1 202 FA.801.00 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 801 OF 2000 The New India Assurance Co. Ltd. ... Appellant Versus Smt. Mandakini Shankarrao Dedgaonkar and ors. ... Respondents ­­­­­ Mr. S.M.Dange for the Appellant. Mr. M.A.Utgikar for the Respondent Nos.1 to 5. ­­­­­ CORAM : A.S.OKA, J. DATE : 26 th September, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the Appellant and the learned counsel appearing for Respondent Nos.1 to 5. 2 By this appeal, the Appellant, who is the Insurer of the offending vehicle has taken an exception to the judgment and award dated 30 th May, 2000 passed by the learned Member of the Motor Accident Claims Tribunal, Pune. 2 202 FA.801.00 3 The claim petition was filed by the Respondent Nos.1 to 6 claiming compensation under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the said Act”) on account of death of one Shankarrao. The accident occurred on 20 th February, 1993 near Ruby Hospital at Pune. At that time a TATA Tempo of TATA (407) make came in a high speed and gave a dash to the deceased. The deceased sustained serious injuries and after a period of twelve days, the deceased succumbed to the injuries. The Appellant is the Insurer of the Tata Tempo. The Respondent No.7 is the owner of the said TATA tempo. 4 The claim was contested by the Appellant by contending that the driver of the vehicle was not authorized to drive the transport vehicle as his licence was only to drive a light motor vehicle. An endorsement for driving the transport vehicle was obtained on 3 rd March, 1993. The contention is that there was a breach of terms and conditions of the policy and hence, the Appellant was not liable. However, there was no dispute regarding existence of the policy. 3 202 FA.801.00 5 The learned Member of the Tribunal proceeded to grant compensation of Rs.3,72,294/­ alongwith interest at the rate of 12% per annum. The learned Member of the Tribunal relied upon the decision of the Apex Court in the case of Ashok Gangadhar Maratha Vs. Oriental Insurance Company Limited [2000 ACJ 319]. The learned Member of the Tribunal found that unladen weight of the vehicle was 2260 Kgs and therefore, it was a light motor vehicle. The learned Judge observed that the driver had authority to drive a light motor vehicle. Therefore, the learned Judge held the Appellant as liable. 6 The learned counsel appearing for the Appellant submitted that the offending vehicle was admittedly a goods vehicle. He pointed out the document at Exhibit – 48, which shows that initially the driver – Dhananjay Namdev Jadhav was possessing a licence to drive light motor vehicle and he was authorized to drive a transport vehicle only with effect from 2 nd Mar, 1993. He, therefore, submitted that on the 4 202 FA.801.00 date of the accident, the driver was not authorized to drive the transport vehicle involved in the accident. He placed reliance on the decision of the Apex Court in the case of Oriental Insurance Company Limited Vs. Angad Kol and others [(2009) 11 SCC 356] and The New Assurance Company Limited Vs. Prabhu Lal [(2008) 1 Supreme Court Cases 696]. He submitted that the subsequent decisions have explained the view taken in the case of Ashok Gangadhar Maratha (supra) and in view of the said decisions, the case was clearly of a breach of terms and conditions of the policy. He submitted that the driver of the vehicle was a necessary party and non­ impleadment of the driver was fatal. 7 The learned counsel appearing for the original claimants relied upon the decision of the Apex Court in the case of Ashok Gangadhar Maratha (supra). He relied upon the decision of the Apex Court in the case of National Insurance Co. Ltd. Vs. Annappa Irappa Nesaria and others [2008 ACJ 721]. The learned counsel 5 202 FA.801.00 submitted that the said decision holds that a driver who has a valid licence to drive light motor vehicle was authorized to drive a light goods vehicle as well. Lastly, he submitted that even assuming that the Appellant has committed breach of terms and conditions of the policy, this is a fit case where the Appellant should be directed to pay compensation and thereafter, to recover the same from the Insured. 8 I have carefully considered the submissions. The certificate dated 3 rd August, 1993 produced by the claimants issued by the Regional Transport Office, Pune shows that the offending vehicle was TATA (407). Item No.9 of the said document records that the vehicle was classified as light a goods vehicle. The unladen weight of the vehicle was 2260 Kgs. It records that the vehicle was registered as light goods vehicle on 4 th January, 1993. 