Bajaj Allianz Insurance Co. Ltd vs Mohammad Yousuf Wani And Others
2022 Latest Caselaw 123 j&K/2

          HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT SRINAGAR



                                             MA No. 01/2019
                                             [Mac App No. 01/2019]
                                             CM No. 317/2019 [01]2019]
                                             CM No. 1121/2019[02/2019
                                             c/w
                                             MA No. 02/2019
                                             CM No. 318/2019[01/2019]
                                             CM No. 1125/2019[02/2019]



Bajaj Allianz Insurance Co. Ltd.                    .....Appellant(s)/Petitioner(s)



                      Through: Mr. N. A. Dendru, Advocate


                 Vs


Mohammad Yousuf Wani and others                                  ..... Respondent(s)


                      Through: Mr. Mohammad Altaf Khan, Advocate
                               Mr. Bilal Ahmed Malla, Advocate


Coram:    HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE


                                   JUDGMENT

21.02.2022

1. The present appeal has been filed in terms of Section 173 of the Motor

Vehicles Act against the judgment and award passed by the Motor

Accident Claims Tribunal, Srinagar (for short, „Tribunal‟) dated

31/10/2018.

2. Briefly stated the material facts are as under:

3. A claim petition came to be filed by the respondents No. 2 and 3

before the Tribunal, claiming compensation on account of death of one

Aabid Bashir Wani, the son of the respondents on account of a

vehicular accident caused due to the alleged rash and negligent driving

c/w MA No. 02/2019

of the driver of the offending vehicle (Tipper) bearing registration No.

JK16/4098 on 11.12.2013. Incidentally, the driver of the offending

vehicle is also the owner of the offending vehicle.

4. In response to the claim petition, defences were taken by the owner-

cum-driver of the offending vehicle as also the insurance company-

appellant herein. While the owner-cum-driver of the offending vehicle

denied any rash and negligent driving as was alleged against him, the

insurance company claimed violation of the policy conditions as also

the statutory provisions of the Motor Vehicles Act.

5. The stand of the insurance company before the Tribunal was that the

owner-cum-driver of the offending vehicle was plying the vehicle in

question without a valid driving licence and without any route permit

issued from the registering authority. Insofar as the driving licence is

concerned, it was stated, that the driver of the offending vehicle only

possessed a licence to ply a light motor vehicle and not a heavy goods

vehicle in the shape of a Tipper. In regard to the route permit, it was

stated that on the date of the accident, the vehicle was not at all

registered and was being plied without a route permit.

6. Based upon the pleadings, the Tribunal inter alia framed two issues in

which issue No. 2 was with regard to whether the vehicle was being

driven without a valid effective driving licence and other vehicular

documents like Registration Certificate/Route Permit etc. and whether

the owner-cum-driver had committed any breach of the conditions of

the insurance policy.

c/w MA No. 02/2019

7. Evidence was led by the parties and the Tribunal finally allowed the

claim petition, granting compensation to the tune of Rs. 6,61,700/-

along with simple interest @ 6.5% per annum from the date of the

claim petition till realization in favour of the petitioners and against the

insurance company.

8. On the issue of the validity of the driving licence, the Tribunal held that

the driver of the offending vehicle was possessed of a valid driving

licence on the date of the accident, which was issued on 14.8.2004 by

the licencing authority at the Motor Vehicles Department, Jammu and

was valid uptill 14.1.2017. The Tribunal appears to have placed

reliance upon the testimony of the Administrative officer, who was

produced by the Insurance company and the verification report

submitted by him and held, based upon the verification report, that the

driver was authorized to drive a heavy goods vehicle. Insofar as the

route permit of the vehicle is concerned, the Tribunal held, based upon

the testimony of a witness from the office of the ARTO Ganderbal, that

even when the route permit of the offending vehicle was issued on

21.1.2014 by the office of the RTO, yet retrospective effect was given

to the said certificate by imposing a fine of Rs. 2,000/- and thus, held

insurance company liable.

