Hon'ble Visnhu Chandra Gupta,J.
(Delivered by Hon'ble Vishnu Chandra Gupta,J J U D G M E NT (1) This appeal under Section 173 of Motor Vehicle Act 1988 (In short the 'Act') has been preferred by Oriental Insurance Co. Ltd dissatisfying with an award dated 29.8.2006 passed by Motor Accident Claim Tribunal / Fast Track Court No. 1, Bahraich (In short 'Tribunal') in Motor Accident Claim Petition No. 39/70 of 2001.
(2) The relevant facts for deciding this appeal in short are that one Pradeep Kumar was coming back to his house along with his Nana Sant Ram after easing himself and when crossing the Gonda-Bahraich road in village Udharna Thakurain, District Srawasti on 25.8.1999 at about 10.30 AM a Mahindra Pick- up Jeep having registration no. UP-45/1782 driven by its driver Rajendra Singh (Respondent no.3) in a rash and negligent manner hit Pradeep Kumar , who received sever injuries and succumbed to injuries on the spot. The first information report of this incident was lodged by father of the deceased Dwarika Prasad (Respondent No. 2). On the same day at Crime No. 189 of 1999 under Section 279, 304 I.P.C. wherein the number of the vehicle was mentioned as UP 43-1782. Later on during investigation the jeep number was corrected and the vehicle number, by which accident said to have been occurred, was mentioned as UP 45-1782.
(3) The parents of the deceased Pradeep Kumar, had filed a motor accident claim before the tribunal for award of compensation of Rs. 3,00,000/- on account of death of the deceased Pradeep Kumar who was aged about 6 years and student of Class-II. The petition was contested by driver Rajendra Singh, owner Raghwendra Prasad Mishra and Insurer Appellant by filing their respective written statements. Rajendra Singh in his written statement pleaded that he was not negligent in driving the vehicle. It was deceased who negligently crossing the road and the incident was occurred due to negligence of the deceased. He was having a valid and effective driving license having No. R-3068-G-N-D-99 issued from the office of R.T.O., Gonda. The same was valid from 22.07.1995 to 21.07.2015. The license was valid for driving private light motor vehicle. Raghwendra Prasad Mishra pleaded that the driver was not Rajendra Singh on the vehicle in question but driver was Umesh Chandra, who died in the year 2002, He was having valid driving license to drive the aforesaid vehicle. It was further pleaded that vehicle was dully insured with Appellant Insurance company under cover note no. 722503 with effect from 20.05.1999 to 19.05.2000. Although, the accident has been denied by owner but in the alternative it has been pleaded that even if it is found that owner is liable for any compensation in that event the Insurance Company would be bound to indemnify him to the extent of amount of compensation. It was further pleaded that the vehicle was being driven under all valid documents. The Insurance Company disowned his liability by pleading breach of terms of policy for want of valid driving licence with driver and other papers.
(4) On the basis of pleadings of the parties the tribunal framed certain issues. Issue No. 1 is relating to negligence of the driver of jeep in the accident and death of Pradeep Kumar. Issue no. 2 was framed regarding the validity of the papers of vehicle in question. Issue no. 3 is related to validity of driving license of driver of jeep. Issue No. 4 was framed in respect of insurance of the vehicle and issue no. 5 was framed in respect of quantum, entitlement and its liability to pay the compensation to the petitioner.
(5) The tribunal decided issue no. 1 in affirmative holding therein that the accident was caused due to sole negligence of jeep driver resulting into death of Pradeep Kumar in the aforesaid accident, which was occurred due to involvement of vehicle No. UP-45-1782. While deciding issue no. 4 in affirmative it was held that vehicle in question was dully insured on the date of accident with Appellant Insurance Company. While deciding issue nos. 2 and 3 it was held that the driver of the jeep at the time of accident was Rajendra Singh, who was having a valid driving license for driving private light motor vehicle. It was further held that the vehicle in question on the basis of registration certificate was a goods carrier, but in view of the judgment of Hon'ble Supreme Court reported in 2000(1) TAC page no. 98 Supreme Court (Ashok Gangadhar Vs. Oriental Insurance Company Ltd.) and the judgment reported in 2004(1) TAC 105 Allahabad (New India Insurance Company Ltd. Vs. Smt Sunita and others) held that insurance company in case of 3rd party risk cannot escape with its liability even if it is found that vehicle in question was being driven by a driver having not a valid driving license.
(6) While deciding Issue No. 5 the tribunal award a compensation of Rs. 1,75,000/- with 6% simple pendente lite and future interest, but liability was fastened totally on Appellant Insurance Company and right to recovery has also not been given to Appellant Insurance Company. Aggrieved with this part of the award which relates to liability of the Insurance Company, this appeal has been filed.
