1 CMA No.4346/2011 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT. [CASE NUMBER] National Insurance Company Ltd. v. [ENTITY] & Another. DATE OF JUDGMENT: 7th AUGUST, 2012 HON'BLE MS. JUSTICE [ENTITY] Mr.[ENTITY], for Appellant (s). Mr.[ENTITY] ) Mr. [ENTITY]) for Respondent (s). BY THE COURT:
The matter was listed for hearing the stay application, but on the request of the learned counsel for the parties, the matter is being finally disposed of.
This is an appeal under [SECTION] of the [ACT] (hereinafter referred to as 'the Act of 1988') against the judgment and award dated 04.07.2011 passed by the Judge, Motor Accident Claims Tribunal, Dungarpur, vide which, compensation of Rs.1,34,000/- has been awarded and the appellant-company has been held liable for the same.
While praying for setting aside the judgment and award qua the appellant, learned counsel for the appellant submitted that the vehicle was registered and insured as a passenger carrying commercial vehicle, therefore, the same falls under the category of transport vehicle. As per [SECTION] of the Act, no person can drive the transport vehicle unless his driving license specifically entitles him to do so. In the present case, a look at the driving license and DL verification report issued by DTO (Ex-A-2) clearly establish that Shri [ENTITY] was authorized to drive LMV other than transport vehicle for the period from 24.08.1992 to 14.07.2007. The vehicle insured with the appellant- company is a transport vehicle and the owner-cum-driver of the vehicle was not authorized to drive the transport vehicle. Thus, it is clear that the owner of the vehicle has willfully violated the policy conditions, therefore, the liability to pay the compensation cannot be fastened upon the appellant-company. Secondly, the tribunal has wrongly decided the issue against the appellant-company on the ground that as per the registration certificate of the vehicle, the same is a light motor vehicle and the driver was authorized to drive LMV. Such approach was stated to be wrong, as the same not only was a light motor vehicle, but was registered and insured as a passenger carrying vehicle which falls under the category of the transport vehicle. Thirdly, the driving license was issued for a period of 15 years, which on the face of it, shows that it was a light motor vehicle and not a transport vehicle.
Lastly, merely because the weight of the vehicle was less than 7.500 kg., it cannot be presumed that the same is a light motor vehicle. There is a distinction between light motor vehicle and a transport vehicle. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct license is required to be obtained.
Reliance was placed on the judgment rendered by the Hon'ble Apex Court in the case of [PRECEDENT]. Reported in [PRECEDENT] to show that the driving license authorizing a driver to drive light motor vehicle is not a valid and effective driving license for the purpose of transport vehicle.
Learned counsel for the respondents, while vehemently opposing, submitted that the driving license was obtained in the year, 1992, i.e., before the amendment of the Act, therefore, there was no requirement to have a separate license to drive a transport vehicle under the Old Act as the driving license of the light motor vehicle was sufficient to drive a goods vehicle, the weight of which was less than 7.500 kg. Secondly, these are minor breaches and, therefore, Insurance Company cannot escape from liability for technical breach of condition concerning driving license. Reliance was also placed on the judgment rendered by the Hon'ble Apex Court in the case of [PRECEDENT] to contend that absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time are not in themselves defences available to the insurer.
Learned counsel for the appellant, however, at this stage, raised another argument and submitted that the relevant date for the purpose of considering a valid license was the date of the accident.
Heard.
The facts, in short, are that on 26.05.2003, at about 10.30 a.m., the applicant along with his cousin [ENTITY] of Dungarpur was going from Old Bus Stand in Dungarpur to Tehsil Circle to buy certain goods. He was going on foot, when the driver of the vehicle Tempo No. RJ
-27/P-2686, in a rash and negligent manner, hit the applicant who was going on foot. The claimant-respondent [ENTITY] fell down and became unconscious and he received grievous injuries on leg and other parts of the body etc. remained admitted in the hospital for treatment. An FIR was also got registered. The matter was investigated, charge-sheet was filed against the driver. The driver was also the owner of the vehicle.
