IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (MVA) No.54 of 2012. Date of decision: 25th July, 2014. Mahesh Kumar and another …..Appellants Versus Smt. Piaro Devi and others …Respondents Coram: The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. Whether approved for reporting ?1 Yes. For the appellants: Mr. B.C. Verma, Advocate. For the respondents: Mr. Rahul Mahajan, Advocate, for respondents No. 1 and 2. Mr. Ajay Chandel, Advocate, for respondent No. 3. _______________________________________________________ Mansoor Ahmad Mir, Chief Justice (Oral) This appeal is directed against the judgment and award dated 30.11.2011, passed by the Motor Accident Claims Tribunal, Fast Track Court, Una, H.P. in MAC Petition No. 12 of 2009, whereby compensation to the tune of `1,90,000 along with interest @ `7 ½ % per annum came to be awarded in favour of claimants and insurer was saddled with the liability to pay the compensation with right of recovery from the owner, for short “the impugned award”, on the grounds taken in the memo of appeal. 2. The owner-insured, feeling aggrieved has questioned the impugned award so far as it relates to right of recovery granted to the insurance company. 3. Neither the claimants nor insurer have questioned the impugned award on any ground thus, 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - the award, so far as it relates to them has attained finality. The only core question in this appeal is whether the right of recovery came to be rightly granted? The answer is in negative for the following reasons. 4. The claimants, who are unfortunate parents of the deceased had filed claim petition before the Tribunal below for the grant of compensation on account of death of their minor child Daljeet Singh who lost his life in a vehicular accident which was caused by Raman Kumar, driver of tempo vehicle bearing registration No. PB-07J-5537 rashly and negligently at Seera Da Paron near Bagla Mukhi Temple, who sustained injuries, was taken to the hospital, and succumbed to the injuries. The claimants had claimed compensation to the tune of `20 lacs, as per break-ups given in the memo of claim petition. 5. The respondents resisted the claim petition and following issues came to be framed by the Tribunal. (i) Whether deceased Daljeet Kumar died due to rash and negligent driving of tempo bearing registration No. PB-7J-5537 on 25.4.2009 at about 7.20 a.m. at Seera Da paron near Bagla Mukhi Temple, by respondent No. 1 ? OPP (ii) If Issue No. 1 is proved in affirmative, whether the petitioners are entitled to compensation, if so, how much and from whom? OPP (iii) Whether the respondent No. 1 was not holding valid and effective driving license at the time of accident? OPR-3. - 3 - (iv) Whether the tempo was being plied without any valid RC route permit and fitness certificate? OPR-3. (v) Relief. 6. Claimants examined Dr. Anil Mahajan as PW1, HHC Sarup Singh PW2, Ram Kishan PW3 and Jaginder Singh as PW4. However, they have filed Ext. PW1/A P.M.R, Ext. PW2/A FIR, Ext. P1, Birth certificate, Ext.P2 Death certificate and Ext. P3 Birth certificate, Mark A,B,C,D, E, F, i.e., photocopy of DL and RC, affidavits, photocopy of Rasan Card, School certificate and I- cards. Insured has placed on record insurance policy, photocopy of DL and RC, i.e., Ext. RX, Ext. RY and Ext. RZ. 7. The Tribunal, after scanning the evidence decided all the issues in favour of the claimants and against the respondent and held that owner has committed breach and granted the right of recovery to the insurance company. 8. I have gone through he impugned award and evidence on record. There is ample evidence on the record to the effect that the driver was driving the offending vehicle rashly and negligently and caused accident in which Daljeet Singh minor son of the claimants lost his life. Therefore, the findings returned by the Tribunal to this effect on issue No. 1 are upheld. 9. Before I deal with Issue No. (ii), I deem it proper to deal issues No. (iii) and (iv) at the first instance. - 4 - The onus to prove these issues was on the insurer but the insurer has not led any evidence and has failed to discharge the onus. Thus, all the issues have been decided against the insurer. However, the Tribunal while recording reasons and returning findings held that the driver was having license to drive the scooter and light motor vehicle but was not having Public Service Vehicle (PSV) endorsement thereby not competent to drive the passenger vehicle, i.e., offending vehicle-tempo. 