Vijay Kumar Dass vs Smt. Suwasini Mandal And Others
2021 Latest Caselaw 3243 UK

        HIGH COURT OF UTTARAKHAND AT NAINITAL

                    Appeal from Order No. 220 of 2008

Vijay Kumar Dass                                             .....Appellant

                                      Versus
Smt. Suwasini Mandal and others                              .... Respondents
Present :-
Mr. S.K. Mandal, Advocate for the appellant.
Mr. R.C. Tamta, Advocate for respondent Nos. 1 to 5.
Mr. D.C.S. Rawat, Advocate for respondent No. 6.

                                                       Dated: 24th August, 2021

                               JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

The appellant, to the present Appeal from Order, under Section 173 of the Motor Vehicles Act, is a registered owner of the vehicle, which was a Mini Truck, bearing registration number as U.P.- 04A-0561 Tata- 407, which was said to be involved in the accident, which chanced on 23.11.2005, on Bareilly Road, near Rithora Petrol Pump, resulting into the death of the deceased Vishwanath Mandal.

2. The Claimants have filed a Motor Accident Claim Petition No. 184 of 2006, Smt. Suwasini Mandal and others Vs. Vijay Kumar Das, on 27.07.2006, before the Motor Accident Claim Tribunal, District Udham Singh Nagar, wherein, the learned Motor Accident Claim Tribunal, had partly allowed the claim and, thereafter, had rendered an award on 21.02.2008 of Rs. 59,500/-, which has been directed to made payable by the present appellant, along with the interest @ 7% on it, on the ground that the vehicle was being plied, contrary to the terms of the licence, and the registration granted in favour of the vehicle, in question, besides also that the driver was not having a valid driving licence, and the vehicle was not licensed on the date when the accident chanced, and the following points of determination were framed :-

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3. The brief facts, which engages consideration are that on 23rd November, 2005, at about 10:00 a.m., the truck, in question, the details of which, has been given above, was being driven and the deceased was said to be travelling on the said truck with the loaded vegetables, and was moving towards his residence, when it lost balance and had overturned and on account of the said accident, the deceased suffered grievous injuries and later on when he was taken to the Bareilly Hospital, on the way, but unfortunately, he met with the sad demise. The post mortem was conducted on the deceased and, as a consequence thereto, the claimants have filed the Claim Petition, contending thereof that the deceased, who was working as a Labourer, and was engaged in loading and unloading of the vegetables which were often be carried on it, and used to earn about Rs.3,000/- p.m. and since at the time of his death, he was of 30 years of age and he was enjoying a very healthy physique and his life expectancy, was also quite long and hence, an appropriate compensation may be determined in their favour, who were the heirs of the deceased and dependent on him.

4. The respondents to the claim petition, under Section 166/140 of the Motor Vehicles Act were noticed. The owner of the vehicle has filed the written statement, paper No. 14 Kha, wherein, though a very limited ground has been taken, pertaining to the shifting of liability to pay the compensation on the Insurance Company; on the pretext that the Driver of the vehicle on the ill fated day, was driving the vehicle with utmost care and precaution, but on account of a sudden bend, the truck lost its balance and had overturned, resulting into an accident, but since on the date of the accident, i.e. on 23.11.2005, the vehicle was being driven under the valid licence and registration and the Insurance of the vehicle was also valid, if at all, the liability was to be fastened, it was to be fastened on the Insurance Company.

5. On the other hand, the Insurance Company in their written statement, paper No.21 Ka, has taken a stand while filing its written statement that the vehicle itself, was being driven contrary to the documents and contrary to the terms of the insurance policy, because at the time of the occurrence of the accident, the driver was not having a valid driving licence and hence, if at all, any liability is to be fastened, it has to be fastened upon the owner of the vehicle, i.e. the present appellant, herein.

6. In the proceedings which were held before the Court below, the claimants in support of their contention had adduced the oral statements recorded, that of PW1 Smt. Suwasini Mandal, the wife of the deceased, PW2, Vipin Chandra. Apart from it, there were other documentary evidence filed by way of list paper No.6-Ga, i.e. the report of the accident, paper No.6 Ga/2, the post mortem report i.e. paper No. 6-Ga/3, ration card and the complaint, which was made to the Senior Superintendent of Police.

7. On the other hand, the appellant, herein, has appeared in the witness box and has recorded his statement as DW1. Apart from

it, he has also adduced the oral testimony of DW2 i.e. Tahir Ali and DW3 one Mr. Nek Ram, in support of his contention and further submitted that on the date of the accident, the Driver Vijay Kumar, was having a valid driving licence, to drive the vehicle and since the vehicle was validly registered with the Regional Transport Authority, and was also having a valid fitness certificate, which was placed on record, as Paper No.12 Ga/2. In fact, if at all, any liability was to be fastened, since the vehicle was being plied strictly in terms of the Insurance Policy, the liability was to be fastened upon the Insurance Company.

