G'visionBenct ^Anil Kumar S/o Mohan Sahu, aged about 39 years,R/o Ward No. 14, Mahamayapara, Arang, P.S. Arang, ^ Tahsil - Arang, District — Raipur, (C.G.{ ^ WSURER 7~ Kalyan. Dhurandhar S/o Late Basant Dhurandhar, aged 19 years, R/o Ward; No. 12, Bagdipara Arang, TahsU 8s P.S. Arang, District - Raipur(C.G.) Avinash Kumar S/o Anil Kumar Sahu, aged 19. years, R/o Mahamayapara Arang, P.S. - Arang, Tabsil Arang, District - Raipur (C.G.) Future General India Insurance Co. Ltd. Pirst Floor., Business Ward, Block No. 27, Plot No. 8, FF - 9, Thakur Pyarelal Singh Ward, G.E. Road Raipur, District - Raipur (C.G.) GLAIM IN APPEAL VALUED AT RS. 5,94,000 /- 3, w\ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL fCl N0. .i W\ /2010 MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT, 1988 ABPELLANT ...,-^^ '^•--^^ SESPONDENTS CLAIMANT E,!6 » K:'I; HIGH COURT OF CHHATT1SGARH, BILASPUR DB: HON'BLB I.M. QUDDUSI & HON'BLB PRABHANT KUMAR MISHR&., JJ, M.A(Ct. No. 1214 of 2010 Vs. M.A(C1. No. 1241 of 2010 Vs. MISC. APPEAI-S U/S 173 OFTHE MOTOR VEHICLES ACT. 1988 APPEARANCE: j Mr. Sachin Singh Rajput, counsel for the appeUaut in M,A(C). No. 1214/2010 aud respondcnt no.3 in M.A(C). 1241/2010 i.e., Future General India Insurance Company Limited. Mr. Saurabh Sliarma, couusel for the appeUant in M.A(C). No. 1241/2010 and Rcspondent No.3 in M,A(C).No.l214/ 2010 that is owner Anfl Kumar. Mr. Satyendra Sahu, counsel fer the Objector/Respondent No. 1 naiaety Kalyau Dhuraudar ui both the appeals. Per I.M, QUDDUSI. J. ORDER(ORALt (18.04.2011) 1. Tbese are fhe two appeals filed agaiast the unpugned award dated 16th August, 2010 passed by the IX Motor Accident Claims Tribunal (F.T.C) Raipur in Claim Case No. 15/2010. 2. M.A(C) No. 1241/2010 has been filed by fbe owncr of fhe vehicle chaUengtag fhe iiupugD.cd award so far as it re]ates to 1 APPELLANT Future GeneraU India lusurance Coinpaay Ltd. RESPOBDENTS Kalyaa DhuraQdar & 2 ofhers APPELLANT Anil Kumar RESPONDENTS Kalyaa Dhuraadar & 2 pfhers fixiag of Uability unposed upon him as weU as on the question ofquantum. M.A(C ). No. 1214/2010 Iias been ffled by the InsT.irance Conipany namely Future General India Insuraace Coiupany Limited challenging the award by which fhe Insurau.ee Company has beeu directed to pay the anaount of coinpensation to the claiinant and recover it froia the owner as also a^awst the non-affordiag adequate opportuiuty to lead evidence. 3. Cross objections have also been filed by respondent no. 1 for enhaaceiaent ofconipensation. 4. Brief facts of fhe case according to the vcrsion of claimants are that the injured claiiaant Kalyaa Dhurandhar was sittiag on Gccura Chowra near Mahaiaaya Tcniple aloiigwifh others. At that tune, fhe ofFendiag vehicle i.e., Mahindra Max Pick- Up bearmg Regn. No. C.G. 04-JS/9984 whfch was beiug driven by nou-applicant no. 1 Aviaash Kuinar ia a rash and negl^ent maaner dashcd the claunant, as a resiilt of which he sustamed fiacture iu the right kg bone. He was mmiediately admitted ia Govenunent Hospital, Aiang and fhereaflter ia Govt Hospital, Mahasaaiuad and thcn again ia a private hospital of Dr. A.K. Verma where looking to the critical condition, his right leg was ainputated, as a result of wtuch claunant became pennanently disabled to the extent Qf80%. At the time of accident, the claiiaant was about 19 years aad was eamiag Rs.300-400/- per day by working as Hcanali. The iajured claimant has filed claun petition for the award of compensation to the tune of Rs.43,90,000/- on //^.