HON’BLE SRI JUSTICE D.V.S.S. SOMAYAJULU C.M.A.No.872 of 2009 JUDGMENT: This Civil Miscellaneous Appeal is filed by the Insurance Company Limited against the order dated 31.01.2008 in W.C. Case No.872 of 2009 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Adilabad. The applicants before the Commissioner are the wife and mother of the deceased-Kosinka Muthyam, who was working as a driver of jeep bearing No.AP1/T-5609 belonging to the first opposite party (OP-1) and insured with second opposite party (OP-2). He died in an accident that occurred on 09.11.2004. The application is therefore filed claiming compensation. OP-1 filed his counter admitting that the deceased was employed as a driver and that the accident occurred in the course of employment. He pleaded that OP-2 is liable for payment of compensation, as there is a valid insurance policy. OP-2 on the other hand filed a counter denying the entire case and their liability also. In their additional pleading, they stated that as per the investigation carried out by the Investigator of the Insurance Company, the deceased driver of the vehicle had only a light motor vehicle licence and therefore, he was not entitled to drive the transport vehicle. 2 After the pleadings were over, AW.1 was examined and Exs.A.1 to A.6 were marked. For the opposite parties, no oral evidence was introduced and OP-2 merely filed a copy of the insurance policy. Based on the pleadings and evidence, the impugned order was passed awarding compensation. This Court has heard Sri M. Mohan Krishna, learned counsel for the appellant/insurance company. There was no representation for the respondents. The learned counsel for the appellant cited Sardari v. Sushil Kumar1 and argued that as the driver did not have valid licence, the insurance company is not liable for payment of compensation. This Court on a perusal of the facts and circumstances notices that the essential ground that is urged is that the deceased did not have a valid driving licence as on the date of the accident. The Court notices that the driving licence of the deceased is filed by the applicant as a document along with the application itself. The same was marked as Ex.A.4. In the initial counter that is filed by OP-2, no plea is taken about the validity of the licence for driving the jeep in question. An additional counter appears to have filed on 15.11.2007 wherein it is pleaded that as the deceased had only a light motor vehicle licence, so he is not entitled to drive a maxi cab/taxi vehicle. 1 2008 (2) SCJ 953 3 OP-2/present appellant did not introduce any oral evidence in support of their plea that the licence is not valid. They did not summon any employee from the RTA office. There is no cross-examination of AW.1 on the point of invalidity of the driving licence. In addition, Clause-21 of Section 2 of the Motor Vehicles Act, 1988 defines a light motor vehicle as follows: “ ‘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." It is thus clear from the definition that a light motor vehicle also includes transport vehicle; an omnibus; motor car; tractor or even a road roller. The definition states that if the weight of the vehicle exceeds 7500 kilograms, it ceases to a light motor vehicle. In the case on hand, absolutely there is no evidence introduced by OP-2. There is no cross-examination of AW.1 on the aspects that are now raised in the appeal. Having failed to introduce the oral evidence or documentary evidence and having failed to cross-examine the witness on these critical aspects, the appellant/insurance company cannot be permitted to raise these issues in the arguments. In the case on hand, the question now raised is one of the validity of Ex.A.4-licence. The insurance company did not prove that the vehicle in question is above 7500 kilograms. 4 The definition of light motor vehicle includes a transport vehicle also. Even a tractor and road-roller are included in the definition of light motor vehicle which does not exceed 7,500 kms. Therefore, this Court is of the opinion that in the absence of any evidence, the appellant/insurance company cannot be permitted to raise these issues. In the judgment cited by the learned counsel for the appellant in para-2, it is clearly pointed out that the driver of the tractor admitted that he did not know how to drive a tractor, that he did not even tried to learn how to drive a tractor and that he never applied for licence also. He admitted that he did not have a licence at all. Therefore, the Hon’ble Court held that the insurance company is not liable to pay the compensation. In the case on hand, the appellant states that the licence is not a valid licence to drive a transport vehicle like maxi cab or taxi vehicle. This pleading is raised only in the additional counter that is filed, but it is not backed by any valid advisable or documentary evidence. Therefore, this Court holds that the appellant did not discharge the liability cast upon them. Having failed to do so and having failed to lay a factual foundation, they cannot now argue that the findings of the Commissioner are not correct. The Hon’ble Supreme Court of India in Mukund Dewangan v. Oriental Insurance Company Limited2 also clearly held as follows in para-14: 2 AIR 2017 SC 3668 5 “14. The definition of light motor vehicle' makes it clear that for 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 kgs. 'Gross vehicle weight' has been defined in Section 2(15). The motor car or tractor or road roller, the unladen weight of any of which does not exceed 7500 kgs. as defined in Section 2(48) of the Act, are also the light motor vehicle. No change has been made by Amendment Act of 54/94 in the provisions contained in Sections 2(21) and 10(2)(d) relating to the light motor vehicle. The definition of light motor vehicle' has to be given full effect to and it has to be read with Section 10(2)(d) which makes it abundantly clear that 'light motor vehicle' is also a 'transport vehicle', the gross vehicle weight or unladen weight of which does not exceed 7500 kgs. as specified in the provision. Thus, a driver is issued a licence as per the class of vehicle i.e. light motor vehicle, transport vehicle or omnibus or another vehicle of other categories as per gross vehicle weight or unladen weight as specified in Section 2(21) of the Act. The provision of Section 3 of the Act requires that a person in order to drive a 'transport vehicle' must have authorization. Once a licence is issued to drive light motor vehicle, it would also mean specific authorization to drive a transport vehicle or omnibus, the gross vehicle weight or motor car, road roller or tractor, the unladen weight of which, as the case may be, does not exceed 7500 kg. The insertion of transport vehicle' category in Section 10(2)(e) has no effect of obliterating the already defined category of transport vehicles of the class of light motor vehicle. A distinction is made in the Act of heavy goods vehicle, heavy passenger motor vehicle, medium goods vehicle and medium passenger motor vehicle on the basis of 'gross vehicle weight' or 'unladen weight' for heavy passenger motor vehicle, heavy goods vehicle, the weight, as the case may be, exceed 12000 kg. Medium goods vehicle shall mean any goods carriage other than a light motor vehicle or a heavy goods vehicle; whereas 'medium passenger motor vehicle' means any public service vehicle or private service vehicle or educational institution bus other than a motorcycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle. (emphasis supplied) Thus, the newly incorporated expression 'transport vehicle' in Section 10(2)(e) would include only the vehicles of the category as defined in Section 2(16) - heavy goods vehicle, Section 2(17) - heavy passenger motor vehicle, Section 2(23) - medium goods vehicle and Section 2(24) medium passenger motor vehicle, and would not include the light motor vehicle' which means transport vehicle also of the weight specified in Section 2(21).” Therefore, this Court holds that the order passed by the Commissioner is correct and there are no infirmities in the same. This Court holds that there are no merits in the 6 appeal. The order of the Commissioner considered the fact that there is a statutory liability as far as the driver is concerned. Hence, the impugned order of the Commissioner, dated 31.01.2008 in W.C. Case No.872 of 2009 is confirmed and accordingly, the appeal is dismissed. In the circumstances of the case, there shall be no order as to costs. As a sequel, miscellaneous petitions, if any, pending in this appeal shall stand closed. _____________________________ D.V.S.S. SOMAYAJULU, J Date: 11.06.2018 Isn