(7) The moot question in this appeal for consideration is :-
Whether in the given set of circumstances Insurance Company would be liable to pay compensation? if so, whether the Insurance Company would be entitled to recover the amount of compensation from the owner and the driver of the vehicle in question?
(8) Aforesaid controversy is not res-integra. In recent decision rendered by this Division Bench in F.A.F.O. 1389 of 2009 ( New India Assurance Company Ltd. Vs. Sanjeev Kumar and Others, decided on 21.09.2012 this controversy set at rest. In aforesaid Division Bench case the judgment relied upon by tribunal in Ashok Gangadhar Maratha (Supra) was also considered and after relying upon the judgment rendered by Hon'ble Supreme Court in New India Assurance Co. Ltd V/s Prabhu lal 2008(1)SCC 696 and Judgment report in Oriental Insurance Co. Ltd Vs. Angal Kol, 2009 SCC(2) 151 and also distinguishing the judgment rendered by Hon'ble Supreme Court in National Insurance Co. Ltd Vs. Annapa Irappa Nesaria @ Nesaragi and Others, (2008) 3 SCC page 464 held that driver having licence to drive light motor vehicle cannot be permitted to drive transport vehicle. The relevant paragraphs of the aforesaid Division Bench judgment in Sanjeev Kumar's case (Supra) are reproduced herein-below:-
"39. The counsel for the petitioner relying upon the judgment of Hon'ble Apex Court in Annappa Irappa's case (supra) would submit that in view of judgment rendered in the aforesaid case a driving licence to drive light motor vehicle would be valid to drive the Vikram Tempo whose laden weight is less than 7500 Kg.
40. The learned counsel for the appellant cited judgment of Angad Kol's case (supra) wherein the judgment in Annappa Irappa's case (supra) has been considered and distinguished on the ground that Annappa Irappa's case (supra) is based on the provisions contained in Motor Vehicle Act prior to amendment of 2001, so in view of the amended provisions the Annappa Irappa's case (supra) after amendment made in 2001 cannot be followed. It would be necessary to reproduce relevant paragraph of Angad Kol's case (supra) "16. Had the driving licence been granted for transport vehicle, the tenure thereof could not have exceeded to three years."
In National Insurance Co. Ltd. v. Annappa Irappa Nesaria [(2008) 3 SCC 464] this Court noticed the aforementioned development in the matter of grant of licence to a transport vehicle stating that the same became effective from 28-3-2001 in the following terms:
"20. From what has been noticed hereinbefore, it is evident that ''transport vehicle' has now been substituted for ''medium goods vehicle' and ''heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time to cover both ''light passenger carriage vehicle' and ''light goods carriage vehicle'. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well.
21. The amendments carried out in the Rules having a prospective operation, the licence held by the driver of the vehicle in question cannot be said to be invalid in law."
41. The effect of the different terms of licences granted in terms of the provisions of Sections 2(14) and 2(47) has also been noticed by Apex Court in New India Assurance Co. Ltd. v. Prabhu Lal [(2008) 1 SCC 696 : (2008) 1 SCC (Cri) 308], relevant part is being reproduced herein below (SCC pp. 704-06, paras 30 and 37-38), "30. Now, it is the case of the Insurance Company that the vehicle of the complainant which met with an accident was a ''transport vehicle'. It was submitted that the insured vehicle was a ''goods carriage' and was thus a ''transport vehicle'. The vehicle was driven by Ram Narain, who was authorised to drive light motor vehicle and not a transport vehicle. Since the driver had no licence to drive transport vehicle in the absence of necessary endorsement in his licence to that effect, he could not have driven Tata 709 and when that vehicle met with an accident, the Insurance Company could not be made liable to pay compensation.
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37. The argument of the Insurance Company is that at the time of accident, Ram Narain had no valid and effective licence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive light motor vehicle. The learned counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having licence to drive light motor vehicle, he cannot drive a transport vehicle unless his driving licence specifically entitles him so to do (Section 3). Clauses (14), (21), (28) and (47) of Section 2 make it clear that if a vehicle is ''light motor vehicle', but falls under the category of transport vehicle, the driving licence has to be duly endorsed under Section 3 of the Act. If it is not done, a person holding driving licence to ply light motor vehicle cannot ply transport vehicle. It is not in dispute that in the instant case, Ram Narain was having licence to drive light motor vehicle. The licence was not endorsed as required and hence, he could not have driven Tata 709 in the absence of requisite endorsement and the Insurance Company could not be held liable.
38. We find considerable force in the submission of the learned counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under clause (47) of Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To us, therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle in question."
42. The Hon'ble Supreme Court distinguished its earlier judgment in Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd. [(1999) 6 SCC 620 : 1999 SCC (Cri) 1170], stating: (Prabhu Lal case [(2008) 1 SCC 696 : (2008) 1 SCC (Cri) 308] , SCC p. 707, para 41 "41. In our judgment, Ashok Gangadhar [(1999) 6 SCC 620 : 1999 SCC (Cri) 1170] did not lay down that the driver holding licence to drive a light motor vehicle need not have an endorsement to drive transport vehicle and yet he can drive such vehicle. It was on the peculiar facts of the case, as the Insurance Company neither pleaded nor proved that the vehicle was transport vehicle by placing on record the permit issued by the Transport Authority that the Insurance Company was held liable.
