FAO No. 1363 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 1363 of 2011 Date of decision: 19.9.2011 1.FAO No. 1363 of 2011 Rajwinder Singh Appellant v. Amardeep Singh Respondent 2.FAO No. 1364 of 2011 Rajwinder Singh Appellant v. Ajmer Kaur and Others Respondents CORAM HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Gopal Mittal,Advocate,Advocate for the appellant-owner Mr. Ravinder Arora,Advocate for the Insurance Company- respondent No.3 .... JITENDRA CHAUHAN.J These appeals (FAO No. 1363 and 1364 of 2011) have been filed by the Appellant (owner) against the Award dated 27.10.2010 , passed by the Motor Accident Claims Tribunal, Moga, (For short the Tribunal) whereby Insurance Company was granted the recovery rights. The claimants Amandeep Singh @ Karamjit Singh (in MACT No. 18 of 2009) and Ajmer Kaur and Gurpreet Singh, widow and son of deceased Gurmail Singh respectively ( in MACT No. 20 instituted on 22.7.2009) filed two separate claim petitions under section 166 of the Motor Vehicle Act,1988, ( hereinafter referred to as “the Act”) before the FAO No. 1363 of 2011 2 Tribunal claiming compensation for the injuries suffered by Amandeep Singh and on account of death of Gurmail Singh in the accident that occurred on 10.2.2009, when they alongwith Jagtar Singh and Jagat Singh were going to Karnal in Scorpio No. PB-13P-3775. It met with an accident with a Mini Bus bearing temporary registration No. PB-10-TC-2416 ( offending Bus) driven by Jaspal Singh, respondent No.1 in a rash and negligent manner. Three occupants of the Scorpio died on the spot and Amandeep Singh sustained serious injuries. Upon notice, respondent No.2- Owner Rajwinder Singh denied all the averments made in the claim petition. It was alleged that the driver of Scorpio was driving the vehicle in a rash and negligent manner. It is relevant to mention here that Jaspal Singh, driver is stated to have died during the pendency of the claim petition. The appellant- owner has opted not to implead his legal representatives as a party to these appeals. Respondent No.3 Insurance Company took the stand that the drivers of both the vehicles were not holding valid and effective driving licences and breached the terms and conditions of the Insurance policy. Therefore, the Insurance Company was not responsible to pay the amount of compensation. From the pleadings of the parties, the following issues were framed- 1.Whether Amandeep Singh received injuries in a motor vehicle accident due to rash and negligent driving of Mini bus bearing temporary No. PB-10-TC-2416 by respondent No.1 Jaspal Singh? OP Claimant. FAO No. 1363 of 2011 3 2.Whether the claimants are entitled to compensation? If so, to what amount, from which of the respondents and the manner of recovery? OP claimants. 3.Whether the respondent No.1 was not holding valid and effective driving licence at the time of alleged accident and the respondent No.2 has violated the terms of Insurance policy? OPR-3.” After going through the evidence produced on record and hearing the counsel for the parties, the Ld. Tribunal observed as under:- “15.As regards liability of the respondents, it is proved on record that respondent No.2 owner of the offending Mini Bus and respondent No.3 Insurance Company was its Insurer vide insurance policy, Ex. R-5, at the time of the accident. Here it is vehemently contended by learned counsel for respondent No.3, Insurance Company that the respondent No.3 is not liable to pay any compensation because the respondent No.1 Jaspal Singh driver, was not entitled to ply Heavy Motor Vehicle/transport vehicle in absence of necessary endorsement as required by Section 3 of the Motor Vehicles Act, 1988 inasmuch as the licence, Ex.R-6 of respondent No.1 Jaspal Singh was valid for driving motorcycle/Light Motor Vehicle only. Statement of RW1 Surinder Kumar Clerk, District Transport Officer, Ludhiana has also been referred to by the learned counsel in support of his contention. However, in view of the citation: Oriental Insurance Co.Ltd. Versus Angad Kol, Civil Appeal No. 1102 of 2009 (Arising out of SLP(C) No. FAO No. 1363 of 2011 4 16700 of 2008) decided on 18.2.2009 by Hon'ble Supreme Court of India and in the interest of justice, it is deemed appropriate to direct the insurance company to pay the compensation amount to the applicants. Since vide driving licence, Ex. R-6 respondent No.1 Jaspal Singh was entitled to drive motorcycle/Ligh Motor Vehicle only, it is held that he was not having a valid driving licence to drive the offending Mini Bus, the respondent No.3 Insurance Company will pay the amount of compensation to the applicants at the first instance and thereafter it shall be entitled to make recovery of the same from the driver and the owner. Thus, Issue No.2 is decided in favour of the applicants and Issue No.3 in favour of the respondent No.3 accordingly. Aggrieved against the same, the owner-appellant has preferred these appeals. Learned counsel for the Appellant challenged the impugned Award, by contending that the learned Tribunal has wrongly passed the Award in favour of the claimants and erroneously granted recovery rights to the Insurance Company. To elaborate his argument, learned counsel submitted that at the time of engaging the driver (Jaspal Singh),the appellant satisfied himself that the driver has a licence and is competent to drive the vehicle. Therefore, there would be no breach of the terms and conditions of the Insurance Policy on the part of the appellant. In support of his argument, he placed reliance on United India Insurance Company Limited v. Lehru, 2003 (2) PLR 124.. The other limb of his argument is that the onus is on the Insurance