IN THEVHIGH COURT OF CHHA’ITISGARH AT BILASPUR MISC.APPEAL NO. [69//2004 Qwgmg Egimh \/ (CLAIM IN APPEAL VALUED AT Rs. 4, 13,346] -) x/ APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988 ARISINP OUT OF THE AWARD DATED 01/ 11/9003 PASSED BY THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL * \ k MANENDRAGARH DISTRICT KORIYA, IN M.V.C. NO.49/O2. ‘ . APPELLANT : Oriental Insurance Company Ltd., through /(INSURER) Divisional Manager, Opposite High Court, Bilaspur (C.G.). Vs. i; RESPONDENTS : K 1 Jagut Smgh ahas Jaggu, s/o Harchandla A Lbmgh, aged 29 years rfo .M. Complex, Pouch, RS. Pouch. 2’: ol‘)‘ (OWNER/DRIVER) ‘ Ramlakhan Shanna, é/o. Late Ramkishoro Q o1? " W $4J . Sharina, aged 43 years. kygfi"V .‘3\o\:"‘ 3/3. Sundi Bai, w/o. Ramlakhan Shanna, aged 4O years. w 6‘” Q' x-.& k; 55¢, (Both r/o. Lalpur, Manendragarh, District- Keriya (3.6.) (CLAIMANTS) AspUR HIGH COURT OF CHHATTISGARH AT BIL M.A. No. 137/2004 The Oriental Insurance Co. Ltd. Versus RESPONDENTS Jagjit Singh alias Jaggu and other§ For considerati Sd/- N.K. Agrawal Judge u 8’ ——010 . 112 ’ 3 yf aj W \ x‘ XA.Q\‘¢é“$ i Go Ptfor: $ —11—201O os " Sd/— .K Agrawl ’ Judge APPELLANT ORDER on ‘i i i ' l. ‘1 1 HQNBLE SHRI I.M. QUDDUSI, J // *’ ;‘ N. a 9 M HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. N0. 137/2004 APPELLANT The Oriental Insurance Co. Ltd. Versus IRESPONDENTS Jait Singh alias Jaggu and othgr$ DB:- Hon. Shri LM. Quddusi & Hon.§Shri N.K. Agarwal, JJ. PRESENT :- ‘ Shri Vinay Harit, Sr. Advocate with Shri S.K. Mishra, Advocate, for the appellant. Shri Sénjay K. Agrawal with’Shri Sudeep Agrawal, Advocates, for the respondent No. 2 and 3. t ‘ ORDER (3 41-2010) :Per N.K. Agarwal, J 1. The appellant/Oriental Insurance Company Ltd. has preferred this appeal against the award dated 1—11-2003 passed by the ‘ Additional Motor Accident Claims Tribunal, Manendragarh in Claim Case No. 49/2002 whereby and whereunder an amount of Rs. 4,13,346/- has been awarded to the claimants holding the. appellant/ Insurance Company liable for its payment. Brief facts of the case are that on 30—12—2001 at about 4.30 p.m. Anish Kumar Verma (since deceased) was coming from Nagpur on . his motorcycle Kinetic K—4 bearing registration No. CG 16—2784. Near Nagpur Petrol Pump, respondent No. 1 by driving the jeep bearing registration No. MP 54 T 0056 in a rash and negligent manner, dashed Anish Kumar. He was admitted in Manendragarh Central Hospital and thereafter from 31-12—2001 to 5—2-2002 in Apollo Hospitals, Bilaspur and he died on 5—2—2002 during treatment due to the injuries sustained in the accident. The claimants being mother and father of the deceased preferred a claim petition under Section 166 of the Motor Vehicles Act, 1988 (briefly ‘the Act’) claiming Rs. 8,00,000/- as compensation for the death of the deceased. The appellant/ Insurance Company took a specific plea that the driver of the offending vehicle was not holding effective and valid V L driving licence at the time of accident and, therefore, the appeilant/Insurance Company cannot be held liable for payment of compensation. 4. The appellant/Insurance Company examined ’I‘ulalam Kashyap, Assistant Grade III, working in Additional 13.10., Sargqja as its witness in support of their plea. Learned Tribunal on a close scrutiny of the submissions made, evidence led and the material placed, awarded Rs. 4,13,346/— to the claimants rejecting the plea of the appellant/ Insurance Company, holding the appellant / Insurance Company also liable for payment of compensation to the claimants. Hence this appeal. V Shri Vinay Harit, learned Sr. counsel for the appellant would contend ‘that as‘ per licence register of Additional R.T.O., Ambikapur, the licence issued in favour of the respondent No. 1 / Jagjit Singh was valid to drive light motor vehicle. It was issued on 10-4-2000 and‘was valid upto 9-4—2020 i.e. for a period of 2O years. Indisputably, the vehicle was registered and insured as a Taxi/transport vehicle whereas the licence issued ‘was valid only to drive private jeep and thus the owner of the vehicle who himself was driving the vehicle at the time of accident had willfully breached conditions of the policy inasmuch as was not having licence to drive transport vehicle and thus learned Tribunal has seriously erred in fastening liability for payment of compensation ‘ only against the appellant/Insurance Company. However, he did not press the ground taken in the memo of appeal regarding improper rejectionof appellant’s application under Section 170 of the Act. Reliance has been placed on the judgment of Supreme Court in case of New India Assurance Company Ltd. -v- Prabhu Lal reported in 2008 (l) SCC 696 and Oriental Insurance Company Limited -v- Angad Kol and others reported in 2009(1 1)SCC 356. 