^\ 1 Y "<%»<^ '%^»y various heads for fhe permanent disabilily caused to him on accouat ofinjuiy sustauied by him- 5. The learaed Claiias Tnbiiual held fhat the offendmg velucle which was beiag driven by non-applicaut no. 1 ia a rash and negligent maruier dashed the appeBflat, as a result ofwhich, appeUant has become permanenUy disabled. The Tribunal bas awarded a total compensation of Rs.5,94,000/- with snaple interest @ 7%% per annum which the clauaant is entitled to receive fi'oia non-appUcants 1 & 2. However, (he Tribimal has directed the Insurance Conipany to pay the said coinpensation to the clauaaat and recover fhe same fix>in the non-applicaats 1 &; 2. 6. We have heard leamed counsel for the parties at length and have also gone through fhe records. The Insurance Couipaay has exanuned Syed Safiulla as N.A.W.2 who was working as aa Assistaat Grade-II in the of&ce of R.T.O., Dui^. We have also perused the copy ofthe driving Ucense of the driver of the vehicle ia question. In the licnese, an endorseinent reganling authorization to drive Ught motor vehicles as weU as transport vehicle has been made besides fhe ofher endorsenients. Syed SafiuUah (N.A.W.2) has stated about fhe issuance of drinng license for driving motor- vehicles aad l^ht motor vehicles fi?om 17.03.2004 to 20.12.2012 and also for driving heavy goods vehicle w.e.f. 31.12.2009 but has not stated about the fact ofissuance of the driving Ucense to drive fhe transport vehicle. 7. Hon'ble the Supreiae Court ui Ashok Gangadhar Maratha - WB- Orieatal lasurance Co. Ltd (1999) 6 SCC 620 has lajd down the law wlule deaUag with a sirmlar inatter, the relevant part of fhe same iu Paras 9 to 15 are reproduced as under: 9. There is no evidence to record and no claim has either been ruade by the iasurer that fhe vehicle in question. was haviag a permit for a goods carriage. If we accept the contention of fhe iasurer, there can never be auy Ught m.otor vehicle aad there can never be any driviug Ucence for driving a l^ht ruotor vehicle. We caiinot put such a construction on Clause (21) of Section 2 of ffae Act so as to exclude a l^ht motor vehicle fcoin the Act altogefher. A I^ht inotor vehicle is a niotor vehicle to drive which Jadhav possessed an efFective driviug licence. His driving Ucence was valid on the date ofaccident In aUowing the claiin of the appeUant the State Conunission held that "the driver who drove the vehicle at the tune of accident, had as a uiatter of fact, a valid driviiig licence for dnving a light niotor vehicle and fhere is no inaterial on record to show that he was disquaUfied froin holding or obtaming such a licence at the time ofaccident. In view of fhese facts aad in the circuuistances of the case, we are satisfied fhat fhe poUcy does not insist on the driver haviag a licence to' drive, to obtain a specific endorseiuent to drive a transport vehicle. We, however, do uot subscnbe to such a view. 10. The definition of "light niotor vehicle" as given ia Clause (21) of Section 2 of fhe Act can apply only to a "light goods vehicle" or a "l^ht transport vehicle". A "Ught naotor vehicle" otherwise has to be covered by the defiiiition of "motor vehicle" or "vehicle" as given in clause (28) of Section 2 of the Act. A light motor vehicle caunot always mean a Ught goods carriage. Light m.0tor vehicle can be a non-transport vehicle as weU. •ti-uam.1 11111 llll 11| |i| li | iiiijijiji 11. To reiterate, since a vchicle cannot be used as a transport vehicle on a public road uiiless there is a permit issued by the Regioiial Transport Authority for that purpose and since in the iastaat case, there is neither a pleading to that effect by aay party nor is fhere aay perinit on record, the vehicle ia questiou would reiaain a light inotor vehicle. The respondent also does not say fbat any pennit was grauted to fhe appellant for plying the vehicle as a transport vehicle under Section 66 of the Act. Moreover, on the date of accident, the vehicle was not canying any goods aod fhough it couM be said to have been designed to be used as a transport vehicle or a goods carrier, it caunot be so held