FA/310320/2000 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 3103 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NEW INDIA ASSURANCE CO. LTD. - Appellant(s) Versus PANKAJSINH NATWARLAL SHAH & 2 - Defendant(s) ========================================================= Appearance : MR SANDIP C SHAH for Appellant(s) : 1, MR AM PAREKH for Defendant(s) : 1, RULE SERVED for Defendant(s) : 2, MR ZUBIN F BHARDA for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 11/11/2008 ORAL JUDGMENT 1. Heard learned Advocate Mr. Sandip C. Shah for appellant Insurance Co., learned Advocate Mr. AM Parekh for respondent no. 1 claimant and learned Advocate Mr. Zubin F. Bharda for respondent No.3 FA/310320/2000 2/17 JUDGMENT – owner. 2. By filing this appeal, appellant insurance company has challenged award made by Claims Tribunal, Himatnagar in MACP NO. 474 of 1990 dated 30th June, 2000 wherein claims tribunal has awarded compensation of Rs.1,00,000.00 in favour of respondent claimant with interest thereon at rate of 12 per cent per annum from date of application till date of realization. 3. Two claim petitions had arisen out of same vehicular accident which had taken place on 12.4.1990 at about 2.00 (noon) near sim of village Ujadia in between Dhansura – Vadagam village due to rash and negligent driving of truck driver of truck bearing No. GRN-5931. Applicants in MACP NO. 508 of 1990 have claimed compensation of Rs.1,50,000.00 for death of deceased Prabhatsinh son of applicant NO.1 and brother of applicant no.2 i.e. Minor brother Kanusinh and claimant in MACP No. 474 of 1990 who has claimed compensation of Rs.1,00,000/- against all opponents. 4. First appeal No. 3104 of 2000 arising from same award in relation to MACP NO. 508 of 1990 has been dismissed by this Court on 16th April, 2008 in absence of advocate for appellant and, thereafter, said appeal has not been restored by this court. 5. Learned Advocate Mr. Sandip C. Shah for appellant has raised contention before this court while challenging award in question that at the time of accident, driver was not having valid licence to drive vehicle as transport vehicle but he was having licence to drive Light Motor Vehicle which was not authorizing him to drive Medium Goods Vehicle and vehicle in question was registered as Medium Goods Vehicle and, therefore, according to him, driver of offending truck was not possessing valid licence to drive said vehicle at the time of accident and, therefore, insurance company is not liable to pay compensation to respondents claimants. He also submitted that the clerk from RTO Office was examined by Insurance Co. for proving that in driving licence, there is no endorsement made to permit driver to drive transport vehicle but FA/310320/2000 3/17 JUDGMENT that aspect was not properly considered by claims tribunal. According to him, claims tribunal has committed gross error in coming to conclusion that the driver was having legal and valid driving licence to drive vehicle in question. Second contention raised by learned Advocate Mr. Shah while challenging award in question is that claims tribunal has committed an error in observing that under policy Exh. 78, extra premium of Rs.16/- was paid towards non fare paying passenger. According to him, such conclusion drawn by claims tribunal is factually incorrect. As per his submission, premium which was paid by insured was not covering non fare passenger and whatever premium was paid was covering risk of liability to public risk and liability of driver-cleaner IMT Rs.16 and Rs.48/- is for employers' labourers and Rs.100/- is liability to Third Party Property Damage, therefore, according to him, claims tribunal has committed gross error in understanding terms and conditions incorporated in policy of insurance and, therefore, according to him, risk of deceased was not covered under the policy and insured has not paid any additional amount of premium for the deceased and, therefore, claims tribunal has committed gross error in not exonerating appellant insurance company from liability to pay compensation. Except these contentions, no other contention was raised bylearned Advocate Mr. Sandip Shah before this Court while challenging award in question. 6. Learned Advocate Mr. AM Parekh appearing for respondent claimant has, while supporting award in question, submitted that claims tribunal has rightly examined matter in accordance with law and has not committed any error in directing insurance company to pay compensation to claimant by indemnifying insured. 7. Learned Advocate Mr.Bharda for respondent owner has also submitted that the claims tribunal has rightly examined matter in accordance with law and has not committed any error in directing insurance company to pay compensation to claimant by indemnifying insured. FA/310320/2000 4/17 JUDGMENT 8. I have considered submissions made by learned Advocates for parties. I have also perused award in question. I have also considered facts of this case that accident which had taken place on 12.4.1990 at about 2.00 (noon) near sim of village Ujadia in between Dhansura – Vadagam village due to rash and negligent driving of truck driver of truck bearing No. GRN-5931. Written statement was filed by insurance company before claims tribunal denying averments made in claim petition vide Exh. 13 and 20. In para 5, issues were framed by claims tribunal in both claim petitions. Issue no. 1 was decided by claims tribunal in affirmative by holding that the driver of offending truck was negligent in driving truck. In respect of finding recorded by claims tribunal on issue No.1, no submission has been made by learned Advocate Shri Sandip C. Shah and, therefore, it is not necessary to discuss said issue of negligence. 