1. Heard Sri Anoop Kumar Mishra, learned counsel for the appellant and Sri S.K. Mehtotra, learned counsel for respondent no. 5.
2. This appeal has been filed by the owner of the tanker being aggrieved of award dated 13.4.2012 passed by Motor Vehicle Accident Claims Tribunal/ Special Judge (Dacoity Affected Area), Etah in MAC No. 149 of 2008 on singular ground that learned Tribunal has exonerated the Insurance Company on the ground that tanker having registration No. UP 74-D 4178 was used in violation of the condition of the Insurance Policy. Therefore, the amount of compensation will be recoverable by the Insurance Company from the owner of the tanker.
3. It is submitted that basis of such finding is ingrained in Issue no. 2 namely whether at the time of the accident driver of the tanker was having a valid and effective driving licence? It is submitted that while dealing with issue no. 2, Tribunal has recorded finding that offending vehicle was duly insured with the Insurance Company and the cover was effective from 3,2,2007 to 2.11.2008 whereas accident had taken place on 19.2.2008. The vehicle was having valid permit, registration and fitness etc. It further recorded a finding that after filing of charge sheet against driver Asrar alias Israr his licence was brought on record vide document No. 18-Ga/1/2 which was last renewed from 30.7.2005 to 29.7.2008. However, the Insurance Company raised a plea that there was lack of endorsement on the driving licence authoring the diver to drive a heavy vehicle containing inflammable and hazardous substance in the tanker. It was submitted before the Tribunal that this endorsement is renewed for a year, but licence does not carry such endorsement and only authorises the driver to drive a heavy transport vehicle. Thus the driver concerned was not authorized to drive petroleum tankers.
4. It is submitted by learned counsel for the appellant that it is not a case of Insurance Company that at the time of accident inflammable material was filled in the tanker and therefore in terms of the provisions contained in relevant Rules specifically Rule, 129 of the Motor Vehicle Rules, which provide that certain conditions are to be followed while carrying goods of dangerous or hazardous in nature to the human life and further there are requirements under Rule 130 (4). It is submitted that purpose of provisions under Rule 130 and the clauses as prescribed under Rule 137 are clearly indicative of an idea that people on road will themselves maintain distance and shall avoid coming into contact. In absence of any material on record as to whether inflammable material was transported or not at the time of accident, plea taken by the Insurance Company is not substantiated.
5. Learned counsel for the appellant submits that his case is covered with the facts of the case decided by a coordinate bench of this court in FAFO No. 3112 of 2018, New India Assurance Company Ltd Vs. Smt. Lakshmi and 3 others decided on 24.7.2018; whereby referring to various decisions of this court and the provisions contained in the Rules, it has been held that the Tribunal has to record a categorical finding as to the fact that whether any hazardous substance was being carried at the time of the accident. The plea taken by the Insurance Company could not be substantiated thus has no application to the fact of the present case.
6. Sri S.K. Mehrotra in his turn supports the award and submits that onus was on the owner of the tanker to prove that at the time of accident no hazardous goods were being transported in the tanker.
7. After hearing counsel for the parties and going through the record, it is evident that vehicle which is responsible for causing accident namely Tanker No. UP 24-D - 4187 is a tanker registered for the purpose of transport of inflammable material. Per contra vehicle which is subject matter of decision in FAFO No, 3112 of 2018 was a delivery van used for transportation of LPG Cylander. In the order dated 24.7.2018 passed in FAFO No. 3112 of 2018, learned Coordinate Bench of this Court has categorically noted a fact that there was no evidence to the effect that the offending vehicle used in the said case was a 'hazardous goods transport vehicle', whereas in the present case there is no evidence on record to show that offending tractor was not used for transporting inflammable material. It has come on record and was argued by learned counsel for the Insurance Company before the learned Tribunal that offending vehicle in the present case is a tanker used for transport of petrol and diesel i.e. vehicle used for transport of inflammable material. This finding of fact has not been controverted by any of the parties and therefore this finding of fact distinguishes case of the present appellant from the order passed in FAFO No. 3112 of 2018.
8. It is apparent that Rule 129 of the Central Motor Vehicle Rules, 1989 provides for fulfillment of safety requirements which needs to be fulfilled. Rule 132(5) of the Central Motor Vehicle Rules, 1989 specifically cast a duty on the owner to enure that driver of the goods carriage carrying dangerous or hazardous goods holds a driving licence as per provisions of Rule 9 of this Rules.
9. As far as FAFO No. 3112 of 2018 is concerned, it makes a mention of an order passed in case of United India Insurance Co. Ltd Vs. Smt. Seema and 5 others passed in FAFO No,. 2153 of 2015 wherein Hon;ble Division Bench of this Court dealing with the facts of that case where plea of Insurance Company was that offending truck driver had no valid licence and there was lack of necessary endorsement to carry hazardous goods such as gas cylinder took an exception and held that since accident did not occur due to spilling (leak of gas) or for carrying hazardous substance but accident, in fact, took place when truck driver dashed scooterist from behind held that not having endorsement on the driving licence for carrying gas cylinder or hazardous substance in any way does not absolve the liability of the Insurance Company.
