemapur Sathariya
village, it was alleged that the rickshaw
driver drove his vehicle in a rash and
negligent manner and when a cow came in
front of the rickshaw, suddenly applied
brake and the rickshaw turned turtle. As a
result of which, the applicant sustained
injuries.
4. The insurance Company, before the Tribunal,
had raised the issue of the driver of the
offending vehicle not holding the valid
C/FA/962/2021 JUDGMENT DATED: 27/03/2023
license to drive the transport vehicle and
thus, the ground was raised that there was
breach of condition of the insurance policy.
5. The learned Tribunal, while referring to the
driving license at Exh.48, observed that the
license authorized the driver of non-
transport vehicle and thus, the learned
Tribunal, thus, went on to the description
of the vehicle as the rickshaw (N.T.) and
referring to Section 2(21) of the Motor
Vehicles Act, 1988, had observed as under:-
"(21) Light Motor Vehicle" means
as 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 [7500
kilograms]"
6. The learned Tribunal, thus, explaining that
an L.M.V. could be a loading rickshaw with
unladen weight not exceeding 7500 kilograms,
observed that the vehicle was a passenger
C/FA/962/2021 JUDGMENT DATED: 27/03/2023
rickshaw and as per the certificate of
registration at Exh.49, its unladen weight
was 420 kilograms and thus, it was held that
opponent no.1 was holding the valid license
for driving the rickshaw and held the
liability on the insurance Company to pay
the compensation. The observation does not
require any interference of this Court and
since in the case of Mukund Dewangan Vs.
Oriental Insurance Company Limited, reported
in (2017) 14 SCC 663, the Hon'ble Apex
Court, while defining the concept of L.M.V.,
has explained about the inclusion of the
transport vehicle and had observed as
under:-
"Definition of 'light motor
vehicle' has to be given full
effect to and it has to be read
with section 10(2)(d) which makes
it abundantly clear that 'light
motor vehicle' is also a 'transport
vehicle', the gross vehicle weight
or unladen weight of which does not
exceed 7500 kgs. as specified in
C/FA/962/2021 JUDGMENT DATED: 27/03/2023
the provision. Thus, a driver is
issued a licence as per the class
of vehicle i.e. light motor
vehicle, transport vehicle or
omnibus or another vehicle of other
categories as per gross vehicle
weight or unladen weight as
specified in section 2(21) of the
Act. The provision of section 3 of
the Act requires that a person in
order to drive a 'transport
vehicle' must have authorization.
Once a licence is issued to drive
light motor vehicle, it would also
mean specific authorization to
drive a transport vehicle or
omnibus, the gross vehicle weight
or motor car, road roller or
tractor, the unladen weight of
which, as the case may be, does not
exceed 7500 kg. The insertion of
'transport vehicle' category in
section 10(2)(e) has no effect of
obliterating the already defined
category of transport vehicles of
the class of light motor vehicle. A
distinction is made in the Act of
heavy goods vehicle, heavy
passenger motor vehicle, medium
goods vehicle and medium passenger
motor vehicle on the basis of
'gross vehicle weight' or 'unladen
weight' for heavy passenger motor
vehicle, heavy goods vehicle, the
weight, as the case may be, exceed
12000 kg. Medium goods vehicle
shall mean any goods carriage other
than a light motor vehicle or a
heavy goods vehicle; whereas
'medium passenger motor vehicle'
C/FA/962/2021 JUDGMENT DATED: 27/03/2023
means any public service vehicle or
private service vehicle or
educational institution bus other
than a motorcycle, invalid
carriage, light motor vehicle or
heavy passenger motor vehicle.
Thus, the newly incorporated
expression 'transport vehicle' in
section 10(2)(e) would include only
the vehicles of the category as
defined in section 2(16) - heavy
goods vehicle, section 2(17) -
heavy passenger motor vehicle,
section 2(23) medium goods vehicle
and section 2(24) medium passenger
motor vehicle, and would not
include the 'light motor vehicle'
which means transport vehicle also
of the weight specified in Section
2(21). 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
C/FA/962/2021 JUDGMENT DATED: 27/03/2023
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. 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
C/FA/962/2021 JUDGMENT DATED: 27/03/2023
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). Thus, it can be
concluded that (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
C/FA/962/2021 JUDGMENT DATED: 27/03/2023
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 roadroller, 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. (iv) The effect of
amendment of Form 4 by insertion of
"transport vehicle" is related only
to the categories which were
C/FA/962/2021 JUDGMENT DATED: 27/03/2023
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."
7. Thus, there is no reason to interfere in the
observations made by the Tribunal. Hence,
the appeals stand dismissed. Connected Civil
Applications are also disposed of. The
insurance Company shall deposit the award
amount within a period of six weeks, if not
deposited.
(GITA GOPI,J)
Maulik