9. Claims tribunal has examined issue of quantum in claim petition no. 474 of 1990 and accordingly considering income of deceased Rs.800.00 per month with future prospects which comes to Rs.2400 and 50% thereof would come to Rs.1200.00 and thereafter deducted 1/3rd therefrom towards personal expenditure and held that dependency would come to Rs.800.00 x 12 = Rs.9,600.00 and thereafter, applied multiplier of 15 and held that claimant is entitled for compensation of Rs.1,44,000.00 plus Rs.10,000.00 towards loss of expectation of life and Rs.10000.00 towards consortium and Rs. 2500/- towards funeral expenses but as claim made by claimant for Rs.1,00,000.00 alone, claims tribunal awarded Rs.1,00,000.00 alone. 10.Question of liability was examined by claims tribunal in para 11 of award. Both learned advocates were relying upon various decisions in support of their contentions before claims tribunal as referred to by claims tribunal in para 11. 11.I have considered first contention raised by learned Advocate Mr.Shah that at relevant time when accident had taken place, driver of offending truck was not having legal and valid FA/310320/2000 5/17 JUDGMENT driving licence to drive medium transport vehicle and licence possessed by driver was not authorizing him to drive medium goods vehicle. Clerk from RTO as well as officer of insurance company both were examined by insurance company to clarify terms and conditions of insurance policy. Contention raised by learned Advocate Mr. Shah that vehicle in question was Medium Goods Vehicle for which driver was not possessing valid driving licence has been recently examined by apex court in case of NATIONAL INSURANCE CO. LTD. V. ANNAPPA IRAPPA NESARIA AND OTHERS, 2008 ACJ Vol.2, page no. 721.In said decision, apex court has considered question that driver had licence to drive 'light motor vehicle' but he was driving a van which had a goods carriage permit. Insurance Co. in said decision seeks to avoid its liability on ground that driver did not possess an effective licence to drive a transport vehicle. Claims Tribunal held that driver was authorized to drive vehicle as unladen weight of the vehicle is less tham 7500 kg. High Court not accepted contention of insurance company that it has no liability on the ground that there is violation of terms and conditions of policy. It was the contention before the Supreme Court that High Court failed to consider that light motor vehicle cannot be a transport vehicle. Transport vehicle has now been substituted for medium goods vehicle and heavy goods vehicle in form 4 but light motor vehicle continued to cover both, light passenger carriage vehicle and light goods carriage vehicle. Question was considered by apex court whether a driver who had a valid licence to drive a light motor vehicle was authorized to drive a light goods vehicle as well and it was held that yes, insurance company is liable. Relevant observations made by apex court in para 10 to 16 are reproduced as under: “9. The Motor Vehicles Act, 1988, which was enacted to consolidate and amend the law relating to motor vehicles, is a complete code. 10. Section 2 of the Act provides for interpretation of the terms contained herein. It employs the words unless the FA/310320/2000 6/17 JUDGMENT context otherwise requires. Section 2(16) of the Act defines heavy goods vehicle to mean any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms. 11. Section 2(21) defines light motor vehicle and Section and section 2(23) defines medium goods vehicle as under: “(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. (23) Medium goods vehicle means any goods carriage other than a light motor vehicle or a heavy goods vehicle. Section 3 of the Act is in the following terms: “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 authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than a motorcab 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. 12. The Central Government has framed Rules known as The Central Motor Vehicles Rules, 1989. 13. The word Form has been defined in Rule 2(e) 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. Rule 14 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 G.S.R. 221(E) with effect from 28.3.2001.Before the amendment in 2001, the entries medium good 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 2(21) and, FA/310320/2000 7/17 JUDGMENT therefore, in view of the provision, as then existed, it included a light transport vehicle. Form 6 provides for the manner in which the licence is to be granted, the relevant portion whereof read as under: Authorisation to drive transport vehicle Number................... Date........ Authorised to drive transport vehicle with effect from....... 