F.A.O. No. 1295 of 2010 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH F.A.O. No. 1295 of 2010 (O&M) Date of Decision : 15.3.2010 Sir Chhotu Ram Senior Secondary School, Village Rasulpur, Yamuna Nagar .......... Appellant Versus The New India Assurance Company Ltd. & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. G.C. Shahpuri, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 6437-CII of 2010 This application under Section 173 of the Motor Vehicles Act, 1988 has been moved seeking exemption to deposit a sum of Rs. 25,000/- (Rupees twenty five thousand only) on the ground, that the claimants have already paid the compensation, and the dispute is only between the Insurance company and the owner with respect to the right of recovery granted to the Insurance company. For the reasons mentioned in the application, C.M. is allowed, the appellant is exempted from depositing a sum of Rs. 25,000/- (Rupees twenty five thousand only). F.A.O. No. 1295 of 2010 2 F.A.O. No. 1295 of 2010 & C.M. Nos. 6436 & 6438-CII of 2010 The owner / appellant challenged the impugned part of the award, passed by the learned Motor Accident Claims Tribunal, Yamuna Nagar at Jagadhri (hereinafter referred to as 'the Tribunal”, vide which while granting compensation to the claimants, the right of recovery was granted to the Insurance Company to recover the awarded amount from the owner / appellant. The claim petition was filed by the claimants under Section 166 of the Motor Vehicles Act, 1998 ( hereinafter referred to as “the Act”), claiming compensation on account of death of a minor child, due to the rash and negligent driving by Driver Ajaib Singh, who was impleaded as respondent No.1 in the claim petition. The learned Tribunal on appreciation of evidence, recorded a finding, that the accident in question resulting into the injuries of claimant Sachin was the direct result of rash and negligent driving on the part of respondent No.1 Ajaib Singh, who was driving the bus bearing No. HR-58-5948. The learned Tribunal held the claimant to be entitled to a sum of Rs. 72,000/- (Rupees seventy two thousand only), as compensation along with interest @ 7.5% per annum from the date of petition till payment. On the pleadings of the Insurance Company the learned Tribunal framed the following Issue :- “3. Whether the vehicle was being plied in contravention of the terms and conditions of the F.A.O. No. 1295 of 2010 3 insurance policy and the company is absolved of its liability?OPR Issue No.3 was answered by recording as under :- “22. To conclude, bus no. HR58-5948 was being plied by respondent no.1 at the time of accident without having a valid driving licence for the same and as such, the insurance company is not liable to reimburse the insured i.e. respondent no.2. However, it may be mentioned here that in the first instance the amount of compensation shall be paid by the insurance company, who will be entitled to recover it from the owner respondent no.2. This issue is decided accordingly in favour of respondent no.3.” The reason for coming to this conclusion was, that driver of the vehicle was holding a valid driving licence to drive motor cycle, scooter, car, jeep and tractor. The licence was valid from 3.4.2002 to 2.4.2005, which was thereafter renewed from 1.9.2005 to 31.8.2010. The learned Tribunal, however, held that respondent No.1 was not holding a valid driving licence for driving the bus, therefore, the Insurance Company was not liable to indemnify the insured. The learned Tribunal for coming to this conclusion, placed reliance on Section 2(47) of the Motor Vehicles Act, which defines F.A.O. No. 1295 of 2010 4 the “Transport vehicle” to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Section 3 of the Motor Vehicles Act provides that no person shall drive a transport vehicle unless his driving licence specifically entitles him to do so. In order to fasten the liability on the appellant, the learned Tribunal relied upon the judgment of the Hon'ble Supreme Court in the case of New India Assurance Company Limited Vs. Prabhu Lal 2008 ACJ 627 (SC). The learned counsel for the appellant challenged the impugned part of the award, by contending, that the learned Tribunal failed to take note of Section 2(21) of the Motor Vehicles Act, which defines the “Light Motor Vehicle” to mean a transport vehicle or omnibus the gross unladen weight of any of which, does not exceed 7500 kilograms. The contention of the learned counsel for the appellant was, that the vehicle being driven by the Driver, was a light motor vehicle as the weight of the bus was less than 7500 kilograms, therefore, the driver had a valid driving licence, and the finding of the learned Tribunal on issue No.3 cannot be sustained in law. The learned counsel for the appellant also contended, that once the mechanism of the vehicle was same, it could not be held that the licence held by the driver of the offending vehicle was not valid to drive the offending bus. It was also contended by the learned counsel for the F.A.O. No. 1295 of 2010 5 appellant, that fastening of liability on the appellant was contrary to the law laid down by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Tulna Devi and others, 2009 ACJ 581, wherein the Hon'ble Supreme Court was pleased to lay down, that when the liability was disputed by the Insurance Company on the plea that driver was authorised to drive the light motor vehicle and goods vehicle, but he was driving passenger vehicle, and no evidence is led, that the accident was caused due to negligence of the driver or the cause of accident was the disqualification of driver to drive the passenger vehicle, and also when there was no evidence to prove, that owner had not taken care before the vehicle was given to the driver to drive it, or that the owner was guilty of negligence, and that failed to exercise reasonable care in the matter in fulfilling the condition of policy regarding use of vehicle by a duly licensed driver, the Insurance company could not be exempted from the liability. On consideration, I find no force in the contention raised by the learned counsel for the appellant. The judgment of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Tulna Devi and others (supra) has no application to the facts of the present case, as it was pleaded and proved by the Insurance Company that driver of the vehicle did not have the licence to drive the school bus. As already observed above, the school bus falls in the category of transport vehicle, as defined under Section 2(47) of the Motor Vehicles Act, and the driver of the offending vehicle did not F.A.O. No. 1295 of 2010 6 have a licence to drive the transport vehicle, therefore, in view of the law laid down by the Hon'ble Supreme Court in the case of New India Assurance Company Limited Vs. Prabhu Lal ( supra) no fault can be found with the findings recorded by the learned Tribunal giving liberty to the Insurance Company to recover the amount. The appeal being without any merit is ordered to be dismissed in limine. The appeal is otherwise barred by limitation. An application has been moved under Section 5 of the Limitation Act seeking condonation of delay of 296 days in filing of the present appeal, on the plea, that the learned counsel for the appellant had wrongly informed that no liability was fastened on the appellant, and they stood exonerated. Nothing has been disclosed as to why the judgment was not read by the appellant. The plea raised otherwise does not appeal to the reason, as it cannot be accepted that the counsel would not inform regarding order passed, and would conceal it from his client, as contended. The averments made in the application cannot be accepted. The delay is of 296 days. No sufficient ground is made out for condoning the delay of 296 days in filing the appeal. The appeal is, therefore, dismissed on merit, as well as being barred by limitation. 15.3.2010 ( VINOD K. SHARMA ) 'sp' JUDGE