on account of the statutoiy prohibition contained in Section 66 ofthe Act. 12. It was pointed out by the appeUant that the legal representativc ofJadhav, the driver, had filed a petition for coinpensation uader the Act. The iasurer had resisted the claim takiag the stand that the driver of fhe vehicle did not possess a valid driving licence to drive the vehicle. The plca of fhe iasurer was rejected by fhe Clauns Tribunal and the petition for coiapensation was aUowed aad compensation paid to fhc legal representative of the driver. No appeal was preferred by the iasurer ia that case. 13. In fhe present case, fhe insurer aUeged fhat the appellaat had coininitted breach of thc termis of fhe Insiu-aace Policy aud had vlolated fhe provisions of the Act by entrustiug a ''transport velucle" to a person who did not hold a vaUd licence and the iasurer was, thus, not liable to indemrufy the appellant. Under fhe poUcy firstly a l^ht inotor veliicle ineaut the gross weight of which did not exceed 6000 kilograiQS and secondly agaiast fhe coluaui ''drivei" the poUcy stated: "Drivers clause.—Personsor classes of person entitled to drive: auy person iacluding the insured. o.e2-^. /^•"\ a '«} 6 ^ 8. Provided that a persoa driving is holdiag an effective drhring Ucence at the time of fhe accident aad is not disqualified fium holding or obtaiiung such a Ucence: Provided also that if a person holdiag aa effective leamer's Ucence niay also drive the vehicte when not used for the traasport of goods at fhe time of the accident aad that such a person satisfies thc reqiureinents of Rule 3 of the Central Motor Vehicles Rules, 1989." 14. Now the vehicle in. the present case weighed 5920 kilogranis and the driver Iiad the driviag licence to drive a light motor vehicle. It is not fhat, therefore, the Insurance PoUcy covered a traasport vehicle which nieaat a goods carriage. The whole case of fhe insurer has been built on tfae wrong premise. It is itself fhe case of fhe insiu-er that in the case of a l^ht inotor vehicle which is a nou-transport vehicle, fhere was no statutoiy requireinent to have a specific authorization on fhe Ucence of fhe driver under Fonn- 6 under fhe rules. It has, therefore, to be held that Jadhav was holding an effective vaUd Ucence on the date of the accideut to drive a light motor vehicle beadag Registration No.KA-28-567. 15. Accordiagly, fhe appeal is atlowed. Order of the National Conszuner Disputes Redressal Conunission is set aside and that of the State Consiuaer Disputesd Redressal Coinuussion restored though on different groiuid. Tbe appeUant would be entifled to costs." Further the Apex Coiu-t m case of Orienta.l Insurfmce Company Iitorited -Vs- Angad Kol anS. others (2009) 11 SCC 356 held ia Paras 24 & 25 as imder: "24. The Court distinguished its earlier judginent ia Ashok Gcinga.Shar Maratha v. Oriental 1 '»^S^WBSSW£ r'~J:~'~-*>^Sw£&iEi2ii3^Si?h T 5^ ^~—--'-^ T" ~--¥^ /^" _ '% ..--?^^ ^ 1 %g0!'"% S \^..^/ "^.^s^" ''^'•i.-SV^'"'" 9. Instircm.ee Co. Ltd., statmg: (Prabhu Lal Case, SCC P.707. Para 41) "41. In our judgment, Ashok Gangadhar did not lay down fhat the driver holdiag lieence to drive a light niotor vehicle need not have an endorseiaent to drive trausport vetiicle and yet he can drive such vehicle. It was on the peculiar facts of the case, as the Insurauce Couipany neither pleaded nor proved that tfae veliicle was transport veldcle by placing on record the pennit issued by the Transport Authority that the Insiirauce Coinpauy was hcld liable. 25. Hdwever, ia the present case, fhe finding of fact arrived at that the velucte in question was not proved to be a goods vehicle is not correct. The Regional Transport Officer, in his deposition, slated that the veliicle in question was a goods.vehicle." Besidcs ftie above, section 66 of fhe Motor Vehicles Act, 1988 provides for necessily fer permits which js quoted below: "66. Necessity for pennits.