1. By way of these appeals, the appellants have challenged the common judgment and award dated 21.02.2002, passed by the Motor Accident Claims Tribunal(Auxi.I), Ahmedabad(Rural) at Ahmedabad, in M.A.C.P. Nos.879 of 1985 and 80 of 1988, whereby the tribunal has awarded compensation in the sum of Rs. 2,03,000/- to the claimants of M.A.C.P. NO.879 of 1985 and Rs.90,000/- to the claimant of M.A.C.P. No.80 of 1985 respectively with interest at the rate of 9% per annum from the date of filing of the petition till realization.
2. The facts as emerging from the record are that on 21.11.1984 while deceased-Amarsinh was driving his motor cycle bearing registration No.GJ-N-3132 with one Vanabhai Motibhai Bharvad as pillion rider, a Jeep bearing registration No. GJ-G-7643 came in full speed and dashed the said motorcycle. As a result of the said accident, Amarsinh died and Vanubhai Motibhai Bharvad sustained grievous injuries. Therefore, the legal heirs of the deceased filed claim petition being M.A.C.P. No.879 of 1985 and Vanunbhai Motibhai Bharvad filed M.A.C.P. No.80 of 1988 before the Tribunal for compensation. The Tribunal after hearing learned advocates for both the parties and after recording the evidence decided the claim petitions and passed the award as stated herein above against which the present appeal is filed by the appellants.
3. Learned counsel for the appellant mainly contended that the Tribunal has committed serious error in law in holding that the driver of the vehicle (Jeep) was not holding the valid licence to drive the said vehicle. It has been further contended that the driving licence which has been produced on record specifically states that the driver is authorized to drive a Light Motor Vehicle and that under the relevant rules, the vehicle, Jeep can be categorized as a "Light Motor Vehicle". Therefore, it cannot be said that the driver was not authorized to drive the vehicle i.e. Jeep.
4. In support of his contention he relied upon the decision of the Apex Court in the case of National Insurance Company Ltd. Vs. Annapa Irrapa Nesaria and Ors, reported in AIR 2008 Supreme Court, 1418(1) and in the case of Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and other, reported in AIR 1987, SC 1184(1).
5. He also relied upon the decision of the this Court in the case of Manguben Wd/o Dhiraji S.
Parmar and Ors Vs. Bhuptaji R. Parmar and Ors, reported in 2005(3) GLH 81, more particularly, paragraphs 10.1 and 10.2, which reads as under:-
10.1 According to the definition of light motor vehicle as appearing in Section-2 Sub-Section 21 of the M.V.Act of 1988 and Section-2 Sub-Section 13 of the Motor Vehicles Act,1939, a 'light motor vehicle' would mean a transport vehicle or omnibus. the gross vehicle weight of either of which or a motor car or tractor or road-roller unladen weight of any of which does not exceed 7500 kilogram. The weight of 7500 kilogram is enhanced from 6000 kilogram by Amendment Act (54 of 1994). At the time of the accident, it was 4000 kilogram as such. It is, thus, clear that tractor would be included in the definition of light motor vehicle. There is no evidence on record to show as to what was the unladen weight of the vehicle involved in the accident and no inference can be drawn.
10.2 Apart from that, even if it is assumed that it was more than permissible unladen weight, it would only be a technical breach of provisions of the Motor Vehicles Act and it cannot be considered as sufficient to exonerate the Insurance Co. from its liability arising out of the insurance policy. Respondent No.1 - driver of the vehicle is shown to be holding a valid driving licence to drive a light motor vehicle, a medium motor vehicle and heavy goods vehicle. He cannot be said to be a person not authorized to drive a vehicle. It would be appropriate to refer to decision in the case of National Insurance Co. Vs. Swaran Singh and Ors. (Supra) where it has been held that whether a plea is taken by the Insurance Co. about breach of policy condition on account of want of a valid driving licence, the burden of proof lies on the Insurance Co. to establish such a breach and as discussed above, the Insurance Co. has neither taken a plea in the written statement nor has adduced any evidence in support of such a plea which is taken by the learned advocate at the time of the arguments for the first time. The Insurance Co. could not have been exonerated from the liability of paying compensation as indemnifier, once it is held that the claimant is entitled to claim compensation from the driver and the owner of the vehicle involved in the accident. In the said judgment of National Insurance Co. Vs. Swaran Singh (Supra), the Apex Court took into consideration the provisions contained in Section 149(2) (A) (ii) equivalent to Section 96(2)(a) of the Motor Vehicles Act,1939 and observed that where a driver possessing licence for one type of motor vehicle was found to be driving another type of motor vehicle, the insurer will not be allowed to avoid its liability merely on technical breach of condition concerning driving licence. Minor breaches of licence conditions are inconsequential so far as the benefit of coverage of insurance to third party are concerned. In Para.82 of the said judgment, it is observed, thus :
".....Cases may also arise where holder of driving licence for 'light motor vehicle' is found to be driving a 'maxicab', 'motor-cab' or 'omnibus' for which he has no licence. In each case on evidence led before the Claims Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on fact, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence."
