First Appeal No.268 of 2008

14th August, 2014.

Petitioner Counsel: Mr. U.R. TIMBLE and Ms. YADIKA MANDREKAR
Respondent Counsel: Ms. PUSHPINDER KAUR, Mr. S.N. JOSHI, and Ms. ARCHANA PAI BIR and Ms. SUMEDHA JOSHI

Cases Cited:
Oriental Insurance Co. Ltd. Vs. Nanjappan and others, 2004(5) ALL MR 393 (S.C.)=(2004) 13 SCC 224 [Para 15,16]

JUDGMENT

JUDGMENT :- The appellant, National Insurance Company, being aggrieved by the Judgment and Award dated 11th March, 2008, passed by the Presiding Officer, Motor Accident Claims Tribunal, North Goa, Panaji in Claim Petition No. 101/2005, has approached this Court by the aforesaid first appeal. By the impugned judgment and award, Respondent No.1's claim petition under Section 166 of the Motor Vehicles Act was partly allowed and the respondents No.2, 3 and the appellant, jointly and severally directed to pay to the respondent No.1, an amount of Rs.1,59,150/- along with interest at the rate of 9% per annum on the sum of Rs.1,17,150/- from the date of filing of petition till the date of payment of entire claim.

2. Learned Presiding Officer of the MACT, framed as many as 5 issues, which read thus :

"1. Whether the claimant proves that on 17.11.2004 at 17.00 hours at Porvorim, the respondent no.1 drove the Maruti van bearing No.GA-01/T-4678 in a rash and negligent manner and dashed against his scooter ?

2. Whether the claimant proves that as a result of the said accident he sustained grievous injuries resulting in permanent disability ?

3. Whether the claimant proves that he is entitled for total compensation of Rs.2,96,150/- ?

4. Whether the respondent no.3 proves that accident was caused due to rash and negligent driving by the claimant ?

5. Whether the respondent no.3 proves that he is not liable to pay any compensation to the applicant as the insured has violated the terms and conditions of the policy?"

3. In order to prove his case, the respondent No.1-claimant adduced evidence of six witnesses. Respondent No. 2 examined himself and one more witness. So far as the appellant-original respondent No.3 is concerned, one witness, namely Marudraj Gaokar was examined as RW.1. Learned Presiding Officer answered issues no.1 and 2 in the affirmative, third issues was answered partly in the affirmative, while issues No.4 and were answered in the negative.

4. The appellant-original respondent No.3-Insurance Company by filing this appeal is mainly assailing the findings of the learned Presiding Officer on issue No.5. Respondents No.2 and 3 i.e. the driver and the owner have not challenged the impugned judgment and award by filing any appeal, nor they have filed cross objection in this appeal. This appeal is, therefore, restricted to issue No.5 i.e. Whether the appellant-original respondent no.3 is liable to pay compensation to the claimant as the insured had violated the terms and conditions of the policy?

5. Mr. Timble, learned Counsel for the appellant invited my attention to the provisions of Sections 2(14) and 2(17), along with the driving licence of respondent No.2, which is annexed at page 31 of the paper book. Mr. Timble submits that the vehicle, in question, was a "goods carriage" and therefore, is a "transport vehicle" within the meaning of section 2(47) of the M.V. Act. He further submitted that respondent No.2, however, was authorised to drive only (i) motor cycle without gear, (ii) motor cycle with gear and (iii) Light motor vehicle and he was not granted licence to drive "transport vehicle". Thus, he submits that respondent No. 3 violated the terms and conditions of the insurance policy by allowing respondent No.2 to drive the vehicle which he was not authorised to drive. He submitted that impugned judgment and award, therefore, to that extent deserves to be quashed and set aside.

6. On the other hand, Mr. Joshi appearing for respondents No.2 and 3 submitted that though the vehicle in question is a "transport vehicle" it is a light motor vehicle within the meaning of Section 2(21) and, therefore, it cannot be said that the insured violated the conditions of the insurance policy. Mr. Joshi submitted that the impugned judgment and award is in accordance with the provisions of law and, therefore, cannot be interfered with.

7. Ms. Kaur, learned Counsel for respondent No.1-original claimant submitted that the weight of the vehicle, in question, was much less than 7500 kgs., and, therefore, it cannot be said that respondent No.2 was not authorised to drive the vehicle in question.

8. Having considered the rival submissions and upon perusal of the record, I find merit in the appeal. Learned Presiding Officer has observed in the impugned Judgment and Award that the appellant nowhere pleaded that a light goods vehicle of the type of Maruti van omni cargo involved in the accident needs permit under Section 66 of the M.V. Act and even otherwise, Section 66(3) (I) of the M.V.Act provides that the provision of sub-section (1) (i.e. regarding necessity of permits) shall not apply to any goods vehicle, the gross vehicle weight of which does not exceed 3000 kgs. and therefore, no permit is required for the Maruti van omni cargo of which the gross vehicle weight is only 1350 kgs.. Learned Presiding Officer pursuant to these observations, held that though the offending vehicle in the present case has been designated as a light goods vehicle, it cannot, in view of Section 66 of the M.V. Act. be held to be a transport vehicle. The finding of learned Presiding Officer, in my considered view, cannot be sustained.

