Rajasthan High Court - Jodhpur

Yashwant vs Mohd. Ayub And Ors on 29 April, 2021

Bench: Devendra Kachhawaha

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

S.B. Civil Misc. Appeal No. 1960/2014.

Yashwant Tak S/o Sampatmal Tak, aged about 27 years, by caste

Harijan, resident of Ward No. 27, Harijan Basti, Sujangarh,

District Churu.

----Appellant/Driver-Owner of Tempo No. RJ-10/PA-2911 Versus

1. Abida W/o late Mohd. Ayub,

2. Shahnaz W/o late Jabid,

3. Rajina D/o late Mohd. Ayub,

4. Nilofar D/o late Mohd. Ayub,

5. Mohd. Adil S/o late Mohd. Ayub,

6. Mohd. Sohel S/o late Mohd. Ayub,

7. Rehmat D/o late Mohd. Ayub,

8. Mohd. Sail S/o late Mohd. Ayub,

Respondents No. 1 to 8 are by caste Vyapari Muslim,

Residents of Ward No. 9, Nagina Bazar, Bidasar, District Churu.

...... Claimants

9. National Insurance Company Limited, Asen Tower, Sujangarh,

District Churu.

                                                                ----Respondents


For Appellant(s)         :     Mr. I.R. Choudhary.
For Respondent(s)        :     Mr. K.R. Meghwal.





                                          (2 of 11)                  [CMA-1960/2014]

HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

Order

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

The instant Civil Misc. Appeal has filed under Section 173 of

the Motor Vehicles Act on behalf of the appellant, driver/owner of

the offending vehicle, i.e., Tempo bearing registration No.

RJ-10/PA 2911, against the judgment and award dated

27.09.2014 passed by the learned Judge, Motor Accident Claims

Tribunal, Ratangarh, District Churu in Claim Case No. 44/2011

titled as "Mohd. Ayub & Ors. Vs. Yashwant Tak & Anr." whereby,

the learned Tribunal has awarded a sum of Rs.6,23,000/- in favour

of the claimants and the appellant was ordered to pay the

compensation, while exonerating the Insurance Company of its

liability to satisfy the award.

Briefly put the facts of the case giving rise to this appeal are

that on the fateful day of 04.12.2011 at 5:45 p.m. when the

deceased Mohd. Jabid @ Bablu S/o Mohd. Ayub was going to

Bidasar then, on Khanpur road, the tempo in question coming

from Sujangarh driven rashly and negligently, hit the motorcycle

and as a result of the accident, Jabid @ Bablu, who ride the

motorcycle, sustained injuries on his head and succumbed to

death; the driver of the tempo was Yashwant Tak; the head lights

of the tempo were not on; in this accident, Akbar Ali and Khalil

were also injured; FIR No. 260/2011 in regard to this accident was

lodged at Police Station Ladnu. It was also stated that the

deceased was 22 years in age and earned Rs.12,000/- per month.

In the accident, the watch was also broken, expenses was also

(3 of 11) [CMA-1960/2014]

incurred in treatment; the owner and driver of tempo was non-

applicant No.1 Yashwant Tak.

In reply filed on behalf of the non-applicant No.1 Yashwant

Tak, most of the facts were not admitted and reply of denial was

filed by the appellant. It was submitted that the claim petition is

not presented in prescribed proforma; it was also submitted that

the vehicle was driven as per the terms of the insurance policy

and, therefore, Insurance Company is liable. It was lastly

submitted that the claim petition may be dismissed.

In reply filed on behalf of the non-applicant No.2 Insurance

Company, it was submitted that the tempo in question was

insured under passenger caring three wheeler liability only policy;

it was not known to the insurance company that at the time of

alleged accident, the driver of the vehicle himself was insured

Yashwant Tak; it was also submitted that no proof regarding

income of the deceased at Rs.12,000/- per month was adduced;

the mother, father, brothers and sisters cannot be treated as

dependents upon the deceased; the tempo in question was not

involved in the accident; that the motorcycle was driven

negligently; that due to negligence of motorcycle rider himself, he

fell down and died; that for the reason of submitting charge-sheet

against the tempo driver before the concerned Court, insured

vehicle cannot be treated to be involved in the accident; that by

rigidity, the claim petition was presented.

