* 1 * F.A.567.2000 7.4.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 567 OF 2000 1. Akhil Jabbar Shaikh & Ors. .....Appellants V/S. 1. Michel J.F. Rodrigues & Ors. .....Respondents ALONGWITH CROSS­OBJECTIONS (ST) NO. 7098 OF 2004 Mr. Michel J.F. Rodrigues .....Cross Appellant/Cross Objectionist (Orig.Resp no.1) V/S. 1. Akil Jabbar Shaikh & Ors. .....Respondents (Resps no.1­6 are Orig. Appellants) * * * * * * Mr. G.S. Hegde with Mr. C.M. Lokesh, Advocate for the appellants. Mr. Uday Warunjikar, Advocate for respondent no.1. Mr. J.S. Chandnani, Advocate for respondent no.3. Coram : Smt. R.P. SondurBaldota, J. 7 April, 2011. P.C. : 1. The appellants who are the original claimants have filed this * 2 * F.A.567.2000 7.4.2011 appeal to challenge the judgment and award passed on 17th February, 1999 by Motor Accidents Claim Tribunal, Satara to the extent that it absolves respondent no.3­the Insurance Company from payment of compensation. Respondent no.1, the original owner has filed cross­ objections for the same purpose. In addition, he challenges the quantum of compensation awarded to the appellant. Respondent no.2­ is the driver of the vehicle involved in the accident. 2. Appellants no.1 to 5 are the children and appellant no.6 is the widow of one Abdul Jabbar Shaikh who died in a motor vehicle accident on 26th September, 1994. He was a leader of muslim jamat and used to travel for propagation of Islam teachings. He alongwith several others had arranged for a programme at Shirval. On 24/25th September, 1994 on conclusion of the programme, the deceased alongwith 12 other persons started by TATA tempo No.608­JDZ­7612. They were carrying luggage consisting of tents, carpets, pots, utensils, bags and baggages. They had agreed to pay Rs.300/­ to the driver to carry the luggage and Rs.10/­ per seat for 13 members. When the TATA tempo was near Village­Badewadi, Taluka­Wai, respondent no.2 who was driving the tempo lost the control and the vehicle rammed into a tree. Abdul who was sitting alongwith the driver on the front * 3 * F.A.567.2000 7.4.2011 seat died instantly. 3. The appellants claimed compensation of Rs.4,00,000/­ for the death of Abdul. As per the claim, at the time of the accident Abdul was 47 years old and employed as a Selection Grade Clerk with Maharashtra State Road Transport Corporation, Satara on the salary of Rs.5,046/­ per month. He was spending Rs.3,000/­ per month for the maintenance of the family. 4. Respondent no.1­the owner of TATA tempo did not appear before the Tribunal despite service of notice upon him. The application was contested by respondent no.3, which disputed its liability towards payment of compensation to the appellants on the ground that respondent no.1 had committed breaches of the terms and conditions of the insurance policy. The first breach alleged was that the vehicle of TATA tempo involved in the accident was a goods truck meant for carriages of goods alone and had been used for carrying passengers at the time of the accident. The second breach alleged was that respondent no.2 did not held a valid license to drive either a goods vehicle or a transport vehicle. Respondent no.2 held a license only to drive a light motor vehicle. 5. The appellants examined two witnesses in support of their claim. * 4 * F.A.567.2000 7.4.2011 They are, Akhil Jabbar Shaikh­the son of the deceased and Sikander Abdul­a passenger alongwith the deceased. Respondent no.3 examined the Regional Transport Officer attached to Karwar District, Karnataka State from where respondent no.2 had been issued license for driving motor vehicle. On appreciation of the evidence before it, the learned Member of the Tribunal accepted the contentions of respondent no.3 and absolved respondent no.3 from payment of compensation to the appellants. It held that respondent no.1 alone was liable to pay a sum of Rs.4,00,000/­ inclusive of no­fault liability with interest thereon at the rate of 12% per annum from the date of the application till realisation. Being aggrieved by this decision of the Tribunal, the appellants have preferred the present appeal and respondent no.1 has filed his cross­objections. 6. Mr. Hegde, the learned counsel for the appellants, submits that the learned Member of the Tribunal erred in holding that the deceased and the other persons travelling with him were passengers in the vehicle, though the evidence on record indicated that their luggage was being carried in the TATA tempo. According to him, the persons were actually accompanying the luggage being carried in the vehicle and hence there can be no substance in the first breach alleged on the part * 5 * F.A.567.2000 7.4.2011 of respondent no.3. He submits, secondly that, the vehicle of TATA tempo had the gross weight of 6,000/­ kgs and as per the definition of Section 2(21) of the Motor Vehicles Act, 1988, the same is a Light Motor Vehicle for driving of which respondent no.2 held a license. Therefore, it could not be said that respondent no.2 did not hold the required valid license to drive the TATA tempo. Lastly, he submits that if this Court is inclined to uphold the findings of the Tribunal on the question of liability of respondent no.3, it should be directed to pay compensation to the appellants and recover the same from respondent no.1. 