1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL MISC. APPEAL NO.301/2010 Hetram VS. Smt. Khetu & Ors. Date of order : 7.4.2010 HON'BLE MR.JUSTICE A.M.SAPRE Mr. G.R.Punia, for the appellant. Mr. T.R.S.Sodha, for the respondent No.8. None present for the respondent Nos.1 to 7. BY THE COURT: The decision rendered in this appeal shall also govern disposal of other 7 connected appeals being C.M.A.No.297/10, 298/10, 299/10, 300/10, 348/10, 277/10 and 302/10 because all these 8 Misc. Appeals arise out of one impugned award and secondly they relate to one vehicular accident. 2. This is a misc. appeal filed by owner of offending vehicle under Section 173 of the Motor Vehicles Act (for short called “the Act”) against an award, dated 30.11.2009, passed by Motor Accident Claims Tribunal, Jaisalmer in Claim Case No.86/2008. 3. By impugned award, the Claims Tribunal partly allowed the claim petition of claimants and awarded to them a 2 total sum of Rs.5,42,000/- for the death of one “Dala Ram”, who died in vehicular accident. Like the present case, the Claims Tribunal by impugned award also allowed in part the claim petitions of 7 other claimants some of whom suffered injuries and some died. The Claims Tribunal however recorded a common finding in all the claim cases out of which these appeals arise and exonerated the Insurance Company from the liability arising out of accident and confining to only owner of offending vehicle (appellant herein) and its driver. It is against this award, the owner of offending vehicle has filed these 8 appeals. 4. In order to decide the question raised in this appeal, few relevant facts need mention. 5. On 7.8.2008 Dala Ram and 7 other were travelling as passenger in one minibus bearing number RJ19/1-P/0546 from Jaisalmer to Sum, When the Bus suddenly turned turtle and collapsed. Due to this event, Dala Ram and some more passengers died whereas few suffered injuries. This led to filing of claim petitions by injured and legal representatives of deceased passengers against owner of offending vehicle (insured), its driver and Insurance Company (insurer) under Section 166 of the Act claiming compensation for the injuries sustained and loss occurred as a result of death of passengers. It was interalia alleged that Bus in question was owned by appellant (NA-1) and was insured with Respondent No.8 (Insurance Company) and was being driven by respondent No.7. 6. The non-applicants denied the claim of claimants. So far as owner was concerned, according to him, since the vehicle in question was insured with the Insurance Company and hence the liability if at all was that of Insurance Company. So far as 3 Insurance Company was concerned, they contended that since the driver of offending vehicle did not possess valid driving license at the time of accident to drive the vehicle in question and hence no liability arising out of such accident with the offending vehicle can be fastened on the Insurance Company because it amounted to breach of policy by the Insured. 7. It is this issue which was gone into by the Tribunal along with other issues. As observed supra, the Tribunal held that since driver of offending vehicle was holding a license to drive LMV (Light Motor Vehicle), whereas he was driving minibus, which caused accident and hence it amounted to committing breach of policy condition by the Insured entitling the Insurance Company to avoid its liability to pay any compensation. The Tribunal accepted the defense of Insurance Company and exonerated the Insurance Company from the liability arising out of accident and confined it to owner and driver of offending vehicle. It is against this award, the owner of offending vehicle has felt aggrieved and filed this appeal. 8. Placing reliance on the decision rendered in (2008) 3 SCC 464 National Insurance Company Ltd. Vs. Annappa Irappa Nesaria Alias Nesaragi & Ors., learned counsel for the appellant (owner) contended that the case in hand is covered by this decision in favour of the appellant and hence the Tribunal erred in exonerating the Insurance Company from the liability arising out of the accident. Learned counsel contended that Tribunal by properly appreciating the ratio of the case of Annappa (supra) should have fastened the liability on the Insurance Company by holding that driver was holding valid license to drive the vehicle. 9. In reply learned counsel for the Insurance Company 4 placed reliance on the decision reported in 2009 (DNJ) SC 949 Oriental Insurance Co. Ltd. Vs. Angad Kol & Ors., and (2008) 1 SCC 696 New India Assurance Co. Vs. Prabhulal. According to him, the case is covered by these two decisions in favour of Insurance Company and hence view taken by Tribunal is legal and proper calling no interference. 10. Having heard the learned counsel for the parties and on perusal of record of the case, I am inclined to allow the appeals and modify the impugned award as indicated infra. 11. It is not in dispute that driver of minibus, which caused the accident, was holding driving license to drive LMV. This license was issued on 19.12.95 (Ex.P-6) and it was for a period of 20 years i.e. it was valid upto 18.12.2015. The aforesaid license was issued when “The Act of 1988” was in force. The offending vehicle was a minibus weighing 4800 Kg as is clear from its registration (Ex.P-4). The definition of “Light Motor Vehicle” (LMV) as it stood then in 1988 Act at the time of grant of license to driver of offending vehicle as defined in Section 2 (21) included in it the “transport vehicle” or “omnibus” whose weight does not exceed 7500 Kg. 12. In my view, the aforesaid factors emerging from the record of the case and which are almost undisputed would go to show that driver was holding a valid driving license to drive LMV and that he was in fact driving LMV because the bus in question was not weighing more than 7500 Kg (it was 4800 Kg.). In my opinion, since the license was valid upto (18.12.2015) and hence the driver was authorized to drive bus in question on the strength of such license. It was thus a valid license for driving LMV and the bus in question also satisfied the definition of LMV as defined 5 under Section 2(21) ibid. It is due to these undisputed facts, the law laid down by Supreme Court in the case of Annappa would apply to this case in favour of the appellant for holding that driver of offending vehicle was holding a valid driving license so also the bus in question was LMV as defined under Section 2(21) ibid. 13. Learned counsel for the respondent (Insurance Company) argued that since the accident occurred on 7.8.2008 and hence the position as it obtained on that day should be seen. Learned counsel also contended that law laid down in Angad Kol (supra) would apply. I do not agree. In the first place, Supreme Court noticed the law laid down in Annappa in Angad Kol case and approved it by placing reliance upon it. Secondly on facts, their lordship held in Angad Kol case that vehicle in question was a goods vehicle and driver of that vehicle was not holding a license to drive a goods vehicle. Such is not the case here and hence facts of the case of Angad has no application to the facts of this case. Learned counsel for the Insurance Company also placed reliance on Prabhulal's case supra. In my view, the facts of Prabhulal's case are also distinguishable to that of the facts of this case and hence law laid down in Prabhulal's case would not apply. Similarly the reliance placed on the decision reported in MACD 2009(1) Raj. 123 by the learned counsel is also misplaced as being distinguishable on facts so far as present case is concerned. 14. In my opinion, therefore, Tribunal failed to appreciate the facts of this case in its proper perspective in the light of law laid down on this issue in the case of Annappa supra by Supreme Court and hence finding of Tribunal on this issue is not legally and factually sustainable. It is liable to be reversed and is accordingly answered in favour of owner/driver and against the Insurance 6 Company. 15. Accordingly and in view of foregoing discussion, the appeal succeed and is allowed. Impugned award is modified to this extent that impugned award is also passed jointly and severally against the Insurance Company along with other non-applicants of claim petition out of which this appeal arises. In other words, the Insurance Company (respondent No.8) is also held jointly and severally liable to pay the awarded sum to claimants. No cost. (A.M. SAPRE), J. /tarun/