7. On the other hand, Shri Agrawal, learned counsel appearing for the respondents No.2 and 3 supported the award and submitted that at the time of accident, the vehicle was not used as a taxi. The owner himself was plying the said vehicle for his private use l fail] Mam ‘ 1 w 3 and was going to petrol pump and nobody was sitting in the jeep as passenger and as such, the light motor vehicle licence which is valid to drive light motor vehicle (non-transport vehicle) was valid and effective for the purposes and the appeal deserves to be dismissed. The effect of different terms of licence granted in terms of provisions to Section 2(14) and 2(47) of the Act has been noticed by the: Hon’ble Supreme Court in case of New India Assurance Comphny Ltd —v- Prabhu Lal (supra) and it was held in para 30, 37 and 38 of the judgment as under:- ‘“30. Now, it is the ease of the Insurance Company that the vehicle of the complainant which met with an accident was a “transport vehicle”. It was submitted that the insured vehicle was a “goods carriage” and was thus a “transport vehicle”. The vehicle was driven by Ram Narain, who was authorised to drive light motor vehicle and not‘a transport vehicle. Since the driver had no licence to drive transport vehicle in absence of necessary endorsement in his licence to that effect, he could not have driven Tata 709 and when that vehicle met with an accident, the Insurance Company could no be made liable to pay compensation. 37. The argument of the Insurance Company is that at the time of accident, Ram Narain had no valid and effective licence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive light motor vehicle. The learned counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having licence to drive light motor vehicle, he cannot drive a transport vehicle unless his driving licence specifically entitles him so to do (Section 3). Clauses (l4),’ (21), (28) and (47) of Section 2‘ make it clear that if a vehicle is “light motor vehicle”: but falls under the category of transport vehicle, the driving licence has to be duly endorsed under Section 3 of the Act. If it is not done, a person holding driving licence to ply light motor vehicle cannot ply transport vehicle. It is not in dispute that in the instant case, Ram Narain was having licence to drive light motor vehicle. The licence was not endorsed as required and hence, he could not have driven Tata i709 in absence of requisite endorsement and the Insurance Company could not be held liable. 38. We find considerable force in the submission of the learned counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the '\\ (3”) t Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To ‘us, therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle in question." The lion’ble Supreme Court in case of Oriental Insurance Company Limited -v- Angad K01 and others reported in 2009 (11) $CC 356 noticed Sections 2(10), (11), (12), (13) (14), (21) and Sections 3, 9, 10, 14 of the Act and Rules 14 and 16 of Central Motor V Vehicle ‘ Rules, . 1989 along with Forms 4 and 6, and after noticing earlier judgment of Supreme Court in case of National Insurance Co. Ltd. —v- Annappa Irappa Nesaria alias Nesaragi and others reported in 2008(3) SCC 464, New India Assurance Company Ltd. —v- Prabhu Lal (supra) and Ashok Gangadhar Maratha —v-. Oriental Insurance Company reported in 1999 (6) SCC 620 held: “a transport vehicle may be a light motor vehicle but for the purpose of driving the same, a different licence is required to be obtained.” The licence having been granted for a period of 20 years, a presumption therefore, arises that it was meant for the purpose of the vehicle other than transport vehicle. Had the driving licence been granted for transport vehicle, the tenure could not have exceeded to 3 years. In View of the above, the legal position is clear.