IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.178 of 2004 DIVISIONAL MANAGER ,ORIENTAL INSURANCE COMPANY LTD Versus SABITA DEVI & ANR For the Appellant:Mr.Ashok Priyadarshi,Advocate For the Respondent Nos.4 & 5:-Mr.Shakeel Ahmad Khan, Advocate For the rest of the respondents:M/S.Ajay Kumar,Pramod K.Pandey,Mukesh Pd.Singh,Advocates ----------- 12 26.9.2008 Divisional Manager, The Oriental Insurance Company Ltd, Muzaffarpur, through its duly constituted Attorney has filed this Misc.Appeal for setting aside the Judgment dated 25.2.2004 and award signed on 28.2.2004 by 3rd Additional District Judge, Muzaffarpur-cum- Motor Vehicles Claims Tribunal, in Claim Case No.244/2001 whereby and whereunder the learned Tribunal has allowed the Claim case and directed the appellant Oriental Insurance Co.Ltd, who was opposite party in the Tribunal, to pay a sum of Rs.1,27,000/-(One lac twenty-seven thousand) to the respondent-claimant Sabita Devi after deducting Rs.50,000/-(Fifty thousand) which was paid to her earlier, with an interest @ 9% per annum from the date of filing of the claim petition till realisation, within two months from the date of award through account payee cheque. Heard learned counsel for the appellant, Owner-respondent as also intervenors respondents, who happen to be the parents of the deceased. No body appears for the original claimant Sabita Devi who happens to be wife of the deceased. But as per learned counsel for the 2 intervenors-respondents, claimant Sabita Devi has left her Sasural and married some other person and living with her new husband. As per the claim petition filed by Sabita Devi before the learned Tribunal, Mantu Ram who was husband of Sabita Devi, was going to Sugauli Bazar on 24.8.2001 from his house in the district of Muzaffarpur. When he reached Chhapwa Chowk on NH 28 at about 10.30 AM on that day, a Jeep bearing registration no. BRO-5(A)P/2474 being driven rashly and negligently came there in high speed and dashed Mantu Ram, due to which he became injured and died on the spot. The deceased was aged about 22 years at the time of his death and he used to earn Rs.3000/-(Three thousand) per month from his business and cultivation and due to sudden death of the deceased, the applicant Sabita Devi, wife of the deceased became helpless and as such she filed an application for compensation under Section 166 of the Motor Vehicles Act. It appears that Rs.50, 000/-(Fifty thousand) has already been paid to the applicant Sabita Devi, by the Insurance Company. O.P.No.1 who happens to be owner of the erring vehicle causing death of Mantu Ram as well as the Insurer of the said vehicle entered their appearances before the Tribunal and contested the case O.P.No.3 was driver of the vehicle. All the opposite parties after their appearance before the Tribunal had filed their written statements. Owner of the vehicle bearing registration no.BRO-5(A)P/2474, namely, O.P.No.1 has stated that he purchased Mahendra CDR-650-D.T.Jeep Taxi in new condition and as such it was validly under insurance cover of Oriental Insurance Company Limited for the period of such accident which took place and so, the owner is not liable to pay any compensation. Rather, the liability has been shifted on the shoulders of the Insurance Company. 3 Driver O.P.No.3 appeared before the Tribunal and pleaded that he possessed all the valid documents and he was driving the vehicle in proper manner and speed. The main defence which was raised on behalf of the Insurance Company before the Tribunal was that the driver of the vehicle in question had no valid driving licence at the time of the accident. So, liability should be fastened on the shoulder of the driver or owner of the vehicle. Here, this plea has been taken that the driver of the vehicle was having a driving licence so as to ply light motor vehicle. But he was driving a Mahendra Taxi. So, he had no commercial licence to ply a commercial vehicle. So, in that context of the matter, the whole burden should be shifted on the shoulder of the owner of the vehicle, as driver had no effective driving licence for driving a commercial vehicle. So, the owner of the vehicle should pay the amount of compensation. In support of the contention, the learned counsel for the appellant has relied upon a decision of Hon‟ble Apex Court, reported in AIR, 2008 SC,614(New India Assurance Co.Ltd Vs.Prabhu Lal) wherein the Hon‟ble Apex Court in Judgment of Civil Appeal Nos.5539 with 5540-5541 of 2007( arising out of SLP©Nos.7370,17794 of 2004, 7618 of 2005),Dated 30.11.2007 have held that that there is no liability of the Insurer to make payment of the compensation to the claimants in respect of Motor accident being driven by a driver having light motor vehicle licence for driving a transport vehicle. The learned counsel for the Insurance Company has given emphasis that the Jeep in question was used as Taxi and so it was a commercial vehicle and for that the Insurance Company should be absolved from paying compensation to the aggrieved party., Rather, this liability of the awarded 4 amount should be fastened on the owner of the vehicle who utilised the services of a driver having no effective licence of a commercial vehicle. In reply, the learned counsel for the owner-respondent no.2 has referred to a decision reported in (2004)3 Supreme Court Cases,297(National Insurance Co.Ltd. Vs. Swaran Singh and others) and also cited another case law reported in 2008 ACJ,721, dated 22.1.2008, wherein Motor Vehicles Act,1988,sections 149(2)(a)(ii),2(21),2(47) and 3 and Central Motor Vehicles Rules,1989, rule 14 has been well discussed. It has been argued on behalf of the owner-respondent that the driver at the relevant time of accident had a licence to drive light motor vehicle. But he was driving Mahendra Taxi, the weight of which was 2065 KG which comes well within the definition of Light Motor Vehicle. In this way, it could be said that the driver was driving the vehicle unladen weight of which was less than 7500 