Mahipal Singh And Ors vs Shankar Lal And Ors

Appellants, driver and owner, have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, 'Act') challenging judgment and award dated 01.12.2015, passed by Motor Accident Claims Tribunal No.1, Udaipur (for short, 'learned Tribunal'). The learned Tribunal, while quantifying and awarding compensation to the respondent-claimant, has exonerated the insurer from its liability.

The facts, apposite for the purpose of this appeal are that on 22.08.2013 at about 7:30 am, when claimant-Shankarlal was going on foot towards Sadri, Bolero No.RJ-27-TA-1270 hit him on the back, which was driven by its driver-Mahipal rashly and negligently. In the said accident, he suffered various grave and serious injuries and as a result of which he became permanently disabled and unable to perform even his day to day work. As per version of the respondent-claimant, he was 50 years old at the time of accident and was earning Rs.4500/- per month from agricultural work. In the claim petition, respondent quantified total amount of compensation to the tune of Rs.3,07,000/- under different heads. The claim petition was contested by driver and owner of the vehicle taking the stand that accident occurred due to negligent driving of the claimant himself. 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.

Learned Tribunal, on the basis of pleadings, settled three issues for determination. For substantiating his claim, respondent-claimant himself appeared in the witness box, besides tendering seventeen documents. The non-claimants examined one witness and tendered seven documents.

Learned Tribunal, while awarding compensation to the claimant, has exonerated the insurance company from paying compensation and directed the owner of the offending vehicle to pay compensation to the tune of Rs.1,37,100/- with interest @9% per annum from the date of filing of the claim petition, i.e., 11.04.2014.

Learned counsel appearing for the appellants submits that the learned Tribunal has erred in exonerating the insurance company considering its plea of 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].

On the other hand, learned counsel for the respondent- insurer submits that the driver of insured vehicle was not having licence to ply heavy 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.

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

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 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:

"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. he 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.

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.

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)."

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

Thus, relying on the judgment in Mukund Dewangan (supra), the impugned award to the extent of absolving the insurance company is set aside. Consequently, the appeal is allowed and the liability to pay compensation shall be jointly and severally on the insurer also.

There shall be no order as to costs.