Rajasthan High Court

Bablu Khan vs Oriental Insurance Company ... on 3 October, 2023

Bench: Ashutosh Kumar

[2023:RJ-JP:26822]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

            S.B. Civil Miscellaneous Appeal No. 3115/2011

 1.      Bablu Khan S/o Kallu Khan, By Caste Mewati Vehicle
         Driver,     R/o   Banskhera,          Police     Station    Javar,   Tehsil
         Manohar Thana, District Jhalawar. (Vehicle Driver)
 2.      Badrilal S/o Phool Chand, By Caste Nai Vehicle Owner,
         R/o Banskhera, Police Station Javar, Tehsil Manohar
         Thana, District Jhalawar. (Vehicle Owner).
                                                ----Non-Claimants-Appellants
                                       Versus
 1.      The Oriental Insurance Company, Limited, Branch L.I.C.
         Building, Chawni, Choraha, Kota Insurance Company.
 2.      Faimuddin S/o Easan Khan, By Caste Mewati, R/o
         Banskhera, Police Station Javar, Tehsil Manohar Thana,
         District Jhalawar
 4.      Mst Shabnab Bi W/o Faimuddin, By Caste Mewati, R/o
         Banskhera, Police Station Javar, Tehsil Manohar Thana,
         District Jhalawar
                                                                   ----Respondents

For Appellant(s) : Mr. Sanjay Mehrishi with Mr. Rakesh Saini For Respondent(s) : Mr. Dhruv Atre for Mr. Raj Pal Choudhary

HON'BLE MR. JUSTICE ASHUTOSH KUMAR

Order

03/10/2023

1. The instant appeal has been filed by the appellants-non-

claimants (owner and driver of the offending vehicle) under

Section 173 of the Motor Vehicles Act, 1988 against the judgment

and award dated 13.05.2011 passed by Judge, Motor Accident

Claims Tribunal, Aklera, District Jhalawar (hereinafter referred to

as the 'Tribunal') in MAC Case No.85/2010, whereby the learned

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Tribunal has partly allowed the claim petition filed by the claimants

and awarded a compensation of Rs.1,80,000/- in favour of the

claimants.

2. Brief facts of the present case are that a claim petition was

filed by the claimants on account of death of Nasir, who died in a

motor accident occurred on 19.06.2010 for claiming compensation

of Rs.13,20,000/- before the learned Tribunal.

3. The appellant No.1-driver and appellant No.2-owner of the

offending vehicle filed their written statements to the claim

petition.

4. On the basis of pleadings of the parties, the learned Tribunal

framed the issues and evaluated the evidence on record. After

hearing learned counsel for the parties, decided the claim petition

of the claimants and passed the impugned judgment and award.

While deciding the claim petition the learned Tribunal exonerated

the Insurance Company from its liability on the ground of breach

of policy condition treating 'Tata Pickup' as the 'goods

carriage/transport vehicle' and the driver of the same was holding

the driving license of L.M.V. only.

5. In support of the appeal, learned counsel for the appellants

submits that the learned Tribunal has committed serious error of

law and facts in holding that as the driver of the offending vehicle

was having driving license to drive Light Motor Vehicle (LMV)

whereas the offending vehicle was LTV, therefore, the driver was

not having a valid license to drive the offending vehicle.

[2023:RJ-JP:26822] (3 of 5) [CMA-3115/2011]

6. Learned counsel further submits that Hon'ble Supreme Court

in the case of Mukund Dewangan Vs. Oriental Insurance

Company Limited reported in 2017 (2) RAR 41 (SC) has held

that light motor vehicle includes transport vehicle also, a holder of

light motor vehicle license can drive all the vehicles of the class

including transport vehicles, if the gross vehicle weight is upto

7500 kg.

7. On the other hand, learned counsel for the respondent -

Insurance Company has supported the impugned judgment and

award and contended that there is no merit in this appeal and the

same be dismissed.

8. Heard learned counsel for the parties and perused the

material available on record.

9. So far as the contention of learned counsel for the appellants

regarding exonerating the Insurance Company from its liability is

concerned, the learned Tribunal while deciding Issue No.4 has held

that driver of the offending vehicle did not possess driving license

(DL) to drive the commercial vehicle and simply possess driving

license to drive LMV only, therefore, the learned Tribunal has

exonerated the Insurance Company from its liability. In this

regard, the Hon'ble Supreme Court in the case of Mukund

Dewangan (supra) has held as follows :

"(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.

[2023:RJ-JP:26822] (4 of 5) [CMA-3115/2011]

(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 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.

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10. In view of the above and in light of judgment of Hon'ble the

Supreme Court in the case of Mukund Dewangan (supra), the

findings of the learned Tribunal with regard to exonerating the

Insurance Company from its liability is set aside.

11. In view of the discussions aforesaid, the impugned judgment

and award dated 13.05.2011 passed by the Tribunal is modified to

the extent that the appellants and respondent No.1 - Oriental

Insurance Company are jointly and severally liable to satisfy the

award passed by the learned Tribunal in MAC No.85/2010.

12. Accordingly, the appeal stands disposed of.

(ASHUTOSH KUMAR),J