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 authorised to drive a light goods vehicle as well. ” 12.Learned Advocate Mr. Shah for the appellant has relied upon the apex court decision in case of NEW INDIA ASSURANCE COMPANY LIMITED VERSUS ROSHANBEN RAHEMANSHA FAKIR reported in (2008) 8 SCC 253 and submitted that decision in National Insurance Co. Ltd. v. Annappa Irappa Nesaria (supra) was considered by apex court in aforesaid decision. He submitted that in Roshanben's case (supra), driver was not holding appropriate licence for the correct kind/class of vehicle which caused the accident. He submitted that the accident was caused by goods transport vehicle (autorickshaw delivery van). Driver of vehicle was not possessing valid licence to drive a transport vehicle, hence, it was held that the insurer is not liable. Relying upon the aforesaid two decisions of apex court and facts of this case and also in view of the RC Book which is produced wherein vehicle is described as non light but medium goods vehicle, FA/310320/2000 8/17 JUDGMENT contention raised by learned Advocate Mr. Shah is that as the driver was not having licence to drive medium goods vehicle, insurance company would not be liable. These were the facts before the claims tribunal that on the date of accident, driver was not having licence to drive medium goodsvehicle which has been answered by apex court in case of National Insurance Co. Ltd. v. Annappa Irappa Nesaria (supra) by holding that from what has been noticed herein before, 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 authorised to drive a light goods vehicle as well. In view of this factual aspect, contention raised by learned Advocate Mr. Shah cannot be accepted in view of apex court decision in case of Annappa Irappa Nesaria (supra) and also because driver was having licence to drive light motor vehicle as defined under sec. 2(21) and, therefore, in view of the provisions as then existed, it includes light transport vehicle. Light motor vehicle is defined in section 2(21) and, therefore, in view of the provisions as then existed, it included a light transport vehicle. Form 6 provides for the manner in which the licence is to be granted, the relevant portion whereof reads as under: “Authorization to drive transport vehicle Number................... Date........ Authorised to drive transport vehicle with effect from....... Badge number ......... Signature...................... ............................... Designation of the licensing authority Name and designation of their authority who conducted the driving test.” FA/310320/2000 9/17 JUDGMENT 12. As observed above, Apex Court has considered that rule 14 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. It was also observed by apex court that Clause (e) provides for Transport vehicle which has been substituted by G.S.R. 221(E) with effect from 28.3.2001 and before the amendment in 2001, the entries medium good vehicle and heavy goods vehicle existed which have been substituted by transport vehicle. As noticed hereinbefore,Light Motor Vehicles also found place therein. Therefore, considering paragraph 14 of decision in case of Annappa Irappa Nesaria's case (supra) and looking to the date of accident in case before hand 12th April, 1990 covering period prior to the amendment which includes light motor vehicle which found place herein. In entries, medium goods vehicle and heavy goods vehicle both were existed prior to amendment. Aforesaid rule came to be amended with effect from 20th March, 2001 and, therefore, considering decision of apex court in Annappa Irappa Nesaria(supra), according to my opinion, contention raised by learned Advocate Mr.Shah cannot be accepted and in case of Roshanben reported in (2008) 8 SCC 253, earlier decision though referred, it has not been distinguished or over ruled by apex court. In Roshanben's case (supra), decision in case of Annappa Irappa (supra) has merely been referred to and therefore, in view of the facts of the present case, decision of apex court in Roshanben's case is not applicable but decision of apex court in Annappa Irappa is applicable in view of facts of the present case. 13.As regards second contention raised by learned Advocate Mr. Shah that premium which was paid by insured was not covering non fare passenger and whatever premium was paid was covering risk of liability to public risk and liability of driver-cleaner IMT Rs.16 and Rs.48/- is for employers' labourers and Rs.100/- is the liability to Third Party Property Damage, and, therefore, insurance company ought not to have been held liable to pay compensation, from FA/310320/2000 10/17 JUDGMENT perusal of award, it appears that before claims tribunal, insurance company examined Chetanbhai Danumal Thakkar, Branch Manager of Insurance Co. vide Exh. 79 and Jagmal Manaji Kharadi, Junior Clerk, RTO Office vide Exh. 65. Claims tribunal discussed this aspect in para 11 which is quoted as under: “11. LIABILITY: Shri AM Modasiya, the learned Advocate for the applicants has relied on the decision of the Hon'ble Apex Court reported in AIR 2000 SC 235 so as to counter the submissions of Shri Malek that the Insurance Co. is not liable as the persons travelling were gratuitous passengers. The Ld. Advocate for claimant has relied on the decisions enumerated herein below: (1) AIR 2000 SC 235, (2) AIR 2000 SC 238 (3) ACJ 1987 108 (4) 1987 ACJ 1 1 (5) 1992 ACJ 84 (6) 1984 ACJ 467 (7) 1984 ACJ (8) 2000 (1) GLR 451 (9) 2000(1) GLR 454 Further, he has even relied on the decision of Gujarat High Court reported in (1) 2000 GLH 451, so as to contend that the driver of the vehicle was having licence and truck being light motor vehicle, no such endorsement was necessary. The learned Advocate has also relied on the decision of apex court of AIR 1999 SC 3181 