6. Learned counsel for the appellant further submitted that on the issue of negligence, the Tribunal has committed an error in holding that the driver of the Jeep is negligent to the extent of 60%. He further submitted that the Tribunal ought to have held the motor cyclist solely negligent for the accident since he was not holding a valid driving licence at the relevant point of time. Therefore, the impugned judgement and award exonerating the Insurance Company from the liability of satisfying the claim is contrary to the evidence on record. Therefore, he submitted that the impugned judgement and award passed by the Tribunal deserves to be quash and set aside.
7. Learned counsel for the respondents Mr. Mehta submitted that the impugned judgement and award passed by the Tribunal is just and proper and therefore, no interference is required to be called for by this Court.
8. He further contended that the driver was not authorized to drive the vehicle (Jeep) since he was only authorized to drive a Tractor of the category of Light Motor Vehice and a motor cycle, which is apparent from the driving licence on record. He submitted that the vehicle (Jeep) does not fall within the category of "Light Motor Vehice" and therefore, the Tribunal has rightly concluded that the driver was not holding a valid licence to drive the vehicle (Jeep) at the relevant point of time.
9. He further submitted that the Tribunal has rightly exonerated the Insurance Company since the motor- cyclist was not holding a valid licence at the relevant point of time. He further submitted that Panchnama of the scene of accident established that the Jeep was being driven on the middle of the road in stead of being driven on the left hand side of the road and therefore, the Tribunal has rightly held that the driver is negligent to the extent of 60%. He further submitted that the present appeals deserve to be dismissed.
10. I have heard learned advocates appearing for both the parties and perused the material on record. The bone of contention in these appeals is with respect to the validity of the driving licence, which has been produced on record at Exh. 98. A perusal of the driving licence, shows that the licence holder is authorized to drive a Tractor (Light Motor Vehicle) and a Motor-cycle. In other words, the holder of the licence is authorized to drive only a Tractor (Light Motor Vehicle) and a Motor-cycle.
11. In the present case, the dispute, essentially is as to whether under the law the driver is authorized to drive the Jeep when he has been issued licence to drive a Tractor (Light Motor Vehicle). It is pertinent to note that before the Tribunal, the Inspector from Regional Transport Officer was examined as a witness. From his evidence, it has come out that under the driving licence in question, the driver concerned is authorized to drive only a Tractor of the category of Light Motor Vehicle. Here, it is pertinent to note that the vehicle (Tractor) has been categorized into three different categories, i.e. as a LMV, MMV and HMV. In the instant case, the Tractor in question falls under the category of Light Motor Vehicle. When licence has been issued to a person authorizing him to drive a specific kind of vehicle, then the said person can drive such vehicle only. He is not authorized to drive a vehicle, which, otherwise, he is not authorized to drive under the driving licence issued by the competent authority.
12. A defence has been raised that since the driver has been authorized to drive a "Light Motor Vehicle" he is also authorized to drive a Jeep as well since the vehicle Jeep falls in the category of "Light Motor Vehicle". I do not agree with the said submission canvassed by the learned advocate for the appellants, since, under the licence issued to him, he was authorized to drive a Tractor of the category of Light Motor Vehicle only and not a Jeep. Therefore, it has to be said that the driver was not authorized to drive a vehicle other than a Tractor and that to belonging to the category of Light Motor Vehicle and also motor cycle.
13. So far as the decision relied upon by the learned advocate for the appellant is concerned, I am afraid that the same would not be of any help to the appellants since the vehicle herein i.e. Jeep, was not possessing a "Goods Carriage Permit". Had it been the case then the appellants might have got benefit of the decision rendered in Annappa Irrapa(supra). However, since the driving licence in question authorizes the driver to drive a Tractor of the category of "Light Motor Vehicle" only, he cannot claim that he is also authorized to drive a Jeep. In view of the above, I find no merits in the submission raised by the learned learned advocate for the appellants that the driver was holding a valid licnece to drive Jeep at the relevant point of time.
14. So far as the issue regarding negligence is concerned, it appears from the Panchnama of the scene of accident that the Jeep was being driven on the middle of the road, in stead of being driven on the left hand side of the road, which is correct side. Therefore, the Tribunal has rightly held the driver of the Jeep negligent to the extent of 60% and the Motor-cyclist to the extent of 40%.
15. On the aspect of quantum learned advocate for the appellant is not seriously disputed the findings arrived at and the ultimate conclusion recorded by the Tribunal on the said issue, therefore, I am not discussing the same in detail in this judgement.
16. In the premises, aforesaid, I do not find any merit in these appeals. Therefore, the same are accordingly, dismissed. No order as to costs.
[K.S.JHAVERI,J.] pawan Top