Gujarat High Court
Sardulbhai Baubhai Selna vs Yogendragiri Himmatgiri Goswami on 25 November, 2024
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C/FA/1475/2015 JUDGMENT DATED: 25/11/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1475 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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SARDULBHAI BAUBHAI SELNA & ORS.
Versus
YOGENDRAGIRI HIMMATGIRI GOSWAMI & ANR.
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4,5
MR NINAD SHAH for MS ADITI S RAOL(8128) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 25/11/2024
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant/s - original
claimant/s being aggrieved and dissatisfied with the judgment
and award dated 15.5.2014 passed by the Motor Accident
Claims Tribunal, Bhavnagar in Motor Accident Claim Petition
No.808 of 2008.
2. Brief facts of the case are that on 21.11.2008 at about 4.00
a.m., the deceased and her mother were coming from Kotada to
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Mahuva in Auto Rickshaw No.GJ-4X-913, when the said
rickshaw reached at the place of accident, driver of auto
rickshaw opponent No.1 was driving his rickshaw with full
speed, rash and negligent manner and endangering the human
lives and one roz animal came on road and rickshaw driver took
a turn and therefore, turned turtle the rickshaw on the road. As
a result of this accident, deceased Raniben sustained serious
injuries and died during the treatment. Thus, it is the case of the
claimants that the Auto Rickshaw No.GJ-4X-913 is involved in
this accident. The offence is registered at Mahuva Police Station
vide I C.R.No.235/2008.
3. Heard learned advocates for both the parties.
4. Learned advocate for the appellants would submit that the
learned Tribunal has erred in exonerating the insurance
company on the ground that the driver of the offending vehicle
was riding the light motor vehicle, being transport vehicle
without having endorsement to ride vehicle and as such there is
breach of terms and condition of policy. He would submit that
this issue has been put to rest by the Hon'ble Supreme Court first
in case of Mukund Dewangan Versus Oriental Insurance
Company Limited - 2017 (14) SCC 663 and later on in case of
Bajaj Alliance General Insurance Company Limited vs. Rambha
Devi and others - 2024 INSC 840. Upon above submissions, he
submit to allow this appeal.
5. I have also heard learned advocate Mr. Ninad Shah
appearing for learned advocate Ms. Raol for the insurance
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company.
6. Having heard learned advocates for both sides, what could
be considered in the matter that the driver of offending vehicle was
riding auto rickshaw bearing No.GJ-4X-913 having unladen
weight less than 7500 kilogram by possessing the licence to ply
the light motor vehicle. The Hon'ble Apex Court in case of Mukund
Dewangan (supra), see no difference in light motor vehicle having
unladen weight below 7500 kilogram and transport vehicle in the
same nature, wherein in para 45 and 46, the Hon'ble Apex Court
held thus:-
"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
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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 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
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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.
(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."
7. The issue has been put to rest in Rambha Devi (supra). The
findings of the judgment says that :
"All Transport Vehicles are not Light Motor Vehicles but
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some may fall within the class of LMVs which is
represented by the overlapping section. The inference
therefore is that if the transport vehicle falls under the
definition of Light Motor Vehicle in Section 2(21), the
additional requirements as outlined in the provisions
noticed above, need not be satisfied by a person holding
a driving licence for a 'Light Motor Vehicle' class.
Consequently, a separate endorsement of a Transport
Vehicle is not necessary as the LMV license would
suffice for vehicles below 7500 kg weight. Such an
interpretation would harmonize the statutory
provisions by requiring the additional factors only for
those Transport vehicles whose gross weight exceeds
7500 kg," the Court observed in the judgment.
"A harmonious construction of both sections (Sections
2(21) and 3) can however reach us to a conclusion that
for LMV licence holders, a separate endorsement under
'Transport Vehicle' class would be unnecessary for
driving LMV class of vehicles. In our interpretation and
understanding, it would be logical to hold that the
additional licensing requirements will have no
application for the LMV class of vehicles but will be
needed only for such 'Transport Vehicles', which by
virtue of their gross weight fall in the Medium and
Heavy category. Such a construction would also fulfill
the legislative purpose which is to ensure road safety by
requiring only those individuals who intend to operate
medium and heavy vehicles, to satisfy the additional
licensing criteria.In our view, the age restrictions
outlined in Section 4, the requirement of a medical
certificate, and the criteria under Section 7 should
reasonably apply only for the medium and heavy
transport vehicles whose gross weight will be above
7500 Kg. Such an interpretation would fulfill the
objective of the MV Act to provide compensation to
victims of road accidents while maintaining a
commensurate licensing regime for drivers."
