IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO No. 102 of 2004 Date of Decision : November 10, 2008 Anupama Raju …Appellant. Versus: Anant Ram & Ors. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Rakesh Jaswal, Advocate. For respondent No.1: Mr. G. R. Palsra, Advocate. For respondent No.2: Mr. J. S. Bagga, Advocate For respondent No.3: Mr. Sunil Mohan Goel, Advocate For respondent No.5: Mr. G. D. Sharma, Advocate For respondent No.6: Mr. Vikrant Shankhyan, Advocate SANJAY KAROL, JUDGE. (Oral) The owner Mrs. Anupama Raju has filed the present appeal assailing the impugned Award dated 3.1.2003 passed by the Motor Accidents Claims Tribunal, Mandi, H. P., in Claim Petition No. 22 of 1999 titled as Anant Ram v. Anupama Raju & Ors. Mr. Rakesh Jaswal, learned counsel for the appellant, while restricting the grounds of challenge, has made a submission that while deciding issue No.4, the Tribunal wrongly fastened the liability upon the owner, by holding that the driver 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Shri Tilak Raj was not holding a valid and effective licence, to drive the vehicle in question. No appeal or cross-objections have been filed by the claimant, Insurance Company or other persons arrayed as respondents in the claim petition. Therefore, the scope of controversy in the present appeal is limited. Claim Petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) was filed by Shri Anant Ram (in short, claimant), claiming compensation on account of grievous injuries which he suffered in an accident between two vehicles No. HP-33-4215 and HP-34-1146 on 8.6.1998. Based on the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether the petitioner sustained injury due to rash and negligent driving on the part of 2nd respondent, as alleged? ………OPP 2. Whether the alleged mishap took place due to rash and negligent driving on the part of respondent No.5, as alleged? …OPR1 3. Whether the petition is not maintainable against respondents No.4 & 5, as alleged? …OPR4 & 5 4. Whether the 3rd respondent-Insurance Company is not liable to indemnify the insurer as alleged? ….OPR-3 5. Whether the insurer-respondent No.6 is also not liable to indemnify the insured owner of bus bearing registration No. HP-34-1146 as alleged? …..OPR-6 6. To what amount the petitioner is entitled to receive as compensation? ……. OPP 7. Relief.” 3 Appreciating the material on record, the Tribunal found that Shri Tilak Raj, who was driving vehicle (Bus) No. HP- 33-4215 owned by Mrs. Anupama Raju (in short, the owner), was negligent and it was due to his fault that the accident took place with Bus No. HP-34-1146 in which the claimant received injuries. The vehicle in question was insured by the Oriental Insurance Company Ltd. (in short, the Insurer). The Tribunal held that the driver of vehicle No. HP- 34-1146 Shri Suresh Kumar was not negligent and, as such, neither its owner Bharti Bus Service nor its insurer United India Insurance Company were liable. The petition was found to be maintainable against respondents No.4 & 5. On the question of compensation, taking into account the age, loss of income and the injuries sustained, a sum of Rs.1,05,000/- along with interest at the rate of 9% plus costs was awarded in favour of the claimant. While deciding issue No.4, the Tribunal held that the driver Shri Tilak Raj (in short, the driver) was possessing a driving licence to drive the vehicle of the category “heavy goods vehicles”, therefore, in the absence of any endorsement, he was not authorized to drive the “heavy passengers motor vehicle”. As such, the driver was found to have not possessed a valid and effective driving licence to drive the vehicle resulting into breach of the insurance policy. 4 I have heard the learned counsel for the parties and also perused the record. That the vehicle was insured is not in dispute and is also evident from the insurance cover Ext.RY. That driver was possessing a valid and effective driving licence and entitled to drive vehicle of category “heavy goods vehicle” is also not in dispute. The same is evident from the driving licence mark ‘X’/ mark ‘Y’ and also the statement of the driver Shri Tilak Raj RW- 1/2. However from the statement of Shri Roshan Lal RW-1/3 it is evident that on the licence there is no specific endorsement authorizing him to drive the “passengers motor vehicle”. Section 10 of the Act provides that the driving licence has to be in such form and contain such information as may be prescribed by the Central Government. The licence must also disclose the entitlement of the holder to drive a motor vehicle falling within one or more of the categories specified therein. Originally Section 10(2) read as under: (a) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) medium goods vehicle; (f) medium passenger motor vehicle; (g) heavy goods vehicle; (h) heavy passenger motor vehicle. (i) road-roller. (j) Motor vehicle of a specified description. 