ORIENTAL INSURANCE COMPANY LTD. vs Ashok Verghese

COMPLAINAN T /respondent is owner of Eicher (Medium Goods Vehicle) with Registration No. KA 03 -A -4899 and it was comprehensively insured with the petitioner/opposite party for the period from 10.2.2000 to 9.2.2001. The said vehicle met with an accident on 17.4.2000. The Surveyor was appointed. The vehicle was repaired by Canter Automobile Services Pvt. Ltd. and complainant submitted bill for Rs. 1,93,394.95. The petitioner/opposite party repudiated the claim on the ground that complainant violated the terms and conditions of the policy by allowing driver Ravi to drive the vehicle who had no valid and effective driving licence to drive Medium Goods Vehicle same on the date of accident. The complainant had produced endorsement dated 18.9.2000 given by Assistant Regional Transport Officer, Bangalore to the effect that driver Ravi was authorised to drive Light Motor Vehicle and the driving licence was valid from 24.3.2000 to 23.3.2003. The Insurance Company took the plea that the vehicle was insured as Medium Goods Vehicle and as such the driver who had licence for Light Motor Vehicle was not authorised to drive the Medium Goods Vehicle and there being breach of policy condition, the Insurance Company was not liable to pay claim.

THE District Forum held that the violation of Section 3 of the Motor Vehicles Act was merely a technical deficiency and that the Insurance Company was liable to pay the entire claim. The complaint was, accordingly allowed by directing the petitioner to pay Rs. 1,93,394.95 with 10% p.a. interest from 23.11.2000 till payment with cost of Rs. 5,000.

THE order of the District Forum was challenged before the State Commission. The State Commission held that from the certificate issued by RTO, it was found that the unladen weight of the vehicle is 3160 kg. and as such the said vehicle is to be treated as Light Motor Vehicle and since the driver had licence to drive the Light Motor Vehicle, the Insurance Company was liable to pay. The appeal was dismissed. The petitioner has, thus, come in revision against the said orders. We have heard Counsel appearing for the petitioner. Counsel for the respondent has sent written arguments.

LEARNED Counsel for the petitioner urged before us that the State Commission erred in taking into account the unladen weight of the vehicle, whereas the gross vehicle weight of the vehicle is required to be taken into account which as per Registration Certificate is 8770 kg. He also pointed out that in terms of Section 2(21) of M.V. Act, 1968 "Light Motor Vehicle" means a transport vehicle or omni bus, the gross vehicle weight of either of which does not exceed 7500 kg. Therefore, according to him, both the Fora below have erred in granting compensation in breach of the policy condition as also breach of law, inasmuch as the driver did not possess driving licence for Medium Goods Vehicle which was insured with the petitioner.

COUNSEL for the respondent in written arguments has submitted that revision against concurrent orders of two Fora below is required to be dismissed. He has further submitted that the driver was holding valid and effective driving licence as per Annexure C'' and he was entitled to drive light motor vehicle upto the laden weight of 7500 kg. which was valid upto 23.3.2003. Counsel for the petitioner has relied upon certain rulings which are not applicable in the light of the judgment of the Apex Court which we shall refer at a little later stage. On question of limitation in filing appeal, it has been stated that no sufficient grounds have been given to condone delay.

WE have gone through the record. The delay in filing the revision is stated to be 42 days. The impugned order was passed by the State Commission Karnataka at Bangalore and certified copy was sent to New Delhi where it is stated to have got mixed up with other files and after the same was located, the matter was sent to Bangalore office and after seeking clarification from the Advocate, the papers were sent to the Head Office at New Delhi. The Head Office took opinion and decided to file revision and the matter was handed over to Advocate at Delhi on 30.11.2005 and the revision was filed on 5.12.2005. In our opinion, the petitioner has explained delay in filing the appeal which of 42 days . In the circumstance, the petitioner cannot be said to be guilty of inaction or negligence on their part in pursuing the matter and the delay occurred on account of various factors explained in the application. The delay in filing the revision is condoned.

THE short question to be decided in this revision is whether the driver of the vehicle, in question, who was holding light motor vehicle, was entitled to drive medium goods vehicle . The vehicle, in question, was registered as medium goods vehicle and unladen weight of which is stated to be 3160 kg and the gross vehicle weight certified by the manufacturer and as registered is stated to be 8770 kg.

SECTION 3(1) of the Motor Vehicles Act, 1988 provides for necessity of driving licence and it reads as under: "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 authorizing him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab 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."