8. On the consideration of the rival evidence on record and the document, in support thereto, the learned Motor Accident Claim Tribunal has rendered the impugned award on 21st February, 2008, awarding a compensation of Rs.59,500/- and interest payable on it @ 7%, which is under challenge before this Court in the present Appeal from Order.

9. The learned counsel for the appellant had argued the case from the perspective that, if the documents, which were adduced by way of evidence before the Court below, in support of their contention, if that are taken into consideration, it establishes that the offending vehicle was being plied strictly in accordance with the terms of the Insurance Policy, the learned counsel for the appellant has submitted that the vehicle, in question, which was registered in Form-23, which was issued under Rule 48, it was described as to be a "light goods vehicle" and, particularly, the learned counsel for the appellant had made reference to the unladen weight from the documents of registration of the vehicle, which was engaged in the accident, was shown as to be 5850 kgs. He submits that in terms of the registration, which was granted for the offending vehicle, in question, it would fall to be a "light motor vehicle" as per the definition provided, which has been under Sub-section (21) of Section 2 of the Act, which is extracted hereunder :-

"(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 [7,500] kilograms;

Which describes the light motor vehicle, as to be a motor vehicle used for transport vehicle or Omni Bus and which carries an unladen weight of less than 7500 kgs.

10. In order to better substantiate his argument and to better appreciate his stand taken, the reference to "transport vehicle" as defined under Sub-section (47) of Section 2 of the Act, is also to be taken into consideration, wherein, the "transport vehicle", would include within itself the public service vehicles, i.e. "a goods carriage" too and educational institution bus for private service vehicles. The inclusion of the vehicles termed as "goods carriage" under Sub-section (47) of Section 2 of the Act, will bring the light goods vehicle covered under Section 2 (21) of the Act, to be within the ambit of the definition of the light motor vehicle, provided under Sub-section (21) of Section 2 of the Act, because the term used therein in the said definition of light motor vehicle would also mean a transport vehicle and transport vehicle, since being inclusive of the goods carriage vehicle, it will be covered within the definition of the light motor vehicle defined under Sub-section (21) of Section 2 of the Act. For better elucidation and comparative scrutiny, the definition of transport vehicle provided under Sub-section (47) of Section 2 of the Motor Vehicles Act, is extracted hereunder :-

"(47) "transport vehicle" means a public service vehicle, a good carriage, an educational institution bus or a private service vehicle,"

11. As far as the argument carved out by the learned counsel for the appellant, with regard to the vehicle being registered and an unladen weight, being shown as 5850 Kgs, and that in itself will be

falling much lesser in weight, than the cut-off provided under the said Section, it will be treated as to be a light motor vehicle, irrespective of the fact that the vehicle was being used for carrying goods, as is the instant case.

12. The aforesaid discussion, pertaining to the nature of the vehicle involved in the accident, and in order to bring it within the ambit of a light motor vehicle, which was utilized for transport and carriage is being dealt with, in the present Appeal, from the perspective that the driver of the Vehicle, Mr. Vijay Kumar Dass, who was then driving the vehicle, at the time when the accident had occurred on 23.11.2005, was holding a valid licence of LMV (NT). Thus for logic, given above, the LMV, herein, would mean, that it would be inclusive of the vehicle provided under Sub-section (21) of Section 2 of the Act and since by virtue of the implication of the definition of the transport vehicle provided under Section 2 (47) of the Act, already dealt with above, it cannot be said that the driver of the vehicle at the time of the driving, the accident on the ill-fated day was not having a valid licence to drive the vehicle, which was otherwise admittedly was registered as light goods vehicle.

13. In furtherance thereto, and in order to substantiate his argument, the learned counsel for the appellant, has further argued that if the findings which had been recorded by the Motor Accident Claim Tribunal, are taken into consideration, in fact, the findings recorded pertaining to the nature of vehicle, which was found to be engaged in the accident is perverse and contrary to the records, from the perspective that the Motor Accident Claim Tribunal has proceeded on a premise that, as if the offending vehicle, which was shown to be engaged in the accident was a heavy motor vehicle, which was not even the case pleaded by any of the parties to the proceedings, before the Court below and, hence, he submits that the said finding which had been recorded by the Motor Accident Claim Tribunal, holding that the offending vehicle involved in the accident was heavy motor

vehicle runs contrary to the evidence on record, i.e. paper No.12 Ga, where the vehicle itself was defined, as to be a light motor vehicle / light goods vehicle, and hence, it renders the judgment to be perverse.

