Kerala High Court
Sivasankaran vs Rejin on 8 April, 2025
M.A.C.A. No. 521/2019 :1:
2025:KER:30103
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947
MACA NO. 521 OF 2019
AGAINST THE AWARD DATED 13.03.2015 IN O.P(MV) NO.252 OF 2012 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM
APPELLANT/2ND RESPON
SIVASANKARAN, AGED 70 YEARS, S/O AMMINI AMMA, VALIYAMADATHIL
HOUSE, VARODE P.O.OTTAPALAM TALUK, PALAKKAD DISTRICT (OWNER
OF KL-51/A -1990 -AUTORIKSHAW.)
BY ADVS.
SRI. P.JAYARAM
SRI.SARATH CHANDRAN K.B.
RESPONDENTS/PETITIONER & RESPONDENTS 1 & 3:
1 REJIN, AGED 32 YEARS,
S/O RAVEENDRAN, AIKATHIL HOUSE, AMBALAVATTAM P.O.679 501,
OTTAPALAM TALUK, PALAKKAD DISTRICT.
2 PRASAD K, S/O GOPALAN, THATHANOOR HOUSE,
AKALOOR P.O - 679 302, PAZHAYA LAKKIDI, OTTAPALAM TALUK,
PALAKKAD DISTRICT (DRIVER OF 51/A-1990-AUTORIKSHAW)
3 THE UNITED INDIA INSURANCE CO LTD.,
2ND FLOOR, PARAPPURATH TOWERS, MAIN ROAD, OTTAPALAM-679
101, PALAKKAD DISTRICT-(INSURER OF KL-51/A 1990-AUTORIKSHAW)
(POLICY NO 101203/31/10/01/00001323) (POLICY VALID FROM
25.4.2010 TO 24.4.2011)
BY ADVS.
SRI.R.SREEHARI
SRI.C.MOHANDAS
SRI.UNNIKRISHNAN.V.ALAPATT
SRI.SACHIN VYAS
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
04.04.2025, THE COURT ON 08.04.2025 DELIVERED THE FOLLOWING:
M.A.C.A. No. 521/2019 :2:
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'CR'
JOHNSON JOHN, J.
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M.A.C.A No. 521 of 2019
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Dated this the 8th day of April, 2025.
JUDGMENT
The owner of the vehicle is challenging the permission granted to
the insurance company to recover the award amount from the owner
and driver of the vehicle after payment of the amount to the claim
petitioner.
2. The claim petitioner, who sustained injuries in an accident
occurred on 27.02.2011, filed the petition under Section 166 of the
Motor Vehicles Act, 1988 against the driver, owner and insurer of the
autorickshaw involved in the accident and the Tribunal, as per the
impugned award, recorded a finding that the accident occurred because
of the negligence on the part of the driver of the auto rickshaw and since
the driver of the auto rickshaw was having only a licence to drive Light
Motor Vehicle (LMV), the Tribunal allowed pay and recovery in favour of
the respondent insurance company.
3. Heard Sri. P. Jayaram, the learned counsel for the appellant,
owner of the vehicle, Sri.R. Sreehari, the learned counsel for the 1 st
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respondent, Sri. C. Mohandas, the learned counsel for the 2 nd respondent
and Sri. Unnikrishnan V. Alapatt, the learned counsel for the 3 rd
respondent insurance company.
4. The learned counsel for the appellant argued that the legal
position is now well settled by the dictum laid down by the Honourable
Supreme Court in in Mukund Dewangan v. Oriental Insurance
Company Limited [(2017) 4 KHC 648 (SC)] and the subsequent
decision by a Full Bench of this Court in Sjaji v. Pradeesh and others
[2018 (2) KHC 342], that a licence to drive a light motor vehicle is
legally sufficient to drive an auto rickshaw, which is a light motor vehicle
and there is no additional requirement to obtain any separate
endorsement on the licence to drive transport vehicle.
5. The learned counsel for the respondent insurance company
cited the decision of a Single Bench of this Court dated 29.08.2018 in
M.A.C.A No. 2055 of 2011, wherein it was held that as per Kerala Motor
Vehicle Rules, 1989, auto rickshaw is a vehicle which comes under
Clause 2(c) and being a motor vehicle of a specified description, the
driver of an auto rickshaw requires a licence to drive that specified
vehicle.
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6. The learned counsel for the appellant cited the decision of the 5
Judges' Bench of the Hon'ble Supreme Court in Bajaj Alliance General
Insurance Co. Ltd. v. Rambha Devi [(2025) 3 SCC 95], wherein
the Honourable Supreme Court answered a reference after raising the
following specific issues:
(i) Whether a driver holding an LMV licence (for vehicles with a gross
vehicle weight of less than 7500 kg) as per Section 10(2)(d), which
specifies "light motor vehicle", can operate a "transport vehicle"
without obtaining specific authorisation under Section 10(2)(e) of the
MV Act, specifically for the "transport vehicle" class;
(ii) Whether the second part of Section 3(1) which emphasises the
necessity of a driving licence for a "transport vehicle" overrides the
definition of LMV in Section 2(21) of the MV Act? Is the definition of
LMV contained in Section 2(21) of the MV Act unrelated to the
licensing framework under the MV Act and the MV Rules;
(iii) Whether the additional eligibility criteria prescribed in the MV Act
and the MV Rules for "transport vehicles" would apply to those who
are desirous of driving vehicles weighing below 7500 kg and have
obtained a licence for LMV class under Section 10(2)(d) of the MV Act;
(iv) What is the effect of the amendment made by virtue of Act 54 of
1994 w.e.f. 14-11-1994 which substituted four classes under clauses
(e) to (h) in Section 10 with a single class of "transport vehicle" in
Section 10(2)(e)?
