Jharkhand High Court

Madan Singh vs The Branch Manager on 3 February, 2023

                                       1                              M.A. No. 38 of 2015


            IN THE HIGH COURT OF JHARKHAND, RANCHI
                       M.A. No. 38 of 2015
                                         ----

Madan Singh, son of C.K.Singh, resident of Quarter No.CT-27, Domgarh, P.O. Domgarh, P.S.-Sindri, District-Dhanbad (Owner of Truck No.BRL-8163) ......... Defendant No.1/ Appellant

-- Versus --

1.The Branch Manager, M/s New India Assurance Co. Ltd., Shivam Mansion, Sindri Branch, P.O. Patherdih, P.S.-Patherdih and District- Dhanbad Names of Respondent Nos.2 to 5 deleted vide order dated 04.10.2016.

......... Respondent

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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       For the Appellant       :- Mr. S.K. Laik, Advocate
       For the Insurance Co.   :- Mr. G.C.Jha, Advocate
                                       ----
18/03.02.2023       Heard Mr. S.K. Laik, the learned counsel appearing on

behalf of the appellant and Mr. G.C. Jha, the learned counsel appearing

on behalf of the respondent/insurance company.

Considering that the contest in this petition is between the

appellant and the respondent/insurance company namely The New India

Assurance Company Limited and the rest of the respondents were

directed to be deleted from the array of cause title vide order dated

04.10.2016.

The present appeal has been filed against the judgment/

award dated 01.08.2005 (decree signed on 24.09.2005) passed by the

learned Additional District Judge, Fast Track Court-I-cum- M.A.C.T.,

Dhanbad in Title (M.V.) Suit No.123 of 1999.

The claim case was filed alleging therein that on

26.03.1999 the deceased namely Brahameshwar Nath Thakur met with

an accident inside the F.C.I.(Sindri) premises near computer office while

he was going for official work on his scooter. The scooter was dashed by

a speedy truck bearing Registration No.BRL-8163 and as a result of

accident the deceased received serious injury and was rushed to F.C.I.

Hospital, where he was declared dead.

It was stated that the deceased was getting Rs.9060/-

monthly income as an employee of F.C.I and on that ground on various

heads the claim application was filed. On hearing the respondent and the

claimants the learned Tribunal has awarded a sum of Rs.4,73,680/- with

6% interest per annum from the date of claim application till the

realization for the death of the husband of the plaintiff no.1 and father of

plaintiff no.2 and 3 with further order that the insurance company should

make necessary payment to the plaintiffs and recover the same from the

owner/ appellant.

The appellant herein is the owner of the truck in question.

The appellant appeared in the compensation case and filed written

statement and thereafter he has left the proceeding and has not

appeared in the proceeding. Pursuant thereto, the compensation case

was proceeded ex-parte since the appellant has failed to appear.

Mr. S.K. Laik, the learned counsel appearing on behalf of

the appellant submits that the appellant is the owner of the truck in

question and the vehicle was fully insured and instead of that, the

learned Tribunal has directed to recover the amount from the owner and

that part of the order is bad in law. He submits that when it has come to

the knowledge of the appellant about the order, he has filed the present

appeal. The appeal was filed with delay of 3361 days along with a

petition under section 5 of the Limitation Act and by the order dated

04.10.2016 the condonation petition was allowed subject to payment of

cost of Rs.20,000/- out of which Rs.10,000/- to the Advocate Welfare

Association, Ranchi and remaining amount of Rs.10,000/- to the Member

Secretary, Jhalsa, Nyay Sadan, Ranchi. He submits that the present

appeal was admitted on 14.06.2018. Mr. Laik, the learned counsel for the

appellant submits that only on that ground the liability has been fastened

upon the appellant. The Tribunal on driving license hold that the driver

was having the license of Light Motor Vehicle and the permit was not

produced. He further submits that the I.A. No.769 of 2019 has been filed

under Order XLI Rule 27 of the C.P.C. for adducing the additional

evidence and in the said I.A. the permit has been brought on record. He

submits that the I.A. may kindly be allowed in the light of the insurance

policy and that part of the order may kindly be modified. He further

submits that it is an admitted position that driver was having the Light

Motor Vehicle License and the learned Tribunal has held that he was

driving the Medium Goods Vehicle and only on that ground the learned

Tribunal has come to the conclusion that he was not having the licence

for driving medium goods vehicle which is against the mandate of law to

and buttress his such argument, Mr. Laik the learned counsel for the

appellant relied in the case of National Insurance Company Limited v.

Annappa Irappa Nesaria @ Nesaragi and Others, (2008) 3 SCC 464 .

