IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (MVA) No. 33 & 55 of 2010 Decided on : 17.10.2014 ______________________________________________________ 1. FAO No. 33 of 2010 The United India Insurance Company Ltd. …..Appellant Versus Shri Madan Lal & others …Respondents ______________________________________________________ 2. FAO No. 55 of 2010 Shri Madan Lal …Appellant Versus Rakesh Kumar & others …Respondents _____________________________________________________ Coram: The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice Whether approved for reporting? Yes. FAO No. 33 of 2010 For the appellant : Mr. J.S. Bagga, Advocate. For the respondents: Mr. G.C. Gupta, Senior Advocate with Ms. Meera Devi, Advocate, for respondent No. 1. Mr. Sunil Mohan Goel, Advocate, for respondent No. 2. Mr. Neeraj Gupta, Advocate, for respondent No. 3. ________________________________________________________ FAO No. 55 of 2010 For the appellant : Mr. G.C. Gupta, Senior Advocate with Ms. Meera Devi, Advocate. For the respondents: Mr. Sunil Mohan Goel, Advocate, for respondent No. 1. Mr. Neeraj Gupta, Advocate, for respondent No. 2. Mr. J.S. Bagga, Advocate, for respondent No. 3. 2 2 Mansoor Ahmad Mir, Chief Justice (oral) Award dated 25th November, 2009, made by the Motor Accident Claims Tribunal, Fast Track Court, Shimla, H.P., in M.A.C. Petition No. 81-S/2 of 2005/04, titled as Shri Madan Lal versus Shri Rakesh Kumar & others, has given birth to both these appeals, for short, “the impugned award”. Brief Facts: 2. Claimant Madan Lal filed claim petition before the Tribunal, for grant of compensation to the tune of ` 5,22,000/-, on the ground that his father Mast Ram became victim of the motor vehicular accident, which was caused by driver, namely Rakesh Kumar, while driving vehicle-Mahindra Pick Up bearing registration No. HP-09A-0197, rashly and negligently, on 23rd December, 2002, at about 2.40 p.m., near Hotel ‘Asia The Dawn’; Shimla, sustained injuries and succumbed to the injuries; FIR No. 300/2002 was registered in Police Station Boileauganj, Shimla and the deceased was earning ` 5,000/- per month. 3. Initially, the driver appeared before the Tribunal, but later on, he failed to do so. Accordingly, he was set ex-parte. The owner also did not appear before the Tribunal and was set ex-parte. 3 3 4. The claim petition was resisted only by the insurer on the grounds taken in its memo of objection. 5. Following issues came to be framed by the Tribunal on 04.07.2008:- “1. Whether Sh. Mast Ram died due to the rash and negligent driving of vehicle No. HP-09-0197 by respondent/driver Sh. Rakesh Kumar? …OPP 2. If issue No. 1 is proved in the affirmative, whether the petitioner is entitled to the compensation as claimed. If so, its quantum and from whom? ..OP Parties 3. Whether the petition is not maintainable? …OPR-3 4. Whether the vehicle was being plied in violation of the terms and conditions of the insurance policy. If so, its effect? …OPR-3 5. Whether Sh. Rakesh Kumar was not holding and possessing a valid and effective driving licence to drive the vehicle as alleged? If so, its effect? …OPR-3 6. Whether the petition is collusive as alleged, If so, its effect? ..OPR-3 7. Relief.” 6. The claimants examined Dr. Piyush Kapila (PW-1), Smt. Nirmala Devi (PW-2), Constable Badri Dutt (PW-3) and Shri Amar Singh (PW-5). The claimant also appeared in the witness box as PW-4. The insurer has 4 4 examined Smt. Shashi Saini (RW-1), Shri Shamsher Singh (RW-2) and Smt. Sheela Shyam (RW-3). 7. The Tribunal, after examining the pleadings and scanning the evidence on record, held that the claimant has lost source of dependency, the deceased was 58 years of age at the time of accident and was earning `4,000/-, per month and awarded compensation to the tune of `2,03,000/- in favour of the claimant and directed the insurer to satisfy the award. 8. The claimant has questioned the impugned award on the ground that the Tribunal has wrongly applied the multiplier of ‘7’ and deducted 50% towards his personal expenses, which is without any legal sanctity. 9. In terms of the Schedule appended to Motor Vehicles Act, 1988 and the ratio laid down by the Apex Court in Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another, reported in AIR 2009 SC 3104 and upheld by a larger Bench of the Apex Court in case titled as Reshma Kumari & others versus Madan Mohan and another, reported in 2013 AIR (SCW), the multiplier of ‘7’ came to be rightly applied. 10. I wonder, how the Tribunal has deducted 50% towards the personal expenses of the deceased. 5 5 1/3rd deduction was to be made towards his personal expenses in view of the ratio laid down by the Apex Court in Sarla Verma’s and Reshma Kumari,s cases, supra. Thus, the claimant is held entitled to the tune of `3300/- per month under the head “loss of dependency”, which comes to ` 3300 x 12 = ` 39,600 x 7 = `2,77,200/-. 11. Having said so, the claimant is held entitled to the tune of `2,77,200/-, under the head “loss of dependency”, `25,000/- under the head “loss of love and affection” and `10,000/- under the head “conventional charges”, total compensation amounting to ` 3,12,200/- with interest at the rate of 9% per annum from the date of filing of the claim petition till its realization. 12. The insurer has questioned the impugned award on the ground that the driver was not having valid and effective driving licence at the time of accident. 13. Admittedly, the driver was driving Mahindra Pick Up, the gross weight of which is 2523 kilograms, as per the Insurance Policy, Ext. RW 1/A, is a light motor vehicle. 6 6 14. 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.” 15. 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. 7 7 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. 16. 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. 17. 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 8 8 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.” 18. 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. 19. 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 9 9 entitling the holder 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.” 20. Section 10 (2) (d) of the MV Act contains “light motor vehicle” and Section 10 (2) (e) of the MV Act, was substituted in terms of amendment of 1994, class of the vehicles specified in clauses (e) to (h) before amendment stands 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. 21. 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 10 10 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 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 judgment 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 11 11 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.” 22. The 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 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 12 12 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'.” 23. 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: 13 13 “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. ….......................... 16. From what has been noticed hereinbefore, it is evident that 'transport vehicle' has now been substituted for 'medium 14 14 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.” 24. Having glance of the above discussions, I hold that the endorsement of PSV was not required. 25. It is also 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. 26. 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 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 15 15 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 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.” 27. 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. ..................... 16 16 (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. (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.” 28. In a case titled as Lal Chand versus Oriental Insurance Co. Ltd., reported in 2006 AIR SCW 4832, the 17 17 owner had performed his duties and obligations, which he was required to do and satisfied himself that the driver was having valid driving licence. The Apex Court held the insurer liable. It is apt to reproduce paras 8, 9 and 11 of the judgment herein: “8. We have perused the pleadings and the orders passed by the Tribunal and also of the High Court and the annexures filed along with the