Company to prove the breach and he relied FAO No. 1363 of 2011 5 upon National Insurance Co. Ltd. v. Swaran Singh 2004 ()1) PLR 510. He submitted that the Ld. Tribunal wrongly relied upon the judgment of Oriental Insurance Company v. Angad Kol 2009(2) PLR 25, in so far as the facts of the said judgment are not applicable to the instant case. On the other hand, learned counsel for the Insurance Company submitted that the Ld. Tribunal has rightly granted the recovery rights to the Insurance Company relying upon the judgment of Oriental Insurance Co. v. Angal Kol (supra) that an endorsement is required to be obtained under section 10 of the Act to drive a passenger vehicle. I have heard the learned counsel for the parties and gone through the record. The only point involved in these appeals is “ as to whether a driver possessing a valid driving licence of Light Motor Vehicle can drive a Mini Bus?”. Indisputably, Jaspal Singh-respondent No.1, driver of the Offending Bus was holding a driving licence Ex. R-6 to drive light motor vehicle only. Surinder Kumar, Clerk D.T.O. Office, Ludhiana has appeared as RW1. He stated in his chief-examination that driving licence Ex.R-6, which is in the name of Jaspal Singh, has not been issued licence for driving transport motor vehicle and LMV means ' Light Motor Vehicle'. As per the Insurance Policy, Ex. R-5, it was registered in the name of respondent No. 2 and was insured with the Insurance Company. Reference may be made to the provisions of the Act 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. If a vehicle is 'light motor vehicle', but falls under the category of transport vehicle, the driving licence has to be FAO No. 1363 of 2011 6 duly endorsed under section 3 of the Act. If it is not done, a person holding driving licence to ply a light motor vehicle cannot ply transport vehicle. As observed above, the driver was having a licence to drive light motor vehicle but the licence was not endorsed as required and hence, he could not have driven Mini Bus in the absence of requisite endorsement. Accordingly, the Insurance Company could not be held liable. In Oriental Insurance Company Limited v. Angad Kol and Ors. (supra) Hon'ble the Apex Court while dealing with similar proposition of law, held as under:- 8.Motor Vehicles Act,1988 (hereinafter called as 'the Act)was enacted to consolidate and amend the law relating to motor vehicles. 'Driving Licence' has been defined in Section 2 (10) to mean the licence issued by a competent authority under Chapter II authorizing the person specified therein to drive, otherwise than a learner, a motor vehicle or a motor vehicle of any specified class or description. 'Goods carriage' has been defined in section 2(14) to mean any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. The said Act also defines 'heavy goods vehicle', 'heavy passenger motor vehicle', 'medium goods vehicle', and 'medium passenger motor vehicle' as well as a 'light motor vehicle' in section 2 (21) of the Act to mean: “2(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”, FAO No. 1363 of 2011 7 9. Although the definition of the 'light motor vehicle' brings within its umbrage both 'transport vehicle or omnibus', indisputably, as would be noticed infra, a distinction between an effective licence granted for transport vehicle and passenger motor vehicle exists. Section 3 provides for the necessity of driving licence, stating: “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 authorizing him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab 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.” Section 9 provides for grant of driving licence. Section 10 prescribes the form and contents of licenses to drive which is to the following effect: “10. Form and contents of licences to drive--(1) Every learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government. (2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely: (a) to (c) .... .... .... FAO No. 1363 of 2011 8 (d) light motor vehicle; (e) transport vehicle; (i) road-roller; (j) motor vehicle of a specified description.” 10. The distinction between a 'light motor vehicle' and a 'transport vehicle' is, therefore, evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct licence is required to be obtained. The distinction between a 'transport vehicle' and a 'passenger vehicle' can also be noticed from section 14 of the Act. Sub-section (2) of section 14 provides for duration of a period of 3 years in case of an effective licence to drive a 'transport vehicle' whereas in case of any other licence, it may remain effective for a period of 20 years.” In the instant case, as already observed above, a Mini bus falls in the category of transport vehicle as defined under section 2(47) of the Act and the driver of the offending vehicle did not have a valid licence to drive the Mini Bus which is a transport vehicle. Therefore, in view of the law laid down in Oriental Insurance Company Ltd. v. Angad Kol (supra), this court feels that the learned Tribunal was right in granting recovery rights to the Insurance Company. It would not be out of place to mention that the law cited by the learned counsel for the appellant, is not relevant to the facts and proposition of law, in the instant case. There is no scope to interfere in the well-reasoned detailed Award of the learned Tribunal, which is affirmed. It is held that FAO No. 1363 of 2011 9 Jaspal Singh, driver was not holding a valid driving licence to drive the Mini Bus, which is a transport vehicle. As a sequel to my above discussion, these appeals (FAO Nos. 1363 and 1364 of 2011) fail and are dismissed. No costs. (JITENDRA CHAUHAN) JUDGE 19.9.2011 MS