Allowed

Babu Lal and Anr. v. the New India Assurance Co. Ltd.and Anr.

Rajasthan HC2 Nov 2018CMA/2312/2007

Case brief

AI extract

What is this about?

Appellants driver and owner preferred this appeal challenging the findings on issue no.3 recorded in the impugned judgment and award passed by motor accident claims tribunal pratapgarh where the tribunal had exonerated the insurer from its liability based on violation of insurance policy terms.

What did the court decide?

Impugned award to the extent of finding on issue no.3 absolving insurance company is set aside and the appeal is therefore allowed.

Babu Lal and Anr. Vs the New India Assurance Co. Ltd.and… — Cheque Dishonour | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Misc. Appeal No. 2312/2007

¶3

Babu Lal S/o Shri Dallaji Meena, aged about 23 years resident of Kamla Kuri, P.S. Devgarh, Tehsil Pratapgarh (Driver)

¶4

Laxman S/o Ramlal Meena, aged about 27 years, resident of Magri, Tehsil Pratapgarh. (Owner)

¶5

----Appellant

¶6

Versus

¶7

The New India Assurance Co. Ltd. Bhilwara through Divisional Manager.

¶8

Smt. Jaisi W/o Satpal Meena (Minor)

¶9

Gordhan Lal S/o Satpal Meena (Minor)

¶10

Miss Indra Kumari D/o Satpal Meena (Minor)

¶11

Sagar Mal S/o Satpal Meena (Minor)

¶12

Miss Surti D/o Satpal Meena (minor)

¶13

Bhog Ji S/o Lal Ji Meena

¶14

Smt. Bhooli W/o Bhog Ji Meena.

¶15

All respondent Nos. 2 to 8 by case Meena, resident of village Khajuri, P.S. Devgarh, District Chittorgarh.

¶16

----Respondents

¶17

For Appellant(s) : Mr. Ashok Kumar Jain. For Respondent No.1 : Mr. D.K Bhootra

¶18

HON'BLE MR. JUSTICE P.K. LOHRA

¶19

Judgment

¶20

02/11/2018

¶21

Appellants, driver and owner, have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, ‘Act’) challenging the findings on particular Issue No.3, recorded in judgment and award dated 08.08.2005, passed by Motor Accident Claims Tribunal, Pratapgarh (for short, ‘learned Tribunal’). The learned Tribunal, while quantifying and awarding compensation to

¶22

(2 of 5)

¶23

[CMA-2312/2007]

¶24

the respondent-claimants, has exonerated the insurer from its liability.

¶25

The facts, apposite for the purpose of this appeal are that on 24.07.2004, Babulal and Satpal, Driver & Khalasi of Tempo-Trax No. RJ-35-G-0063 were in the vehicle heading towards Pratapgarh from Khootgarh. The vehicle was being driven rashly and negligently by Driver Babulal, which led to opening of the side gate of Tempo and Khalasi Satpal fell out of the vehicle. He suffered grave and serious injuries and was admitted in Govt. Hospital Pratapgarth for treatment. During treatment, Khalasi Satpal succumbed to the injuries. As per version of the respondent-claimants, Satpal was 35 years old at the time of accident and was earning Rs.4,000/- per month. In the claim petition, respondent quantified total amount of compensation to the tune of Rs.16,00,000/- under different heads. The claim petition was contested by driver and owner of the vehicle taking stand that the accident occurred as Satpal was sitting near the gate of Tempo and he fell out of Tempo on account of opening of the gate suddenly. The claim petition was contested by the Insurer and it was pleaded on its behalf that the insured had violated the terms and conditions of the insurance policy.

