Court No. - 26
Case :- FIRST APPEAL FROM ORDER No. - 2767 of 2014 Appellant :- Raja Ram And Anr.
Respondent :- Chhote Lal And 2 Others Counsel for Appellant :- Rakesh Kumar Porwal Counsel for Respondent :- Sandeep Kumar AND Case :- FIRST APPEAL FROM ORDER No. - 2706 of 2014 Appellant :- Raja Ram And Anr.
Respondent :- Smt. Sarita And 4 Others Counsel for Appellant :- Rakesh Kumar Porwal Counsel for Respondent :- Sandeep Kumar
Hon'ble Saral Srivastava,J.
1. In compliance of the order of the Court dated 02.11.2016, steps were taken by the appellants for service of notice upon respondents by R.P./A.D. and also through courier.
2. Perused the office report dated 16.04.2018.
3. As per the office report dated 16.04.2018, neither the undelivered cover nor A.D. has been received after service of notice upon respondents.
4. The service of notice upon respondent no.5 is deemed to be sufficient.
5. The appeal is proceeded ex-parte against respondent no.5.
6. Heard Sri Rakesh Kumar Porwal, learned counsel for the appellants, Sri Ram Singh and Sri Aditya Singh Parihar for respondent no. 6.
7. The appellant is the owner of vehicle TATA Magic No. U.P.-71-B- 9196 and the said vehicle is insured with Reliance General Insurance Company Ltd. The vehicle Magic met with an accident with Motorcycle No. U.P-78-CV-9731. In the said accident, driver of the motorcycle succumbed to his injuries whereas pillion rider suffered injuries.
8. The dependents of driver of motorcycle Late Lalit Kumar Saini instituted claim petition MACP No. 433 of 2012 claiming compensation of Rs. 24 lakh along with 12% interest.
9. The pillion rider Chhote Lal instituted claim petition being MACP No. 432 of 2012 praying for compensation of Rs. 24,90,000/- along with 12% interest for the injuries suffered by him in the accident.
10. The Tribunal allowed the MACP No. 433 of 2012 by awarding compensation of Rs. 8,48,000/- along with 7% interest. The Tribunal also allowed the MACP No. 432 of 2012 by awarding Rs. 48,392/- along with 7% interest for the injuries suffered by the claimant/respondent no.1 Chhote Lal.
11. In both the claim petitions, the issue as to whether the drivers of Motorcycle No.U.P-78-CV-9731 and TATA Magic No. U.P.-71-B-9196 were holding a valid driving licence was framed by the Tribunal.
12. The Tribunal in deciding the said issue in both the claim petitions has held that the driver of vehicle Magic was authorized to drive light motor vehicle and he was not authorized to drive transport vehicles whereas the vehicle i.e. Magic was a transport vehicle and, therefore, driving licence of the driver of vehicle Magic was not valid. Thus, the owner of the vehicle Magic has committed breach of insurance policy and consequently, the Tribunal held the liability of the owner of Magic for payment of compensation. It is settled in law by several judgments of the Apex Court that third party should not suffer for the breach committed by the owner and, therefore, Tribunal directed the insurance company i.e. respondent no.5 of vehicle Magic to pay the compensation.
13. The owner of vehicle Magic instituted F.A.F.O. No. 2706 of 2014 challenging the award passed in MACP No. 433 of 2012, and similarly, F.A.F.O. No. 2767 of 2014 has been instituted by the owner of the vehicle Magic challenging the order of the Tribunal in MACP No. 432 of 2012.
14. Since in both the appeals, common issues have been raised, therefore, the same is being decided by a common judgement.
15. Challenging the finding on the issue of driving licence, learned counsel for the appellants contended that vehicle Magic is a light vehicle inasmuch as, as per registration certificate unladen weight of the vehicle Magic is 1000 kgs.. and laden weight is 1600 kgs. Thus, to drive the said vehicle, no endorsement by the licensing authority is required by the holder of driving licence to drive the transport vehicles. He submits that admittedly, the driver was holding a valid driving licence to drive light motor vehicles, and thus, the finding of the Tribunal fastening the liability to pay compensation upon the owner is wrong and illegal as there was no breach of policy on the part of the owner.
16. Learned counsel for the appellants further contended that controversy is now settled by the Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Ltd. 2017(4) T.A.C.11 (SC). Para 46 of the said judgement is being reproduced herein below:-
"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".
17. The controversy in hand is covered by the Apex Court in the case of that Mukund Dewangan (supra). It is also evident from the record that the driver was authorized to drive light motor vehicle for which, no separate endorsement authorizing him to drive transport vehicles by the licensing authority is required.
18. In this view of the fact, the finding of the Tribunal that the driver of the vehicle Magic was not holding a valid driving licence is not sustainable and is liable to be set aside. Consequently, the finding of the Tribunal on the issue of driving licence against the owner of vehicle TATA Magic in the award is set aside.
19. The appeals are allowed and the awards are modified to the extent that claimants are entitled to recover the awarded amount from respondent no. 5 i.e. the Reliance General Insurance Company Ltd.
20. Respondent no. 5 is further directed to refund the amount paid by the appellants in compliance of the award of the Tribunal.
21. Registry is directed to remit, if not remitted, the statutory deposit made by the owner before this Court under Section 173 of the M.V. Act, 1988 to the concerned Tribunal within four weeks.
Order on Cross Objection/Cross Appeal No. 1A/4/2018
1. In F.A.F.O. 2706 of 2014, the respondent nos. 2 to 4 has filed cross objection.
2. Sri Ram Singh, for the cross objector states that he does not want to press the present cross objection.
3. Accordingly, the cross objection is dismissed as not pressed.
Order Date :- 26.11.2018 Sattyarth