Ramunni Nair vs R.T.O

P. K. Balasubramanayan, J M.

The petitioner is a bus operator. His vehicle is KRC 2694. His route is Battery - Thalassery via. Mananthavady. KRC 2694 is a 1984 model vehicle with a seating capacity of 45. The petitioner thought of replacing the vehicle. He appears to have acquired a 1985 model vehicle KRP 2081 with a seating capacity of 43. This is two less than the searing capacity KRC 2694 had. The petitioner applied before the respondent for permission to replace KRC 2694 by KRP 2081. Ext. P2 is the copy of the application made before the respondent. The petitioner a) so produced the registration book of the new vehicle alongwith the permit of the old vehicle alongwith this application. It is presumably because the power under Sec. 83 of the Act is delegated to the respondent that the application was made to him and not to the Regional Transport Authority. The respondent considered the application. He was struck by the reduction of seating capacity by two. He thought that if the replacement is allowed there will be a loss to the Government of taxes under the Motor Vehicles Taxation Act which he calculated as Rs. 20001/- + SC + ASC per annum. He thought of advising the petitioner to seek to replace KRC 2694 with another vehicle having the same seating capacity of 45. The respondent issued Ext. P5 communication to the petitioner calling upon him to do so and returning his application in respect of KRP 2081. The petitioner approaches this court seeking to set aside Ext. P5.

Section 83 of the Motor Vehicles Act, 1985 permits replacement of vehicles. It says that the. holder of the permit may replace any vehicle covered by the permit by any other vehicle of the same nature. Rule 174 of the Kerala Motor Vehicle Rules prescribes the procedure. Rule 174(1) (a) prescribes that the permit holder has to state the material particulars in respect of which the new vehicle differs from the old in a case where he has not at all acquired the vehicle. Rule 174 (1)(b) insists in a case where he already possesses a new vehicle to forward the certificate of Registration of that vehicle. Rule 174 (2) provides the grounds on which the authority may reject the application. Clause (b) provides the ground of rejection in a case where the new vehicle differs in material respects from the old one. The question in this case is whether the reduction in two seats in the new vehicle makes it a vehicle not of the same nature referred to in Sec. 83 of the Act or makes it a vehicle which differs in material respects from the old one. Rule 174 (3) provides that if the new vehicle proposed does not differ in material respects from the old, the application for replacement may be allowed. The guidelines to answer the question as to what is materialy different is provided by the Note occurring after Rule 174 (3) of the Rules. The said note says that if the vehicle does not differ by not more than 25% of gross vehicle weight or seating capacity as the case may be, it shall not be considered to be materially different. Here the seating capacity of the old vehicle is 45. There is no dispute regarding the gross vehicle weight. 25% of 45 would come to 11.25 In the light of the Note therefore even if the seating capacity is less by 11, the old vehicle can be replaced by the new vehicle. Here the difference in the seating capacity is only two, well below the 25% prescribed by the Note as bringing about material difference. If/so understood, it is clear that the respondent acted without jurisdiction in returning the application and in directing the petitioner to produce a new vehicle with equal seating capacity. There is no case that the new vehicle is not of the same nature as insisted upon by Sec. 83 of the Act. Ext. P5 is therefore only to be set aside. Alongwith Ext. P5 communication, the respondent has "returned the application Ext. P2 to the petitioner. Rule 174(1) insisted that reasons for proposed replacement must be stated by the applicant No reasons for the proposed replacement are seen stated in Ext. P2 application or in the covering letter Ext. P3. The petitioner is free to make a fresh application complying with the requirements of Rule 174 of the Rules and the said application will be considered and disposed of by the respondent within three weeks of such submission in the light of what is stated above.

The Original Petition is thus allowed. There will be no order as to costs.