Madras High Court

National Insurance Company ... vs Bino on 21 June, 2022

                                                                        C.M.A(MD)No.1498 of 2011

                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                Dated : 21.06.2022

                                                     CORAM

                                  THE HONOURABLE MRS.JUSTICE R.THARANI

                                           C.M.A(MD)No.1498 of 2011
                                                    and
                                             M.P(MD)No.3 of 2011


                    National Insurance Company Limited
                    represented by its Branch Manager,
                    Angu Vilas Building,
                    Post Box No.112, North Car street,
                    Nagercoil.                                       ... Appellants

                                                         Vs

                    1.Bino

                    2.Jenela

                    3.M/s.Aravind Road Carriers Private Ltd.,
                      No.A-10, Mahendra Park, GTK Road,
                      Delhi.

                    4.National Insurance Company Ltd.,
                      By its Divisional Manager,
                      First Floor, C-3, Pooja House,
                      Community Centre, Kurmpuram,
                      New Delhi.                                           ... Respondents




                    1 / 10

https://www.mhc.tn.gov.in/judis
                                                                               C.M.A(MD)No.1498 of 2011

                    PRAYER :-

                                  This Civil Miscellaneous Appeal is filed under Section 173 of the
                    Motor Vehicle Act, 1988, to set aside the judgment and decree passed by the
                    Motor Accident Claims Tribunal, Principal District Court, Pudukkottai, in
                    M.C.O.P.No.740 of 2005 dated 19.02.2008.


                                      For Appellants    : Mr.D.Sivaraman

                                      For R2            : Mr.P.Ganapathy Subramanian

                                      For R1,3 and 4    : No appearance


                                                        JUDGMENT

This appeal is filed against the order made in M.C.O.P.No.740 of 2005

on the file of the Motor Accident Claims Tribunal, Principal District Court,

Pudukkottai. The appellant herein is the second respondent in the claim

petition. The first respondent is the claimant. Respondents 2 to 4 are

respondents 1,3 and 4 respectively, in the claim petition.

2.Brief substance of the petition filed by the claimant is as follows:

On 07.04.2005 at about 1.30 pm, the petitioner was travelling in

Ambassadar Car bearing registration number TN 72 D 6040, when the car was

2 / 10

https://www.mhc.tn.gov.in/judis C.M.A(MD)No.1498 of 2011

nearing Thalavaiputhur Esakkiamman Kovil temple, the driver of the vehicle

drove the vehicle in a rash and negligent manner and dashed against the lorry

bearing registration number HR 38 D 7110. The petitioner sustained injury

and he took treatment from 07.04.2005 till 19.04.2005 as inpatient. The

petitioner claimed a sum of Rs.5,00,000/- as compensation.

3.Brief substance of the counter filed by the first respondent is as

follows:

The age, profession and monthly income of the petitioner / claimant are

to be proved. The first respondent already sold the Ambassadar car bearing

Registration No.TN 72 D 6740 to one Santhanaselvan, S/o. Appadurai, a

resident of Mayiladi. The sale consideration of the vehicle was Rs.1,45,000/-.

After receiving the entire consideration amount, the first respondent signed

the documents and handed over the same to the said Santhanaselvan. He has

also intimated the same to the Insurance Company. Subsequently, the said

Santhanaselvan insured the vehicle before the second respondent again. Since

the vehicle was already sold by the first respondent, there is no necessity for

the first respondent to pay any compensation. The first respondent is an

unnecessary party to the case.

3 / 10

https://www.mhc.tn.gov.in/judis C.M.A(MD)No.1498 of 2011

4.Brief substance of the counter filed by the second respondent is as

follows:-

The age, avocation and income of the petitioner/claimant are denied.

The driver of the Ambassadar car was not having Badge at the time of

accident. The Insurance policy conditions are violated and hence the second

respondent is not liable to pay compensation.

5.The third respondent was declared ex-parte. The fourth respondent

adopted the counter of the second respondent. Two witnesses were examined

and eleven documents were marked on the side of the petitioner. Two

witnesses were examined and two documents were marked on the side of

respondents. The Tribunal awarded a sum of Rs.2,27,832/- to be paid by the

second respondent and there is an order for pay and recover.

6.Against the order of the Tribunal, the appellant has preferred this

appeal on the following grounds:-

The driver of the Ambassadar car did not have any valid licence to

drive the Taxi at the time of accident. Light Motor Vehicle licence is not

sufficient to drive transport vehicles. A specific endorsement (Badge) is

4 / 10

https://www.mhc.tn.gov.in/judis C.M.A(MD)No.1498 of 2011

required to drive the transport vehicles as contemplated under Section 10(2)

(e) of the M.V.Act. The Tribunal erred in directing the insurer to pay

compensation and to recover the same from the owner of the vehicle. In case

of driver not having driving license, it is the duty of the owner of the vehicle

to pay compensation. Pay and recovery order can be passed only by the

Hon'ble Supreme Court in exercising the special power under Article 142 of

the Constitution of India which is not available to the other Courts. Since the

only liability under Section 149(2) of M.V.Act, is under dispute, the

permission under Section 170 of Motor Vehicles Act, is not necessary.

7.On the side of the respondent, it is stated that Badge endorsement is

not necessary. A judgment of the Hon'ble Supreme Court, reported in

2017(2)TNMAC 145 (SC), in the case of Mukund Dewangan Vs Oriental

Insurance Co.Ltd., is cited, wherein, it is held that,

"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 Vehicles

5 / 10

https://www.mhc.tn.gov.in/judis C.M.A(MD)No.1498 of 2011

also, a holder of Light Motor Vehicle Licence can drive all the vehicles of the classincluding Transport vehicles. It was pre- amended position as well as post amended position of Form 4 as amended on 28.03.2001. Any other interprettion 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 theh category of 'Light Motor Vehicles' and for Light Motor Vehicles, the validity period of such licence hold good and apply for the Transport Vehicle of such class also 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 teh 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 No. 54/1994.

6 / 10

https://www.mhc.tn.gov.in/judis C.M.A(MD)No.1498 of 2011

(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 ehicle weight of which does not exceed 7500 kg. or a Motor Car or tractor or Road Roller, the "unladenn 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 & 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) & Section 2(41)[sin 2(41) of the Act i.e., Light Motor Vehicle.

7 / 10

https://www.mhc.tn.gov.in/judis C.M.A(MD)No.1498 of 2011

(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.

47.In the light of aforesaid answer, let matters be placed for hearing on merits before the appropriate Bench."

8.A perusal of the records reveals that except non availability of badge

endorsement, there is no other objections on the side of the appellant. Only a

vague objection regarding the quantum of compensation awarded by the

Tribunal was raised by the appellant. In the judgment reported in 2017 2

TNMAC 145, the Hon'ble Supreme Court has held that no specific

endorsement in the driving license is necessary, by virtue of Amendment Act

54/1994 & 28.3.2001. There is no necessity for an endorsement in the driving

license, for driving a vehicle, the unloaded weight of the vehicle is below 500

kilograms.

8 / 10

https://www.mhc.tn.gov.in/judis C.M.A(MD)No.1498 of 2011