IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 814 of 2006 The Oriental Insurance Company Ltd. … Appellant Vs Sri Kesar Singh Bisht & others … Respondents Sri V.K. Kohli, learned Senior Advocate assisted by Sri I.P. Kohli, learned counsel for the appellant Sri H.M. Bhatia, learned counsel for the respondent Nos. 1 and 2 Sri S.K. Mandal, learned counsel for the respondent No. 3 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the appellant/Oriental Insurance Company Ltd. against the judgment and award dated 12.10.2006 passed by M.A.C.T./District Judge, Udham Singh Nagar in M.A.C. No. 271 of 2004, Sri Kesar Singh Bisht & another Vs Smt. Purva Sharma & others. 2. Brief facts of the case are that on 22.07.2004, the deceased was travelling in Jeep bearing registration No. HP34A/1262 from Manikaran to Barsaini. At about 09:00 p.m., when the said jeep reached at Patel Office, suddenly, the driver of the jeep lost control over the same and it fell into the ditch. In the said accident, the deceased – Jagdish Singh Bisht died at the spot. According to the claim petition the deceased was 22 years of age and used to earn Rs. 7,500/- by working in M/s Swastik Construction Company. The claimants are the parents of the deceased and dependents upon him. Hence, they have filed claim petition before the Tribunal for a sum of Rs. 15,00,000/- as compensation in lieu of the death of their young son. 3. Thereafter notices were issued to the opposite parties. The opposite party No. 1 – owner of the vehicle in 2 question contested the claim petition by filing written statement before the Tribunal on the ground that the driver of the vehicle was having the valid and effective driving licence and the vehicle in question was insured with the Oriental Insurance Company Ltd., therefore, the liability of compensation lies upon the insurer of the vehicle. 4. The opposite party No. 2 – Oriental Insurance Company Ltd. also contested the claim petition by filing written statement before the Tribunal alleging therein that the vehicle was insured as goods carrying commercial vehicle but the same was used as a passenger vehicle on the date of accident. It has further alleged that the driver of the vehicle in question was not having the valid and effective driving licence. Therefore, the claim petition was liable to be dismissed against the present applicant/insurer of the vehicle. The opposite parties No. 3 and 4 are the brother of the deceased and they have admitted the allegations made in the claim petition and have no objection, if the amount of compensation is awarded in favour of the claimants. 5. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which were discussed in great detail. Thereafter, both the parties led evidence in support of their case. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim petition for a sum of Rs. 1,94,000/- along with interest @ 5% per annum from 09.12.2004 till the actual date of payment vide judgment and order dated 12.10.2006. 3 6. Feeling aggrieved by aforesaid judgment and award, the appellant/insurer of vehicle No. HP34A/1262 has preferred this appeal. 7. Heard Sri V.K. Kohli, learned Senior Advocate assisted by Sri I.P. Kohli, learned counsel for the appellant, Sri H.M. Bhatia, learned counsel for the respondent Nos. 1 and 2, Sri S.K. Mandal, learned counsel for the respondent No. 3 and perused the record. 8. Learned counsel for the appellant has firstly argued that the deceased was travelling as a gratuitous passenger in the jeep, therefore, the Insurance Company is not liable to pay the amount of compensation as the jeep at the time of the accident was being driven against the condition of the insurance policy. 9. As far as the question that the deceased had been travelling as a gratuitous passenger is concerned, I do not find any averment in the written statement filed by the insurance company in this regard, as the insurance company nowhere in the written statement has taken the plea that the deceased had been travelling as a gratuitous passenger in the jeep at the time of the accident. It is true that the jeep was registered as a commercial goods vehicle but the eyewitness Mahendra Singh (P.W.2) in his deposition has stated that he and the deceased were going for the work of M/s Swastik Construction Company. He has further deposed that the jeep in question was acquired by M/s Swastik Construction Company at the time of the accident and the deceased being the employee of M/s Swastik Construction Company, was going for the work of the company in the jeep at the time of the accident. The claimants in the claim petition have also averred that the 4 deceased had been working in M/s Swastik Construction Company at the time of the accident. Therefore, keeping in view the deposition of P.W. 2 eyewitness and the pleading taken by the claimants in the claim petition, it is quite clear that the deceased had been going in the jeep at the time of the accident on account of the work assigned to him by M/s Swastik Construction Company and the jeep was also acquired by the M/s Swastik Construction Company at the time of the accident. The insurance company also did not adduce any evidence contradicting the factual aspect taken by the claimants. Hence, it cannot be said that the deceased had been travelling as a gratuitous passenger in the jeep at the time of the accident. 