Madhya Pradesh High Court
National Insurance Co.Ltd. vs Ku.Uma Tiwari on 20 January, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
M.A.No.2991/2006
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 20th OF JANUARY, 2025
MISC. APPEAL No. 2991 of 2006
NATIONAL INSURANCE CO.LTD.
Versus
KU.UMA TIWARI AND OTHERS
Appearance:
Smt. A. Ruprah - Advocate for the appellant.
Shri Nand Kishore Tiwari - Advocate for respondents.
ORDER
This misc. appeal was admitted for final hearing on 24.09.2012 and is
listed for hearing on the application for disbursement of deposited amount
(I.A.No.5327/2018) but with the consent of parties, is heard finally.
2. This misc. appeal has been preferred by the appellant/non-applicant
3/National Insurance Company, challenging the award dated 29.03.2006 passed
by Motor Accident Claims Tribunal, Rewa, in Claim Case No.130/2005
whereby due to death of Shyam Sunder Tiwari (father of respondent 1/claimant)
an amount of Rs.1,17,720/- along with interest @ 6% p.a. has been awarded
holding the appellant/non-applicant 3 and respondents 2-3/non applicants 1 & 2
(driver and owner of Bus No. MP 17-A/3177) to be liable to pay the awarded
compensation jointly and severally.
3. As per claim petition, facts in short are that at about 1.30 p.m. on
18.03.2005 father of claimant namely Shyam Sunder Tiwari (retd. veterinary
doctor) by riding on cycle was coming to his house at Nehru Nagar via Sirmaur
Chauraha, then driver of Bus by driving it rashly and negligently, dashed the
cycle and committed accident, in which the father came under rear wheel and
died on spot. It is alleged that the claimant's father was 70 years of age and was
a healthy person. In addition to pension, he was earning Rs.3,000/- p.m. from
private practice. On inter alia allegations, claim petition was filed.
4. The non-applicants 1-2 (driver and owner of Bus) appeared and filed
reply to claim petition denying the allegations made in the petition and
contended that driver was driving the Bus carefully but the deceased himself
was negligent and due to imbalance of cycle he fell down and came under rear
wheel of the Bus, hence the claimant is not entitled for any compensation. It is
also contended that the Bus was insured for the period from 14.07.2004 to
13.07.2005 and was being driven by the non-applicant 1 having valid driving
licence, hence the non-applicants 1-2 are not liable to pay the compensation.
5. The non-applicant 3/insurance Company also filed reply and denied the
allegations for want of knowledge. It is contended that although Bus was
insured for the relevant period but its driver was not having valid driving
licence to drive the Bus. It is also contended that there was no valid permit or
fitness certificate and road-tax was also not paid. On inter alia contentions, the
claim petition was prayed to be dismissed.
6. On the basis of pleadings, MACT framed issues and recorded evidence of
the parties. The claimant-Uma Tiwari (AW-1) examined herself as well as eye
witness Pankaj Shrivastava (AW-2) and also produced documents Ex.P/1 to
P/12-c. In rebuttal the non-applicants 1-2 did not adduce any evidence but the
non-applicant 3/Insurance Company examined Administrative Officer of
Insurance Company namely Rajendra Singh Parihar (NAW-1) as well as
Investigator-Vinod Shankar Pandey (NAW-2) and also produced documents
(Ex.D/1 to D/4) however, did not examine any witness from the office of R.T.O.
in respect of invalidity of driving licence.
7. After evaluation of available evidence and after hearing the parties,
MACT found that by rash and negligent driving of the Bus, its driver committed
accident, due to which father of claimant had died. It is also held that on the
date of accident, offending Bus was insured and driver of the Bus was driving
the Bus having valid driving licence and there being no breach of terms and
conditions of insurance policy (Ex.D/1) the non-applicant 3/Insurance Company
is liable to indemnify the liability of non-applicants 1-2.