Paragraph nos.5, 8 and 9 of the said judgment has been relied by him,

which are quoted hereinbelow:

"5. The learned Tribunal in support of its award on Issue 3, held:

"DW 1 in his cross-examination admitted that offending vehicle is authorised to transport 3500 kg goods. Further, in his cross-examination it was stated that LMV means transport vehicle of unladen weight which does not exceed 7500 kg. Ext. D-2 at Column 12 clearly shows that the unladen weight of the offending vehicle is 3500 kg. Thereby it is very much clear that said unladen weight of the offending vehicle is much less than 7500 kg as admitted by DW 1 in his cross-examination which is also the effect as defined in the Motor Vehicles Act. So when the unladen weight of the offending vehicle is less than 7500 kg RW 1 driver who is having DL as per Ext. D-3 is certainly authorised to drive the offending vehicle. The decision relied upon by advocate for the petitioners at Serial No. 2 ruling in United India Insurance Co. Ltd. v. Shivanna [(2000) 5 Kar LJ 473 (DB)] , our own Hon'ble High Court had clearly held that where offending vehicle is weighing 4960 kg driven by a person having DL to drive LMV, there is no breach of insurance policy, as statute classifies vehicle weighing below 7500 kg as LMVs and insurer is liable to satisfy award in respect of accident that occurred when the vehicle was being driven by driver holding such licence. So in view of the decision of the Division Bench of

our own Hon'ble High Court and also the decision of the Supreme Court referred to at Sl. No. 1 by the advocate for the petitioners it is very much clear that RW 1 is having valid DL as per Ext. D-3 and the offending vehicle's unladen weight is 3500 kg is certainly was having effective and valid DL and so R-3 has failed to prove Issue 3 and accordingly I answer the same in the negative."

8. Mr S.N. Bhat, learned counsel appearing on behalf of the respondents, on the other hand, submitted that the contention raised herein by the appellant has neither been raised before the Tribunal nor before the High Court. In any event, it was urged, that keeping in view the definition of the "light motor vehicle" as contained in Section 2(21) of the Motor Vehicles Act, 1988 ("the Act", for short), a light goods carriage would come within the purview thereof.

9. A "light goods carriage" having not been defined in the Act, the definition of the "light motor vehicle" clearly indicates that it takes within its umbrage both a transport vehicle and a non-transport vehicle."

Relying on that judgment, Mr. Laik, the learned counsel for

the appellant submits that it has been held in this judgment that if a

person is having Light Motor Vehicle license in view of the provisions he

is also competent to drive medium goods vehicle. He further submits that

this aspect of the matter has recently been considered by the Hon'ble

Supreme Court in the case of Mukund Dewangan v. Oriental Insurance

Company Limited, AIR 2017 SCC 3668 and relied on paragraph nos.38

and 46 of the said judgment, which are quoted below:

"38. In Annappa Irappa Nesaria [National Insurance Co.

Ltd. v. Annappa Irappa Nesaria, (2008) 3 SCC 464 : (2008) 1 SCC (Civ) 945 : (2008) 2 SCC (Cri) 99] , a Division Bench of this Court has considered the question with respect to an accident which took place on 9-12-1999. The driver was driving a Matador van, a "goods carriage" vehicle, holding a licence to drive light motor vehicle. This Court referred to Forms 4 and 6 and Rules 14 and 16 of the 1989 Rules and opined that as Form 4 has been amended w.e.f. 28-3-2001, transport vehicle has been substituted for medium goods vehicle and heavy goods vehicle and provision in the form at the relevant time, covered both "light passenger carriage vehicle" and "light goods carriage vehicle". The driver who had a valid driving licence to drive a light motor vehicle, therefore, was authorised to drive a

light goods vehicle (transport vehicle) as well. The view taken with respect to the pre-amended position, before the amendment of Form 4 on 28-3-2001 appears to be correct for the reasons discussed by us. However, no change has been brought about by insertion of Form 4 after 28-3-2001 with respect to LMV category transport vehicle, thus, Annappa Irappa Nesaria [National Insurance Co. Ltd. v. Annappa Irappa Nesaria, (2008) 3 SCC 464 : (2008) 1 SCC (Civ) 945 : (2008) 2 SCC (Cri) 99] cannot be taken to be laying down correct legal position applicable after 28-3-2001. With respect to the post- amendment legal position, the decision cannot be said to be laying down the correct law. However, this Court has rightly opined in the aforesaid case that the person holding a licence to drive "light motor vehicle" could have driven "light passenger carriage vehicle" and "light goods carriage vehicle" also. Thus, the decision is partially overruled to the aforesaid extent only.

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 1989 Rules, 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 Sections 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 Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 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 roadroller, "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 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 of 1994 and 28- 3-2001 in the form.

(iii) The effect of the amendment made by virtue of Act 54 of 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.

Relying on this judgment, he submits that on that ground

the finding of the learned Tribunal is not correct and in that view of the

matter, the case of the appellant is fit to be allowed. He further submits

that appellant has not appeared and after the appearance he has left the

proceeding in the Tribunal and that is why the permit was not brought on

the record and for that the said I.A. may kindly be allowed considering

that the permit was also there. On that ground he submits that the order

may kindly be modified to the extent that no recovery shall be made

from the appellant.