On the basis of pleadings of the parties, as narrated in the

claim petition and replies, the learned Tribunal has proceeded to

frame as many as four issues which read as under:-

(4 of 11) [CMA-1960/2014]

^^1&vk;k fnukad 04-12-2011 dks le; lka; djhc 5-45 cts [kkuiqj jksM~ ij vizkFkhZ ;"koar Vkd us Vsaiw la- vkj ts 10 ih , 2911 dks rst xfr o ykijokgh ls pykdj lkeus ls vk jgh eksVjlkbZfdy dks VDdj ekj nh ftl ij lokj eks- tkfcn mQZ ccyw ds flj esa pksV vkus ls mldh e`R;q gks x;h rFkk vdcjvyh o [kyhy dks pksVsa vkbZ\

--------- DysesaV 2& vk;k izkFkhZx.k vizkFkhZx.k ls {kfriwfrZ jkf"k 88]27][email protected]& :i;s izkIr djus ds vf/kdkjh gSa\

--------- DysesaV 3& vk;k vizkFkhZ la- 2 }kjk izLrqr tokc esa fy;s x;s vk/kkjksa ij vizkFkhZ la- 2 {kfriwfrZ ds mRrjnkf;Ro ls mUeksfpr gksus ;ksX; gS\ 4& vuqrks'k A^^

In support of claim petition, on behalf of claimants, in oral

evidence AW-1 Shahnaz and AW-2 Mohd. Khalil were examined

and in documentary evidence, written report (Ex.1). FIR (Ex.2),

Charge-sheet (Ex.3), site plan (Ex.4), Driving License (Ex.5),

Insurance (Ex.6), RC of tempo (Ex.7), P.M.R. (Ex.8), Notice under

Section 133 of the MV Act (Ex.9), MTO Report of tempo (Ex.10),

MTO Report of motorcycle (Ex.11), Recovery Memo of tempo

(Ex.12), Recovery Memo of motorcycle (Ex.13), Passport in-

original (Ex.14) and its photocopy (Ex.14-A) were adduced. On

behalf of non-applicant No.2 Insurance Company, the statement of

NAW-1 Rajkumar Mishra was recorded and as documentary

evidence, Insurance Policy (NA/1), Verification Report of DL issued

by DTO, Churu (NA/2), Report of Manoj Sharma (NA/3), Report of

(5 of 11) [CMA-1960/2014]

Manoj Sharma regarding inquiry of accident (NA/4), Receipt of

DTO (NA/5) were adduced and exhibited.

After hearing the arguments advanced on behalf of the

parties, the learned Tribunal has proceeded to decide the issues in

the following manner:-

While deciding issue No. 1 in regard to liability/negligence for

the accident, the learned Tribunal while referring to the facts,

statements and evidence as available on record, proceeded to

decide this issue in favour of the claimants in the manner that it

has been decided that on 04.12.2011 at around 5.45, at Khanpur

road, non-applicant No.1 by driving tempo No. RJ-10/PA 2911

rashly and negligently hit the motorcycle and as a result of which,

deceased Mohd. Jabid @ Bablu sustained injuries on his head and

succumbed to death. The Tribunal has recorded the admission

made by the non-applicant No.1 in reply to the notice under

Section 133 of the MV Act, that he was driver of the tempo and he

himself was the owner of the tempo.

While deciding issue No.2 regarding quantum of

compensation, the learned Tribunal has determined the income of

deceased at Rs.4,500/- per month and by adopting the multiplier

of 18, as the deceased was 22 years of age at the time of

accident, allowed Rs.9,72,000/- towards loss of income and while

deducting one-third on his personal expenses, a sum of

Rs.6,48,000/- was awarded in favour of the claimants. While

adding Rs.10,000/- towards funeral expenses, Rs.5,000/- to the

wife for the loss of consortium, Rs.5,000/- each to the children for

the loss of love and affection, a total sum of Rs.6,73,000/-

towards compensation was awarded in favour of the claimants.

While deciding this issue, the Tribunal mainly observed that as the

(6 of 11) [CMA-1960/2014]

deceased had worked out side the country and had a valid

passport but in absence of any documentary evidence regarding

his income, the Tribunal had taken Rs.4,500/- per month as his

income.