—(1)No owner of a niotor velucle shall use or permit the use ofthe vehicle as a traiisport vebicle iu aay pubUc place whefher or not sucli vehicle is actuaUy carrying aay passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Aufhority or any prescribed authorily authorizing him the use of fhe vehicle ia fhat place ia the maaner ia which fhe vehicle is beiag used: Provided that a sta^e carriage pemut sbaU, subject to aay conditions tbat niay be spccified in the permit, autborize fhe use of fhe vehiclc as a contract camage: Provided furfher fhat a stage carriage permit inay, subject to auy conditlons that raay be specified in ^^ the permit, authorize the use of the velucle as a goods carriage eifher when canying passeugers or nofc Providcd also fhat a goods carriage permit shall, subject to any conditions that inay be specified ia the permit, aufhorize fhe holder to use the vehicle for the carriage of goods for or in connection wifh a trade or business carried on by him. (2) The holder of a goods camaf,e permit may use the vehicle, for the drawiag of any trailer or semi- trailer not owned toy hun, subject to such conditious as xnay be prescribed; (provided tbat the holder of a permit of aay articulated vehicle may use the priine inover of that articuJated vehicle for any other seiiu-trailor.] (3) The provisioas of sub-section (l) shall not apply - (aj to any transport vetucle owned by fhe Central Govenunent or a State Govenunent and used for Govemiaent purposes uncoiinected with any commercial enterprise; (b) to any traasport vehicle owncd by a local authority or by a person actmg under coutract with a local authonty and used solely fbr road cleansing, road waterit^ or conservancy purposes; (c) to any transport veluclc used solely for police, fa-e brigade or ainbulaace piirposes; (d) to aay traasport vebicle used solely for fhe conveyance of corpses aad fhe moumers accoinpanymg fhe corpses; (e) to any tTansport vehicle used for towiag a disabled vehicle or for reinoving goods STOIU a disabled veliicle to a place ofsafety; (f) to any transport vehicle used fbr aay other public purpose as inay be prescribed by the State Goverameat in this behalf; (^ to auy transport vehicle used by a person who inanufactures or deals ia motor vehicles or builds bodics for attactanent to chassis, solely for such purposes and ia accordance with such conditk»ns as the Central Goverrunent may, by aott&cation, in fhe OfiBciaI Gazette, specify itt this behatf; (h) Clause (h) omitted by Act 26 of 2000 w.e.f. 11,8.2000 (i) To any goods vehicle, the gross vehicle wei^it of whlch does not exceed 3,000 kllograins; (]) Subject to such conditions as the Central Govermnent may, by notification ia fhe OfBcial Gazette, specify, to auy transport vehicle purchased in one State aad proceediug to a place, situated iu fhat State or iu aay ofher State, wifhout canying any passenger or goods; (k) To any transport vehicle which has been teniporarily registered zuider section 43 whfle proceediag einpty to aay place for the purpose ofregistration ofthe vehicle; (1) Clause (1) omitted by Act 39 of 2001 w.c.f. 27.09.2001 (in) to aay traasport velucle Dfrhieh, owiag to flood, earfhquake or any other natural calamity, obstructiou on road, or tirdbreseeu circumstances, is required to be diverted through any other route, whether wifhia or outside the State, with a view to enablmg it to reach its destination; (u) to any transport vehicle used for such purposes as the Central or State Goverrunent niay, by order, specify; (o) to auy traasport velucle which is subject to a Iiire-purchase, lease or hypofhecation agreement and which owiag to fhe default ^^y.^ //"~~~. ~'it. S '&ssGSS.. t •xf" y y y s '^.. '^,?.,^ .