Claim petition was filed. In the claim petition, the driver/owner, as well as the Insurance Company were made party defendants. One of the issues framed was as to whether defendant No.2 Insurance Company, after filing its written statement and raising preliminary objections, was liable to pay the compensation and if not to what effect ? The said issue was decided against the Insurance Company and it was held that at the time of the accident, the vehicle was insured, the driver had a valid license of light motor vehicle. The weight of the Tempo was less than 7.500 kg. and, therefore, as per provisions of the [ACT], the said vehicle falls under the category of light motor vehicle and, therefore, the driver was stated to be holding a valid license on the date of the accident. Accordingly, the Insurance Company was held liable.
From the argument and the facts of the case, the following question requires to be decided :-
"(a) Whether the driving license issued prior to the amendment in the year, 2001 for a light motor vehicle is a valid license for driving a transport vehicle or not ?"
The [ACT], which was enacted to consolidate and amend the law relating to the motor vehicle is a complete Code. [SECTION] of the Act provides for interpretation of the terms contained therein. [SECTION] defines the light motor vehicle. The same reads as under :-
"[SECTION] "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed (7,500) kilograms."
In view of the above, there is no dispute that the proposition of law that the amendments carried out in the rules have a prospective operation and a license issued prior to 2001 for LMV is authorized to drive a specified vehicle. Hon'ble the Apex Court in the case of [PRECEDENT], keeping in view the definition of light motor vehicle, was pleased to observe as under :-
"12. The Central Government has framed Rules known as The [ACT].
13. The word 'Form' has been defined in [SECTION] to mean a Form appended to the rules. I Apply for a licence to enable me to drive vehicles of the following description: (d) Light motor vehicle (e) Medium goods vehicle (g) Heavy goods vehicle (j) Motor vehicles of the following description: " After amendment the relevant portion of Form 4 reads as under :
"I Apply for a licence to enable me to drive vehicles of the following description: (d) Light motor vehicle (e) Transport vehicle, (j) Motor vehicles of the following description: "
14. [SECTION] prescribes for filing of an application in Form 4, for a licence to drive a motor vehicle, categorizing the same in nine types of vehicles.
Clause (e) provides for "Transport vehicle' which has been substituted by [SECTION] with effect from 28.3.2001. Before the amendment in 2001, the entries 'medium goods vehicle' and 'heavy goods vehicle' existed which have been substituted by 'transport vehicle'. As noticed hereinbefore, 'Light Motor Vehicles' also found place therein.
15. 'Light Motor Vehicle' is defined in [SECTION] and, therefore, in view of the provision, as then existed, it included a light transport vehicle.
[SECTION] provides for the manner in which the licence is to be granted, the relevant portion whereof reads as under :-
"Authorisation to drive transport vehicle Number Date Authorised to drive transport vehicle w.e.f Badge number
Signature Designation of the licensing authority Name and designation of their authority who conducted the driving test."
16. 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 authorized to drive a light goods vehicle as well."
The argument of the learned counsel for the appellant that the license having been granted for a period of 20 years, a presumption arises that it is issued for the purpose of a vehicle other than a transport vehicle and that had the driving license been granted for transport vehicle, the tenure would not have except 3 years, is applicable in case the license is issued after the date of the amendment and the date of amendment became effective from 28th March, 2001. In the facts of the present case, Shri [ENTITY] was authorized to drive light motor vehicle for the period 24.08.1992 to 14.07.2007. Whereas, the accident occurred on 26.05.2003. Thus, taking into consideration, the definition of [SECTION] of the [ACT], a light motor vehicle will include a transport vehicle, the weight of which did not exceed 7.500 kg. Thus, there is no dispute that in case the license is issued prior to the year, 2001 for a light motor vehicle, shall include a transport vehicle.