9 The document at Exhibit – 48 is the certificate issued by the Regional Transport Officer on 24 th February, 1993. The said certificate records that the driver – Dhananjay Namdev Jadhav was 6 202 FA.801.00 holding a licence to drive a light motor vehicle from 2 nd August, 1991 and that he was authorized to drive the light motor vehicle of transport category with effect from 2 nd March, 1993. Thus, on the date of the accident, the said Dhananjay was authorized only to drive a light motor vehicle of non­transport category. Only with effect from 2 nd March, 1993, that he was authorized to drive light motor vehicle (transport). The accident is of 20 th February, 1993. 10 The learned counsel appearing for the original claimants has relied upon Sub­Section (21) of Section 2 of the said Act, which defines the light motor vehicle to include a transport vehicle, the unladen weight of which does not exceed 7500 Kgs. In the present case, the unladen weight of the offending vehicle is 2260 Kgs. The learned counsel relied upon a decision of the Apex Court in the case of Ashok Gangadhar Maratha (supra). The decision in the case of Ashok Gangadhar Maratha (supra) was considered by the Apex Court in the case of The New Assurance Company Limited Vs. Prabhu Lal (supra). The Apex Court was dealing with a case arising out of a complaint filed 7 202 FA.801.00 under the Consumer Protection Act. In the accident, the vehicle involved was TATA (407), which is also the vehicle involved in the present accident. In paragraph No.21, the Apex Court made a reference to the judgment in the case of Ashok Gangadhar Maratha (supra). Paragraph No.21 of the said decision reads thus: “21. It was also submitted by the learned counsel that State Commission as also the National Commission, misunderstood Ashok Gangadhar. It is no doubt true that in Ashok Gangadhar the claim of the complainant was upheld by this Court. But it was because the relevant documentary evidence was not placed before the Authorities. This Court, therefore, held that since material documents were not produced by the Company, the complainant should not suffer and in absence of such evidence, the Insurance Company cannot be absolved of liability. But the ratio laid down in Ashok Gangadhar supports the case of the Insurance Company that if necessary documents are on record and they go to show that the licence issued in favour of the driver to ply a particular type of vehicle, he could not have plied other vehicle and the Insurance Company could not be held liable if there was breach of that condition. In the case on hand, all the documents were on record, contention was raised by the Insurance Company from the very beginning that the vehicle was a transport vehicle, which was driven by Ram Narain who was holding licence to ply only light motor vehicle. Hence, he could not have plied the vehicle in question, a finding was recorded in favour of the Insurance Company by the District Forum which had not been disturbed by the State Commission or by the National Commission and hence the complaint ought to have 8 202 FA.801.00 been dismissed.” Paragraph Nos.40 and 41 of the said decision reads thus: “40. It is no doubt true that in Ashok Gangadhar in spite of the fact that the driver was holding valid driving licence to ply light motor vehicle (LMV), this Court upheld the claim and ordered the Insurance Company to pay compensation. But, in our considered opinion, the learned counsel for the Insurance Company is right in submitting that it was because of the fact that there was neither pleading nor proof as regards the permit issued by the Transport Authority. In absence of pleading and proof, this Court held that, it could not be said that the driver had no valid licence to ply the vehicle which met with an accident and he could not be deprived of the compensation. This is clear if one reads para 11 of the judgment, which reads thus: "11. To reiterate, since a vehicle cannot be used as transport vehicle on a public road unless there is a permit issued by the Regional Transport Authority for that purpose, and since in the instant case there is neither a pleading to that effect by any party nor is there any permit on record, the vehicle in question would remain a light motor vehicle. The respondent also does