^' 10 '^ (p) of the owner has been taken possession of by or on behalf of the person wifh whoui fhe owner has entered in.to such agreem.ent, to enable such inotor vehicle to reach ite destination; or to any traiisport vehicle wtule proceeding empiy to any place for purpose ofrepair. (4) Subject to fhe provisions of sub-section. (3), sub- section (1) shaU, iftheStete Govenuneatby rule niade under section 96-so prescribes, apply to any m.0tor vehicle adapted to cany inore than nine persons excluding the driver." A perusal of section 66 of the MVA shows that clause (i) of sub-section (3) fhereof provides ttiat the provisions of sub- section (l) shaU not apply to axiy goods vehicle fhe gross vehicle weight ofwluch does not exceed 3,000 kflograms. 10. A perusal of fhe Registration Certificate of the vetucle in. question shows that fhe UiUaden We^ht (U.L.W) was atlowed upto 1400 kilograms aad the Gross Vehicle Weight (G.V.W) was aBowed upto 2300 kilograms that te less than 3000 Kilograms. Therefore, in the l^ht of fhe above xnentioned facts and circumstances, fhe Claiias Tribunal . ought to have determincd fhe question as to whether fh.e vehicle was being used for transport piirpose aad if it was being used for conunercial purpose what was the actual weight atlowed under UnJaden Weight (ULW) and Gross Vehick We^ht (GVW) aad whether the gross wcight of the vehicte ia question did not exceed 3,000 kilogram.s aad whether fhe driver was having vaUd aad effective driving licriece and what were the circiuastauces at fhe tiiue of driving fhe vetucte. In fact, the Tribiinal should Iiave 11 conducted au enquiry as provided ia Section 168 of the Motor Vehicles Act 1988 aud Riile 226 of the C.G. Motor Vehicles Riilcs, 1994 but it has failed to conduct any enquuy on the above points. 11. It has been provided iu Rule 226 of C.G. Motor Vehiclcs Rules, 1994 that the Claiins Tribunal shaU obtaia whatever infonnation and documents wluch niay be found necessary fium. the police, inedical and other authorities and proceed to award the claun whefher fhe parties who were given notice, appear or not, on the appoiated date. Further we caaaot igaore fh.e provisions ofsection 168 offhe Motor Vehicles Act which provides that ou receipt of an application for coinpensation inade u/s 166, the Claims Tribunal shaU after giving the pardes (iacludiag the iasiurer) aa opportuuity of benag heard, hold aa inquuy into fhe claua and subject to the provisions of section 162 niay make an award determinmg fhe amount of coBipensationwhich appears to it to be just 12. The Insurance Coinpany has not been provided adequate opportuiuty when an application was moved for calting the witaesses froin the office of R.T.O. aad rejected the application vide order dated 20th July, 2010. 13. In view of the above, facts and circumstaaces, we are of the opiaiou fhat fhe inatter reqtures reconsideration at the cnd ofthe Tribiuial. Thereforc, we allow fhese appeals ia part, set aside the impugued award dated 16.08.2010 aad renut the uiatters back to the Tribuxial for decision afi-esh ia light of the observations made hereinabove. Needless to mention ^•ViS. 12 Rao that the parties shall be aUowed to adduce further evidence, amend the pleadings, file documents or verify fhe docuinents etc., already fUed aad fhereadter the claim petition shaU be decided on inerits aflter conductnig the enquiry, at fhe earliest The pardes shall appear before the tnal Court on 10th of May, 2011. The records of fhe Tribunal shall be sent back forthwith. 14. Siuce the appeals are directed to be renutted back, the cross objections filed by the clauuaat shaU stand disposed ofwith liberty to raise the plea of enlianceinent before the C]auas Tnbunal. No order as to cost(s). Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge 4-1