(1 ... j.f- IN THE HON'BLE HIGH GOURTOF CHHATTISGARH AT BILASPUR M.A. (C) No.- 9,e\ii> /2009(S.B.) APPELLANT - .....<-34^ ^^S_K^-"' ^\s ^^^ -^,,^ THE ORIENTAL INSURANCE COMPANY LIMITED, JHROUGH DIVISIONAL MANAGER, G.E. ROAD, IN FRONT OF RAJENDRA NAGAR PARK, PARAMANAND BHAWAN, DURG (RESPONDENT NO.-5 IS DRIVER OF VEHICLE N0. C.G. 04 G/4682, RESPONDENT NO.-6 IS OWNER AND APPELLANT IS INSURANCE COMPANY) Vrs. RESPONDENTS/CLAIMANTS :- <- <- 1. 2. <_3. (.4. SMT. PARVATI THAKUR W/0 LATE BHVNESHWAR THAKURAGE 40 YRS. BHAGWATI THAKUR D/0 LATE BHUNESHWAR THAKUR AGE 23 YRS. GAYATRI THAKUR D/0 LATE BHUNESHWARTHAKURAGE 16YRS. JEEWAN KUMAR THAKUR S/0 LATE BHUNESHWAR THAKURAGE 13 YRS. RESPONDENT N0. 3 & 4 MINOR THROUGH GUARDIAN MOTHER PARVATI THAKUR, ALL RESIDENT JHALMALA, TAH. BALOD, DISTRICT - DURG (C.G.) RESPONDENTS/NON-APPLICANTS ^ 5. BHARAT LAL SAHU S/0 VIBHISHAN SAHU, RESIDENT OF HEERAPUR, THANA- BALOD, DISTRICT DURG f- 6. DHANESH RAM SAHU S/0 K.R. SAHU, RESIDENT OF JHALMALA DHAMTARI ROAD, TAH. - BALOD, DISTRICT DURG APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 APPEAL VALUED Rs. 2,73,000/- ( APPEAL BY INSURANCE) COMPENSATION CLAIMED BEFORE TRIBUNALRs. 15,48,000/- AWARDED AMOUNT BY TRIBUNAL Rs. 2,73,000/- ..2.. L HIGHCOURT OF CHHAmSGARH.BILASPUR @) SINGLE BENCH: HON'BLE SHRI R. L. JHANWAR. J. MLsc^AspealJCl Np. 398/2009 ApeeUant The Oriental Insurance Company Limited. Versus RESPONDENTS Smt. Parvati and others. ORDER POST ON j -2- January, 2011 Sd/- R.L. Jhanwar Judge ;-2^/01/2011 /y\ fs , ,.,^,,' *% ? >:^-^ifc.1"'. H ^; .^-y HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, M.AJC) No. 398 of 2009 APPELLANT The Oriental Insurance Company Limited, Through Divisional Manager, G.E. Road, in front of Rajendra Nagar Park, Parmanand Bhawan, Durg. (Respondent No.5 is driver of vehide No. C.G. 04 G/4682, Respondent No.6 is owner and appellant is insurance company) RESPONDENTS/ CLAIMANTS Versus 1. Smt.Parvati Thakur, W/o Bhuneshwar ThaKur, age 40 yrs. late RESPONDENTS/NON. APPLICANTS 2. Bhagwati Thakur D/o late Bhuneshwar Thakur, age 23 yrs. 3. Gayatri Thakur, D/o late Bhuneshwar Thakur, age 16yrs. 4. Jeewan Kumar Thakur, S/o late Bhuneshwar Thakur, age 13 yrs. Respondent No. 3 & 4 minor through guardian mother Parvati Thakur, All residents of Jhalmala, Tah. Balod, District Durg (C.G.) 5. Bharat Lal Sahu, S/o Vishishan Sahu, resident of Heerapur, Thana - Balod, District Durg. 6. Dhanesh Ram Sahu, S/o K.R. Sahu, Resident of Jhalmala Dhamtari Road, Tah. Balod, District Durg. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 Appearance: Shri P. Dutta, counsel for the appellant. None for respondents No.1 to 5. Shri B.P. Singh, counse] for respondent No.6 ORDER (Passedon^.01.2011) This is an appeal by the Oriental Insurance Company Limited against the order dated 26.12.2008 passed by the 2nd Additional Motor Accidents Claims Tribunal, Durg in Claim Case No.148/2008 whereby the •'f- »i^. ts~ learned Claims Tribunal has awarded Rs.2,73,000/- as total compensation to the respondents No. 1 to 4 /claimants. 2. As against the compensation of Rs.15,48,000/- claimed by the claimants / respondents No. 1 to 4 by filing claim petition under section 166 of the Motor Vehicles Act, 1988 (for short 'the Act") for the death of Bhuneshwar Thakur in the motor accident occurred on 19.06.2008, the learned Claims Tribunal, on close scrutiny of the evidence available on record and the submissions made before it, awarded a sum of Rs.2,73.000/- as total camperisation to the claimants. The Tribunal further directed the respondents to pay the compensation amount jointly and severally. It is this order, which is under challenge by the insurer. 3. Shri P. Dutta, learned counsel for the appellant argued that Metador bearing No. C.G. 04 4682 (for short "the offending vehicle), owned by respondent No.6 is a commercial vehicle and thus was insured for commercial purpose and in spite of fact thereof, on the date of incident the driver Bhratlal was driving the vehicle without holding a valid and effective driving licence, therefore, the insurance company is not liable to pay compensation asawarded by the Tribunal. He further argued that the Tribunal has erred in fastening the liability on the insurer. The award passed by the Tribunal fastening the liability on the insurer is not sustainable under law, therefore, the award of the Tribunal be modified and the insurer be exonerated from its liabiiity. He placed reliance in the matter of A/ew India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir and Another, 2008 (3) T.A.C. 20 (S.C.) 4. On the other hand, Shri B.P.Singh, learned counsel for respondent No.6 argued that the Tribunal has, in its judgment paragraph 7, given reasoning as to fastening the liability to pay compensation on the insurer, therefore, the award passed by the Tribunal does not call for interference. 