in the case of A.G. Maratha versus Oriental Insurance CO. Ltd. As against this, Shri AM Malek, learned Advocate for the respondent – insurance company, has relied on the decisions enumerated as below: (1)1993 (2) GLH 681 (2)1993 (2) GLH 852 (3)1996 (3) GLR 136 (4)1994 (2) GLH 407 This is a claim petition claiming compensation under the provisions of section 166 MV Act (New). Considering and scanning the Scheme of FA/310320/2000 11/17 JUDGMENT the MV Act, for payment of compensation, it only provides machinery by constituting tribunal. It provides for compulsory liable to satisfy the award that may be passed against the assured owner of the vehicle. Therefore, so far as MV Act is concerned, it only provides for compulsory insurance and compulsory liability of insurance company to satisfy award in the event the owner, that is, assured is held liable to pay compensation. However, it does not provide as to how and when the assured becomes liable to pay compensation and for this, one has to fall back on the common law principles of tortuous liability, therefore, in every case, the tribunal has to find out as to whether the owner-assured can be held liable on the principle of tortuous liability. It is thus held that the insurance company can be called upon to pay compensation on the basis of the contract of indemnity which has been entered between insurance company, and owner of the vehicle, who in turn, is vicariously liable. It is in this back ground that we have to analyse the evidence led in this case. We have to find out as to whether there was actionable negligence on the part of the truck driver and thereby the owner is vicariously liable. Ultimately, statutory liability would be on the part of the insurance company of the vehicle involved in the accident. The learned Advocate for the insurance company has contended that the insurance company would not become liable to indemnify the claimants and has also relied on the testimony of Shri Chetan Danomal Thakkar, who is Branch Manager of New India Assurance Company Ltd., who has deposed at Exh.79 wherein he has stated that the truck No. GRN 5931 was insured with the insurance company. However, no extra premium was gratitous passenger or fare paying passenger was paid and no such risk came to be covered. The contention of Shri Malek, learned Advocate for the respondent insurance company would not become liable to pay any compensation as the deceased of claim petition no. 474/90 was a gratuitous passenger and/or a passenger who was travelling FA/310320/2000 12/17 JUDGMENT for hire or reward whereas the deceased of claim petition no. 508/90 was the conductor and therefore, will have to claim under Workmen Compensation Act. Shri Malek has relied on the RC Book which is produced and wherein the vehicle is described as not light but medium motor vehicle and therefore as a driver did not have a licence to drive medium motor vehicle, the insurance company would not be liable. The driver has not even produced whether the licence of which year and Gujarat Motor Vehicles Rules, 18(1)(2)(3) and (5) are being relied on. The driver has not given the test as specified by the provisions of MV Rules to qualify to drive transport vehicle test. All these arguments of Shri Malek are considered by recent pronouncement of the Apex Court and the decisions cited by Shri A.M.Modasiya and Shri H.A.Shah, the learned advocates for the applicants would go to show that the Insurance Co. cannot avoid its liability as the driver had a valid licence. The vehicle did not wight more than what is prescribed for light motor vehicle and therefore, the decision of the Apex Court in the case of A.G.Maratha v. Original Insurance Co. Ltd., would squarely answer the contention of Shri Malek that the vehicle was being driven by a person authorized to driver. Thus, the said contention cannot be accepted. The driver had a valid driving licence driving the vehicle for more than a decade before the accident occurred, the insurance Co., cannot now take the stand that the terms of policy are breached. The next contention that the deceased passenger of Claim Petition No.474/90 was a passenger for hire or reward or a gratuitous passenger and no extra premium was paid is also met with the policy itself, wherein; opponent No.2, the insured has paid Rs.48/- for driver – cleaner, G-labour and under the head of LL to non fare paying passenger Rs.16/- has been added and total of all is additional sum of Rs.404/- under the had of A + B. Thus, it cannot be said that the insurance policy in terms of policy No.3 for FA/310320/2000 13/17 JUDGMENT employees wherein it is specified that the employee would be covered. Thus, in light of the decision of the Apex Court and the terms of policy, the Insurance Co. cannot avoid its liability and hence, would be liability to indemnify the insured who in turn is liable to indemnify the heirs of the deceased i.e. Claimants. The decisions cited by Shri Malek are distinguishable in light of the discussion hereinabove made and the latest pronouncement of Apex Court obliges this Tribunal to take the view that the Insurance Co. would be liable to indemnify the claimants.” 12.In National Insurance Co. Ltd. V. Cholleti Bharatamma and others reported in 2008 ACJ 268, section 147 (10 of MV Act prior to its amendment in 1994 was considered. In said decision, in para 9, 10 and 11, apex court observed as under: “ 9. Correctness of the