Sadashiv and Others vs Dyavakka and Others

S. Sujatha, J.—Heard the learned counsel appearing for the parties. The owner as well as the claimants are in appeal challenging the judgment and award passed by the Motor Accidents Claim Tribunal, Bailhongal in MVC No. 1800/2008.

The facts in brief are:

"It transpires that on 30.07.2008 at about 13.00 hours, when the deceased and her son were travelling in an auto bearing No. KA-25/3556 on Katakol-Ramadurg road near Sunnal bridge, the driver of a construction equipment vehicle (JCB) bearing No. KA-25/N-4695 driven by its driver in a rash and negligent manner alleged to have collided with the said auto, due to which, accident occurred and occupants of the said auto sustained grievous injuries. Based on these facts, the claimants/injured filed claim petition before the Tribunal seeking compensation. The Tribunal after evaluating the evidence on record awarded compensation of Rs. 6,19,600/- with interest at 6% p.a. and fastened the liability on the owner of the JCB vehicle. Being aggrieved by the said judgment and award, the owner as well as claimants are before this Court."

The learned counsel for the owner mainly contended that the offending vehicle JCB falls within the definition of Light Motor Vehicle (LMV) as defined under Section 2(21) of the Motor Vehicles Act, 1988 (hereinafter referred to as ''the Act'' for short). It is contended that the driver of the offending vehicle i.e., JCB had valid and effective driving license to drive the LMV as well as the Heavy Transport Vehicle (HTV) and tractor and trailer on the date of occurrence of the accident. The JCB with ladden weight of 7460 kgs comes within the ambit of LMV, the Tribunal without appreciating the said contention of the owner saddled the liability on the owner exonerating the insurer from indemnifying the owner, contrary to the terms of the insurance policy. It is further contended that, as per Section 147 of the Act, as long as the insurance policy is current, the insurer cannot escape the liability and is not entitled to take a defence of breach of the terms of the insurance policy to invoke the provisions of Section 149(2) of the Act to exonerate from the liability. It is further contended that, whether the vehicle is a light motor vehicle or not has to be ascertained from the unladen weight of the vehicle. In the present case, the offending vehicle being with unladen weight of 7460 kgs., less than 7500 kgs, falls within the definition of light motor vehicles.

In support this contention, learned counsel placed reliance on the judgment of this Court in the case of Oriental Insurance Company Ltd., v. Siddanna and others reported in 2010 Kant. M.A.C. 749 (kant) . In this judgment, this Court was dealing with a case, wherein, the question involved was whether the Autocab is a light motor vehicle or a transport vehicle. Considering the definition of light motor vehicle as per Section 2(21) of the Act, this Court held that auto cab''s unladen weight was less than 7500 kgs as the documents produced along with the memo filed by the learned counsel for the claimant revealed that the unladen weight of the auto cab was 504 kgs. Thus, the auto cab was brought within the definition of light motor vehicle. Further, the learned counsel placed reliance on the judgment of the Apex Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, . The relevant portion of the judgment is extracted herein:

"Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) Motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description the definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10 . They are ''goods carriage'', ''heavy goods vehicle'', ''heavy passenger motor-goods vehicle/invalid carriage/''light motor-vehicle'', ''maxi-cab'', ''medium goods vehicle'', ''medium passenger motor-vehicle,'' ''motor-cab'', ''motorcycle'', ''omnibus'', ''private service vehicle'', semi-trailer'', ''tourist vehicle'', ''tractor'', ''trailer'', and ''transport vehicle''. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal. A person possessing a driving licence for ''motorcycle without gear'', for which he has no licence. Cases may also arise where a holder of driving licence for ''light motor vehicle'' is found to be driving a ''maxi-cab'', ''motor-cab'', or ''omnibus'' for which he has no licence. In each case on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence."

We have construed and determined the scope of sub-clause (ii) of sub-section (2) of Section 149 of the Act. Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches of inconsequential deviation in the matter of use of deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties."

In this case, the Apex Court has held that, if a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have no licence for driving another type of vehicle, which is of the same category but of different type. As for example when a person is granted a licence for driving a light motor vehicle he can drive either a car or a jeep and it is not necessary that he must have driving licence both for car and jeep separately.

On the other hand, learned counsel appearing for the insurance company places reliance on Section 10(2) of the Act, which reads as under:

"A learner''s licence, or as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:''

a) motor cycle without gear;

b) motor cycle with gear;

c) invalid carriage;

d) light motor vehicle;

e) transport vehicle;

i) road-roller;

j) motor vehicle of a specified description."

It is contended that different classes of vehicle are stipulated under Section 10(2) of the Act, the offending vehicle being construction equipment vehicle, falls under Clause (j), motor vehicle of a specified description. Section 2(21) of the Act defines the light motor vehicle as a transport vehicle, omnibus or Motor-cab or Tractor or Road-Roller, all these vehicles are represented under different clauses of Section 10(2) of the Act. In case of the transport vehicle or omnibus, the gross vehicle weight shall not exceed 7,500 kgs., whereas in motor-cab, tractor and road-roller, the unladen weight shall not exceed 7,500 kgs, such vehicles would be construed as light motor vehicle. The motor vehicle of a specific description not falling under these categories and even if the unladen weight is less than 7,500 kgs. cannot be construed as light motor vehicle and forms separate class, i.e., motor vehicle of a specified description.