9. Section 66 of the M.V. Act falls in Chapter V - Control of transport vehicles. Section 66 speaks about necessity for permits. Under the said section, no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used. Sub-section (3) of Section 66 enumerates the vehicles category to which the provisions of sub-section (1) shall not apply. In the present case, we are not concerned about the necessity of the permit under Section 66. The issue involved in this appeal is, whether respondent No.2 who was driving the vehicle in question at the time of the accident, was authorised to drive the same ?

10. The definition of "goods carriage" is given in Section 2(14) of the M.V. Act. As per this section, "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(47) defines "transport vehicle" to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Thus, the goods carriage vehicle is a transport vehicle within the meaning of Section 2(47) of the M.V. Act.

11. Both, Mr. Joshi and Ms. Kaur, learned Counsel for respondents No.2 & 3 and respondent No.1 respectively, submit that the light motor vehicle is a transport vehicle, weight of which does not exceed 7500 kgs.. They submit that the weight of the vehicle in question, involved in the accident, was less than 7500 kgs. and, therefore, can be said to be a light motor vehicle and, therefore, separate licence under category of "transport vehicle" may not be necessary. The argument is attractive, however, cannot be accepted.

12. Rule 14 of the Central Motor Vehicles Rules, 1989 deals with application for a driving licence. This rule provides that an application for a driving licence shall be made in Form 4 and shall be accompanied by the documents enumerated in clauses (a) to (g) thereof. Form 4 is a form of application to apply for licence to drive a motor vehicle. Perusal of this form, makes it abundantly clear that for the purpose of application for licence, motor vehicles are categorised in different categories, namely (a) motor cycle without gear (b) motor cycle with gear, (c) invalid carriage (d) light motor vehicle (e) transport vehicle, (f) road roller and (g) other categories of the motor vehicles. Thus, perusal of the provisions of Rule 14, read with Form 4, makes it abundantly clear that the light motor vehicles and transport vehicles are categorised in different category for the purpose of application for licence to drive the same.

13. Section 4 of the M.V. Act speaks about age limit in connection with driving of motor vehicles. Sub-Section (1) of Section 4 says that no person under the age of 18 years shall dive a motor vehicle in any public place. Sub-Section (2) thereof says that subject to the provisions of section 18, no person under the age of 20 years shall drive a transport vehicle in any public place. Thus for applicant of the licence to drive a transport vehicle must have to complete 20 years. Sub- Section (2) of Section 14 of the M.V. Act deals with the driving licence issued or renewed under the Act. Clause (a) thereof says that a licence to drive a transport vehicle shall be effective for a period of three years. However, other licence to drive shall be effective for a period of twenty years or 50 years, whichever is earlier. In this section also distinction is made between the licence to drive transport vehicle and other vehicles.

14. Respondent No.2's licence is annexed at page 31. It specifically shows that he is granted licence to drive (i) motor cycle without gear, (ii) motor cycle with gear, and (iii) Light motor vehicle. The licence further shows that respondent No.2 was not authorised to drive invalid carriage, transport vehicle, road roller,etc.. If the licence given to respondent No.2 is examined in the light of Section 2(14), 2(24), Section 4 and Section 14, read with Rule 14 and Form-4, then it is clear to my mind that respondent No.2 was not authorised to drive the vehicle involved in the accident, which admittedly was registered as "goods carriage vehicle" and therefore, the appellant is not liable to pay the compensation to respondent No.1, as respondent No.3 insured has violated the terms and conditions of the policy.

15. In Oriental Insurance Co. Ltd. vs. Nanjappan and others, (2004) 13 SCC 224 : [2004(5) ALL MR 393 (S.C.)], though the Insurance Company was not held liable, the Apex Court, directed it to pay the compensation to the claimant therein and recover the sum from the insured by initiating proceedings before the Executing Court, without being required to file a separate suit. In the present case, the appellant-Insurance company has already deposited the decreetal amount in this Court. In terms of the decision of the decision of the Apex Court in Oriental Insurance Co. Ltd. vs. Nanjappan and others, [2004(5) ALL MR 393 (S.C.)] (supra), respondent No.1-claimant is entitled to initially claim from the Insurance Company, payment of compensation as awarded by the MACT.

16. In the light of the discussion supra, the appeal is disposed of by passing following order :

(A) The impugned judgment and award, so far as it holds that the appellant-Insurance Company is liable to pay the compensation to respondent No.1-claimant is concerned, the same is quashed and set aside and the appellant is held not responsible to pay respondent No.1-claimant, as the insured - respondent No.3 has violated the terms and conditions of the insurance policy. Rest of the impugned judgment and award is confirmed. Thus, though the appellant is held not liable to pay the compensation to respondent No.1-claimant, respondents No.2 and 3 are liable to pay the compensation to respondent No.1-claimant and respondent No.1 is at liberty to file execution proceedings to execute the impugned judgment and award, as modified by this Court, before the concerned Tribunal.

(B) The amount deposited by the appellant in this Court in the aforesaid appeal shall be remitted to the Executing Court, upon respondent No.1 filing execution proceedings.

(C) The Executing Court shall, thereafter, decide the execution proceedings as expeditiously as possible and in the light of the decision of the Apex Court in Oriental Insurance Co. Ltd. vs. Nanjappan and others, [2004(5) ALL MR 393 (S.C.)] (supra).

Ordered accordingly.