(v) Whether the decision in Mukund Dewangan (2017) [Mukund
Dewangan v. Oriental Insurance Co. Ltd., (2017) 14 SCC 663] is per
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incuriam for not noticing certain provisions of the MV Act and the MV
Rules?
7. After analyzing the various provisions in the Motor Vehicles Act
and Motor Vehicle Rules, the Honourable Supreme Court arrived at the
following conclusions:
(1) A driver holding a licence for light motor vehicle (LMV) class,
under Section 10(2)(d) for vehicles with a gross vehicle weight under
7500 kg, is permitted to operate a "transport vehicle" without needing
additional authorisation 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.
(2) The second part of Section 3(1), which emphasises 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.
(3) The additional eligibility criteria specified in the MV Act and the
MV Rules generally for driving "transport vehicles" would apply only
to those intending to operate vehicles with gross vehicle weight
exceeding 7500 kg i.e. "medium goods vehicle", "medium passenger
vehicle", "heavy goods vehicle" and "heavy passenger vehicle".
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(4) The decision in Mukund Dewangan (2017) [Mukund Dewangan
v. Oriental Insurance Co. Ltd., (2017) 14 SCC 663] 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 the MV Rules were not considered in
the said judgment.
8. It is also pertinent to note that in the above decision, the
Honourable Supreme Court also considered the hypothetical example of
a person desirous of driving an auto rickshaw in the year 1990 in
paragraphs 59, 60 and 61 and arrived at a finding that specific
authorisation should not be understood to mean that a person holding
an LMV licence which covers "transport vehicle", would be disentitled to
drive a "transport vehicle".
9. In paragraph 61 of the said judgment, the Honourable
Supreme Court held thus:
"... The specific authorisation should not be understood to mean
that Sri holding an LMV licence which covers "transport
vehicle", would be disentitled to drive a "transport vehicle". A
question would then arise about the purpose of explicitly
mentioning "transport vehicle" in Section 3 (and other provisions
as we will discuss later)? We may notice that there is no mention
of the term "light goods vehicle" or a "light passenger vehicle"
in Section 10 or in the definition section. On the other hand, a
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separate mention of "medium goods vehicle", "medium
passenger vehicle", "heavy goods vehicle" and "heavy
passenger vehicle" as incorporated in Section 10 would suggest
that it is primarily targeted towards "transport vehicles" as
opposed to a "light motor vehicle", which as earlier noticed
could also be a "Non-Transport Vehicle". The emphasis in the
second part of Section 3 should therefore be understood in
relation to medium and heavy vehicles in the statutory scheme
even prior to the 1994 Amendment. The reasonable interpretation
of the second part of Section 3 should therefore pertain to a
driving licence for those driving "medium goods vehicle",
"medium passenger vehicle", "heavy goods vehicle", and "heavy
passenger vehicle". Such an interpretation and understanding
would be logical because medium and heavy vehicles would
require greater manoeuvrability and skill as compared to drivers
of the LMV class. "
10. In the light of the pronouncement of the Apex Court that the
additional eligibility criteria specified in the Motor Vehicles Act and the
Motor Vehicles Rules generally for driving "transport vehicles" would
apply only to those intending to operate vehicles with gross vehicle
weight exceeding 7500 kg. i.e. "medium goods vehicle", "medium
passenger vehicle", "heavy goods vehicle" and "heavy passenger
vehicle", it cannot be held that a person holding an LMV licence would be
disentitled to drive an auto rickshaw.
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11. The learned counsel for the insurance company argued that
there is no retrospective effect for the Constitution Bench ruling of the
Supreme Court in Bajaj Alliance General Insurance Co. Ltd.
(supra).
12. But, the learned counsel for the appellant cited the judgment
of the Honourable Supreme Court in Kanishk Sinha and Another v.
State of West Bengal and Another [2025 SCC OnLine SC 443 =
2025 INSC 278), wherein it was held thus:
"...Now the law of prospective and retrospective operation is
absolutely clear. Whereas a law made by the legislature is always
prospective in nature unless it has been specifically stated in the statute
itself about its retrospective operation, the reverse is true for the law
which is laid down by a Constitutional Court, or law as it is
interpretated by the Court. The judgment of the Court will always be
retrospective in nature unless the judgment itself specifically states
that the judgment will operate prospectively. The prospective
operation of a judgment is normally done to avoid any unnecessary
burden to persons or to avoid undue hardships to those who had bona
fidely done something with the understanding of the law as it existed
at the relevant point of time. Further, it is done not to unsettle
something which has long been settled, as that would cause injustice to
many."
13. It is well settled that the judgment of the Honourable
Supreme Court will always be retrospective in nature, unless the
judgment itself specifically states that the judgment will operate
prospectively. Therefore, when it is not being specifically stated in the
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judgment of Bajaj Alliance General Insurance Co. Ltd. (supra) that
it will operate prospectively, the argument of the learned counsel for the
respondent insurance company is not legally sustainable. Since an 'auto
rickshaw' falls within the weight limit of an LMV and the driver of the
auto rickshaw involved in the accident was having licence to drive an
LMV as on the date of the accident, it cannot be held that there is
violation of policy conditions on the part of the owner of the vehicle and
therefore, I find that that the appeal is to be allowed and the direction in
the impugned award permitting the respondent insurance company to
recover the award amount from the owner and driver of the vehicle
after payment of the amount to the claim petitioner is liable to be set
aside.
In the result, the appeal is allowed and the impugned award to the
extent it permits the respondent insurance company to reimburse the
award amount from the owner and driver of the vehicle is set aside.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
