EKIEEE zili‘gRT 5514‘ €E§EA$TE3$§EEE§ A? BEE;&%?UR ME$€L $FE3EAL ?€0. 3g§$9®§h 2€ £FE$$£3§ET Di11€$h Kama; Duhcy {)WNE'R ‘E'JRéEEJS 1 Vish‘aaxmih Pfajapati. Egg M1613. gawmmmwsé ammmm-x 3am :wm Jmwaamw w: ot«Q5—2%Q7 A w /n Dhirendra Mishra "\ Judge t f ' f N; Sd ”"” i gGH COURT OF CHEATTISGARH AT BILASPU§§ MISC. APPEAL No. 325/2004 o$peiisaticm \ ; c APPELLANT OWI‘IER:§ / ‘ r - S} Dinesh o. Tarachand Kama Dubey, Dubey,_ _ ’ 1‘ - v , agad 30 yeayas, Rio. Namnapara, Ambikapur {QGJ ~ v v , H E _ , VERSUS r , - 7 RESPONDEENTS; a CLAIMANT; 1 -' . , - : 1. , ‘ Sf Vishwanath o. Jageshwar Prajapati, Prajapatl, . . Pohce , . ‘ - , , r Detcctar (Head COn'stable) Agéd, years, District R/o. Godhanpur Ambikapur, Sarguja (C.G.) / DRIVER T ‘ 2. Mohd. ' Firoz ' ' W V _ . . Sahabuddin Ansari, Ansax’i,‘ Drivar _ 'S/o. Joor, District PPS. and Tahsil , Surajpur, garguja (C.G.) i Idsufer ‘ ‘ 3. United “India )\‘ f 1- ' V ‘ ' ‘ Throligh' Branch, Insurance Managw; :Com. ,Branch‘ Ltdy ‘: ‘ District Rammandjr Sarguja (QGJ Road, ‘ r Alnbjka§un§ i I ,r a Present:- ~‘ _ , ‘ ’ " Mr. Mr. D.N Dashrath _P1‘ajapati, Gupta, coumsel counsel for for the the appallant/ respondmts owner. No. 3. J'U D G MEE N T ,i - - . Dhirendra'Mishra :- J [Dehvered v on " a$.“§_§} ‘ 3v 2007} . V V ‘ This 'miséellaneous appeal is directedJagainst the award datsd it g Ascidents 241 1.2003 (11311115 passed Tribunal iii Claim'Case (FTC), N0.H2f2‘003 by II Additional'Moto: I Rsi‘.43,315]¥ ‘lias been \ awarded SurajpurWWheréby‘ a’ sum‘ , 9f Ngljclaimant and liability has _ in favour 0f trespQndeut V‘ _’ k :1Vo%.:3jitisureiz apiwllant/ own‘m? lilas heen and] exonerated respondent n‘om No.2/ been, the driver fastened and respondent 011 the 2 :whereas at the tlme of acc1dent 12 t0 13 passenger were travelmg byx -’ the Jeep The Jeep was a prrvate vehlcle Whrch was berng used as taxr V, V, for carryrng passengers by chargng frerght and wrth these hndJngs 1t f V has been held that there was a breach of condltrons of Jnsurance ’ _ ’ uhr by duvet Flroz AnSan resprmdent Ni: 2 IaShly a11d negligently a11d the same wag overtmned as a lesult of Winch he suStaJned guevouS mjulles and became dlsabled Wlth these pleadnlge he Clalmed a sum of Rs 2 99 000/ by wax of damages 3. The appellant and the drlver m then Jmnt reply demed the allegatlons 111 the clalm petltmn and elated that the vehlcle wag msuled by respondent NO 3 1 e Umted lucha Insurance CO Ltd. for the relevant tune and habihty, 1f any 15 to be borne by the Insurer 4, Respondent No 3/ meme: n1 1t3 wr1tten statement stated that 12 to 13 passengers Were traveling m a p11vate jeep Wlnch could not be used for can Tag passengers the vehrele did not have valid registration m pernnt and the Insurance was only for prlvate purpoaes Respondent No 2] drrver drd not have vahd and etfeetrve drrvrng heence to d11ve the taxr and thus there was a breach of Insurance pohcy therefor e the clann ls not mamtalnable agarnst the melll"8I1CE C 0mpally 5. On the pleadlngs of the respectrve partres 1ssues were named and the Trlbunal passed the Impugned award by reoor (1mg a hnchng that the vehrcle was bemg dnven rashly and neghgently as a result of > ; Wlnoh clamant sustamed grevous mjuries and he 1s entrtled for a sum of Rs 4 315,! Wrth mterest at the rate of 7% per annurn horn the date of apphrauon Lrablhtv was fastened on the appellant and respondent No 9 However respondent No S/Jnsurance rompany was exonerated bv recordrng a nndrng that drlver Frcoz Ansau had drmng ht ence for dnvmg hght motor velncle and hrs hoence drd not have the stanlprng of PSV (Publrc Sermce Vehrcle) which was necessary for drmng a transport vehrcle and. the oapauty of the vehicle was only 9 passengers IncludJng the dnver and the cleaner _ py ’2 ¢ 6. Laarned voun’sel fm the appellant submltted that the appellant ‘ had obtaJned pelmrt fo1 Mam—cab for the above route, the vehicle was meured W1th the msurante campany/ respondent No 3 as passengel carrymg vehlcle for canymg 9 passengels 111c1ud111g the dnver and the cleaner. 