SECTION 2(21) defines Light Motor Vehicle as under - "Light Motor Vehicle means a transport vehicle or omni bus 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 7,500 kilograms.

(Emphasis supplied)

THUS , in case of a transport vehicle, gross weight has to be less than 7500 kg to qualify as light motor vehicle whereas in case of motor car it is the unladen weight which is relevant.

SECTION 2(23) deals with Medium Goods vehicle which is as under; "Medium Goods Vehicle" means any goods carriage other than a light motor vehicle or a heavy goods vehicle;"

SECTION 2(16) provides for Heavy Goods Vehicle which is as under: "Heavy Goods Vehicle" means any goods carriage the gross vehicle weight of which, or a tractor or a road -roller the unladen weight of either of which, exceeds 12.000 kilograms;"

SECTION 2(14) defines goods carriage as - "goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods.

SECTION 2(15) defines gross vehicle weight as - "gross vehicle weight" means in respect of any vehicle the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle.

SECTION 2(47) defines transport vehicle as - "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.

THEREFORE , in order to qualify as Light Motor Transport Vehicle, the gross weight should not exceed 7500 kg. In case of motor car it is unladen weight which is relevant. Thus, a transport vehicle exceeding 7500 kg gross weight and less than 12000 kg gross weight is medium goods vehicle.

THE case of the complainant is that the motor vehicle Eicher is a water tanker registered as Medium Goods Vehicle. The unladen weight of the vehicle is 3160 kg and with full load it weight''s 8700 kg. According to complainant the water tanker was empty at the time of accident and as such unladen weight has to be considered which makes the vehicle as LMV for which the driver had valid licence. The contention of the complainant is without any merit whatsoever. What is relevant is the gross vehicle weight and not unladen weight.

THE vehicle in question is admittedly water tanker, Medium Goods Vehicle with gross vehicle weight as 8770 kg. Light Motor Vehicle in t he context means a transport vehicle the gross vehicle weight does not exceed 7500 kg. Thus, it is gross vehicle weight which is relevant for the decision of the case before us and unladen weight has nothing to do. When the gross weight of a transport vehicle exceeds 7500 kg. it becomes medium goods vehicle. In terms of Section 2(15), gross vehicle weight means the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle. The vehicle in question being a goods carriage is transport vehicle within the meaning of Section 2(47) of the Act. The State Commission erred in taking the unladen weight of the medium transport vehicle in order to determine that the vehicle in question is Light Motor Vehicle. The said findings are erroneous in law.

BESIDES this, Section 3 clearly provides that no person shall drive a transport vehicle other than a motor cab or motor cycle 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 to do so. Section 2(10) defines driving licence as - "driving licence" means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description."

THE driving licence of the driver in the case before us does not entitle him to drive Medium Goods Vehicle and there is no endorsement to that effect on his licence which is only for Light Motor Vehicle. The ruling of the Apex Court in New India Assurance Company Ltd. v. Prabhu Lal, reported in I (2008) CPJ 1 (SC)=IX (2007) SLT 841=I (2008) ACC 54 (SC)=AIR 2008 SC 614, is applicable on all fours in the matter under consideration. The Apex Court had dealt with the relevant provisions of Motor Vehicle Act, 1988 and has laid down that a person holding driving licence to ply Light Motor Vehicle cannot ply transport vehicle unless there is specific endorsement to that effect as required under Section 3 of the Motor Vehicles Act read with Rules 16 of the Rules and Form No. 6. The Apex Court had held that the judgment in National Insurance Company Ltd. v. Swaran Singh and Others, 109 (2004) DLT 304 (SC)=I (2004) SLT 345=I (2004) ACC 1 (SC)=2004 (3) SCC 297 relates only to 3rd party interest and does not apply to own damage and this proposition has been made clear by the Apex Court in the National Insurance Company Ltd. v. Laxmi Narain Dhut, III (2007) CPJ 13 (SC)=IV (2007) SLT 102=II (2007) ACC 28 (SC)=(2007) 3 SCC 700.

IN view of the above, we are in agreement with the Counsel for the petitioner that not only there has been breach of policy condition vis -a -vis light motor vehicle licence held by the driver inasmuch as the vehicle driven was Medium Goods Vehicle and there is also breach of Section 3 of the Motor Vehicles Act on account of which the Insurance Company is not liable to pay any compensation to the complaint/respondent and the complaint is liable to be dismissed. The complaint is, accordingly, dismissed. The revision is allowed. In the facts and circumstances of the case, we leave to the parties to bear their own costs. R.P. allowed.