14. The Counsel for the appellant has further submitted that the aforesaid aspect about what would be the exact interpretation of the definition of the "light motor vehicle", in relation to the cut-off of the unladen weight provided in the definition clause, the Hon'ble Apex Court in a judgment reported in AIR 2017 SC 3668, Mukund Dewangan Vs. Oriental Insurance Company Limited, had an occasion to deal, with the said aspect with regard to the classification of the vehicle where it has been held that though it might have been registered as goods vehicle and as a goods carriage; but taking into consideration the implications of Sub-section (47) of Section 2 of the Motor Vehicles Act, to be read with Sub-section (48) of Section 2 of the Act, in its para 45 and 46 of the judgment, which is extracted hereunder, has held that even if a light motor vehicle is being plied for the purposes of carrying goods, then too, by way of the implications of Sub-section (47) of Section 2 and Sub-section (48) of Section 2 of the Act, it would be treated as to be a "light motor vehicle", and consequently, plying of the said vehicle for even carriage of the goods, would fall within the ambit of the cut-off weight, which has been provided under the definition of the light motor vehicle provided under Sub-section (21) of Section 2 of the Act. Para 45 and 46 of the said judgment are extracted hereunder:-

"45. Transport vehicle has been defined in section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab, a motor cab, contract carriage, and stage carriage.

Goods carriage which is also a transport vehicle is defined in section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. It was rightly submitted that a person

holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994.

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 vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation 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 the category of 'light motor vehicles' and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and 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 the 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 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.

(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."

15. An identical view was expressed by the Hon'ble Apex Court in yet another judgment reported in 2018 (1) U.D., 413, Jagdish Kumar Sood Vs. United India Insurance Co. Ltd. and others, wherein, while making reference to a judgment reported in (2017) 14 SCC 663, Mukund Dewangan Vs. Oriental Insurance Company Limited, has dealt with the finding, which has been recovered in para 60.1 and 60.2 of the said judgment and has held that even if a motor vehicle, which has been registered as a "light motor vehicle" under the Motor Vehicles Act, if it was found to be utilized for transportation of the goods, it would still fall to be within the definition of light motor vehicle, subject to condition that its unladen weight does not exceed 7500 kgs.

16. In that eventuality, the finding as recorded by his Lordships, which has been recorded in para 4 of the said judgment, as reported in Jagdish Kumar Sood (Supra), is extracted hereunder :-

"4 The issue which arises before the Court is not res integra and is covered by a judgment of a three Judges of this Court in Mukund Dewangan v Oriental Insurance Company Limited, in which, it has been inter alia held as follows:

"60.1. "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 54 of 1994." (Id at page 709) "60.2. 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 roadroller, "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 (2017) 14 SCC 663 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. 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 of 1994 and 28-3-2001 in the form." (Id at page 710)"

17. Since, as per the evidence on record, the appellant have been able to succeed to establish by evidence before the Court, that as per the paper No. 12 Ga/3 and 12 Ga/2, i.e. the registration certificate and the driving licence of the driver Vijay Kumar Dass, it cannot be said that the offending vehicle on the date of accident was being plied without there being any authentic document and the driver of the vehicle was not carrying a valid driving licence, since he had an authority, under the licence, to drive a light motor vehicle, because also in view of the judgment already referred above, the light motor vehicle, as defined therein would encompass, within itself the vehicle which has been used for transportation of the goods too. But the only precaution and the principles, which has been taken by the judgment as well as the legislature, is that the unladen weight of the vehicle and

if it is lesser than weight of 7500 kgs. would be trated as to be the light motor vehicle, for the purposes of the Act, and for the purposes of deciding this Appeal from Order.

18. In that view of the matter and for the reasons assigned above, it cannot be said, that at the time when the vehicle was being driven by the driver, he was not having a valid licence in order to exempt the Insurance Company from their liability, to pay the compensation to the heirs of the deceased/claimants, in the light of their contention, which was raised by them, that since the motor vehicle was being plied contrary to the terms of the documents and the Insurance Policy, their liability cannot be fastened upon the Insurance Company, because of the implications contained under Section 149 (2) (8), is not acceptable by this Court for the reason already assigned above.

19. In that view of the matter, the present Appeal from Order would stand allowed, so far it fastens the liability of the payment of compensation on the appellant. But, however, in view of finding, which has been recorded above, since the contention of the Insurance Company and the defence taken by them, before the Motor Accident Claim Tribunal has been refuted by this Court, for the reason already discussed above, the liability of remittance of the compensation as it had determined by the Motor Accident Claim Tribunal, would be met by the Insurance Company, because on the date of the accident, the vehicle was being driven strictly in terms of the Insurance Policy and under the terms of valid driving licence, which was being held by the Driver.

20. Accordingly, the Appeal from Order stands allowed, qua the appellant of AO No. 220 of 2008.

21. As far as connected AO No. 359 of 2017, which has been preferred by the claimants for the enhancement of the compensation

awarded by the Motor Accident Claim Tribunal is concerned, all contentions to the parties to the Appeal from Order, except as far as it relates to fastening of the liability on the owner of the vehicle, would be left open to be argued.

(Sharad Kumar Sharma, J.) 24.08.2021 Shiv