“Motor Vehicle” includes any mechanically propelled vehicle apt for use upon roads irrespective of it’s power source. : Jammu & Kashmir High Court

Reserved On: 23.04.202 vs Aijaz Ahmad Shah And Others on 22 June 2021 Jammu & Kashmir High Court Srinagar Bench Reserved On: 23.04.202 vs Aijaz Ahmad Shah And Others on 22 June 2021 HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Mac. App. No. 49 2020 CM no. 3774 2020 Reserved on: 23.04.2021 Pronounced on: 22.06.2021 National Insurance Co. Ltd .........Appellant(s Through: Mr. Nissar Ahmad Dendru Advocate Versus Aijaz Ahmad Shah and Others ......Respondent(s Through: Mr. Shuja ul Haq Advocate HON BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE JUDGEMENT 1. Impugned in this Appeal is Award dated 06.10.2018 passed by Motor Accident Claims Tribunal Anantnagon a Claim petition bearing File no. 42 Claim titled Aijaz Ahmad Shah and others v. Ashraf Ali Dar and others directing appellant Insurance Company to pay compensation in the amount of Rs. 11 30 010 along with 6% interest per annum from the date of institution of claim till realization on the grounds made mention of therein 2. A claim petition as is discernible from perusal of the file was filed by respondents 1 to 4 before the Tribunal on 01.09.2015 averring therein that deceased Aksa Aijaz aged 14 years died in an accident which took place on 09.08.2015 at Manzhama K.P. Road Anantnag due to rash and negligent driving of driver of offending vehicle bearing Registration no.JK01G 2177which was insured with appellant Insurance Company Claimants Respondents 1 to 4 in their claim petition prayed for grant of compensation in the amount of Rs.1.00 Crore 3. Appellant Insurance Company resisted the claim petition before the Tribunal. Their stand was that driver of offending vehicle was not Mac. App. No. 49 2020 holding valid and effective driving licence and vehicle was being plied without valid and effective vehicular documents. It was also stated that accident was outcome of two vehicles as deceased was driving the bus and collided with 4. The Tribunal in view of pleadings of parties framed Issues for determination which are 1) Whether on 09.08.2015 the deceased namely Aksa Aijaz while boarding a vehicle Tata 407 at Mazhama K.P. Road was hit by the offending vehiclebearing registration No. JK01G 2177 driven rashly and negligently by respondent No.1 causing critical injuries to the deceased who succumbed to her Indian Kanoon Reserved On: 23.04.202 vs Aijaz Ahmad Shah And Others on 22 June 2021 injuries at Jaglatmandi Hospital OPP 2) In case issue No.1 is decided in affirmative then whether petitioners are entitled for compensation if so to what extent and from whom OPP 3) Whether respondent No.1 i.e. driver of the offending vehicle was not having valid and effective D L and owner knowing about it had engaged and permitted him to ply the offending vehicle and thereby committed breach of policy conditions OPR3 5. Claimants in support of their claim before the Tribunal produced and examined four witnesses besides claimant respondent no.1. Appellant Insurance Company did not produce any witness in rebuttal to claim of claimants. By virtue of impugned Award the Tribunal found claimants entitled to compensation in the amount Rs.11 30 010 along with 6% interest per annum from the date of institution of claim till realization. This is how the instant Appeal has come up before this Court 6. According to learned counsel for appellant Insurance Company liability to satisfy the Award has been wrongly mulcted upon appellant. Appellant Insurance Company no doubt was insurer of offending vehicle but as per contract of insurance liability of appellant Insurance Company would arise only when owner insured would not commit any breach of terms and conditions of policy of insurance. The owner insured respondent no.6 herein is stated to have allowed offending vehicle to be plied by respondent no.5 who was having invalid driving licence to drive offending vehicle and therefore liability ought to have been fastened upon owner of offending vehicle. It is contended that finding on Issue no.3 is bad in law as Tribunal has not taken into account the fact that respondent no.5 as driver of offending vehicle was Mac. App. No. 49 2020 having authorization to drive only LMVand not a medium passenger motor vehicle. The medium passenger motor vehicle excludes within its definition the light motor vehicle and thus driver was not authorized to drive a medium passenger motor vehicle. Learned counsel also avers that the Tribunal while relaying upon the judgment of the Supreme Court in Mukund Dewangan v. Oriental Insurance Company Limited4 SCC 298 holding that a person having light motor vehicle authorization can drive any sort of light motor vehicle and no PSV endorsement is required in the said driving licence is incorrect 7. The above contentions of learned counsel for appellant Insurance Company when examined in the context of impugned Award more particularly when the Tribunal while deliberating upon and deciding Issue no.3 has taken care of all the aspects of the matter that were required to be looked into by it while rendering the Award 8. It is pertinent to mention here that the Supreme Court in National Insurance Company limited v Annappa Irappa Nesara 2008 AIR SC Weekly 906 has been held that a driver who has a valid licence to drive a light motor vehicle can drive light goods vehicle as well. The similar view has also been reiterated and followed by this Court in National Insurance Company v. Rameez Ahmad 2015 1) SLJ 45 . That apart the Supreme Court in Mukund Dewangan has held that Light Indian Kanoon Reserved On: 23.04.202 vs Aijaz Ahmad Shah And Others on 22 June 2021 motor vehicle as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54 1994. A transport vehicle and omnibus the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a road roller unladen weight of which does not exceed 7500 kg and holder of a driving licence to drive class of "light motor vehicle