FAO No. 2624 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 2624 of 2010 (O&M) Date of decision 07.7.2011 National Insurance Company Ltd. Appellant v. Mool Chand Chawla and Ors. Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. R.C.Gupta,Advocate for the appellant Mr.S.S.Bains,Advocate for the respondents .... JITENDRA CHAUHAN.J C.M.No.12808 of 2011 C.M. is allowed. Delay of one day in filing the appeal is condoned subject to all just exceptions. Main appeal This appeal has been filed by the Appellant-Insurance Company against the Award dated 25.1.2010, passed by the Motor Accident Claims Tribunal, Chandigarh (for short the Tribunal). As per the case of Mool Chand Chawla,claimant-injured, on 14.5.2007, he was going from Haryana Secretariat,Sector 17, Chandigarh to his house in Sector 41-A, Chandigarh on scooter. When he approached the main road ( Sector 17) from the gate of Secretariat, a car bearing registration No. CH-02-0942 (offending car), driven by respondent No.1-driver in a rash and negligent manner,struck against the scooter from its right side as a result of which, he fell down. He was removed to the General Hospital,Sector 16, Chandigarh. He sustained fractures tibia right, right shoulder humerous and other multiple injuries. As per the appellant- FAO No. 2624 of 2010 2 claimant, he spent Rs.50,000/- on his medical treatment. FIR No. 216 dated 23.5.2007 under sections 279,337 IPC was registered. Injured is 52 years old and is running a small booth of confectionary and general store and is earning Rs.7000/- p.m. He filed claim petition against Anil Kumar,respondent No.1,driver, Kuljit Singh-respondent No.2, owner of offending car, and the National Insurance Company-respondent No.3, claiming compensation to the tune of Rs.15 lacs. Upon notice, respondents No. 1 and 2 filed joint written statement and admitted the accident. However, they pleaded that, in fact the appellant was driving the scooter negligently and all of a sudden came to the main road from the Haryana Secretariat without looking at the vehicles coming from his right side and thus caused the accident. Other averments were denied by them. Respondent No.3, Insurance Company filed its separate written statement denying the accident and pleaded that as per the claim of the appellant, the alleged accident occurred on 14.5.2007 whereas the FIR was lodged on 23.5.2007, after a delay of 9 days and further that there was collusion between the parties. It was further pleaded that the owner of the offending car did not report the occurrence of alleged accident to respondent No.3, and thus violated the terms and conditions of the insurance policy. It was further the case of respondent No.3 that the offending car was plied as taxi without valid permit and the driver was not holding a valid driving license at the time of accident. Mool Chand-injured stepped into the witness box as PW1 and submitted his affidavit Ex.P1. He also submitted photo copies of his medical FAO No. 2624 of 2010 3 card, driving licence and PAN card. He contested his case and stated that the accident took place due to the rash and negligent driving of respondent No.1 of the offending car. Dr. Shardaindu Sharma, Medical Superintendent, General Hospital, Sector 16, Chandigarh, was examined as PW2 and he proved the disability certificate Ex. P6 stating that appellant suffered 10% permanent partial disability, which reads as under:- “Malunited fracture right clavicle with proximal edge of the bone. Mild restriction of movements of right shoulder. Movements of the right knee almost normal. Crepilations palpable right knee. Patient complained of pain on walking and standing PPD 10% with respect to whole body” Kuljeet Singh, owner of offending car appeared as RW1 and tendered his affidavit Ex. RA, copy of Insurance Cover Note as Ex. R1, route permit of offending car. He admitted the accident but denied the negligence on his part. However, he deposed that the appellant was driving the scooter in a rash and negligent manner, which resulted in the accident. Anil Kumar, driver appeared as RW2 and submitted his affidavit Ex. RB and driving licence Ex. R3. His statement remained uncorroborated as he did not examine any witness. The respondent also examined RW3, Data Entry Operator, Licensing Authority, and RW4 Junior Assistant of office of Registering and Licensing Authority, Chandigarh. Learned counsel for respondent No.3 tendered in evidence the Insurance Policy as Ex. RW4/2. On appreciation of evidence, the Ld. Tribunal awarded compensation to the tune of Rs. 63,500/- to the claimant-injured and held respondents No. 1 to 3 jointly and severally liable to pay the amount to the injured. However, a question arose before the ld. Tribunal as to who would FAO No. 2624 of 2010 4 pay the compensation to the claimant? As per the Insurance Company, the respondent No1, driver was not holding a valid and effective driving licence to ply the Indica taxi. From the perusal of Insurance Policy, Ex.RW4/2, it was clear that the vehicle was being driven as taxi and that it was a passenger carrying commercial vehicle. Indisputably the owner-respondent No.2 deposed that the vehicle was used as a taxi. The driving licence, Ex. R3, of driver-respondent No.1 tendered in evidence, shows that the licence was valid for LMV and MCW. During cross-examination, RW4, Gurvinder Singh, an official of the office of Registering