Amtuls Public School Nainital vs Smt. Kamla Devi And Others
2021 Latest Caselaw 2707 UK

     HIGH COURT OF UTTARAKHAND AT NAINITAL

                   Appeal From Order No.88 of 2008

Amtuls Public School Nainital                            ..........Appellant

                                   Versus

Smt. Kamla Devi and others                              .......Respondents

                                    With
                   Appeal From Order No.89 of 2008

Amtuls Public School Nainital                            ..........Appellant

                                   Versus

Smt. Govindi Devi and others                            .......Respondents
                                    With
                   Appeal From Order No.90 of 2008

Amtuls Public School Nainital                            ..........Appellant

                                   Versus

Smt. Leela Sen and others                               .......Respondents

Present:-
Mr. Neeraj Upreti, Advocate for the appellant.
Mr. Bindesh Kumar Gupta, Advocate appearing for the National Insurance Company
Limited through video conferencing.
Mr. Kurban Ali, Advocate appearing for claimants.

                              JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

Since common question of law and facts arises in all the three appeals, they are being decided by this common judgment.

2. Appeal From Order No.88 of 2008 has been preferred against the judgment and award dated 05.12.2007, passed in Motor Accident Claim Petition No.64 of 2007, Smt. Kamla Devi and others Vs.

Amtuls Public School and another, by the Motor Accident Claims Tribunal/District Judge, Nainital. By the impugned judgment and award, the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (for short, "the Act") has been allowed and respondent no. 5, insurance company has been directed pay a compensation of `5,32,000/- to the respondent nos.1 to 4 (the claimants). The respondent no.5, insurance company has also been given the rights to recover this amount from the appellant.

3. In appeal From Order No.89 of 2008, challenge is made to the judgment and award dated 05.12.2007, passed in passed in Motor Accidents Claim Petition No. 63 of 2007, Smt. Govindi Devi and others Vs. Amtuls Public School and another, by the Motor Accident Claims Tribunal/District Judge, Nainital. By the impugned judgment and award, the claim petition filed under Section 166 of the Act has been allowed and respondent no. 8, insurance company has been directed to make the payment of compensation of `6,53,000/- to the respondent nos.1 to 7 (the claimants). The respondent no.8, insurance company has also been given the rights to recover this amount from the appellant.

4. In appeal From Order No.90 of 2008, challenge is made to the judgment and award dated 05.12.2007, passed in passed in Motor Accidents Claim Petition No.65 of 2007, Smt. Leela Sen and others Vs. Amtuls Public School and another, by the Motor Accident Claims Tribunal/District Judge, Nainital. By the impugned judgment and award, the claim petition filed under Section 166 of the Act has been allowed and respondent no.7, insurance company has been directed to make the payment of compensation of `6,66,000/- to the respondent nos.1 to 6 (the claimants). The respondent no.7, insurance company has also been given the rights to recover this amount from the appellant.

5. All these appeals have been filed on the ground that the vehicle was not being run against the terms and conditions of the insurance policy.

6. Heard learned counsel for the parties and perused the record.

7. A vehicle bearing registration no. UA-04 B-5795 (for short, " the vehicle") was being driven by deceased Rajesh M. Singh on 25.03.2007 at 11:00 PM, when it met with an accident, due to which the driver & some of the passengers died. All the three claim petition, in which the impugned judgments and awards have been passed, were preferred by the claimants (dependents of the deceased) seeking compensation under the Act. The appellant is owner of the vehicle.

8. The appellant, owner of the vehicle as well as the respondent Insurance Company filed their objections. Issues were framed in all the three claim petitions. Issue no.4 in all the three petitions is as hereunder:-

"Whether the vehicle bearing Registration No. UA04B 5795 was insured with the respondent Insurance Company and it was being run in accordance with the terms and conditions of the policy?"

9. On this issue, the Tribunal recorded the finding that the driver of the vehicle, Rajesh M. Singh, had a valid driving licence to drive private motor car, but he did not possess a driving licence to drive a commercial vehicle. On the basis of this finding, the Tribunal concluded that the vehicle was not being driven as per the terms and conditions of the Insurance Policy.