7. Relymg upon the Judgment 111 the mattel 0f B V Nagg aiu Vs Mte Onental Insurance Co Ltd eported 1n 19Q6 9: C C iM A C I, ‘ 382 1t 1e algued that the msurer eanlmt deny the Clam} tar compensatwn on gound of breach of condluon of msurance pohcy 0n account of vehlrle canymg pasaengem 1n excess of permltted lJmlt as the alleged breach 13 not of such a fumdamental natule that . insured should, in all event, be denied indemnification of compexisation. 8. Further relymg upon the Judgment 111 the matter of National Insurance Co Ltd Vs Swaran Singh and others reported 1n @6041 3 SCC 297, 1t rs contended that merely because the dlmng hcence of r respondentNo 9 was not stamped mth P S V cannot be a ground to :the Insurer to av01d- 1ts halnhty on ground of teclnncal breach ’ot policy condition‘s‘ Cone erm'ng driving lie ence. ' 9. On the other hand. learned counsel for the respendent ~V No 3} msurer subrmtted that adrmttedly, the vehlcle was bemg drlven by respondent No 2/ drlver Fn‘oz Anaarl who had L M V licence whereae the vehlcle was bang used as a transpmt vehlcle It was msured as a bus to be used as pubhr, sermce velncle (PSV) and 1t was nlwng m the route on the bas1s of Max—cab permlt However 1n these cucumstances endorsement of transport vehlclef pubhc service vehtcle (PSV) 1n the drnnng hrenoe of respondent No 9fd11ve1 was V necessary as per form p1 escrlbed under Sectlon 10 of the Act Smve; ‘ r the dlwea was drnnng the vehtole as per mstructlons of the appellant who dld not have vahd and enectlve hcence the T‘rlbunal has ughtly exonerated the msurel hem the hablhty of satlsfyjng the awald 1’0. Rehanve rs placed on the Judgnent 1n the matter of Natlonal: Insurance Co Ltd Vs Kusum Rai and others reported 1n 2006*! i Acuscy 4 V l1. I hévc heard. 1€a1n€d counsel for the respsctive patties and perused the material on record. / 12. The short question involved for adjudication of this appeal is ‘whether the Tribunal was jlistiiied in exonefating the respondent No,3/ insurer from satisfying the award and saddh'ng the insured and the driver With the liability of payment of compensation?’ 13,. It is not 1n dispute that the vehicle involized was a commercial vehicle and the same was plying on the permit of Maxi-cab in the route prescribed. The capacity for which the vehicle is insured was 9 passengers including the driver and the cleaner and at the relevant time 12 to 13 passengers were boarding the vehicle. It is also not in dispute that driver had a driving licence which authorized him to drive LMV and it did not contain endorsement of transport vehicle/Rail. 14: \As already pointed out in the foregoing paragraphs, the Tribunal has arrived at the conclusmn that the vehicle in question was being run in breach of conditions of insuiance policy on the ground () that the driver did not have valid and eEective drivmg licence to :drivecominercial vehicle as he had only L.M.V. licence- whereas the vehicle was a commercial bus which was being used for carrying passengeis, and (ii) that the capaCity for which the vehicle was registeied was 9 and at the time of acc1dent 12 to 13 passengers were traveling in the bus. r V 15. V The Hon’ble Supreme Court in the matter of National Insurance Co. Ltd. Vs. Swa‘ran Singh (supra) hasheld thus: I “When the person