10. Another judgment which has been rendered by a coordinate bench in case of Krishna Kumar and another Vs. United Insurance Company Ltd in FAFO No. 20 of 2016 and FAFO NO. 21 of 2016 also makes a reference to the judgment of the Supreme Court in case of S. Iyyapan Vs. United India Insurance Company Ltd; (2013) 7 SCC 62 but again ratio of the judgment is in regard to driving of light motor vehicle used as commercial vehicle without having endorsement to drive commercial vehicle.
11. Aim and object of endorsement to drive commercial vehicle is different from the aim and object of Rule 9 of Central Motor Vehicle Rules, 1989. Rule 9 specifically provides for an holder of driving licence to not only to have capacity to drive a transport vehicle but also possess qualifications as are provided under Rule 8, but in addition also prescribes that such holders should have ability to read and write at least one Indian language out of those specified in the VIII Schedule of the Constitution and English and also possess certificate of having successfully completed the course consisting of the syllabus and the periodicity connected with the transport of such goods.
12. Section 149 (2) (a) (ii) reads as under:
'a condition excluding driving by a named person or persons or by any person who is not duly licensed, or any any person who has been disqualified for holding or obtaining a driving licence during the period of disqualifications; or'
13. When these provisions are taken into consideration that the provisions contained in Rule 129 of the Central Motor Vehicle Rules, 1989, then it is evident that there is a difference in endorsement for driving commercial vehicle falling in the category of light motor vehicle and driving of heavy transport vehicle meant for carrying hazardous goods.
14. Section 2(10) Reads as under:-
"driving license" means the license issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description.
15. When all these definitions are read together, it is evident that there is specific requirement of possessing special qualification having successfully completed a course consisting of prescribed syllabus as provided under Rule 9 to drive goods carriage vehicle carrying dangerous and hazardous goods. When Section 2(10) is examined then it is evident that licence required is to be one issued by a competent authority authorizing person specified therein to drive, otherwise then as learner, motor vehicle or any specified class or description. The word 'description', is defined in 'The Law Lexicon, the encyclopaedic Law Dictionary with Legal Maxims, Latin Terms, Words & Phrases, 3rd Edition 2012, by P. Ramanatha Aiyar's.
Description. 'Description', is a representation that gives to another a view of the thing intended to be represented. (per MILLER J., FITZPATRICK, 19 LR Ir 210). A description is a sketch or account of anything in words; a portraiture or representation in language. It is a representation by visible lines, marks, colours, etc, the act of representing a thing by words or signs, or the account of writing containing such representation; and, as used in conveyances of real estate and in legal instruments in writing, it is the language which depicts the thing under consideration.
The "description" of a person is that which tells what he is. The year of the make and the particulars of the model of a motor vehicle are part of the description. Subhash Chandra Vs. State of UP, AIR 1980 SC 800, 801.
The country of origin will be a vital part of the description of an article in many cases. Mizel Vs. Warren, (1973) 2 All ER 1149, 1154 (QBD).
Description means the combination of qualities or features that marks out or describes a particular class, hence, a sort, kind or variety (Shorter Oxford's Dictionary). Re-British Waste Paper Association Agreement Etc, (1963) 2 All ER 424, 429 (RPC) The combination of qualities or features that makes out or describes a particular class; hence a sort, species, kind or variety; the action of describing, verbal representation or portrait; a statement or passage that describes.
16. When meaning and impact of word 'description' as used in section 2(10) of the M.V. Act, 1989 is taken into consideration then it is apparent that if the description of motor vehicle is one fulfilling it to carry dangerous or hazardous goods then after having made a representation that vehice is to be used for such purpose then it is not the actual use at the point of time which becomes secondary but this aspect has not been considered either by the coordinate bench while deciding FAFO No. 3112 of 2028 or by the Hon'ble Division Bench while deciding the FAFO No. 2153 of 2015. In fact, the Division Bench has not touched the aspect of any of the provisions contained in the Central Motor Vehicle Rules, 1989 and therefore I have no hesitation in following order passed by Hon'ble Coordinate bench on 5.10.2016 in FAFO No 20 of 2016 and 21 of 2016 to hold that once description of the vehicle is that it meant to carry dangerous and hazardous goods then the principle of 'Switch on' and 'Switch off' will not be applicable i.e. if the vehicle is carrying dangerous goods then requirement of Rule 9 have to be fulfilled and if vehicle is returning back after emptying dangerous and hazardous goods then requirement of possession of qualification prescribed under Rule 9 will be waived off, therefore by necessary implication any person handed over a vehicle that has the description to transport 'dangerous and hazardous goods', should necessarily possess appropriate endorsement to drive such vehicle after fulfilling the requirements prescribed under Rule 9 of the Central Motor Vehicle Rues, 1989.
17. In absence of such endorsement impugned award cannot be faulted with and absence of a mandatory endorsement cannot be waived by shifting burden on the Insurance Company to prove whether at the relevant time of accident, transport vehicle carried dangerous or hazardous goods or not and whether such goods caused accident in fact that will be far too stretching the requirements of Section 149 (2) (a) (ii) of the Motor Vehicles Act. Thus the appeal fails and is dismissed.
Order Date :- 18.1.2021 S.K.S.