FAO No.4193 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.4193 of 2007(O&M) Date of decision: 17.11.2009 Oriental Insurance Company Ltd. ......Appellant Versus Durga Parsad and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Naveen Kapur, Advocate for the appellant. Mr. S.S. Rana, Advocate for respondents No.2 and 3. Rakesh Kumar Garg, J. This is Insurer's appeal challenging the impugned award whereby the appellant has been held jointly and severally liable to pay compensation alongwith owner and driver of the offending vehicle. Briefly the facts of the case are that on 1.6.2005, respondent No.1 suffered injuries on account of rash and negligent driving of the offending vehicle by respondent No.2. The aforesaid vehicle which was duly insured by the appellant, was owned by respondent No.3. The claim petition filed by respondent No.1 was contested by respondents No.2 and 3 (i.e. driver and owner of the offending vehicle) denying the accident in question and their liability to pay. It was further claimed by them that in case the respondent-claimant is found entitled to any amount as compensation, the appellant being the insurer was liable to satisfy the award. The appellant also filed written statement raising various preliminary objections including that respondent No.1 was not holding a valid driving licence at the time of alleged accident. On merits, the accident FAO No.4193 of 2007(O&M) 2 was denied. It was denied that the petitioner had suffered injuries in the alleged accident and dismissal of the claim petition was prayed. On the pleadings of the parties, the following issues were framed: “1. Whether the accident in question resulting into injuries to the petitioner took place on account of rash and negligent driving of jeep No.HR-12P-0353 by its driver/respondent No.1?OPP 2. Whether the petitioner is entitled to the compensation on account of the injuries sustained by him and if so to what amount and from whom?OPP 3. Whether respondent No.1 was not holding a valid and effective driving licence at the time of accident in question, as alleged? OPR-3 4. Whether the insurance company/respondent No.3 is not liable to pay compensation on the grounds as alleged in the written statement? OPR-3. 5. Relief.” Under issues No.1 and 2, it was held that the accident in question resulting in injuries to the claimant-respondent was an outcome of rash and negligent driving of the offending vehicle by Manoj Kumar- respondent No.2 and, thus claimant was held entitled to a sum of Rs.3,02,000/- as compensation. Under issues No.3 and 4, the appellant was supposed to prove that respondent No.2 was not holding a valid and effective driving licence at the time of the accident in question and that the Insurance Company was not liable to pay compensation on the other grounds as alleged in the written statement. However, a perusal of the impugned award would show that the only submission made before the Tribunal by the learned counsel FAO No.4193 of 2007(O&M) 3 for the appellant was that the offending vehicle was a commercial vehicle and as such, respondent No.2 was not authorized to drive the same and, therefore, the appellant was not liable to pay any compensation. However, the Tribunal after appreciating the evidence on record and the arguments raised by the appellant, held that the appellant cannot avoid its liability to pay the compensation. Challenging the aforesaid finding of the Tribunal, learned counsel for the appellant has vehemently argued that the vehicle in question involved in the accident was registered and insured as a commercial passenger carrying vehicle with a sitting capacity of 9 passengers which would fall with the definition of a “Omni bus” which is a transport vehicle as defined under the Motor Vehicles Act, 1988 and therefore, the driving licence of respondent No.2 herein, who was holding a driving licence to drive a Jeep was invalid and ineffective because he was not authorized to drive a commercial transport vehicle and thus, the appellant was not liable to pay the compensation due to contravention of terms and conditions of the Insurance Policy. On the other hand, learned counsel appearing on behalf of respondents No.2 and 3 has submitted that the Insurance Company cannot escape its liability as it makes no difference whether the vehicle was plied for commercial use or for other things. According to him, the criteria for deciding the question of liability of Insurance Company would be as laid down in a judgment of the Hon'ble Apex Court cited as National Insurance Company Limited v. Swaran Singh and others 2004 (3) SCC 297, wherein it has been held that while considering the liability of the Insurance Company, the Tribunal has to find out if the accident was mainly caused or contributed by the fact that the driver possessed licence for one type of vehicle but was found driving another type of vehicle. FAO No.4193 of 2007(O&M) 4 I have heard learned counsel for the parties and perused the impugned award. It is useful to refer to the observations of the Tribunal in this regard which reads as follows:- “In this case, it is not a licence for light motor vehicle with respondent No.1. He is found driving Mahindra jeep and he is holding a licence authorizing him to drive motorcycle, scooter, car and jeep. In my opinion, it makes no difference if a vehicle is claimed as commercial vehicle. The same skill would be required to be applied by the driver in driving a private jeep in which the passengers are travelling and a commercial jeep in which again the passengers are travelling. No different skill is required for driving commercial driving vehicle of the category of jeep for which respondent No.1 holds the driving licence. So, it cannot be said that the accident is mainly caused or contributed by the fact that the driver held a licence authorizing him to drive one type of vehicle and he was driving another type of vehicle.” Thus, it is not in dispute that in the present case the driver of the offending vehicle was holding a valid driving licence for driving a Jeep and the offending vehicle was also a Mahindra Jeep. It makes no difference if the aforesaid vehicle in question was claimed to be registered as commercial vehicle as the same skills are to be applied by the driver while driving a private jeep in which the passengers are travelling and a commercial jeep in which again the passengers are travelling and no different skill is required for driving a jeep registered as “commercial FAO No.4193 of 2007(O&M) 5 vehicle” or registered as “Jeep”, for which respondent No.2 holds a valid driving licence at the time of accident. Thus, it cannot be said in this case that the accident was mainly caused or contributed by the fact that the driver held a licence authorizing him to drive one type of vehicle but he was driving another type of vehicle. Therefore, reply upon the judgment of the Hon'ble Apex Court in Swaran Singh's case (supra), I find no merit in this appeal. No other point was urged. Dismissed. November 17, 2009 (RAKESH KUMAR GARG) ps JUDGE