10. I deem it proper to reproduce the definitions of “driving licence”, “light motor vehicle”, “private service vehicle” and “transport vehicle” as contained in Sections 2 (10), 2 (21), 2(35) and 2 (47), respectively, of the MV Act herein: “2. ….............. (10) “driving licence” means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than a learner, a motor vehicle or a motor vehicle of any specified class or description. xxx xxx xxx (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 7,500 kilograms. xxx xxx xxx (35) “public service vehicle” means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage. xxx xxx xxx (47) “transport vehicle” means a public service vehicle, a goods carriage , an educational institution bus or a private service vehicle.” - 5 - 11. Section 2 (21) of the MV Act provides that a “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. Section 2 (35) of the MV Act gives the definition of a “public service vehicle”, which means any vehicle, which is used or allowed to be used for the carriage of passengers for hire or reward and includes a maxicab, a motorcab, contract carriage and stage carriage. It does not include light motor vehicle (LMV). Section 2 (47) of the MV Act defines a “transport vehicle”. It means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. 12. At the cost of repetition, definition of “light motor vehicle” includes the words “transport vehicle” also. Thus, the definition, as given, mandates the “light motor vehicle” is itself a “transport vehicle”, whereas the definitions of other vehicles are contained in Sections 2(14), 2 (16), 2 (17), 2 (18), 2 (22), 2 (23) 2 (24), 2 (25), 2 (26), 2 (27), 2 (28) and 2 (29) of the MV Act. In these definitions, the words “transport vehicle” are neither used nor included and that is the reason, the definition of “transport vehicle” is given in Section 2 (47) of the MV Act. - 6 - 13. In this backdrop, we have to go through Section 3 and Section 10 of the MV Act. It is apt to reproduce Section 3 of the Act herein: “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 authorising 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. (2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.” 14. It mandates that the driver should have the licence to drive a particular kind of vehicle and it must contain endorsement for driving a transport vehicle. In this section, the words “light motor vehicle” are not recorded. Meaning thereby, this section is to be read with the definition of other vehicles including the definition given in Section 2 (47) of the MV Act except the definition given in Section 2 (21) of the MV Act for the reason that Section 2 (21) of the MV Act provides, as discussed hereinabove, that it includes transport vehicle also. 15. My this view is supported by Section 10 of the MV Act, which reads as under: “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 - 7 - to drive a motor vehicle of one or more of the following cases, namely:- (a) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) transport vehicle; (i) road-roller; (j) motor vehicle of a specified description.” 16. Section 10 (2) (d) of the MV Act contains “light motor vehicle” and Section 10 (2) (e) of the MV Act, which was substituted in terms of amendment of 1994, class of the vehicles specified in clauses (e) to (h) before amendment stand deleted and the definition of the “transport vehicle” stands inserted. So, the words “transport vehicle” used in Section 3 of the MV Act are to be read viz-a-viz other vehicles, definitions of which are given and discussed hereinabove. 17. A Division Bench of the High Court of Jammu and Kashmir at Srinagar, of which I (Justice Mansoor Ahmad Mir, Chief Justice) was a member, in a case titled as National Insurance Co. Ltd. versus Muhammad Sidiq Kuchey & ors., being LPA No. 180 of 2002, decided on 27th September, 2007, has discussed this issue and held that a driver having licence to drive “LMV” requires no “PSV” endorsement. It is apt to reproduce the relevant portion of the judgment herein: “The question now arises as to whether the driver who possessed driving licence for driving abovementioned vehicles, could he drive a passenger vehicle? The answer, I find, in the judgment passed by this court in case titled National Insurance Co. Ltd. Vs. Irfan Sidiq Bhat, 2004 (II) SLJ 623, wherein it is held that Light Motor Vehicle includes transport vehicle and transport vehicle includes public service vehicle and public service vehicle - 8 - includes any motor vehicle used or deemed to be used for carriage of passengers. Further held, that the authorization of having PSV endorsement in terms of Rule 41 (a) of the Rules is not required in the given circumstances. It is profitable to reproduce paras 13 and 17 of the judgement hereunder:- “13. A combined reading of the above provisions leaves no room for doubt that by virtue of licence, about which there is no dispute, both Showkat Ahamd and Zahoor Ahmad were competent in terms of section 3 of the Motor Vehicles Act to drive a public service vehicle without any PSV endorsement and express authorization in terms of rule 4(1)(a) of the State Rules. In other words, the requirement of the State Rules stood satisfied. …......................................... 