as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or Mac. App. No. 49 2020 road roller the "unladen weight" of which does not exceed 7500 kg. That is to say no separate endorsement on the licence is required to drive a transport vehicle of 60 light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54 1994 and 28.3.2001 in the form. The effect of the amendment made by virtue of Act No 54 1994 w.e.f. 14 th November 1994 while substituting clausestoof section 10(2) which contained "medium goods vehicle" in section 10(2)(e) medium passenger motor vehicle in section 10(2)(f) heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression transport vehicle as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle. The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle and if a driver is holding licence to drive light motor vehicle he can drive transport vehicle of such class without any endorsement to that effect. The relevant portion of the judgement is reproduced hereunder 43. Section 10(2)tolays down the classes of vehicles to be driven not a specific kind of motor vehicles in that class. If a vehicle falls into any of the categories a licence holder holding licence to drive the class of vehicle can drive all vehicles of that particular class. No separate endorsement is to be obtained nor provided if the vehicle falls in any of the particular classes of section 10(2). This Court has rightly observed in Nagashettythat in case submission to the contrary is accepted then every time an owner of a private car who has a licence to drive a light motor vehicle attaches a roof carrier to his car or a trailer to his car and carries goods thereon the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle it by itself does not mean that driver ceased to have valid driving licence. In our considered opinion even if such a vehicle is treated as transport vehicle of the light motor vehicle class legal position would not change and driver would still have a valid driving licence to drive transport vehicle of light motor vehicle class whether it Mac. App. No. 49 2020 is a transport vehicle or a private car tractor attached with trolley or used for carrying goods in the form of transport vehicle The ultimate conclusion in Nagashettyis correct however for the reasons as explained by Indian Kanoon Reserved On: 23.04.202 vs Aijaz Ahmad Shah And Others on 22 June 2021 44. In Natwar Parikh & Co. Ltd. v. State of Karnataka & Ors.7 SCC 364 this Court was concerned with the taxation under the Karnataka Motor Vehicles Taxation Act 1957 and question arose whether the tractor along with trailer for transporting goods was to constitute distinct category of goods carrier which requires permission under Section 2(14) of the Motor Vehicles Act 1957 and absence thereof would render it liable to tax under Section 3(2). This court held that the tractor when attached with the trailer carrying goods would become a transport vehicle for the purpose of taxation. This Court has discussed the question thus: "Section 2(28) is a comprehensive definition of the words "motor vehicle". Although a "trailer" is separately defined in Section 2(46) to mean any vehicle drawn or intended to be drawn by a motor vehicle it is still included in the definition of the words "motor vehicle" under Section 2(28). Similarly the word "tractor" is defined in Section 2(44) to mean a motor vehicle which is not itself constructed to carry any load. Therefore the words "motor vehicle" have been defined in the comprehensive sense by the legislature Therefore we have to read the words "motor vehicle" in the broadest possible sense keeping in mind that the Act has been enacted in order to keep control over motor vehicles transport vehicles etc. A combined reading of the aforestated definitions under Section 2 reproduced hereinabove shows that the definition of "motor vehicle" includes any mechanically propelled vehicle apt for use upon roads irrespective of the source of power and it includes a trailer. Therefore even though a trailer is drawn by a motor vehicle it by itself is a motor vehicle the tractor trailer would constitute a "goods carriage" under Section 2(14) and consequently a "transport vehicle" under Section 2(47 The test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods it can be stated that it is adapted for the carriage of goods. Applying the above test we are of the view that the tractor trailer in the present case falls under Section 2(14) as a goods carriage" and consequently it falls under the definition of "transport vehicle" under Section 2(47) of the MV Act 1988 There is no dispute with the aforesaid proposition that tractor if drawing a trailer with goods would constitute goods carrier and consequently would be a transport vehicle. The aforesaid discussion was with respect to taxation and not with respect to the competence of driver holding light motor vehicle licence to drive the tractor attached with trailer trolley carrying goods. The driver had the competence to drive such a vehicle tractor with a trailer carrying goods being of light motor vehicle category transport vehicle which is the question involved in the instant case. Therefore the decision renders no help with the cause espoused by the insurer 45. Transport vehicle has been defined in section 2(47) of the Act to mean a public service vehicle a goods carriage an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab a motor cab contract carriage and stage carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods or any Mac. App. No 49 2020 motor vehicle not so constructed or adapted when used for the carriage of goods Indian Kanoon Reserved On: 23.04.202 vs Aijaz Ahmad Shah And Others on 22 June 2021 It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use who is driving a similar vehicle which is registered or insured for the purpose of carrying passengers for hire or reward would not require an endorsement as to drive a transport vehicle as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act and the Amendment Act 