not say that any permit was granted to the 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 carrying any goods and though it could be said to have been designed to be used as a transport vehicle or goods carrier, it cannot be so held on account of the statutory prohibition contained in Section 66 of the Act". (emphasis supplied) 9 202 FA.801.00 41. In our judgment, Ashok Gangadhar did not lay down that the driver holding licence to drive a light motor vehicle need not have an endorsement to drive transport vehicle and yet he can drive such vehicle. It was on the peculiar facts of the case, as the Insurance Company neither pleaded nor proved that the vehicle was transport vehicle by placing on record the permit issued by the Transport Authority that the Insurance Company was held liable.” (underline supplied) 11 Thus, in the subsequent judgment, the Apex Court held that the decision in the case of Ashok Gangadhar Maratha (supra) did not lay down that the driver holding a licence to drive a light motor vehicle need not have endorsement to drive a transport vehicle. 12 The learned counsel appearing for the claimants relied upon the observations made in the decision of the Apex Court in the case of National Insurance Co. Ltd. Vs. Annappa Irappa Nesaria and others (supra), which holds that a driver, who has a valid licence to drive a light motor vehicle was authorized to drive a light goods vehicle as well. The Apex Court in the said decision has considered the amendment effected on 28 th March, 2001 to the Central Motor Vehicles 10 202 FA.801.00 Rules, 1989. The said decision of the Apex Court came for consideration in the decision in the case of Oriental Insurance Company Limited Vs. Angad Kol and others (supra). In paragraph No. 22, the Apex Court made a reference to the said decision in the case of National Insurance Co. Ltd. Vs. Annappa Irappa Nesaria and others (supra). In paragraph No.23, the Apex Court made a reference to its earlier decision in the case of The New Assurance Company Limited Vs. Prabhu Lal (supra). In paragraph No.24, the Apex Court also considered its earlier decision in the case of Ashok Gangadhar Maratha (supra). On facts, in paragraph No.25, the Apex Court came to the conclusion that the finding of fact recorded that the vehicle in question was not proved to be a goods vehicle, is not correct inasmuch as the Regional Transport Officer in his deposition stated that the vehicle in question was a goods vehicle. Even in the said decision, the Apex Court considered the amendment made to the Central Motor Vehicles Act, 1989 with effect from 28 th March, 2001. This was a case where the driver was possessing a licence to drive only a light motor 11 202 FA.801.00 vehicle and the vehicle involved in the accident was a goods vehicle. The view taken by the Apex Court is that the vehicle involved in the accident was a goods vehicle and the driver holding a licence to drive only a light motor vehicle was not authorized to drive the said vehicle and if such driver is permitted to drive the vehicle, it amounts to breach of the terms and conditions of the policy. 13 Coming back to the facts of the case, the certificate issued by the Regional Transport Office dated 3 rd August, 1993 at Exhibit – 42 clearly records that the vehicle was a goods vehicle of TATA (407) make which was registered as a goods vehicle. On the date of the accident, the licence possessed by the driver was only to drive a light motor vehicle. Hence, in the present case, breach of terms and conditions of the policy has been clearly established. 14 In the facts of this case where a breach of terms and conditions is very obvious, an order directing the Insurer to pay and thereafter recover from the Insured cannot be passed. 12 202 FA.801.00 15 Hence, the impugned judgment and award insofar as the Appellant is concerned, will have to be quashed and set aside. 16 Hence, I pass the following order: i. The impugned judgment and award made as against the Appellant is quashed and set aside. However, the award made against the owner of the vehicle is not disturbed ; ii. The appeal is partly allowed on above terms with no order as to costs ; iii. The amount deposited in this Court together with interest, if any, shall be transfered to the concerned Tribunal to enable the concerned Tribunal to pass an appropriate order ; and iv. The Civil Application No.6366 of 2000 does not survive and the same is disposed of. [ A.S.OKA, J ]