Babul Debbarma vs National Insurance Company Ltd And Ors

[1] Heard Mr. T. D. Majumder, learned counsel appearing for the owner-appellant. Also heard Mr. Rajib Saha, learned counsel appearing for the insurance company and Mr. K. Datta, learned counsel appearing for the claimant.

[2] This appeal has been filed by the owner of the vehicle, bearing registration No. TR01-D-2179 (Auto Rikshow). Being aggrieved by the judgment and award dated 21.01.2014 passed in T.S. (MAC) 183 of 2013, wherein, the learned Motor Accident Claims Tribunal; (Court No. 4) had fastened the liability upon the owner, the appellant herein. The learned tribunal directed the insurance company to first pay the entire amount of compensation to the claimant and thereafter, the same shall be realized from the owner-appellant.

[3] Mr. T. D. Majumder, learned counsel appearing for the appellant has submitted that the driver of the vehicle was having valid driving licence to drive Light Motor Vehicle (LMV, for short). The dispute is that, the learned tribunal while indicating the type of the vehicle the driver permitted to drive, written as "LMV (NT)". For clarification N.T. means "Non-transport" and on the basis of such entry in the driving license, the liability has been fixed upon the owner of the offending vehicle.

[4] Learned counsel appearing for the appellant has contended that under Motor Vehicles Act and Rules, there is no provision to describe the type of vehicle in view of Section-10 of the Motor Vehicles Act.

[5] In support of his submission, learned counsel appearing for the appellant pressed into service a of three Judge Bench decision of the Apex Court reported in Mukunda Dewangan v. Oriental Insurance Company Limited, reported in AIR 2017 SC 3668; (2017) 14 SCC 663. The Apex Court in similar situation at Para-46 had observed as under:

"46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of „light motor vehicles‟ and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act „Transport Vehicle‟ would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:

(i) „Light motor vehicle‟ as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.

(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, „unladen weight‟ of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is 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 road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.

(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression „transport vehicle‟ as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.

(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."

[6] In the instant case, while issuing the driving licence, the transport authority had mentioned the type of which is not permissible under the Act. The authorized driver of the owner having possessed the valid driving licence to drive LMV is authorized to drive all types of vehicles, which fall under the "class" of the LMV including transport vehicles of the same class. The Transport authority shall include only the class of vehicle in the driving licence, but not the type of vehicle.

[7] Learned tribunal has fastened liability upon the owner-appellant only for the reason that the driver of the appellant was driving LMV but, not non-transport vehicle. According to Ld. Tribunal, the driver of the appellant was only eligible to drive a non-transport under class of LMV, but not any other type(s) of LMV. In view of the decision of the Apex Court as cited (supra) and the said finding suffers from non-application of mind being contrary to the language of Section-10 of the M.V. Act and therefore, does not hold good.

[8] Accordingly, the direction of the learned tribunal, fastening the liability to pay compensation upon the owner-appellant is set aside. Consequently, the entire liability is fastened with the National Insurance Company Ltd., to make payment of the awarded sum to the appellant within a period of two months from the date of the award. The judgment and award dated 21.01.2014 stands modified as indicated above. The owner-appellant has no liability to make any payment of compensation as awarded by the learned tribunal. At this juncture, learned counsel appearing for the owner-appellant has submitted that at the time of filing this appeal, the appellant had deposited the statutory amount of Rs. 25,000/-. On the other hand, Mr. Rajib Saha, learned counsel appearing for the insurance company has submitted that the insurance company has already paid the entire amount of compensation in favour of the claimant.

[9] In the result, the appeal stands allowed. It is needless to say that in view of the above order passed by this Court, the owner-appellant is permitted to withdraw the said statutory deposit.