has been granted licence far one type of ‘7 vehicle but at the relevant &me he‘wasdriving anotherkty’pe; of vehicle > i V 88. Section 10 of the Act prov1des for forms and contents of licences to drive V The licence has to be granted in they, prescribed form Thus, a licence to drive a light motoré e r a vehicla would emitle th€ holdtr them to drive the vehicla falhng W1tlml that class 01 day nptmn Sectlon 3 of the Ad ca$t$ an obhgatlon on a dllvm m hold‘ 89. n e§ectiV€ chiming hcence f0}: tha type of vehlcle whlch h€ ultends to d1 e Sectlon 10 of the Act enables the Cantral Government to pxescrlbe forms of dnvmg hcences far various categones of vehlcles mennoned 1n sub secuOn (2) of the said section. The vanous types of velucles descnbed fm whlch a d11ve1 mav obtam a hcence f01 one or more of them ar (a) motorcycle w1thout gem (b) motoxtyole With gem, {0) invalid. carriage (d) hght motel vehlcle} (e) tlanspmt vehlole, (i) load rollel, and (g} moto1 vehlcle of othe: specmed (lescnptxon. The dehmtlon clause 1n Section 2 of the Act dehnes various categones of vehlcles whlch are oovereti in broad tyoes meritioned 1'11 sub—section (2) of Section 10 They are “goods carnage , ‘heavy goods vehlole" “heavv oassenger motol velncle” “mvahd ealnage , ‘fhght motor vehlole ‘maxt—oab" “medlum goods vehlcle , tmedium passenger motor vehlole “motor cab , :‘f‘motorcyele" “omnibus”, “mutate sermoe vehlcle _"semi— trail ” “tourrst Vehlcle" “nactor ‘traJler’ and ‘transpmt vehicle”. In clamls for compensatron for accidents Vanous kinds of breaches Wlth regard to the condlttons of dnvmg hcences arrse for (onslderatton before the Trrbunal as a “ ; person possessmg a dirvmg hoenoe for “motorcycle Without gear , (31c may be drrvxng a velncle) for which he-has no ‘licence Cases may also arlse Where a holder. of driving hcenoe for ‘hght motor velncle 1s found to be drim‘ng a “mam cab” “motor ca " 01 “ommbus for which he has no honece In each case on emdence led before the Thbunal a deCLSLon has to be taken whether the fact of the drive: t ' V possessing licence for one type of velncle but found driving " another type of yehrcle was the mam or contnbutory cause of ; accrclent Ij‘on facts 1t is found that the accrdemt was caused 1 V ‘ gsolely because of some other unforeseen or iat’eivehing i I causes like mechanical features and smalar oth having no nexus with the driver not possessmg r a i i; , erlyh i ’ e. ‘V 6 afllcence the immer will not be ailowed to avoid its liability merely far techmcai bleach 0f conditmns cmweming dn‘ving licence. " ‘ f tha vehic1€ Was having the Maxi—cab. Defenm 9f tlia ent was that the driver was an 6xpa1‘ien6ed driver with long experience of driving, on the data e wae driving the vehicle very cautiously with a 16. 1n t116 i115ta11t Case alsa, dxiver o of L.l\-{_LV. whemas he wag driving a d the drivar in their Written statem iicenc e owner an of accident also h ever, because of failure of the steering, the moderate sneed, 110w vehicle derailed and plunged in a small trench. 17 . On the basis 0f pleadings of the respective parties, the Tribunal “whether the accident occurred‘because of failure E framed issue No of the steering? and held that 1t has not been proved. From the 1 r1 0rd 1t is clear that the appellant and d they have p emdenee available on rec statement that steering failure 1s the cause 0t accident an stated the: seine on oath insurer in the cross—examinatio 1n their written ‘ respondent No.2/dr1ver have categorically stated and it has not been challenged by the n of dri‘uf'er Firoz Ansari. However, the gainSt the appellant and respondent gatton by the police and as per inspection report