5 With effect from 14.11.1994 Section 10(2)(e) stood amended and aforesaid clauses (e) to (h) were deleted and in their place a composite clause (e) was substituted which read as under:- (e) transport vehicle. The other clauses remained as it is. The “transport vehicle” has been defined under Section 2 (47) of the Act to include a “public service vehicle”. “Heavy passengers motor vehicle” has been defined under Section 2 (17) to mean any “public service vehicle”, the gross vehicle weight of which exceeds 12,000 kilograms and “medium passengers motor vehicle” has been defined Under Section 2(24) to mean any “public service vehicle” other than motorcycle, invalid carriage, light motor vehicle and heavy passengers motor vehicle. The amended clause (e) i.e. Transport vehicle would include the “medium goods vehicles”, “medium passengers motor vehicles”, “heavy goods vehicles” and “heavy passengers motor vehicles”. It is to be noted that the distinction in creating different categories of vehicles under Section 10(2)(a) to (e) stood obliterated by the subsequent amendment. Therefore, as on 8.6.1998 the date of the accident it could not be said that the driver was not possessing a licence to drive a transport vehicle. He was possessing an effective and valid driving licence. 6 This Court in New India Assurance Co, Ltd., vs. Vikash Sharma & Ors. {Latest HLJ 2008 HP 376}, after taking into account the decision of the Apex Court in United India Insurance Co. Ltd. vs. Kamal @ Kamla Devi & Ors. {2000 ACC 52} has held that once the requirement of issuance of licence is fulfilled, then it cannot be said that there is any real and specific qualitative difference between two categories of vehicles i.e. “heavy goods vehicles” and “ heavy passengers motor vehicle”, so as to result in disqualifying the driver having a licence for “heavy motor vehicles”, from driving a bus. The Court was dealing with a person who was driving a passengers vehicle and was not having any endorsement to drive the same. The facts of New India Assuance Co, Ltd., (supra) are similar to the facts of the present case. The submission of Mr. Bagga that at the time of renewal of the driving licence, there is no endorsement enabling the driver to drive a transport vehicle, in my view, would be of no consequence for the reason that the same is not required to be carried out in view of the amendment carried out in Section 10 of the Act. Even subsequent endorsement would not have made any difference as the validity or effectiveness of the licence would be from the date of the endorsement and would not relate back to the date from which the licence was issued. The ratio of New India Assurance Co. Ltd. vs. Prabhu Lal {2008(1) SCC 696}, National Insurance Co. Ltd. vs. Kusum Rai 7 & Ors., {2006(4) SCC 250}, would not apply as in those cases there was no endorsement to drive a vehicle from one category of vehicle to another category of vehicle as laid down under Section 10(2) clause (a) to (c). These are not the facts in the present case as the driver was not driving a vehicle other that the category of the licence for which he was authorized in law. In spite of repeated queries Mr. Bagga, could not point out any provisions of law under which the driver authorized to drive a transport vehicle is required to get an endorsement to drive a vehicle falling in the unamended clauses of section 10(2)(e) to (h). Noticeably it is not that criterion for issuing the licence of the amendment of the clauses has been changed. The findings of the Tribunal on Issue No.4 to the extent that the insurer can recover the amount from the Insurance Company is interfered with and are set-aside. Accordingly, the insurer is held liable to indemnify the insured and pay compensation so awarded by the Tribunal. For the aforesaid reasons, the appeal is allowed. ( Sanjay Karol ), Judge. November 10, 2008. (rana)