"131. Our conclusions following the above discussion
are as under:-
(I) A driver holding a license for Light Motor Vehicle
(LMV) class, under Section 10(2)(d) for vehicles with a
gross vehicle weight under 7,500 kg, is permitted to
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operate a 'Transport Vehicle' without needing
additional authorization under Section 10(2)(e) of the
MV Act specifically for the 'Transport Vehicle' class.
For licensing purposes, LMVs and Transport Vehicles
are not entirely separate classes. An overlap exists
between the two. The special eligibility requirements
will however continue to apply for, inter alia, e-carts,
e-rickshaws, and vehicles carrying hazardous goods.
(II) The second part of Section 3(1), which
emphasizes the necessity of a specific requirement to
drive a 'Transport Vehicle,' does not supersede the
definition of LMV provided in Section 2(21) of the MV
Act.
(III) The additional eligibility criteria specified in the
MV Act and MV Rules generally for driving 'transport
vehicles' would apply only to those intending to
operate vehicles with gross vehicle weight exceeding
7,500 kg i.e. 'medium goods vehicle', 'medium
passenger vehicle', 'heavy goods vehicle' and 'heavy
passenger vehicle'. (IV) The decision in Mukund
Dewangan (2017) is upheld but for reasons as
explained by us in this judgment. In the absence of
any obtrusive omission, the decision is not per
incuriam, even if certain provisions of the MV Act
and MV Rules were not considered in the said
judgment."
8. At this juncture, I may refer para 22 and 23 of the impugned
judgment and award, which reads as under:-
22. Witness Mr.Laljibhai Gokulbhai Satiya,
Junior Clerk, working in Bhavnagar RTO Office,
has also been Chief- examined by learned
advocate Mr.U.J.Trivedi for the opponent No.2
and he deposed that it is true that there is
different registration series number of transport
vehicles. According to R.C.Book of vehicle No.GJ-
4X-913, it is a passenger transport vehicle. It is
true that such person having above driving
license cannot drive this vehicle. In cross-
examination of the said witness, the vehicle
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involved in this accident is passenger vehicle.
23. Moreover, on perusal of above extract of
driving license of opponent No.1 as produced by
the officer of RTO Office, Bhavnagar at Ex.42, it
transpires that there is endorsement of Catg. NT,
and class of vehicle(s) : MCWG, 3W-NT in the
driving license of opponent No.1 therefore, it can
be said that the opponent No.1 was not having
driving license to drive transport vehicle
therefore, opponent No.1 has breached the
conditons of the insurance policy and therefore,
opponent No.2 insurance company is not liable
for compensation amount."
9. In light of above, the issue, which is raised in appeal, is
clearly covered by the above referred judgment of the Hon'ble Apex
Court and therefore, the findings of the learned Tribunal
exonerating the insurance company on the ground of driver not
having endorsement of driving transport vehicle deserves to be
quashed and set aside.
10. For the reasons recorded above, the following order is
passed.
10.1 The present appeal is partly allowed.
10.2 The Insurance Company is vicariously held liable to
pay compensation for and on behalf of the owner of the offending
vehicle. Rest of the judgment and award remains unaltered.
10.3 It is hereby directed that the opponent Nos.1 and 2 of
the claim petition are jointly and severally liable to pay a sum of
Rs.3,87,500/- with 9% interest from the date of filing the claim
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petition till realization to the claimant/s. Award to be drawn
accordingly.
10.4 The insurance company shall deposit the entire
decretal amount including cost and interest within a period of
six weeks from the date of receipt of this order.
10.5 The learned Tribunal is directed to disburse the entired
amount to the claimant/s, by account payee cheque / NEFT /
RTGS, after proper verification and after following due
procedure.
10.6 While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law.
10.7 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