5. Having heard learned counsel for the parties, 1 have perused the record including impugned order. Admittedly, the respondent No.5 - Bharatlal possessed a licence only to drive tight motor vehicle (for short "LMV") and the same was issued for the period effecting from 27.01.2007 till 26.01.2027, which was exhibited as Ex.D.2. A perusal of Ex.D.2 shows that there was no endorsement authorizing him to drive a transport vehicle ^--^TSRsa. ••'-e or a passenger carrying commercial vehicle whereas according to Ex.D.3, which is insurance policy, the offending vehicle is Goods Carrying Commercial Vehicle (other than three wheeler). Admittedly the said offending vehicle was insured with the appellant / insurance company and on 19.6.2008 the said offending vehicle was being driven by its driver / respondent No.5 in a rash and negligent manner, due to which, Bhuneshwar Thakur, who was standing on Durg - Balod road, got received injuries and later on he succumbed due to injuries. 6. Under Section 3 of the Motor Vehicles Act, 1988, no person shall 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 to do so. After the amendment incorporated in section 10 of the Act, 1988 with effect from 14.11.1995, a 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) Motor cycle without gear; (b) Motor Cycle with gear; (c) Invalid carriage; (d) Light motor vehicle; (e) Transport vehicle; (f) Road-roller; (g) Motor vehicle of a specified description. 7. Under sub-section 47 of Section 2 of the Act, 1988, "transport vehicle" means a public sen/ice vehicle, a goods carriage, an educational institution bus or a private service vehicle. Thus, the said offending vehicle i.e. Metador falls under the category of Goods Carrying v«h;deL Commercial Vehicle. Admittedly, the said offending^vas also insured by the owner as a goods carriage. It was, therefore, necessary that the driver of the said offending vehicle ought to have been authorized by an endorsement on his licence to drive a transport vehicle or in this case, a goods carriage vehicle. The licence granted in favour of driver Bharat Lal goes to show that the same was granted for a vehicle other than the transport vehicle. It was valid for a period of 20 years. Section 14 (2)(a) of the Act, 1988 provides that a driving licence issued or renewed under the Act shall, in case of a licence to drive a transport vehicle will be effective for a perjod of three years whereas in the case of any other "t^w>, vehicle, itcan be issued or renewed for a period of 20 years from the date of issuance or renewal. Thus, it is clear that driver of the vehicle was not granted a valid driving licence for driving a goods carriage vehicle. 8. From the discussions made herein before, it is evident that the driver of the vehicle was not holding an effective and valid licence. Possession of an effective and valid licence is necessary in terms of Section 10 of the Motor Vehicles Act. 9. In Oriental Insurance Co. Ltd, V. Angad Kol, 2009 ACJ 1411, the Apex Court observed in paragraph 10 as under: "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." 10. In Oriental Insurance Co. Ltd. V. Angad Kol (supra) and New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir and another, 2008 ACJ 2161, the Apex Court held that licence having been granted for a period of twenty years, a presumption, therefore, arises that it was meant for the purpose of a vehicle other than a transport vehicle. 11. In Oriental Insurance Co. Ltd. V. Angad Kol (supra), the Apex Court has also discussed about its judgment rendered in the matter of National Insurance Company Ltd. V. Annappa Irappa Nesaria & Others (supra) and found that driver should always be held with effective and valid driving licence, according to type of vehicle and then only it can be said that driver is holding valid and effective licence. 12. For the foregoing reasons, l am of the considered opinion that since in the present case also the vehicle in question was a Metador insured as goods carrying commercial vehicle and fell into the category of transport vehicle, the appellant / insurer was not liable to indemnify the award as the driver was holding a licence only to drive LMV and there was no r"si ^SSS'^SS'f-Ses^ ^%^.i authorization or endorsement on his licence to drive a goods carrying commercial vehicle. 13. In the result, the appeal is allowed. It is held that the appellant / insurance company is exonerated and thus not liable to pay compensation. The impugned order in so far as its relates to pay compensation of Rs.2,73,000/- by the insurer and owner, jointly and severally, is set aside. Instead, it is ordered that the compensation awarded by the Tribunal shall be paid by the owner i.e. respondent No.6. The appellant / insurer may initiate proceedings for recovery of compensation, if any, paid by it. No order as to costs. R.L. Jhanwar Judge A^