9. In the present appeal, the appellant-insurance company is aggrieved of

the judgment and award on the aforementioned two issues. It was

urged by the learned counsel for the appellant that the Tribunal had

totally misapplied itself to the facts, the evidence on record and the

law on the subject while returning a finding on the two issues referred

to hereinabove. Insofar as the driving licence is concerned, it was

c/w MA No. 02/2019

urged that although the driving licence was issued, as far back as on

2004 and was valid upto 2017, the endorsement for plying a heavy

goods vehicle was incorporated after the date of the accident and

insofar as the issue of route permit is concerned, it was stated that on

the date of the accident, admittedly the vehicle in question was being

plied without any such registration, which also constituted a violation

of the specific provisions of Section 81 of the Motor Vehicles Act,

besides violating the terms and conditions of the policy, which

permitted plying of the vehicle only under a permit within the meaning

of the Motor Vehicles Act, 1988. It was, therefore, prayed that having

committed a breach of the statutory provisions of the Act, as also the

policy condition, the insurance company could not have been held

liable. Counsel for the respondents-claimants on the other hand

reiterated the defence as was taken before the Tribunal.

10. Heard learned counsel for the parties.

11. The first issue that requires consideration is whether the driver of the

offending vehicle was possessed of a valid driving licence, which would

have authorized him to ply the truck (Tipper) in question.

12. While the stand of the insurance company is that the driver of the

offending vehicle was only possessed of a licence, which authorized

him to drive a light motor vehicle and that the endorsement to ply

heavy goods vehicle was made after the date of the accident, the

Tribunal appears to have relied upon the verification report produced

by the witness of the insurance company as has already been

discussed above.

c/w MA No. 02/2019

13. The issue whether a person holding a light motor vehicle licence is

authorized to drive a heavy goods vehicle is no longer res integra. In

Mukund Dewangan vs. Oriental Insurance Company Limited,

(2017) 14 SCC 663, the Apex Court in paragraph 59 held thus:

59. 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.

60. Thus we answer the questions which are referred to us thus:

60.1 „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.

60.2 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

c/w MA No. 02/2019

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.

60.3 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.

60.4 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."

14. On a reading of the aforementioned judgment, it thus becomes clear

that a person possessing a light motor vehicle licence would also be

authorized to ply a transport vehicle without any separate

endorsement provided the gross vehicle weight of the said transport

vehicle does not exceed 7500/- kgms. In the present case, from the

documents on record, it appears that the gross vehicle weight of the

Tipper (offending vehicle) was 16,200/- kgms and therefore, a light

motor vehicle licence would not authorize the driver to ply the vehicle

in question without a specific endorsement from the licensing authority

to ply the vehicle in question in that regard.

15. While the verification report does suggest that the licence did authorize

the driver to ply a heavy goods vehicle, yet admittedly the

c/w MA No. 02/2019

endorsement by the licensing authority came much after the date of

the accident. It, thus, becomes clear that on the date when the

accident took place, the driver of the vehicle was only authorized to ply

a light motor vehicle and not a transport vehicle like a Tipper, which is

a offending vehicle in the present case whose gross laden weight

exceeded 7500 kgms

16. The second issue that is required to be considered is whether the

insurance company is not liable in view of the fact the vehicle in

question was being driven without any route permit on the date of the

accident. It is the admitted case of the parties that on the date of the

accident, the vehicle in question was not having the route permit

issued from the registering authority. It appears that the registering

authority much after the date of the accident, by imposing a penalty,

gave retrospective route permit registration to the vehicle in question.

The Tribunal had placed reliance upon that document to say that the

vehicle was properly registered and therefore, there was no violation

either the terms and conditions of the policy or the Motor Vehicles Act.

17. Section 66 of the Motor Vehicles Act specifically prohibits an owner of

the motor vehicle to use or permit the use of the vehicle as a transport

vehicle in any public place except in accordance with the conditions of

a permit granted or counter signed by Regional or a State Transport

Authority, authorizing the use of such a vehicle.

Section 81 of the Act specifically provides that a permit

other than a temporary permit issued under Section 87 or a special

c/w MA No. 02/2019

permit issued under sub section 8 of Section 88 shall be effective

from the date of issuance or renewal thereof.

18. In the present case, there was no route permit issued by the

registering authority on the date of the accident and in terms of

Section 81, the route permit could have been granted only from the

date of its issuance and could not have been granted retrospectively as

it would fly in the face of Section 81, therefore, the finding recorded by

the Tribunal on this aspect is untenable in law.

19. Having considered the entire matter, in my opinion, the Insurance

Company cannot be held liable for payment in terms of the Award in

favour of the claimants. However, applying the principle of „pay and

recover‟, the insurance company is directed to pay the awarded

amount to the claimants with liberty to recover the same from the

owner/driver.

20. Disposed of accordingly.

(Dhiraj Singh Thakur) Judge Srinagar 21.02.2022 Naresh

NARESH KUMAR 2022.02.22 12:21 I attest to the accuracy and integrity of this document