¶26

Learned Tribunal, on the basis of pleadings, settled three issues for determination. For substantiating their claim, on behalf of respondent-claimants three witnesses appeared in the witness box, besides tendering seven documents. The non-claimants examined three witness and also tendered three documents. Learned Tribunal decided Issue No.1 relating to rash and negligent driving of the insured vehicle in favour of claimants. While adverting to Issue No.3, learned Tribunal has partly allowed the

¶27

(3 of 5)

¶28

[CMA-2312/2007]

¶29

same in favour of insurer. Learned Tribunal has found that at the time of accident, the driver was not in possession of a valid driving licence to ply heavy goods vehicles, as such directed the insurance Company first pay compensation amount to the claimants and then recover the same from owner and driver of the offending vehicle. While switching on to Issue No.2, the learned Tribunal worked out compensation for loss of dependency to the tune of Rs.2,97,840/-. In totality, learned Tribunal assessed total amount of compensation to the tune of Rs.3,07,340/-.

¶30

Learned counsel appearing for the appellants submits that the learned Tribunal has erred in deciding Issue No.3 regarding violation of the conditions of insurance policy. Learned counsel for the appellants also submits that the issue involved in the matter has already been set at rest by the Larger Bench of Supreme Court in Mukund Dewangan Vs. Oriental Insurance Company Limited [(2017) 14 SCC 663].

¶31

On the other hand learned counsel for the respondentinsurer submits that the driver of insured vehicle was not having licence to ply heavy goods vehicle but holding the licence to ply LMV. He, therefore, submits that the instant appeal, being bereft of any merit, is liable to be rejected.

¶32

I have considered the submissions made at Bar, perused the impugned judgment & award and also scanned record of the case.

¶33

Upon examining the judgment in case of Mukund Dewangan (supra), there remains no quarrel that a transport vehicle, as per weight prescribed in Section 2(21) read with Section 2(15) & 2(48) includes an “omnibus”, as the gross weight of either of which does not exceed 7500 kg. The Court further held that holder of a driving licence to drive the class of “light motor

¶34

(4 of 5)

¶35

[CMA-2312/2007]

¶36

vehicle” as provided in Section 10(2)(d) would be 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 roadroller, the “unladen weight” of which does not exceed 7500 kg. The Court held:

¶37

“Prior to amendment in 1994 licence for transport vehicle was clearly covered as per Section 10(2)in five categories, i.e., Section 10(2) (d) light motor vehicle, Section 10(2)(e) medium goods vehicle, Section 10(2)(f) medium passenger motor vehicle, Section 10(2)(g) heavy goods vehicle and Section 10(2)(h) heavy passenger motor vehicle. The licence for ‘light motor vehicle’ has been provided in section 10(2)(d). The expression ‘transport vehicle’ has been inserted by virtue of Amendment Act 54/1994 in Section 10(2) (e) after deleting four categories or classes of vehicles, i.e. medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, and heavy passenger motor vehicle. Earlier Section 10 did not contain the separate class of transport vehicles.

¶38

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

¶39

(5 of 5)

¶40

[CMA-2312/2007]

¶41

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.

¶42

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).”

¶43

In a later judgment rendered by Supreme Court dated 06.03.2018 (Jagdish Kumar Sood V/s. United India Insurance Co. Ltd. & Ors. - Civil Appeal No.240/2017) same view is reiterated.

¶44

Thus, relying on judgment in Mukund Dewangan (supra), impugned award to the extent of finding on Issue No.3 absolving insurance company is set aside. The appeal is, therefore, allowed and the liability to pay compensation shall jointly and severally be fastened on the insurer in addition to the owner and driver.

¶45

There shall be no order as to costs.

¶46

(P.K. LOHRA),J

¶47

a.asopa/-

Babu Lal and Anr. v. the New India Assurance Co. Ltd.and Anr.

Case brief

What is this about?

What did the court decide?

Babu Lal and Anr. v. the New India Assurance Co. Ltd.and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Gurbhej Singh @ Geja Vs State of Rajasthan

Mangudas Vs Union of India

M/S Nirma Limited Vs the District Judge, Pali

Smt. Geeta Lall Vs Ashinana Amar Developers and Ors.

The Oriental Insurance Co. Ltd. Vs Devki Devi and Ors.

Shariff Ahmed Abbasi Vs M/S. Kishanlal Bhojaram Duggar