However, in this case, the finding of fact arrived at that the vehicle in question was not proved to be a goods vehicle is not correct. The Regional Transport Officer, in his deposition, stated that the vehicle in question was a goods vehicle.
From the discussions made hereinbefore, it is, thus, proved that Respondent No1 did not hold a valid and effective driving licence for driving a goods vehicle. Breach of conditions of the insurance is, therefore, apparent on the face of the record."
43. In the aforesaid facts and circumstances, we are of the firm view that in the case in hand Vikram Tempo is a transport vehicle and the deceased Ajay Kumar @ Sintu who was the driver of the Vikram Tempo having registration No. UP 42-T 5674, was having a driving licence to drive light motor vehicle and not the transport vehicle. Therefore the deceased was not having any valid and effective driving licence to drive the Vikram Tempo at the time of accident.
44.The effect of this finding would be that the Appellant Insurance Company after making the payment of awarded compensation to the petitioner shall be entitled to recover the amount from Owner of the Vehicle as held by this Court in F.A.F.O. No. 893 of 2009 National Insurance Co. Ltd., Through its R.M. Vs. Smt. Gita Mishra and others decided on 6.8.2012"
(9) It is not in dispute that deceased of this case is squarely falls within the definition of 3rd party. The driver of the offending vehicle was having a only driving licence to drive light motor vehicle. The vehicle in question is admittedly transport vehicle. Hence, terms of policy has been violated and it is established that owner committed breach of terms of policy.
(10) This Division Bench in aforesaid circumstances in F.A.F.O. No. 893 of 2009 National Insurance Co. Ltd Vs. Smt. Gita Mishra decided on 06.08.2012 held that in such circumstances the insurance company would not be saddled with liablity to pay compensation but in case of 3rd party risk the insurance company will pay amount of compensation determined by the Tribunal/Court to the claimants and then recover the same from owner of the vehicle. The relevant para of the aforesaid judgment is reproduced herein-below:-
"59. On the basis of the provisions contained in Chapter XI and XII of M.V.Act 1988 and the proposition of law laid down by the Apex Court it is held that where the owner of the vehicle has taken the compulsory statutory policy of Insurance of vehicle , called as 'Act Policy' following consequences shall follow in motor accident claims for payment of compensation to the victims/claimants of motor vehicle accident;
- In cases of 'third party risk' the insurance company would be liable to indemnify the losses of the owner of vehicle and would be liable to pay the determined compensation to the victims/claimants.
- In case of 'third party risk' if Insurance Company succeed in establishing the breach of terms of insurance policy in the light of section 149(2) of M.V.Act1988, though insurance company would not be liable to indemnify the losses of owner of the vehicle but concerned insurance company would pay the determined compensation to the claimants with a right to recover from the owner of the vehicle involved in the accident to the extent, the amount paid with interest to the claimants.
--The gratuitous passengers (except owner of goods or his authorised representative carried in the vehicle along with goods) in goods vehicle/carriage could not be permitted to travel. They being victim or in case of death their heirs could claim compensation from the owner of the vehicle in which they are trevelling and not from the insurance company of the concern vehicle. The insurance company would not be liable to indemnify the amount of compensation paid by the owner. In such situation the insurance company could not be saddled with any liability including the liabilities to pay compensation to victim/claimants with right to recover from owner of the vehicle.
- The direction given by Apex Court in some of its authorities to insurance companies to pay the amount of compensation to the victims/claimants in cases other than those covered under 'third party risk', with intent to do complete justice between the parties in any cause or matter pending before the Supreme Court in its extraordinary jurisdiction vested under Article 142 of the Constitution of India would be binding in between the parties of that cause or matter but can not be taken as binding precedent in other matters."
(11) No other point was pressed,argued or raised by the Counsel for Appellant.
(12) In view of the above proposition of law in the light of the fact of this case, the appeal is allowed. The award is modified to the extent that the amount of compensation determined by the Tribunal shall be paid by the Appellant Insurance Company and recover the same from the owner or driver of the vehicle in question, the respondent no. 3 and 4, who are jointly and severally liable to pay the compensation to claimant respondent no. 1 and 2 by moving an application before the Tribunal concern.
(13) The amount deposited by the Appellant Insurance Company in this court including the statutory deposit be remitted to the Tribunal concerned forthwith but not later than a month. The Tribunal thereafter will disburse the amount of compensation to the claimant respondents no. 1 and 2 in terms of the award within two months thereafter.
(14) There shall be no order as to costs.