With reference to the second argument of the learned counsel for the appellant that it is the date of the accident which is to be taken into consideration while applying the amendment, was considered by the Apex Court in the case of [PRECEDENT]. Para 14 of the said judgment reads as under :-
"14. In [PRECEDENT], it was noticed that the provisions of the Act have undergone a change. The definition of 'light motor vehicle' would not include a light transport vehicle. In that case, keeping in view the date on which the accident took place, it was held :
"(16) From what has been noticed hereinbefore, it is evident that the 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 authorized to drive a light goods vehicle as well."
No doubt, in the case of National Insurance Co. Ltd. v. Annappa Irappa Nesaria, reported in 2008 ACJ 721 (SC), the date of the accident was 9.12.1999, i.e, prior to the amendment, whereas, in the present case, the accident is of the year, 2003. However, the fact remains that neither the license of the present appellant was cancelled nor the amendment provides that the license issued earlier shall stand cancelled or that the citizen should apply for fresh driving license in view of the amendment. Thus, while applying the amendment, it is the date of license which is required to be taken into consideration.
However, the facts of the present case are slightly different. In the present case, it is specifically written in the license that the driving license was valid for driving light motor vehicle, except transport vehicle. This fact has not been denied. As such, even though the license was issued prior to the year, 2001, the said license had a specific bar. As such, the argument of the learned counsel for the appellant that the appellant was not authorized to drive a Auto Rickshaw, which is a transport vehicle, has some merit.
Thus, even though it is held that the license issued prior to 2001 for LMV is valid for the purpose of driving a transport vehicle and that date of commencement will be the date of license and not date of accident, still the Court has no choice but to conclude in the special facts and circumstances of the case in hand that the driver [ENTITY] was not authorized to drive the transport vehicle. Reason being, in the present case, although the license was issued prior to the year 2001, it contained stipulation that the said driving license was valid for light motor vehicle, except transport vehicle.
Thus, in view of the above, the relevant question that arises is as to whether the Insurance Company can avoid its liability in such a situation. In the case of [PRECEDENT], court opined :
[SECTION] of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. [SECTION] of the Act enables the Central Government to prescribe forms of driving licenses for various categories of vehicles mentioned in sub-
section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are : (a) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage;
(d) light motor vehicle; (e) transport vehicle;
(f) road-roller; and (g) motor vehicle of other specified description. The definition clause in [SECTION] of the Act defines various categories of vehicles which are covered in broad types mentioned in [SECTION]. They are 'goods carriage', 'heavy goods vehicle', 'heavy passenger motor vehicle', 'invalid carriage', 'light motor vehicle', 'maxicab, 'medium goods vehicle', 'medium passenger motor vehicle', 'motorcat', 'motor cycle', 'omnibus', 'private service vehicle', 'semi-trailer', 'tourist vehicle', 'tractor', 'trailer' and 'transport vehicle'. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal. A person possessing a driving licence for 'motor cycle without gear' [sic may be driving a vehicle], for which he has no licence. Cases may also arise where a holder of driving licence for 'light motor vehicle' is found to be driving a 'maxicab', 'motorcab' 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 facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the 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."
Hon'ble the Apex Court in National Insurance Co. Ltd. v. Swaran Singh & Others (Supra) recorded summary of the findings in [SECTION], which runs as under :-
"(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition on regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under [SECTION] of the Act."
Applying the guidelines in the facts of the present case, a finding has been duly recorded that the accident was on account of the negligence of the driver. It cannot be said that the same was on account of any technical reason, i.e., mechanical failure of the vehicle etc. In view of the above, the judgment and award dated 04.07.2011 is set aside to the extent, vide which, the Insurance Company has been made liable. However, in view of the peculiar facts, it is directed that the Insurance Company shall deposit the amount with the Tribunal with liberty to the claimants to withdraw the same with further right to the appellant to recover the same amount from the owner and driver of the vehicle as directed by the Apex Court in the case of [PRECEDENT] (Supra). Accordingly, the appeal is allowed to the above extent. The stay application No.17962/2011 stands disposed of.
([ENTITY]