10. Learned counsel for the appellant has secondly argued that the driver of the offending jeep was having learner driving licence for non-transport vehicle at the time of the accident and the jeep involved in the accident was a commercial jeep and it was being used as a goods vehicle, therefore, the driver of the offending jeep was not having valid and effective driving licence at the time of the accident and under these circumstances, the insurance company has no liability to pay the amount of compensation. 11. The paper No. 5C-18 is the driving licence of the driver – Pardeep Kumar who was driving the vehicle at the time of the accident. This driving licence shows that the driver – Pardeep Kumar was having the learner driving licence for light motor vehicle (non-transport). This licence was valid from 04.03.2004 to 03.09.2004 and the accident in this case took place on 22.07.2004. Therefore, it is quite clear that on the date of accident, the driver of the offending vehicle was having learner driving licence for non-transport vehicle. This 5 fact is not in dispute that the vehicle was registered as a commercial goods vehicle and this vehicle could not be driven by a driver who was having learner driving licence for non- transport vehicle. The Tribunal has fell in error in ignoring this aspect while deciding issue No. 4. The Tribunal has admitted this aspect that the driver of the offending vehicle was in possession of the learner licence for light motor vehicle (non-transport). The jeep, which was being driven by the driver, was registered as a transport vehicle. It was also insured as a goods/commercial vehicle. 12. It would be relevant to read Section 3 of the Motor Vehicles Act for the proper adjudication of the matter which runs as under:- “Section 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 authorizing 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 made specifically entitles him so to do. (2) The conditions subject to which sub-section 1 shall not apply to a person receiving instructions in dirving a motor vehicle shall be such as may be prescribed by the Central Government.” 13. Again under Section 10 of the Act, the classes of the driving licence has been defined. The different classes of the 6 vehicle have also been defined in different provisions of the Motor Vehicles Act. The ‘transport vehicle’ is defined under Section 2 (47) of the Act, which means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. The licence in this case granted in favour of the driver – Pradeep Kumar clearly goes to show that the same was granted for a non-transport light motor vehicle and this fact undoubtedly is pointing out towards this aspect of the matter that the driver of the offending vehicle was not granted valid driving licence for driving a transport vehicle. 14. The Hon’ble Supreme Court in National Insurance Company Ltd. Vs Kusum Rai reported in (2006) 4 Supreme Court Cases 250 has clearly observed that :- “The vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefore, R who was driving the said vehicle at the relevant time did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of the condition of the contract of insurance. The appellant, therefore, could raise the said defence.” 15. The Hon’ble Supreme Court in another case New India Assurance Company Ltd. Vs Roshanben Rahemansha Fakir reported in 2008 (3) T.A.C. 20 (S.C.) has also held that a driver who had licence to drive a light motor vehicle cannot be said to be authorized to drive a light goods/commercial vehicle as well. 7 16. In view of the discussion made above, I am of the view that as the driver of the offending vehicle was not having valid and effective driving licence to drive the goods/commercial vehicle at the relevant time of the accident, therefore, the insurance company cannot be held to be liable to pay the amount of compensation. The findings recorded by the Tribunal in this regard is liable to be set aside. 17. As far as the amount of compensation awarded in favour of the claimants is concerned, I do not find any infirmity in the impugned judgment and award passed by the Tribunal. The Tribunal has discussed this aspect while deciding the issue No. 5 in the impugned judgment and award. The notional income of the deceased has been taken by the Tribunal on reasonable side and the multiplier has also been adopted in a proper way. Therefore, the amount of award is liable to be confirmed along with interest indicated in the impugned judgment and award. 18. In view of the aforesaid discussion, the appeal is allowed. The impugned judgment and award dated 12.10.2006 is modified upto the extent that the amount of compensation awarded by the Tribunal along with interest indicated therein, shall be paid by the owner of the vehicle i.e. respondent No. 3/Smt. Purva Sharma, instead of insurer/appellant – Oriental Insurance Company Ltd. 19. The statutory amount deposited by the appellant at the time of filing the appeal be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 04.05.2009 ASWAL