and Licensing Authority, Chandigarh deposed that for carrying the passengers, an endorsement is essentially required to be made on the driving licence of such a holder but in this case, the endorsement has not been made on the licence of driver-respondent No.1. Accordingly, it was contended that the Insurer has breached the terms and conditions of the insurance policy. The Ld. Tribunal, after considering the arguments of the learned counsel for the Insurance Company and in view of the judicial pronouncements cited by him, observed that the licence of the light motor vehicle held by respondent No.1,Anil Kumar cannot be said to be invalid in law. The Ld. Tribunal awarded the compensation vide Award dated 25.1.2010. Aggrieved against the same, the Insurance Company, appellant has filed this appeal. Learned counsel for the appellant submitted that the Ld. Tribunal has erroneously passed the Award and held the Insurance Company to pay the amount of compensation. He further submitted that FAO No. 2624 of 2010 5 there is a breach of terms and conditions of the insurance policy, as the driver was not holding a valid and effective driving licence to ply Indica taxi on the date of accident, The Ld. Tribunal has ignored the evidence of RW3 that an endorsement on the driving licence of the driver is required to be got made. Therefore, the Appellant-Insurance Company cannot be held to be liable to pay the amount of compensation. In support of his contentions, he placed reliance on Oriental Insurance Co. Ltd. v. Angad Kol and Others, 2009 ACJ 1411. After hearing the learned counsel for the appellant and going through the record, this Court feels that the Ld. Tribunal decided the question of paying the compensation in right perspective and held that the licence of the light motor vehicle held by respondent No.1 Anil Kumar cannot be said to be invalid in law but in the same breath, this court cannot ignore the distinction between a 'light motor vehicle' and a 'passenger vehicle. While dealing with a similar proposition, Hon'ble the Apex Court, in the case of Oriental Insurance Co. Ltd (supra) observed as under:- 8.Motor Vehicles Act,1988 (hereinafter called as 'the Act)was enacted to consolidate and amend the law relating to motor vehicles. 'Driving Licence' has been defined in Section 2 (10) to mean the licence issued by a competent authority under Chapter II authorizing the person specified therein to drive, otherwise than a learner, a motor vehicle or a motor vehicle of any specified class or description. 'Goods carriage' has been defined in section 2(14) to mean any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage FAO No. 2624 of 2010 6 of goods. The said Act also defines 'heavy goods vehicle', 'heavy passenger motor vehicle', 'medium goods vehicle', and 'medium passenger motor vehicle' as well as a 'light motor vehicle' in section 2 (21) of the Act to mean: “2(21)'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 7500 kilograms”, 9. Although the definition of the 'light motor vehicle' brings within its umbrage both 'transport vehicle or omnibus', indisputably, as would be noticed infra, a distinction between an effective licence granted for transport vehicle and passenger motor vehicle exists. Section 3 provides for the necessity of driving licence, stating: “3. Necessity for driving licence--(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under sub-section (2) of section 75 unless his driving licence specifically entitles him so to do.” Section 9 provides for grant of driving licence. Section 10 prescribes the form and contents of licenses to drive which is to the following effect: “10. Form and contents of licences to drive--(1) Every FAO No. 2624 of 2010 7 learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government. (2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely: (a) to (c) .... .... .... (d) light motor vehicle; (e) transport vehicle; (i) road-roller; (j) motor vehicle of a specified description.” 10. The distinction between a 'light motor vehicle' and a 'transport vehicle' is, therefore, evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct licence is required to be obtained. The distinction between a 'transport vehicle' and a 'passenger vehicle' can also be noticed from section 14 of the Act. Sub- section (2) of section 14 provides for duration of a period of 3 years in case of an effective licence to drive a 'transport vehicle' whereas in case of any other licence, it may remain effective for a period of 20 years.” In the instant case, respondent No.1-driver was holding driving licence Ex. R3, which was valid to drive light motor vehicle i.e. car but the same was not valid and effective to drive a taxi as for carrying the passengers, an endorsement is required to be got made, which was not done. FAO No. 2624 of 2010 8 The grievance of the Insurance Company was right as respondent No.1 was not holding a valid and effective driving licence to drive Indica Taxi and the Insurer has breached the terms and conditions of the Insurance Policy and therefore, the Insurance Company cannot be held liable to pay the amount of compensation. In view of the above, this appeal is partly allowed with liberty to the appellant-Insurance Company to recover the amount of compensation, from the owner and the driver of the vehicle being respondents No. 1 and 2. No costs. (JITENDRA CHAUHAN) JUDGE 7.7.2011 MS