Rajasthan High Court - Jodhpur

Bharat Lal vs Rajesh And Anr on 29 April, 2021

Bench: Devendra Kachhawaha

(1 of 6) [CMA-2268/2011]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 2268/2011

Rajesh Acharya S/o Shri Lalitashankar Acharya, age 30 years, by caste Bharaman, r/o Shukalwada, Partapur, Tehsil Ghari, Dist. Banswara

----Appellant Versus

1. Bharatlal Kotadeya s/o Shankarlal Kotadeya, by caste Bhill, r/o Raghunathpura, Tehsil Sagwada, Dist. Dungarpur (OWNER & DRIVER)

2. The Oriental Insurance Company Ltd. D.O.3, Nay marg, out side Delhigate Udaipur, Dist. Udaipur (INSURER)

----Respondents CONNECTED MATTER

S.B. Civil Misc. Appeal No. 5147/2011 Bharat Lal Kotadiya son of Shanker Lal Kotadiya, by caste Bheel, Age 45 years, resident of Raghunathpura, Tehsil Sagwara, District Dungarpur.

Versus

1. Rajesh Acharya son of Shri Lalita Shanker, by caste Acharya Brahmin, resident of Shukalwada, Partapur, Tehsil Gadi, District Banswara. [Claimant]

2. The Oriental Insurance Company Limited, DO-3, Nyay Marg, outside Delhi Gate, Udaipur, District Udaipur (Insurer)

----Respondents

------------------------------------------------------------------------ For Appellant(s) : Mr. Parikshit Nayak, appellant in CMA No.2268/2011 and respondent No.1 in CMA No.5147/2011 For Respondent(s) : Mr. L.D. Khatri-Insurance Company Mr. JVS Deora, respondent No.1 in CMA No.2268/2011 & appellant in CMA No.5147/2011

(2 of 6) [CMA-2268/2011]

HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

Judgment

Reserved on:- 09/04/2021 Pronounced on:-29/04/2021

In S.B. Civil Misc. Appeal No. 2268/2011

With consent of the learned counsel for the parties, the

matter is being heard and decided finally.

The present appeal has been preferred by the appellant-

claimant against the judgment and award dated 27.06.2011

passed by the Motor Accident Claims Tribunal, Banswara, in M.A.C.

Case No.263/2011 whereby the appellant-claimant was awarded

an amount of Rs. 2,66,963/- as compensation for the injuries

suffered by him in a road accident which occurred on 25.06.2007.

Learned Tribunal after framing of the issues, evaluating the

evidence on record and hearing the counsel for the parties,

decided the claim-petition of the appellant.

Learned counsel for the parties submit that the amount is

required to be recomputed in the light of Rajasthan State Legal

Services Authority guidelines dated 05.11.2018. Learned counsel

for the parties jointly submitted the recalculation of the award in

the present case in accordance with the Rajasthan State Legal

Services Authority guidelines which is reproduced as under:-

                                           (3 of 6)                [CMA-2268/2011]




Age of injured                             30 years
Permanent disability                       Rs.2,65,000/-
(Rs.25,000 + 5000 x 48%)
Medical expenses                           Rs.44,963/-

For hospitalization                        Rs.1200/-
(2 days x Rs.600)
Pain and sufferings                        Rs.66,550/-
(2,66,200 x 25%)
Total Award                                Rs.3,77,713/-

Compensation awarded by the Rs.2,66,963/- Tribunal Enhanced compensation Rs.1,10,750/-

In view of the discussions made above, the present appeal is

allowed. The respondents are directed to pay an amount of

Rs.1,10,750/- in addition to the amount already awarded by the

Tribunal vide its Judgment dated 27.06.2011, within a period of

eight weeks. The enhanced amount shall carry interest @ 6%

from the date of filing the claim-petition till the same is paid.

In S.B. Civil Misc. Appeal No. 5147/2011

Appellant, owner/driver, has preferred this appeal under

Section 173 of the Motor Vehicles Act, 1988 (for short, 'Act')

challenging the judgment and award dated 27.06.2011, passed by

Motor Accident Claims Tribunal, Banswara (for short, 'learned

Tribunal'). The learned Tribunal, while quantifying and awarding

compensation to the respondent-claimant, has exonerated the

insurer from its liability.

(4 of 6) [CMA-2268/2011]

Learned counsel appearing for the appellant-owner/driver

has submitted that the learned Tribunal has erred in deciding

Issue No.4 regarding violation of the conditions of insurance

policy. Learned counsel for the appellant also submits that the

issue involved in the matter has already been set at rest by the

Larger Bench of Supreme Court in Mukund Dewangan Vs. Oriental

Insurance Company Limited [(2017) 14 SCC 663].