8. Learned counsel for the appellant submits that on the date of accident i.e.
18.03.2005, driver of offending Bus was not having valid driving licence to
drive the Bus, which is a Heavy Passenger Motor Vehicle, in short 'HPMV',
therefore, Insurance Company is not liable to indemnify the award, because it is
clear breach of condition of policy justifying exoneration of the
appellant/National Insurance Company. She submits that driver was holding
licence to drive LMV, MMV & HGV but not HPMV and there is a great
difference between Heavy Goods Vehicle and Heavy Passenger Motor Vehicle,
hence the holder of HGV licence is not authorized to drive HPMV.
9. Taking this Court to Section 2(17), 3 and 10 of the Motor Vehicles Act,
1988 she submits that in absence of licence to drive HPMV, the Insurance
Company cannot be said to be liable to indemnify liability of the non-applicants
1-2. She also relied on a decision of a Co-ordinate Bench of Rajasthan High
Court at Jodhpur in case of The Oriental Insurance Company Limited. Vs. Smt.
Samya and others (2023/RJJD/012609 on 01.05.2023) and prays for allowing
the misc. appeal.
10. Per contra, learned counsel appearing for the respondent 1/claimant
supports the impugned award passed by MACT and prays for dismissal of the
misc. appeal. He submits that in the light of valid driving licence (Ex.D/4)
possessed by driver of the Bus, which was valid for the period from 21.12.1987
to 05.01.2008, MACT has not committed any illegality in passing the impugned
award.
11. Heard learned counsel for the parties and perused the record.
12. Undisputedly, copy of driving licence (Ex.D/4) shows that it was issued
to the non-applicant 1 to drive LMV, MMV & HGV and was valid for a period
from 21.12.1987 to 05.01.2008. Originally, it was issued for a period from
21.12.1987 to 20.12.1990, then 11.01.1991 to 10.01.1992, then 27.01.1999 to
26.01.2002 and lastly was renewed for the period from 06.01.2005 to
05.01.2008. Meaning thereby on the date of accident, the driver of Bus was
having licence to drive HGV.
13. In the present case only question involved is, as to whether driver of the
Bus was competent to drive the offending Bus (HPMV). Relevant definitions of
educational institution bus, heavy goods vehicle, heavy passenger motor
vehicle, omnibus, private service vehicle and public service vehicle given in
Section 2(11), (16), (17), (29), (33) & (35) of the Motor Vehicles Act, 1988
read as under :-
"2(11) Educational institution bus" means an omnibus, which is owned
by a college, school or other educational institution and used solely for
the purpose of transporting students or staff of the educational institution
in connection with any of its activities;"
"2(16) Heavy goods vehicle" means any goods carriage the gross
vehicle weight of which, or a tractor or a road-roller the unladen weight
either of which, exceeds 12,000 kilograms;"
"2(17) Heavy passenger motor vehicle" means any public service
vehicle or private service vehicle or educational institution Bus or
omnibus the gross vehicle weight of any of which, or a motor car the
unladen weight of which, exceeds 12,000 kilograms;"
"2(29) Omnibus" means any motor vehicle constructed or adapted to
carry more than six persons excluding the driver;"
"2(33) Private service vehicle" means a motor vehicle constructed or
adapted to carry more than six persons excluding the driver and
ordinarily used by or on behalf of the owner of such vehicle for the
purpose of carrying persons for, or in connection with, his trade or
business otherwise than for hire or reward but does not include a motor
vehicle used for public purposes;"
"2(35) Public service vehicle" means any motor vehicle used or adapted
to be used for the carriage of passengers for hire or reward, and includes
a maxicab, a motorcab, contract carriage, and stage carriage;"
14. Section 3 of the Motor Vehicle Act, also reads as under :-
"3. Necessity for driving licence. - (1) No person shall drive a motor
vehicle in any public place unless he holds an effective driving licence
issued to him authorising him to drive the vehicle; and no person shall so
drive a transport vehicle [other than a motor cab or motor cycle] hired for
his own use or rented under any scheme made under sub-section (2) of
section 75 unless his driving licence specifically entitles him so to do."
15. Section 10 of the Act deals with the form and contents of the licence to
drive, which as it stood before the amendment made in the year 1994 by virtue
of amendment Act 54 of 1994, is extracted hereunder :-
"10. Form and contents of licences to drive. - (1) Every learner's
licence and driving licence, except a driving licence issued under section
18, shall be in such form and shall contain such information as may be
prescribed by the Central Government.