of EX‘AI‘63, there was horn other defects, it occurred bec 3 that tyrodnlend in the inspection report of ExAf 6 was broken and that steering inspection report (EXA failure has not been prove i 3 Tribunal N02 on has the decided gound this that issue the a vehicle was got. inspected during ; no steering failure therefore it is ause of failure of steeimg. Apart investi not proved that accident i was pointed out vehicle was completely damaged. in View of the f 63) the hnding of the Tribunal d, appears to be erroneous. l l8. Inythe matter of National Insurance Co. Ltd.‘Vs. Kusum Rai 1 E and others (supra) it has been held that Where the offending vehicle hit le and the driver liability of the factors and w as being used as a taXi and was a commercialv did not have valid insurance company visa it is obligatory on the par and edective licence, in that case, -i}is owner depends upon several l t t of the owner to take adequate care tosee c ‘ pt ctive diimng licence the owner 'that contend driver that had he valid has and no liability eEe to verify Validity of drivin nfée ; : é i I g llce 7 possessmi by drwer and Where the drlver was not posssssmg T116 _ _ vahd hrenw the 1113111 ance company 1s not hable to pay the clmm ed amaunt In tins Judgment also, law laid down by the Hon’ble ‘3up1sme Coult m the matter of Swalan Smgh (supra) hag been refen ed to “nth app1 oval 19. From‘; the evidence available 011 record I am of the considered mew that msurance eompan} has faJled t0 lead emdence that the fact of the duver pesaesamg 11v ence for one type of vehlcle but found dllvmg anothel type of vehlcle was the mam or contnbutory cause of a( mdent On the contrarv tram the facts 1t 13 observed that the possmlhty of the acrxdent because of bleakmg of tyrmdmeud _ resultmg 1r fallure of steelmg, cannot be 1uled tout and m these cualmstanr es the msurer (annot be allowed to avo1d 1ts ha’mhty mefely for technlcal breach of condltlons concexnmg d11vmg hcence. 20. So fa: as the second ground that at the relevant time 12 to 13 passengers were occupymg the vehicle Whlch was msuled fm {atrymg only 9 passengers mcludlng the d11ver and cleane 'L’ ju , r concerned the Hon’ble Apex Court m the matter of B V Nagara L {supra) WhJle dealmg mth Sectlons 149 and 147 of the Act 1t has x ; been held that whexe the velncle ls comprehenswely msured and the > policy of the msurance permltnng carrying 51X passengers and. the, e vehicle mvolved 1n the accrdent carrying rune passengers at the tune of acc1dent demal of the Insurer of clann f01 compensatlon on the ' ground of breach of condrtlon of thelmsurance pohcy on ar count of - vehicle carrymg passengers 1n excess of pelnntted l1m1t cannot be held to be justlhed because merely hftmg a passenger 01 two or even three 1n excess of number stipulated In pohcy could not be satd to be such a fundamental bleach that Insured should 1n ‘all events be . demed mdemmflcatlon of compensatlon 21 In tlns ease also msurance company has been exonerat d r, solely on the ground that some passengers 1n excess of pernntt " rapacrty were travehng 1n the Max1~cab however 1t 1s nobod 9 that th dent occurred because of tlns excess passenge ‘ ~ ‘ " v Q > ‘ ~ i I? ‘6' M d f ' y . e i 1 rs 8 sxcess- pa3$engers were travdjng, may not be a ground to exonorate tho insmfanco company from 3atisfying the awarfi. 22. In View of aforesaid discussion, the appeal stands allowed. The award impugned is modified to the exteot that along with appellant and respondent No. 2, respondent No; 3 shall also lie-liable for payment of compensation to respondent No. 1 jointly and. s Cral'y‘ Dhirendra Mishra k 5 V Judge l‘ , ,I’ l ‘ l Sd/— \ l