7. Mr. Hegde, submits that for the insurer to claim, exemption from indemnifying the insured on account of breaches of the terms and conditions of the insurance policy, it is necessary to establish not just the factum of breach, but, also the fact that the breach was attributable to the insured. In this connection, Mr. Hegde relies upon 3 decisions of the Apex Court in the case of (1) Skandia Insurance Co. Ltd V/s. Kokilaben Chandravadan and Others reported in (1987) 2 SCC page 654, (2) Kashiram Yadav and another V/s. Oriental Fire and General Insurance Co. and Others reported in (1989) 4 SCC page 128 and (3) Sohan Lal Passi V/s. P. Sesh * 6 * F.A.567.2000 7.4.2011 Reddy and Others reported in (1996) 5 SCC page 21. Mr. Warunjikar, appearing on behalf of respondent no.1, endorses the argument advanced by Mr. Hegde. 8. As already mentioned hereinabove, the first breach alleged is of carrying unauthorised passengers in a goods vehicle and the second breach is about respondent no.2 not holding a valid license for driving a transport/goods vehicle. The undisputed facts as regards the first breach alleged are that the vehicle involved in the accident is TATA tempo, a goods vehicle. At the relevant time, there were 13 persons travelling in it alongwith articles like tents, edibles, utensils, carpets and personal baggages of the travellers. According to the appellants, the total weight of the luggage carried was of 3 tonnes. The hiring charges for the goods vehicle were Rs.300/­ for the luggage and Rs.10/­ per person travelling in the vehicle. The deceased was sitting on the front seat alongwith the driver and the remaining 12 persons and luggage accommodated in the rear portion. Mr. Hegde, argues that the 13 persons travelling in the goods vehicle were infact the persons accompanying the goods being carried by the vehicle. In that case, according to him, they cannot be said to be unauthorised passengers in the vehicle. The argument is required to be straightaway rejected. It * 7 * F.A.567.2000 7.4.2011 would be preposterous to say that the goods being carried in the TATA tempo vehicle were required to be accompanied by, as many as, 13 persons. There is no evidence before the Court as to the ownership of the articles in the vehicle like the tents, utensils, carpets etc. Therefore, by no stretch of imagination, the 13 persons could be said to be travelling in the vehicle accompanying the goods. Besides, all the 13 persons had paid separate fare for travelling in the vehicle. 9. As regards, the second breach relating to the license required to be held by respondent no.2 to drive the TATA tempo in question, all the material facts concerned thereto are undisputed. There is no dispute that the license held by respondent no.2 was for driving a Light Motor Vehicle. This fact is also established by the deposition of Richard D’souza, Regional Transport Officer attached to Karwar District, Karnataka State from where respondent no.2 had obtained his driving license on 18th August, 1993 and from the license produced. The officer deposed that respondent no.2 was authorised for non­transport vehicle. Mr. Hegde, seeks to submit that in the facts and circumstances of the case, it cannot be said that respondent no.2 did not hold valid license at the relevant time. According to him, the transport vehicle i.e. the goods vehicle involved in the accident is a * 8 * F.A.567.2000 7.4.2011 Light Motor Vehicle as defined under the Motor Vehicles Act. Since the driver did hold a license to drive Light Motor Vehicle, there was no breach of the insurance policy. Light Motor Vehicle as defined by Section 2(21) is a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road­roller the unladen weight of any of which, does not exceed (7,500) kilograms. By referring to the insurance policy, Mr. Hegde points out that the weight of the offending vehicle is 6000 kgs. Therefore, according to him, the license held by the driver to drive Light Motor Vehicle was sufficient and valid to drive the goods vehicle in question. 