On the other hand, Mr. G.C. Jha, the learned counsel

appearing on behalf of the respondent/insurance company submits that

the weight of the vehicle is required to be considered as to whether the

vehicle in question is a Light Motor Vehicle or a Medium Goods Vehicle or

a Goods Vehicle. He draws the attention of the Court to the Annexure-1

to the memo of appeal which is the Investigator's report and by way of

drawing the attention of the Court he submits that R.L.D.W has been

shown at 11,250 K.g., unladen weight 4870 K.g. and total both comes to

16120 K.g. He submits that when the weight of the vehicle is less, it

cannot be said that the vehicle in question was a Light Motor Vehicle and

the vehicle of the appellant was a Heavy Vehicle. He further submits that

it has also been held in the judgment relied by the learned counsel

appearing for the appellant in the case of Mukund Dewangan v. Oriental

Insurance Company Limited(supra). He further submits that so far the

permit is concerned, this is not required to be considered at this stage by

the Court considering that the appellant has also appeared in the

proceeding and thereafter he has left the proceeding and there is no due

diligence shown by the appellant and at this stage the said I.A. is fit to

be rejected. He further submits that the order by which the ex-parte

proceeding is proceeded against the appellant that is not under challenge

and in that view of the matter the appeal is not fit to be entertained in

the present case. By way of referring to the insurance policy, Mr. Jha, the

learned counsel for the respondent/insurance company submits that in

the policy the weight of the vehicle shown 16200 K.g. it was the Heavy

Vehicle.

In view of above submission of the learned counsel for the

parties, the Court has gone through the materials on record including the

L.C.R as well as the judgment of the learned trial court. Admittedly, the

appellant herein has appeared before the learned Tribunal and filed

written statement and thereafter has left the proceeding and pursuant

thereto, the ex-parte proceeding proceeded against the appellant. The

learned Tribunal considering the driving license of the driver of the

vehicle in question has concluded that he was having Light Motor Vehicle

license whereas he was driving the Medium Goods Vehicle and in that

view of the matter, the driving license was not fulfilling the criteria of the

insurance policy and the permit was not on the record and that is why

the insurance company was directed to satisfy the award and to recover

the same. So far driving license is concerned in view of the two

judgments relied by the learned counsel for the appellant it is crystal

clear that if a person who is having the Light Motor Vehicle license is

competent to drive the Medium Goods Vehicle and on that ground the

finding of the learned Tribunal is not correct. The further question

remains that when the ex-parte proceeding is proceeded against the

appellant, he has not challenged the order by which ex-parte order is

allowed against the appellant and after 3361 days he has filed the

present appeal. The said I.A has been filed under Order XLI Rule 27

C.P.C. annexing the permit at this belated stage. Admittedly, in the case

in hand, the appellant has appeared before the learned Tribunal and filed

the written statement and thereafter has left the proceeding. The order

by which the ex-parte proceeding has proceeded has not been

challenged and no petition was filed to recall that order. Admittedly, no

petition under Order IX Rule 13 has been filed, however, in the I.A no

order is annexed whereby the objection filed by the appellant has been

rejected by the Court and thereafter there are ex-parte proceeding

allowing the petition of the appellant under Order XLI Rule 27 of the

C.P.C, that is, due diligence is required to be shown by the appellant. It is

well settled that the party can seek liberty to produce additional evidence

at the appellate stage, but the same can be permitted only if the

evidence sought to be produced could not be produced at the state of

trial inspite of exercise of due diligence. Moreover, appeal was filed on

29.01.2015 whereas the said I.A. was filed on 24.01.2019. The said I.A.

was not filed along with appeal. Thus, due diligence is lacking in the case

in hand. A reference may be made to the case of State of Karnataka and

Another v. K.C. Subramanya and Others, (2014) 13 SCC 468. Paragraph

nos.4 and 5 of the said judgment are quoted below:

"4. However, we do not feel impressed with this argument and deem it fit to reject it in view of Order 41 Rule 27(1)(aa) which clearly states as follows:

"27. (1)(a)*** (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) ***"

On perusal of this provision, it is unambiguously clear that the party can seek liberty to produce additional evidence at the appellate stage, but the same can be permitted only if the evidence sought to be produced could not be produced at the stage of trial in spite of exercise of due diligence and that the evidence could not be produced as it was not within his knowledge and hence was fit to be produced by the appellant before the appellate forum.

5. It is thus clear that there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal, which specifically incorporates conditions to the effect that the party in spite of due diligence could not produce the evidence and the same cannot be allowed to be done at his leisure or sweet will."

In view of the well settled provisions of law with regard to

allow the petition under Order XLI Rule 27 C.P.C at this belated stage

considering the conduct of the appellant, the said I.A. is not fit to be

allowed. In that view of the mater, I.A. No.769 of 2019 is dismissed.

In view of the dismissal of the said I.A., no relief can be

extended to the appellant.

Mr. Laik, the learned counsel for the appellant submits that

for substantial justice, the Court can entertain the petition under Order

XLI Rule 27 C.P.C at the belated stage as has been held in the case of

North Eastern Railway, Administration, Gorakhpur v. Bhagwan Das (Dead)

by LRs., (2008) 8 SCC 511. Moreover, the appeal was filed in the year

2015 whereas the I.A has been filed in the year 2019 for deciding the

appeal under order XLI Rule 27 C.P.C, the petition was required to be

first filed and get it agitated and obtained the order on that petition,

which has not been done in the case in hand and after admission of the

appeal, the I.A. has been filed. In the case relied by Mr. Laik, the learned