‘If the licence to drive light motor vehicle is issued for a period of 20 years, then it cannot be said that the same licence is valid also to drive a light motor vehicle (transport vehicle). Now reverting to the facts of this case. It is not in dispute that the driver / owner 'of the offending vehicle was not holding a licence to drive light motor vehicle (transport vehicle). He was only having licence to drive light motor vehicle,(non—transport vehicle) and as such was not authorized to drive transport vehicle, but as per the evidence on record, the offending vehicle was empty i.e. no person was sitting in the jeep. We have perused the F.l.R. (Ex. NA—l) in which also,.it has not been mentioned that the said jeep was category of transport vehicle under Clause (4'7) of (>\J \ 5 carrying passengers at the time of accident. N.A.W. 1 Jagjit Singh i i.e. cwner/driver of the offending vehicle deposed in para 5 of his statement “he was alone in the jeep at the time of accident”. He denied the suggestion put by the appellant/Insurance Company that 7 to 8 persons were sitting in the jeep at the time of accident The appellant did not adduce ev1dence showmg Jeep was used as a tax1 at the time of acc1dent No question was asked from the clalmant and eyew1tness Sandeep Choudhary regarding use of jeepias a taxi at the time of accident. Hon’ble Supreme Court in the dase of National Insurance Company Ltd. fv- Swaran Singh and fathers reported in 2004(3) SCC 297 has held in paragraphs 47, 89 and l 10(Vi) of thejudgment as under:— Va “47. If a person has been given a licence for a particular type of veh1cle as specrfied therein he cannot be said to have no licence for drivmg another type of vehicle which 1s of the same category but of different type. As for example, when a person is granted a licence for driving a light motor vehicle, he can drive either a car or a jeep and it is not necessary that he must have driving licence both for car and jeep separately. 89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various . categories of vehicles mentioned in sub—section (2) of the said section. The various types of vehicles described for which a . driver may obtain a licence for one or more‘of them are: (a) motorcycle Without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehiclesm which are covered in broad types mentioned in sub-section (2) of Section 10. They are “goods carriage”, “heavy goods vehicle”, “heavy passenger motor vehicle”, “invalid carriage”, “light motor vehicle”, “maxi-cab”, “medium goods vehicle”, “medium passenger motor vehicle”, “motor-cab ” , “motorcycle”, “omnibus”, “private service vehicle”, “semi-trailer”, “tourist vehicle”, “tractor”, “trailer” and “transport vehicle”. In claims for compensation for ‘ accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for “motorcycle Without gear”, [sic may be driving a vehicle] for which he has no licence. Cases may also arise where agholder of driving licence for “light motor vehicle” is found to be driving a “maxi-cab”, “motor—cab” or “omnibus” for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the i driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory caUse. of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having ‘no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence. l 10. The summary of our findings to the various issues as raised in these petitions is as follows: (i) XXX XXX (ii) KX XXX (iii) xxx (iV) XXX XXX (V) m XXX (v1) Even where the insurer is able to prove Preach on the part of the insured concerning the» policy condition regarding holding of a valid licence by the. driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insurer under Section 149(2) of the Act.” w~ l l ~v-\ .2. 1 In the light of above, although we have held that licence to drive light motor vehicle (non—transport vehicle) is not valid to drive light motor vehicle (transport vehicle), but as held earlier, the vehicle in question was in fact used as a private vehicle at the time of accident, by no stretch of imagination it can be said that the fact of holding light motor vehicle (non—transport vehicle) licence was the main or contributory cause of accident. In view of the) decision of the Supreme Court in case of National Insurance Company Ltd. —v- Swaran Singh (supra), the appellant/insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence and the ground raised by the appellant being not sustainable in law, which deserves to be rejected. In view of above, the appeal fails and is hereby dismissed. l -« . :1 r No order as to costs.‘ , Sd/- -’ Sid/- I.M.Quddusi ‘ N.K.Agrawal Judge Judge