17. In the case of Mohammad Aslam Khan (CIMA no. 87 of 2002) Peerzada Noor-ud- Din appearing as witness on behalf of Regional Transport Officer did say on recall for further examination that PSV endorsement on the licence of Zahoor Ahmad was fake. In our opinion, the fact that the PSV endorsement on the licence was fake is not at all material, for, even if the claim is considered on the premise that there was no PSV endorsement on the licence, for the reasons stated above, it would not materially affect the claim. By virtue of “C to E” licence Showkat Ahmad was competent to drive a passenger vehicle. In fact, there is no separate definition of passenger vehicle or passenger service vehicle in the Motor Vehicles Act. They come within the ambit of public service vehicle under section 2(35). A holder of driving licence with respect to “light Motor Vehicle” is thus competent to drive any motor vehicle used or adapted to be used for carriage of passengers i.e. a public service vehicle.” In the given circumstances of the case PSV endorsement was not required at all.” 18. The purpose of mandate of Sections 2 and 3 of the MV Act came up for consideration before the Apex Court in a case titled as Chairman, Rajasthan State Road Transport Corporation & ors. versus Smt. Santosh & Ors., reported in 2013 AIR SCW 2791, and after examining - 9 - the various provisions of the MV Act held that Section 3 of the Act casts an obligation on the driver to hold an effective driving licence for the type of vehicle, which he intends to drive. It is apt to reproduce paras 19 and 23 of the judgment herein: “19. Section 2(2) of the Act defines articulated vehicle which means a motor vehicle to which a semi-trailer is attached; Section 2(34) defines public place; Section 2(44) defines 'tractor' as a motor vehicle which is not itself constructed to carry any load; Section 2(46) defines `trailer' which means any vehicle, other than a semi- trailer and a side-car, drawn or intended to be drawn by a motor vehicle. Section 3 of the Act provides for necessity for driving license; Section 5 provides for responsibility of owners of the vehicle for contravention of Sections 3 and 4; Section 6 provides for restrictions on the holding of driving license; Section 56 provides for compulsion for having certificate of fitness for transport vehicles; Section 59 empowers the State to fix the age limit of the vehicles; Section 66 provides for necessity for permits to ply any vehicle for any commercial purpose; Section 67 empowers the State to control road transport; Section 112 provides for limits of speed; Sections 133 and 134 imposes a duty on the owners and the drivers of the vehicles in case of accident and injury to a person; Section 146 provides that no person shall use any vehicle at a public place unless the vehicle is insured. In addition thereto, the Motor Vehicle Taxation Act provides for imposition of passenger tax and road tax etc. 20. …....................... 21. …...................... 22. …..................... 23. Section 3 of the Act casts an obligation on a driver to hold an effective driving license for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licenses for various categories of vehicles mentioned in sub-section (2) of the said Section. The definition clause in Section 2 of the Act defines various categories of vehicles 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'.” - 10 - 19. The Apex Court in another case titled as National Insurance Company Ltd. versus Annappa Irappa Nesaria & Ors., reported in 2008 AIR SCW 906, has also discussed the purpose of amendments, which were made in the year 1994 and the definitions of 'light motor vehicle', 'medium goods vehicle' and the necessity of having a driving licence. It is apt to reproduce paras 8, 14 and 16 of the judgment herein: “8. Mr. S.N. Bhat, learned counsel appearing on behalf of the respondents, on the other hand, submitted that the contention raised herein by the appellant has neither been raised before the Tribunal nor before the High Court. In any event, it was urged, that keeping in view the definition of the 'light motor vehicle' as contained in Section 2(21) of the Motor vehicles Act, 1988 ('Act' for short), a light goods carriage would come within the purview thereof. A 'light goods carriage' having not been defined in the Act, the definition of the 'light motor vehicle' clearly indicates that it takes within its umbrage, both a transport vehicle and a non-transport vehicle. Strong reliance has been placed in this behalf by the learned counsel in Ashok Gangadhar Maratha vs. Oriental Insurance Company Ltd., [1999 (6) SCC 620]. 