46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles there may be different kinds of vehicles. If they fall in the same class of vehicles no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre amended position as well the post amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d) Rule 8 of the Rules of 1989 other provisions and also the forms which are in tune with the provisions Even otherwise the forms never intended to exclude transport vehicles from the category of light motor vehicles and for light motor vehicle the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 59 10(2)(e) of the Act Transport Vehicle would include medium goods vehicle medium passenger motor vehicle heavy goods vehicle heavy passenger motor vehicle which earlier found place in section 10(2)(e) toand our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus i) Light motor vehicle as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act ii) A transport vehicle and omnibus the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller unladen weight of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road roller the "unladen weight" of which does not exceed 7500 kg. That is to say no separate endorsement on the licence is required to drive a transport vehicle of 60 light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54 1994 and 28.3.2001 in the form Indian Kanoon Reserved On: 23.04.202 vs Aijaz Ahmad Shah And Others on 22 June 2021 iii) The effect of the amendment made by virtue of Act No.54 1994 w.e.f. 14.11.1994 while substituting clausestoof section 10(2) which contained "medium goods vehicle" in section 10(2)(e) medium passenger motor vehicle in section 10(2)(f) heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression transport vehicle as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle Mac. App. No. 49 2020 from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle and if a driver is holding licence to drive light motor vehicle he can drive transport vehicle of such class without any endorsement to that effect 9. In view of the above reproduced excerpt of the judgement in Mukund Dewanganthere is no substance in the submission of learned counsel for appellant qua validity of driving licence of offending vehicle. Thus the Tribunal has rightly decided Issue no.3 against appellant Insurance 10. Contention of learned counsel for appellant qua quantum of compensation and computation thereof that is also misconceived inasmuch as the Tribunal has been conservative in computing the compensation and also in view of law laid down by the Supreme Court in catena of cases including National Insurance Company v. Pranay Sethi AIR 2017 SC 5157 Arvind Kumar Mishra v. New India Assurance Co. Ltd. 10 SCC 254 and M. R. Krishna Murthi Vs. The New India Assurance Company Ltd. & Others 1 ACC 730Judge Srinagar 22.06.2021 Imtiyaz Whether the order is reportable: Yes No IMTIYAZ UL GANI 2021.06.27 21:51 I attest to the accuracy and integrity of this document Indian Kanoon 

Summary: Section 10(2)(a) to (j) specifies the classifications of vehicles that must be driven, not the precise types of vehicles within each class. If a vehicle falls into one of the categories, a person who holds a driver’s licence for that class of vehicle can operate all vehicles in that category. If the vehicle falls under one of section 10(2) specific classes, no additional endorsement is required, this was referred by Justice Vinod Chaterji Koul in the matter of National Insurance Co. Ltd. versus Aijaz Ahmad Shah and ors [Mac. App. No. 49/2020] This order was passed when respondents 1 to 4 filed a claim petition with the Tribunal on 01.09.2015, averring that deceased Aksa Aijaz, aged 14 years, died in an accident on 09.08.2015 at Manzhama K.P. Road, Anantnag, due to the rash and negligent driving of the driver of the offending vehicle, bearing Registration no.JK01G-2177 (Tata Swaraj Mazda), which was parked on the side of the road. Before the Tribunal, the Appellant Insurance Company fought the claim petition. Their argument was that the driver of the offending car did not have a valid and effective driver’s licence and that the vehicle was being driven without valid and effective vehicular documentation. The accident was also said to be the result of two cars colliding, as the deceased was driving the bus when it crashed with the offending vehicle. The duty to satisfy the Award has been erroneously mulcted upon appellant Insurance Company, according to learned counsel for appellant Insurance Company. Appellant Insurance Company was, without a doubt, the insurer of the offending car, but under the provisions of the insurance contract, appellant Insurance Company’s liability would arise only if the owner/insured did not violate the policy’s terms and conditions. The owner/insured – respondent no.6, in this case, is said to have allowed the offending car to be driven by respondent no.5, who had an invalid driver’s licence, and so liability should have been placed on the owner of the offending vehicle. It is argued that the decision on Issue No. 3 is erroneous in law because the Tribunal failed to consider the fact that respondent No. 5 as the driver of the offending vehicle was only licenced to operate a light commercial vehicle (LMV) and not a medium passenger vehicle. The light motor vehicle is not included in the definition of a medium passenger motor vehicle, hence the driver was not authorised to drive a medium passenger motor vehicle. According to learned counsel, the Tribunal, while relying on the Supreme Court’s decision in Mukund Dewangan v. Oriental Insurance Company Limited, held that a person with a light motor vehicle licence can drive any type of light motor vehicle without a PSV endorsement. In view of the above-reproduced excerpt of the judgement in Mukund Dewangan (supra), there is no substance in the submission of learned counsel for appellant qua validity of the driving licence of the offending vehicle. Thus, the Tribunal has rightly decided Issue no.3 against the appellant Insurance Company.