IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. (Q No. ^(TCT / 2010 ^^^, ^fA APPELLANT : The Oriental Insurance Company Limited, (N.A No.2) Branch- Jagdalpur, Bastar (C.G.) VERSUS RESPONDENTS : 1. Tameshwar Thakur S/o P.S.Thakur, aged CLAIMANT about 25 years R/o Chitalanka, P.S. Dantewada, Distt : South Bastar Dantewada ^- (C.G.) (N.A No. 1 ) ^ \<^^-:"' ^\ Prakash Kumar Yadav S/o P.R.Yadav, aged ^ IP^ about 23 years; R/o Jhamupara Karli ^ ..-" .A --Ywv\tt*<^p ^-7 » Dantewada, Distt : South Bastar Dantewada ..^'""v.';^1. t^^" \v' ^^, ^-_7-'" \^"~--7"7. ,.,,^-" ^^~ ' (C.G.)-—(DriverandOwnerofvehicle)— ?^ ...-'* ^^~ ^•"APPEAL UNDER SECTION 173 OF MQTQR VEHICLE ACT AGAINST THE AWARD/ORDER DATED 25.11.2009" PASSED BY LEARNED ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, DANTEWADA (PRESIDING OFFICER SHRI B.R.PRADHAN ) PASSED IN CLAIM CASE N0.117/08. COPY OF AWARD DATED 25.11.09 IS FILED HEREWITH AS 'ANNEXUREA-l'. k^ ^: V-v' ^ ^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL (Q No. 255 of 2010 APPELLANT (N.A.No.2) RESPONDENTS CLAIMANT The Oriental Company Limited. Insurance Versus Tameshwar another Thakur and APPEAL UNDER SBCTION173 OF MOTOR VEHICLES ACT SB:- Hon. Shri N.K. A^arwal, J PRESENT:- Shri H.P.Agrawal, Advocate for the appellant. Shri PrafuUa N. Bharat, Advocate for respondent No. 1. Shri Parasmaiii Shrivas, Advocate for respondent No.2. ORAL AWARD (12.09.2011) This is insurer's appeal against the award dated 25th November, 2009 passed in claim case No. 117/2008 by fhe Additional Motor Accidents Claims Tribunal, Dantewada. 2. As against the compensation of Rs.4,00,000/- claimed by respondent No. 1/clainaant by JBluig application under Section 166 of the Motor Vehicles Act, 1988 (for short "the Acf] for the injuries sustained by him in the motor accident on 10.09.2008, the learned Tribunal has awarded a total sum ofRs.2,52,075/- as compensation along with interest at 7.5% per annum from the date of application till its actual payment. 3. The leamed Tribunal, on a close scrutiny of fhe evidence led, held: fhe accident had occurred due to rash and ^ w •^: negligent driving by respondent No.2 i.e. driver-cum-owner of the olBendmg vehicle i.e. Commander Jeep bearing registration No. C.G. 18 T-0153; held appellant/insiiraace conipany liable for payment of compensation as according to the Tribunal, tfae appellant could not establish breach of policy conditions; assessed and awai'ded the aforesaid ainount of compensation to respondent No. 1/claiman along with interest @ 7.5% per amium from the date of application till its actual payment. 4. Shri H.P.Agrawal, leamed counsel appearing for fhe appeUant would submit: the ofiending vehicle is passenger caTrying commercial vehicle, the driver-cum-owner i.e. respondent No.2 was not having valid and ejEfecti.ve driving licence to drive the above vehicle iaasmuch as fhe endorsenient to drive transport vehicle was not there and fhe leamed Tribunal has fallen in error in holding the appellant/insurance company liable for payment of compensation. 5. On the other hand, Shri Prafulla N. Bharat, Advocate for respondent No.l and Shri Parasmani Shrivas, Advocate for respondent No.2 supported the award impugned and submitted that in the facts and circumstances ofthe case, the leamed Tribunal has rightly fastened fhe liability upon fhe insurance company and the award does not call for interference. ^'.< 60 I have heard leamed counsel for the parties and perused the award unpugned including the record of the Tribunal. 7. The efiect of fhe different terms of licences granted in terms of tiie provisions of Section 2(14) and 2(47) has been noticed by this Court in fhe case of New JncSa Assurance Co. Ltd. V. Prabhu Lal {JT 2007(13)8c 246; 2008 (1) SCC <596j, whereiii the Supreme Court held as under: a30. Now, it is the case ofthe Insurance Company tfwit the vehicle of the complainant which met with an accident was a "transport vehide9. It was submitted that the insured vehide was a agoods carriage" and was thus a "transport vehicle". The vehicle was driven by Ram Narain, who was authorized to drive light motor vehide and not a transport vehicle. Since the driverhadno Ucence to drive transport vehide in absence of necessary endorsement in his licence to that effect, he could not have driven Tata 709 and when that vehicle met with an acddent, the Insuranoe Company could not be m.ade liable topay compensation. XXX XXX XXX 37. The argument ofthe Insurance Company is that at the time of accident, Ram Narayan had no valid and affecttve Ucence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive Light Motor Vehide. The leamed counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having Ucence to drive light motor vehide, he can ^7 ^ < not drive a transport vehicle unless his driving licence specifically entitles him so to do (Section 3).Clauses (14), (21), (28) and (47) of Section 2 make it clear that if a vehide is "light motor vehide", but falls under the category of transport vehide, the driving licence has to be duly endorsed under Section 3 oftheAct Ifit is notdone, aperson holding driving lic^nce to ply light motor vehicle cannotply transport vehide.It is notin dispute that m the instant case, Ram Narain ivas having Ucence to drive light motor vehide. The licence was not endorsed as required and hence, he could not have driven Tata 709 in absence of requisite endorsement ahd the Insurance Company could not be held liable. 