10. Undoubtedly, the definition of Light Motor Vehicle at Section 2(21) includes transport vehicle with the unladen weight of less than 7500 kg. However, the definition cannot be read in isolation to Sections 3 and 4 of the Motor Vehicle Act. Section 3 makes it compulsory that a person holds an effective driving license for driving a motor vehicle in any public place. It further makes it compulsory that for driving a transport vehicle other than a motor cab or a motor cycle, a person must hold driving license specifically entitling him to drive such a vehicle. Section 4 prescribes an age limit in connection with driving of motor vehicles. The minimum age prescribed for * 9 * F.A.567.2000 7.4.2011 holding a license for Light Motor Vehicle is 18 years and that for a transport vehicle is 20 years. Conjoint reading of Section 2(11), 3 and 4 would show despite the definition at Section 2(11), the Motor Vehicles Act treats a transport vehicle differently when it comes to issuance of license for driving the same and also driving it at any public place. 11. Mr. Hegde, however, argues that the Apex Court in its decision in Ashok Gangadhar Marathe V/s. Oriental Insurance Company Ltd reported in 1999(9) Supreme To­day page 478 has treated a transport vehicle weighing less than 6000 kgs as a Light Motor Vehicle to hold that the license held by its driver for driving a Light Motor Vehicle was an effective license for driving the same at public place. The appellant before the Supreme Court was the owner of Swaraj Mazda truck weighing less than 6000 kgs. It met with an accident and was completely damaged. The appellant had lodged his claim with the insurer for the insurance policy covering the vehicle. The insurer refused to honour the commitment under the insurance policy contending that the vehicle was not being driven by a person having an effective driving license. The contention had been upheld by the State Commission, as well as, National Commission. While * 10 * F.A.567.2000 7.4.2011 considering the Appeal from the decision of the National Commission, the Apex Court noted that there was no evidence on record and no claim had either been made by the insurer that the vehicle was having a permit for goods carriage. Besides, on the date of the accident the vehicle was not carrying any goods. On the background of these facts, the Apex Court held as follows :­ 10. “ 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 n or is there any permit on record, the vehicle in question, would remain a light motor vehicle. The respondent also doe snot 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.” The facts before the Apex Court in the decision cited show that there was no evidence before the Court that Swaraj Mazda truck weighing less than 6000 kgs was being used as a goods carriage. That was not even the claim of the insurer. At the relevant time, it was not carrying goods. In view of those facts, the Apex Court accepted the argument based on the definition of Light Motor Vehicle at Section 2(21) of the Motor Vehicles Act. These material facts, however, as far as the case on hand is concerned, are completely * 11 * F.A.567.2000 7.4.2011 different. They are infact exactly contrary. There is no dispute that the vehicle TATA tempo was a transport vehicle. Infact, it was hired specifically for the purpose of transport. Further, at the relevant time, it was infact being used as a transport vehicle. Therefore, the decision cited by Mr. Hegde is not applicable to the case on hand. 12. Having thus seen that there were two breaches of the terms and conditions of the insurance policy, the next question to be considered is whether the breaches could be attributed to respondent no.1. In the facts of the case, respondent no.1 cannot escape from the responsibility of the breaches because the breaches are directly attributable to him. Since the vehicle owned by him was a transport/goods vehicle, it was his legal, as well as, contractual duty to engage a driver who held a valid license for driving a transport vehicle. Since the license held by respondent no.2 did not bear the endorsement authorising him to drive the transport vehicle, he must be held to be in the knowledge of the fact. As regards carrying unauthorised passengers in the vehicle, this is not a case where the driver or any other person had allowed the passengers to travel in the vehicle without the knowledge of the owner. The vehicle had been taken on hire by the 13 persons for transporting themselves and the heavy articles alongwith their personal luggage. * 12 * F.A.567.2000 7.4.2011 Therefore, it is not open for respondent no.1 to say that he was not aware of unauthorised use of his vehicle. 13. It is thus seen that respondent no.3 has established both the facts i.e. the fact of breaches of the terms of the insurance policy and the fact of the breach being attributable to respondent no.1. In the circumstances, respondent no.3 cannot be held liable for payment of compensation to the appellants. 14. Mr. Hegde, then submits, that though respondent no.3 is not statutorily liable to pay compensation, it should be directed to satisfy the award and then recover the amount of the award from respondent no.1. In the gross facts and circumstances of the case, in my opinion, it would not be fair and equitable to give such a direction. The Appeal and the Cross­Objections are dismissed. [SMT. R.P. SONDURBALDOTA, J]