While deciding issue No. 3 regarding liability to pay the

compensation, the learned Tribunal has proceeded to hold the

non-applicant No.1 Yashwant Tak liable to pay the entire amount

of compensation, while exonerating the insurance company of its

liability to pay the compensation. The Tribunal has also observed

that the claimants No. 4 to 9 are not entitled to get the

compensation, prima facie they are not treated to be the

dependents upon the claimants No.1 and 2, as they are brothers

and sisters of the deceased. In this manner, the Tribunal held

entitled only claimants No. 1 to 3 to receive the amount of

compensation.

For ready reference, the entire portion of the award made by

the Tribunal is reproduced here as under:-

^^iapkV 11- gLrxr Dyse ;kfpdk ;kph la[;k ,d yxk;r rhu ds i{k esa v;kph la[;k ,d ;"koar Vkd ds fo:} #-

6]23][email protected]& ¼:i;s N% yk[k rschl gtkj ek=½ dh gn rd Lohdkj dj mDr jkf"k dk iapkV ikfjr fd;k tkrk gSA bl jkf"k ij ;kfpdk izLrqr djus dh fnukad 03-7-2012 ls N% izfr"kr okf'kZd C;kt ls lk/kkj.k C;kt Hkh ns; gksxkA 12- mDr jkf"k esa ls ;kph la[;k ,d o nks] izR;sd] dks ,d&,d yk[k :i;s dk Hkqxrku e; ml ij ns; C;kt ds tfj;s cpr cSad [kkrsa ds Hkqxrku fd;k tkosxkA "ks'k jkf"k #- 4]23][email protected]& e; C;kt ds e`rd dh iRuh ;kph la[;k ,d "kgukt dks vnk dh tkosxhA bl jkf"k esa ls nks

(7 of 11) [CMA-1960/2014]

yk[k :i;s tfj;s rhu o'khZ; lkof/k tek cSad [kkrs ds ;kph la[;k rhu dks Hkqxrku dh tkosxh tcfd "ks'k jkf"k e; ns; leLr C;kt ;kph la[;k rhu dks tfj;s cpr cSad [kkrs ds tfj;s Hkqxrku dh tk;sxhA 13- ;kph la[;k pkj yxk;r ukS ds laca/k esa Dyse ;kfpdk vLohdkj dh tkrh gSA 14- v;kph la[;k nks chek daiuh ds fo:} Dyse vLohdkj fd;k tkrk gSA 15- iapkV fu;ekuqlkj tkjh fd;k tkosA^^

Learned counsel for the appellant (driver/owner of the

tempo in question) stated the learned Tribunal has erred in

holding that the appellant did not have the valid license to drive

a transport vehicle because undisputedly, the vehicle in question

was a light motor vehicle being three wheeler tempo and also

the appellant had a valid and effective driving license to drive a

light motor vehicle. In this respect, learned counsel for the

appellant stated that the issue involved in the matter has

already been set at rest by the Larger Bench of Supreme Court

in the case of Mukund Dewangan Vs. Oriental Insurance

Company Limited, reported in (2017) 14 SCC 663.

On the other hand, learned counsel for the respondent-

insurer stated that the driver of insured vehicle was not having

license to drive transport vehicle but holding the license to drive

light motor vehicle. He, therefore, stated that the instant

appeal, being bereft of any merit, is liable to be rejected.

(8 of 11) [CMA-1960/2014]

After having given a thoughtful consideration to the

submissions made by the learned counsel for the parties at Bar,

after perusal of the impugned judgment & award and after

scanning through the entire record of the case, this Court is of

the opinion that the instant appeal deserves to be partly allowed.

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 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.

(9 of 11) [CMA-1960/2014]

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

(10 of 11) [CMA-1960/2014]

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 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.

(11 of 11) [CMA-1960/2014]

Thus, relying on the judgment in Mukund Dewangan

(supra), impugned award to the extent of finding on Issue No.3

absolving insurance company is set aside. The appeal is,

therefore, partly allowed and the liability to pay compensation

shall jointly and severally is also fastened on the insurer in

addition to the registered owner and driver.

There shall be no order as to costs.