(2) A learner's licence or, as the case may be, driving licence shall also
be expressed as entitling the holder to drive a motor vehicle of one or
more of the following classes, namely:
(a) motor-cycle without gear;
(b) motor-cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) medium goods vehicle;
(f) medium passenger motor vehicle;
(g) heavy goods vehicle,
(h) heavy passenger motor vehicle;
(i) road-roller;
(j) motor cycle of a specified description."
16. After amendment made by Act 54 of 1994, change in position of classes
of vehicles given under Section 10, is extracted hereunder :-
"(a) motor cycle without gear;
(b)motor cycle with gear;
(c)[adapted vehicle];
(d)light motor vehicle;
[(e) transport vehicle;]
(i) road-roller;
(j) motor vehicle of a specified description."
17. Upon reading of the aforesaid provisions it is clear that after amendment
of the year 1994, in the classes of vehicles mentioned in Section 10 of the Motor
Vehicles Act, nothing is there to suggest that Road Transport Authority has to
issue driving licence beyond the classes mentioned in Section 10 of the Act that
too after making certain endorsements. Conjoint reading of aforesaid definitions
given in Section 2(16), (17), (35), (33), (11) and (29) of the Act makes it clear
that 'heavy goods vehicle', 'heavy passenger motor vehicle' 'public service
vehicle', 'private service vehicle', 'educational institution bus' and 'omnibus',
the gross vehicle weight of any of which, or a motor car the unladen weight of
which, exceeds 12,000 kilogram, can be driven by a driver who has been issued
a licence to drive transport vehicle, or medium goods vehicle, or medium
passenger motor vehicle, or heavy goods vehicle, or heavy passenger motor
vehicle, or road-roller; especially in the circumstances where licence was issued
or renewed after amendment Act 54 of 1994. Needless to mention that driver of
offending Bus was possessing the licence of HGV class and was renewed for
the period from 06.01.2005 to 05.01.2008 which covers the date of accident.
18. This aspect was taken into consideration by MACT in paragraphs 13 &
14 of the award and came to conclusion that on the date of accident, the non-
applicant 1 was having valid driving licence to drive the Bus and did not find
any breach of condition of policy.
19. Hon'ble Supreme Court has, in the case of Mukund Dewangan vs.
Oriental Insurance Company Limited, (2017) 14 SCC 663, already dealt with
the aforesaid aspect and held as under :-
"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 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."
20. Apparently in the case of Rajasthan High Court complete details of
driving licence has not been given and it has been mentioned that the driver of
the offending vehicle was issued driving licence prior to the amendment made
by Act 54 of 1994. For what period licence was valid or the existing licence was
renewed for further period after the amendment Act of 1994, has also not been
dealt with in this judgment. As to why the relevant decision of Hon'ble
Supreme Court in the case of Mukund Dewangan (supra) was not considered,
is also not clear from the judgment. As such, the decision of Rajasthan High
Court in the case of The Oriental Insurance Company Limited. Vs. Smt. Samya
and others (supra) does not help to the appellant.
21. In view of aforesaid discussion, this Court does not find any illegality in
the impugned award.
22. Resultantly, this misc. appeal fails and is hereby dismissed.
23. Misc. application(s), pending if any, shall stand closed and interim order
of stay, shall stand vacated.
24. The appellant shall bear cost of the respondent 1/claimant also. Counsel
fee is quantified as Rs.10,000/-.
(DWARKA DHISH BANSAL)
JUDGE
SN
DN: c=IN, o=HIGH COURT OF MADHYA
SATTYENDA PRADESH, ou=JABALPUR,
2.5.4.20=a88335b5aa0b86d1da90cd0e8cd9c3
da6ba424cc6b0449615e32a4a00d6a7a89,
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postalCode=482001, st=Madhya Pradesh,
serialNumber=B15AE3A81EA93B6FF53B05BF3
C54D7FCEA9B520D6221FF93AFC887977C69B
891, cn=SATTYENDAR NAGDEVE
Date: 2025.01.28 11:29:35 +05'30'