10. While recording the finding on compensation, in all the three petitions, the Tribunal discussed the question of liability as to who can be held liable to pay the compensation. While discussing this aspect, the Tribunal noted that the vehicle was registered as a goods vehicle and the deceased were gratuitous passengers in the vehicle, therefore, the Insurance Company is not liable to pay the compensation.

11. Findings recorded onthese two aspects are impugned in these appeals.

12. Learned counsel for the appellant would submit that the driver of the vehicle, Rajesh M. Singh, had licence to drive light motor vehicle. It makes no difference as to whether such vehicle is passenger vehicle or goods vehicle. Even a person holding a Driving License to light motor vehicle may drive a vehicle of that category, irrespective of the fact that it is a passenger vehicle or goods vehicle.

13. In support of his contentions, learned counsel placed reliance upon the principles of law, as laid down in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited (2017) 14 of SCC

663. In the case of Mukund Dewangan (supra), the Hon'ble Supreme Court, inter alia, observed that " 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. "

14. In para 60, the Hon'ble Supreme Court in the case of Mukund Dewangan (supra) recorded the conclusions, which are as hereunder:

"60. Thus, we answer the questions which are referred to us thus:

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 Section 2 (15) and 2 (48). Such transport vehicle are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994.

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 or "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 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 28-8-2001 in the form.

60.3 The effect of the amendment made by virtue of Act 54 of 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.

60.4 The effect of amendment of From 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. The legal position has very fairly been conceded by the learned counsel appearing for the respondent insurance company that merely because the driver of the vehicle had a driving licence to drive light motor vehicle, it does not make a case of violation of insurance policy.

16. Admittedly, the driver had a licence to drive a light motor vehicle. Even if, he was driving a vehicle meant for the purpose of carrying goods, it does not make it a policy violation. The unladen weight of the vehicle is 1705 Kg. as recorded in the registration certificate. Therefore, this Court holds that the driver of the vehicle was having a valid driving license to drive the vehicle involved in the accident.

17. As far as the issue as regarding passengers travelling in the goods vehicle is concerned, admittedly, the vehicle was a goods vehicle. It was so registered and so insured. The Tribunal concluded that the passengers in the goods vehicle were, in fact, gratuitous passengers and they are not covered under the insurance policy.

18. Learned counsel for the appellant referred to Para IMT 39 and IMT 39A of the insurance policy, to refer that it covers the cases of loader as well as the workman under Employees' Compensation Act, 1923. It makes no difference. The Tribunal considered this aspect and recorded that the passengers, who were travelling in the vehicle at the relevant time were not such persons, who were insured or authorised to travel in that vehicle as per terms and conditions of the insurance policy. They were neither owner nor representative of the owner of the goods which the vehicle was carrying at the relevant time. In view of catena of decisions, it has been held that in such cases, such passengers would be considered gratuitous passengers, who are not covered by the insurance policy and the insurance company is not liable to pay compensation to them (see judgments in the cases of New India Assurance Company Ltd. V. Asha Rani and others, (2003) 2 SCC 223; National Insurance Company Ltd. V. Baljeet Kaur and others, (2004) 2 SCC, 1; National Insurance Company vs. Cholleti Bharatamma and others, (2008) 1 SCC 423; and Anu Bhanwara, etc. Vs. Iffco Tokio General Insurance Company Ltd. and others, (2019) SCC online SC 1006.) Therefore, Tribunal has rightly held that the insurance company is not liable to pay the compensation and while directing insurance company to pay the compensation to the claimants, the Tribunal rightly directed that the insurance company may recover this amount from the appellant.

19. In view of the foregoing discussion, this Court is of the view that there is no merit in all these appeals and they deserve to be dismissed.

20. All the three appeals are dismissed.

(Ravindra Maithani, J.) 30.07.2021 Sanjay