Further, in support of his contention, the learned counsel has relied upon the judgment of this Court in the case of M/s. United India Insurance Co. Ltd., v. Shri. R.S. Shivarammayya and Another reported in [2011 Kant. M.A.C. 632 (Kant)]. The relevant portion of which is extracted hereunder:

"Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the rules framed thereunder despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor. Proviso appended to Section 14 in unequivocal term states that the licence remains valid for a period of thirty days from the day of its expiry."

After considering the rival submissions of the parties, it is clear that the driver of the offending vehicle was authorized to drive light motor vehicle, transport vehicle, tractor and trailer as per the licence now produced by the owner before this Court. Now it has to be examined whether the offending vehicle commonly known as JCB bearing No. KA-25/N-4695 is a light motor vehicle falling under Section 2(21) of the Act or not. Section 2(21) of the Act reads thus:

"Section 2(21) : "light motor vehicle" means 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 [7,500] kilograms."

Thus, it is clear that to attract this provision, the vehicle must be in the following category of vehicles, i.e.,

If it falls in any one of these vehicles with the corresponding gross vehicle weight or unladen weight, which does not exceed 7,500 kgs. then it has to be construed as a light motor vehicle. The certificate of registration now produced by the owner to establish that the unladen weight of the offending vehicle is 7,465 kgs would not be suffice to characterize the said vehicle as light motor vehicle falling under Section 2(21) of the Act, if it falls only in any of the five categories mentioned in Section 2(21) of the Act, i.e.,(a) to (e) referred to above, coupled with the gross weight/unladen weight it comes under the ambit of light motor vehicle. This view is further supported by the notification issued by the Central Government Official Gazette, as per S.O. 1248(E) dated 05.11.2004, published in the Gazette of India, Extra-Ordinary, Part II Section 3(ii) dated 05.11.2004.

The Construction Equipment Vehicle as defined under Rule 2(ca) of the Central Motor Vehicles Rules, 1989 is considered as a non-transport vehicle, which reads thus:

"Rule 2(ca): "Construction equipment vehicle" means rubber tyred, (including pneumatic tyred), rubber padded or steel drum wheel mounted, self-propelled, excavator, loader, backhoe, compactor roller, dumper, motor grader, mobile crane, dozer, fork lift truck, self-loading concrete mixer or any other construction equipment vehicle or combination thereof designed for off-highway operations in mining, industrial undertaking, irrigation and general construction but modified and manufactured with "on or off" or "on and off" highway capabilities.

Explanation.--A construction equipment vehicle shall be a non-transport vehicle the driving on the road of which is incidental to the main off-highway function and for a short duration at a speed not exceeding 50 kms per hour, but such vehicle does not include other purely off-highway construction equipment vehicle designed and adopted for use in any enclosed premises, factory or mine other than road network, not equipped to travel on public roads on their own power."

The Full Bench of this Court has categorically held referring to Section 10(1) and 10(2) of the Act along with Rule (16) of the Rules and Form No. 6 that "It is clear that the Court should ascertain the nature of vehicle involved in the accident, so far as Section 2 of the Act and on examining the licence whether driver was authorized to drive the particular type of vehicle involved in the accident, has to be ascertained." In the light of this judgment, if the driving licence is examined vis-�-vis the provisions of Section 2 of the Act r/w Section 10 of the Act and Rule 2[ca] read with Rule 3 of the Rules it would be held that the offending vehicle is an excavator/construction equipment vehicle which is commonly known as JCB by its company''s name is a special vehicle falling under the Clause (1) of Section 10(2) of the Act and is not a light motor vehicle falling under Section 2(21) of the Act.

Having considered the offending vehicle as a special vehicle, which necessarily requires special skill for driving, the finding given by the Tribunal that JCB is a special category of vehicle, according to the Motor Vehicles Act and Rules, the driver was not authorized to drive the JCB, cannot be found fault with. In such circumstances, the appeal filed by the owner of the vehicle, being devoid of merit stands dismissed.

So far as the appeal filed by the claimants seeking enhancement of compensation is concerned, it is noticed that the injured was working as a coolie. It is averred that the he was earning Rs. 5,000/- p.m. However, the Tribunal has disbelieved the same and determined the monthly income of Rs. 3,000/- p.m. in the absence of any proof of income, this Court as well as the Lok Adalath is consistently taking the income in similar cases at Rs. 4,250/- p.m. for the accident that occurred in the year 2008 and if the same is taken as the guiding factor, loss of future income works out to Rs. 4,97,250/-. The compensation awarded by the Tribunal is enhanced from Rs. 2,97,000/- to Rs. 4,97,250/- under the head loss of future income. In all other respects the compensation awarded by the Tribunal stands undisturbed.

Accordingly, the appeal filed by the owner of the offending vehicle is dismissed. The appeal filed by the claimants is allowed in part, the judgment and award of the Tribunal is modified. The claimants are entitled to enhanced compensation of Rs. 2,00,250/- with interest at 6% p.a. from the date of petition till realization. The owner is liable to deposit same within six weeks from the date of receipt of judgment, the claimants are at liberty to withdraw the same.

The amount in deposit shall be transmitted to the Tribunal concerned.