On the other hand learned counsel for the respondent-

insurer submits that the driver of insured vehicle was not having

license to ply heavy goods vehicle but holding the license to ply

LMV. He, therefore, submits that the instant appeal, being bereft

of any merit, is liable to be rejected.

I have considered the submissions made at Bar, perused the

impugned judgment & award and also scanned record of the case.

Upon examining the judgment in case of Mukund Dewangan

(supra), there remains no quarrel that a transport vehicle, as per

weight prescribed in Section 2(21) read with Section 2(15) &

2(48) includes an "omnibus", as the gross weight of either of

which does not exceed 7500 kg. The Court further held that

holder of a driving licence to drive the class of "light motor

vehicle" as provided in Section 10(2)(d) would be 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. The Court held:

"Prior to amendment in 1994 licence for transport vehicle was clearly covered as per Section 10(2)in five categories, i.e., Section 10(2)

(d) light motor vehicle, Section 10(2)(e) medium goods vehicle, Section 10(2)(f) medium passenger

(5 of 6) [CMA-2268/2011]

motor vehicle, Section 10(2)(g) heavy goods vehicle and Section 10(2)(h) heavy passenger motor vehicle. The licence for 'light motor vehicle' has been provided in section 10(2)(d). The expression 'transport vehicle' has been inserted by virtue of Amendment Act 54/1994 in Section 10(2)

(e) after deleting four categories or classes of vehicles, i.e. medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, and heavy passenger motor vehicle. Earlier Section 10 did not contain the separate class of transport vehicles.

The definition of 'light motor vehicle' makes it clear that for 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 kgs. 'Gross vehicle weight' has been defined in section 2(15). The motor car or tractor or road roller, the unladen weight of any of which does not exceed 7500 kgs. as defined in Section 2(48) of the Act, are also the light motor vehicle. No change has been made by Amendment Act of 54/94 in the provisions contained in Sections 2(21) and 10(2)(d) relating to the light motor vehicle. The definition of 'light motor vehicle' has to be given full effect to and it has to be read with Section 10(2)(d) which makes it abundantly clear that 'light motor vehicle' is also a 'transport vehicle', the gross vehicle weight or unladen weight of which does not exceed 7500 kgs. as specified in the provision. Thus, a driver is issued a licence as per the class of vehicle i.e. light motor vehicle, transport vehicle or omnibus or another vehicle of other categories as per gross vehicle weight or unladen weight as specified in Section 2(21) of the Act. The provision of Section 3 of the Act requires that a person in order to drive a 'transport vehicle' must have authorization. Once a licence is issued to drive light motor vehicle, it would also mean specific authorization to drive a transport vehicle or omnibus, the gross vehicle weight or motor car, road roller or tractor, the unladen weight of which, as the case may be, does not exceed 7500 kg. The insertion of 'transport vehicle' category in Section 10(2)(e) has no effect of obliterating the already defined category of transport vehicles of the class of light motor vehicle. A distinction is made in the Act of heavy goods vehicle, heavy passenger motor vehicle, medium goods vehicle and medium passenger motor vehicle on the basis of 'gross vehicle weight' or 'unladen weight' for heavy passenger motor vehicle, heavy goods vehicle, the weight, as the case may be, exceed 12000 kg. Medium goods vehicle shall mean any goods carriage other than a

(6 of 6) [CMA-2268/2011]

light motor vehicle or a heavy goods vehicle; whereas 'medium passenger motor vehicle' means any public service vehicle or private service vehicle or educational institution bus other than a motorcycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle.

Thus, the newly incorporated expression 'transport vehicle' in section 10(2)(e) would include only the vehicles of the category as defined in Section 2(16) - heavy goods vehicle, Section 2(17)

- heavy passenger motor vehicle, Section 2(23) - medium goods vehicle and Section 2(24) medium passenger motor vehicle, and would not include the 'light motor vehicle' which means transport vehicle also of the weight specified in Section 2(21)."

In a later judgment rendered by Supreme Court dated

06.03.2018 (Jagdish Kumar Sood V/s. United India Insurance Co.

Ltd. & Ors. - Civil Appeal No.240/2017) same view is reiterated.

Therefore, the arguments advanced by learned counsel

appearing for the respondent-Insurer cannot be countenanced in

the light of the judgment of Mukund Dewangan (supra).

Thus, relying on the judgment in Mukund Dewangan (supra),

impugned award to the extent of finding on Issue No.4 absolving

insurance company is set aside. The appeal is, therefore, partly

allowed and the liability to pay compensation shall jointly and

severally is fastened on the insurer in addition to the registered

owner/driver.