9. ….................. 10. …............... 11. …............... 12. ….............. 13. ….............. 14. Rule 14 prescribes for filing of an application in Form 4, for a licence to drive a motor vehicle, categorizing the same in nine types of vehicles. Clause (e) provides for 'Transport vehicle' which has been substituted by G.S.R. 221(E) with effect from 28.3.2001. Before the amendment in 2001, the entries medium goods vehicle and heavy goods vehicle existed which have been substituted by transport vehicle. As noticed hereinbefore, Light Motor Vehicles also found place therein. 15. ….......................... - 11 - 16. From what has been noticed hereinbefore, it is evident that 'transport vehicle' has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time, to cover both, 'light passenger carriage vehicle' and 'light goods carriage vehicle'. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well.” 20. Having glance of the above discussions, I hold that the endorsement of PSV was not required. 21. It is not a case of the insurer that the accident was due to the reason that the driver of the offending vehicle was competent to drive one kind of the vehicle and was found driving different kind of vehicle, which was the cause of the accident. 22. The Apex Court in a case titled as National Insurance Co. Ltd. versus Swaran Singh and others, reported in AIR 2004 Supreme Court 1531, held that it has to be pleaded and proved that the driver was having licence to drive one kind of vehicle, was found driving another kind of vehicle and that was the cause of accident. If no such plea is taken, that cannot be a ground for discharging the insurer. It is apt to reproduce para 84 of the judgment herein: “84. 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 Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are (a) Motorcycles 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 - 12 - vehicles 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', `motorcycle', `omnibus', `private service 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. A person possessing a driving licence for `motorcycle without gear', for which he has no licence. Cases may also arise where a holder 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 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 accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with 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. Emphasis added.” 23. In the said judgment, the Apex Court has also laid down principles, how can insurer avoid its liability. It is apt to reproduce relevant portion of para 105 of the judgment in Swaran Singh's case (supra): “105. ..................... (i) ......................... (ii) ........................ (iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. - 13 - (iv) The insurance companies are, however, with a view to avoid their liability, must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them. (v)......................... (vi) Even where the insurer is able to prove breach 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 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 insured under Section 149 (2) of the Act.” 24. Applying the test, it was for the insurer to prove that the owner-insured has committed willful breach, which it has failed to do so. 25. In the given circumstances, the Tribunal has fallen in error in saddling the owner-insured with liability. 26. Having said so, the driver was competent to drive the tempo. As per the route permit and insurance policy, the gross unladen weight of the vehicle is below 7500kg., and falls within the definition of light motor vehicle. 27. Having said so, the finding with regard to right of recovery is set aside. 28. The claimant has not questioned the adequacy of compensation thus, the amount awarded is held to be adequate. - 14 - 29. Accordingly, issue No. (ii) is decided in favour of the claimant and against the insurer and insurer is saddled with the liability. The impugned award is accordingly modified, as indicated above. 30. The learned counsel for the insurer stated at the Bar that the insurer has deposited the amount before the Tribunal below. The Tribunal below is directed to release the amount in favour of the claimants, strictly in terms of the conditions contained in the impugned award, if not already released and amount, if any, deposited by the appellant/owner be released to the appellant through payee’s account cheque, after proper identification. 31. Accordingly, the appeal is disposed of alongwith pending applications, if any. 32. Send down the record alongwith. July 25, 2014, ( Mansoor Ahmad Mir