KG. It is also submitted that ‟Transport vehicle‟ has now been substituted for „medium goods vehicle‟ and „heavy goods vehicle‟ in Form 4 but „light motor vehicle‟ continued to cover both, light passenger carriage vehicle and light goods carriage vehicle and the driver carrying passengers in the said vehicle are given only L.M.V. licence and so he was having a valid licence to drive the light motor vehicle and was, thus, authorised to drive the light goods vehicle. Thus, the Hon‟ble Apex Court came to the conclusion that the Insurance Company should be held liable to pay compensation. Learned counsel for the respondent-owner has cited another Division Bench decision reported in 2006 ACJ, 2645 of the Madhya Pradesh High Court, Indore Bench (National Insurance Co. Ltd. vs. Shankarlal and another) , wherein it has been held that the driver having licence to drive „light 5 motor vehicle‟has the authority to drive a transport vehicle of weight not exceeding 7500 Kg as per Section 2(21). So, there can not be any breach of condition as specified in Section 149(2)(a), (ii) of Motor Vehicle Act. This Division Bench Judgment of the Madhya Pradesh High Court refers to several decisions also weherein it has been held that the correct legal position is that a person holding a licence to drive „light motor vehicles‟ as defined in Section 2(21) has the authority to drive a transport vehicle of the description given in section 2(21). Any person who has the licence under Section 10 to drive the light motor vehicle would be deemed to have the authority to drive transport vehicle not exceeding 7500 kg in weight. Such a transport vehicle can also be a public service vehicle as defined in Section 2(35). The Insurance Company would not be exonerated from its liability under Section 149(2) (a) merely because the licence does not bear the endorsement required by the latter part of section 3 of the Act. There would be no breach of the condition specified in section 149(2)(a)(ii) and at any rate that would not amount to „fundamental breach‟ within the meaning of the words used in Para 102(vi) in Swaran Singh‟s case, reported in 2004 ACJ 1(SC). Lack of the endorsement on the licence would not render the person holding a valid licence as „person who is not duly licensed.‟ In the Judgment referred to above of the Hon‟ble Apex Court reported in 2008 ACJ, 721, the issue on behalf of the Insurance Company- appellant was as to whether the driver of the offending vehicle having licence to drive light motor vehicle was authorised to drive a van which had a goods carriage permit and was insured with Insurance Company, met an accident causing death of the driver and it was that the driver did not possess any effective licence to drive the light motor vehicle. 6 Paras-9,10,11,12,13,14 and 15 of the judgment are quoted below: Para-9:-The Motor Vehicles Act, 1988, which was enacted to consolidate and amend the law relating to motor vehicles, is a complete code. Para-10:- Section 2 of the Act provides for interpretation of the terms contained herein. It employs the words „unless the context otherwise requires‟. Section 2(16) of the Act defines„heavy goods vehicle‟ to mean any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12000 kg. Para -11:- Section 2(21) defines „ light motor vehicle „ and Section 2(23) defines „medium goods vehicle‟ as under: “ (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 7500 Kilo grams ; (23) „medium goods vehicle‟ means any goods carriage other than a light motor vehicle or a heavy goods vehicle.” Section 3 of the Act is in the following terms: ”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 authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab or motorcycle 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.” 12. The Central Government has framed rules known as Central Motor Vehicles Rules., 1989. 13. The word „Form‟ has been defined in rule 2(e) to mean a Form appended to the rules.(sic Relevant portion of Form 4 before its amendment reads as under): ”I apply for a licence to enable me to drive vehicles of the following description: (d) Light motor vehicle (e) Medium goods vehicle (g)Heavy goods vehicle (j)Motor vehicles of the following description… After amendment the relevant portion of Form 4 reads as under: “I apply for a licence to enable me to drive vehicles of the following description: (d) Light motor vehicle (e)Transport vehicle (j)Motor vehicles of the following description…” 14. Rule 14 prescribes for filing of an application in Form 4, for a licence to drive a motor vehicle, categorising the same in nine types of vehicles. Clause (e) provides for transport vehicle which has been 7 substituted by G.S.R.221 (E)w.e.f. 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 vehicle also found place therein. 15.‟Light motor vehicle‟ is defined in section 2(21) and, therefore, in view of the provision, as then existed, it included a light transport vehicle. Form 6 provides for the manner in which the licence is to be granted, the relevant portion whereof read as under: “Authorisation to drive transport vehicle Number…………. Date………… Authorised to drive transport vehicle with effect from………… Badge number……………….. Signature Designation of the Licensing Authority Name and designation of the authority who conducted the driving test”. Learned counsel for the owner respondent has, thus, rightly referred the decision of the Supreme Court Case which is wholly applicable in the present facts and circumstances of the case and the case law cited on behalf of the Insurance Company is not applicable to the facts and circumstances of the case. In view of the aforesaid discussions of facts and applicability of the case law and circumstances, I do not find any merit in this appeal. In the result, this appeal stands dismissed. Appellant is directed to pay the amount as awarded by the learned Tribunal to the claimants-respondents within a month from the date of receipt of a copy of this order. SKBOSE (Subash Chandra Jha)