Ishwar Singh And Anr vs Pankaj Sharma And Ors
2023 Latest Caselaw 1083 P&H

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH
210
FAO No.1773 of 2009
DATE OF DECISION : 18" JANUARY, 2023
Ishwar Singh & another
.... Appellants
Versus
Pankaj Sharma & others
.... Respondents
FAO No.3605 of 2008
Ishwar Singh & another
.... Appellant
Versus
Phool Singh & another
.... Respondents

CORAM : HON'BLE MR. JUSTICE RAJBIR SEHRAWAT

3K OK OK 2

Present: Ms. Shaveta Sanghi, Advocate for appellants.

Ms. Rosi, Advocate for
Mr. V. P. Sangwan, Advocate for respondent No.1.

Mr. Subhash Goyal Advocate for respondent No.2.

3K OK OK 2

RAJBIR SEHRAWAT, J. (Oral)

1. This shall dispose of aforesaid two appeals seeking setting aside of the award dated 23.01.2009 passed by the Motor Accident Claims Tribunal, Bhiwani (in short, the Tribunal), and for exonerating the appellants from liability imposed upon them; along with certain other

prayers.

FAO No.1773 of 2009 & one connected case

2. For the purpose of the present appeals, the parties would be referred to as they were described in the original claim petition filed before the Tribunal.

3. For brevity of the facts, the facts are being taken from FAO No.3605 of 2008.

4. The brief facts as involved in the present case are that on 26.06.2006 the claimant was riding on motor cycle along with one Pankaj. When they reached near Daliawas Chowk in the city Rewari then a tempo-auto Rickshaw bearing registration No. HR-47A-3102 came from the side of Rewari; being driven in rash and negligent manner by respondent No.1 and hit against the motorcycle of the petitioner; as a result of which the claimant fell down and sustained injuries on his person. Asserting these facts a claim petition was filed in which the claimant was awarded an amount of €2,00,000/- in FAO No.3605 of 2008 and %99,000/- in FAO No.1773 of 2009. However, the license of the petitioner was not found valid for the purpose of driving a three wheeler/auto-rickshaw. Therefore, the Insurance Company was exonerated altogether and the driver and owner of the said offending vehicle were held liable to make the payment of compensation. Hence, the present appeals have been preferred by the driver and owner of the alleged offending auto-rickshaw. However, no cross appeal or cross objections have been filed by the claimants for enhancement of awarded amount.

5. Arguing the case learned counsel for the appellants-driver has submitted that it is not even in dispute that the driver was having

valid licence for driving Light Motor Vehicle (LMV); which was issued

FAO No.1773 of 2009 & one connected case

by the Licensing Authority, Rewari. However, the Tribunal has wrongly held that the holder of this license was not entitled to drive the three wheeler in question, because the three wheeler was not mentioned in the description given on the license. The counsel has submitted that LMV has been defined by the Motor Vehicle Act in Section 2(21), as a vehicle with unladen weight not exceeding 7500kg. Undisputedly, the unladen weight of the vehicle in question (three-wheeler) was 415-kg only, as is mentioned in the records of the insurance company itself. Hence, the driver was duly authorized to drive the vehicle in question being a LMV. The liability deserves to be shifted to the Insurance Company. The counsel for the appellants has relied upon the judgment of Supreme Court in the cases of Kulwant Singh & others Vs. Oriental Insurance Company Ltd., 2015(2) SCC 186 and Mukund Dewangan Vs. Oriental Insurance Company Ltd., 2017(4) RCR (Civil) 111

6. On the other hand the counsel for the Insurance Company has submitted that the award has rightly been passed by the Tribunal.

7. No other argument was raised.

8. Having heard the counsel for the parties and having perused the paper book, this court finds substance in the argument of counsel for the appellant. Before proceeding further, it is apposite to have reference to the definition of 'LMV' as given under the Motor Vehicle Act:

Section 2(21) in The Motor Vehicles Act, 1988

(21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road- roller the unladen weight of any of which, does

not exceed [7500] kilograms;

FAO No.1773 of 2009 & one connected case

9. A perusal of the above said definition shows that the definition of LMV does not have reference to the name or type of the vehicle. Rather, the definition has reference to the gross or unladen weight of the vehicle to bring it within the definition of LMV. Undisputedly, the unladen weight of the offending vehicle falls within the limit set by the definition of 'LMV'. Hence, by any means, it cannot be said that the appellant was not having the valid driving licence to drive the three wheeler in question. Hence, the finding recorded by the Tribunal is non-sustainable. The same deserves to be set aside. Hence, the finding recorded by the court below is reversed.

10. As a result of reversal of finding as mentioned above, the Insurance Company has to be held liable to pay the compensation. Ordered accordingly.

11. In view of the above, the award passed by the Tribunal is modified and the Insurance Company is held liable to pay the compensation arising from the accident in question.

12. The order sheet of this court in the present appeal shows that at the time of motion hearing the execution of the award was stayed subject to deposit of 50% of the awarded amount. However, it is not clear whether the said amount has been disbursed to the claimants or not. Therefore, the respondent Insurance Company is directed to deposit the entire amount of the award with the Tribunal within a period of four weeks. Out of the amount, so deposited by the Insurance Company, the amount, which was already deposited by the appellant, if any, shall be

reimbursed to the appellant; and the balance amount shall be paid to the

FAO No.1773 of 2009 & one connected case

claimants within a period of two months from the date of deposit of the

same.

13. Both the appeals are allowed in the above terms.

18 JANUARY, 2023 (RAJBIR SEHRAWAT)

'raj JUDGE Whether speaking/reasoned: Yes No

Whether Reportable: Yes No