38. Wefind considerable force in the submission qf the leamed counsel for the Jhsurance Company. We alsofind that the District Forum considered the question in its proper perspective and held that the vehide driven by Ram Narain was covered by the category of transport vehide under Clause (47) of Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply su.ch vehide. K is not even the case of the comptainant that there was such endorsement and Ram Narain was allowed to pty transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. Tous, therefore, the District Forum was right in holding that Ram Narain could not have driven thevehidein qu-estion. ^ ^ 1 ! • • y' < 8. The period of Ucence would again su^est fhat fhe licence was non-transport vehicle licence. In New India Assurance Co. Ltd. v. Roshcmben JPcthemcunsfea Fdkir and another, 2008 ACJ 2161, fhe Apex Coiirt held that licence having been granted for a period of foyenty years, a presumption, therefore, arises that it was meant for the purpose of a vehicle other than a transport vehicle. 9. The Apex Curt in case of Oriental Inswance Company Ltd, -v- Angcud Kol cind Ors, reported in (2009 (11) SCC 356 has noticed Sections 2(10), (11), (12), (13), (14), (21) and Sections 3, 9, 10, 14 of the Act aad Rules 14 and 16 of Central Mlotor Vehicle Rules, 1989 along witli Forms 4 and 6, and after noticmg its earlier judgments in the cases of National Insurcince Co. Ltd, V. Annappa Irappa Nesarici, [JT 2008 (1) SC (617; 2008 (3) SCC 464], New India Asswcmce Co. Ltd. V. Prabhu Lal, [JT 2007(13)8c 246; 2008 (1) SCC 696], New India Assurance Company Ltd. v. Prabhu Lal, 2008 (1) SCC 696 and Ashok Qangadhar Maratha v. Oriental Insurance, [JT 1999 (6) SC 423 ; 1999 (6) SCC 620, has held: "a transport vehicle may be a light motor vehicle but for fhe purpose of drivlng fhe same, a different licence is required to be obtained^ 10. In the instant case, indisputably, the respondent No.2 i.e. dnver-cum-owner was holding driving licence to drive 1 .^^^. /"'^^^ '^' ^ ^ E '^ light motor vehicle at the time of accident and was valid for a period of 20 years and there is no endorsement which would entitle him to ply the offending vehicle. By applying fhe ratio of law laid down by the Supreme CoLirt in the above referred cases, it is crystal clear that driving licence held by respondent No.2 was not valid and the appellant/insurance company has successfuUy proved its defence. 11. For fhe reasons mentioned hereinabove, ttie appeal is allowed in part. The award against the appellant/fhe Oriental Insiirance Company Limited is set aside. Rest of the conditions of tfae award shall remain intact. The respondent No. 1/claimant is entitied for payment of compensation from respondent No.2 i.e. owner-cum-driver. However, by applying the ratio of law laid down by fhe Supreme Court m the case of Ndtional Insurance Com^pany Lt<L v. Swaran Singh cind QtherSf (2004) 3 SCC 297 and in the case of Pramod Kumar Agrciwal and Another v. Mushtari Beguin (Smt.) cind others, (2004) 8 SCC 667, I direct fhe appellant/insurance company to pay the quantum of compensation fixed by fhe Tribunal to respondent No. 1/claimant wifhin a period of 3 monfhs from today and then to recover it from respondent No.2 i.e. owner of the offending vehicle. For fhe purpose of recovering the same from fhe owner, the appellaiit shall not be reqi.ured to file a suit. It may initiate a proceeding before the executing Court concemed as if the dispute between the "<-'c t •^....—^;.., ifi' 'Y^:^ ."^'T1''. % 'NSJ@a S.,2y ^ c\ s^. ^; <-.. insurer and the owner was fhe subject-matter of determination before fhe Tribunal and the issue is decided against the owner and in favour ofthe insurer, Before release of fhe amount to fhe claunant, owner of fhe vehicle i.e. respondent No.2 shall fumish security for fhe entire amount which the appellant wiU pay to fhe claiinant The offen'ding vehicle shall be attached, as a part of the security. If necessity arises, the executing Court shall take assistance of the Reglonal Transport Authority concemed. The executtng Court shatl pass appropriate orders ui accordance wifh law as to fhe manner in which the owner of the vehicle i.e. respondent No.2 shall make payiuent to tiie appellant. In case there is any default, it shall be open to fhe executing Court to direct realization by disposal of the securities to be fumished or frora any other property or properties of respondent No.2 i.e. owner ofthe offending vehicle. 12. No order as to costs. Sd/- N.K. Agarwal Judge