Pawan and Another vs Smt. Bhulibai and Others

N.K. Mody, J.—Being aggrieved by the order dated 27-8-2009 passed by MACT, Ratlam, in Claim Case No. 02/2009, whereby the claim petition filed by respondent Nos. 2 to 4 for compensation on account of death of Ambalal @ Amritlal who was husband of respondent No. 1, son of respondent Nos. 2 and 3 and father of respondent No. 4 was allowed and compensation of Rs. 3,32,000/- was awarded and the respondent No. 5 was exonerated on the ground that appellant No. 2 who was the driver was not possessing the valid driving licence, the present appeal has been filed. Short facts of the case are that respondent Nos. 1 to 4 filed a claim petition alleging that on 12-9-2004 Ambalal was sleeping in the factory premises, at that time appellant No. 2, who was driver of crane No. HR-38-P-1446 drove the crane rashly and negligently, with the result, Ambalal died. It was alleged that appellant No. 1 is owner and respondent No. 5 is the Insurance Company. The claim petition was contested by respondent No. 5 on various grounds including on the ground that appellant No. 2 was not possessing the valid driving licence. It was prayed that claim petition be dismissed against respondent No. 5. After framing of issues and recording of evidence learned Tribunal allowed the claim petition by awarding compensation of Rs. 3,32,000/- and exonerated respondent No. 5 on the ground that appellant No. 2 was not possessing the valid driving licence, against which the present appeal has been filed.

Learned Counsel for appellants submits that impugned award whereby respondent No. 5 has been exonerated, is illegal and deserves to be set aside. Along with the appeal an application under Order XLI Rule 27, CPC has been filed along with certificate dated 15-10-2010 issued by the Licensing Authority, Indore, wherein it is stated that crane is a commercial vehicle like a tractor, hence for driving cranes only heavy vehicles licence is required and no other special licence is required for driving the cranes. It is prayed that in the facts and circumstances the application and also the appeal be allowed and the finding whereby respondent No. 5 has been exonerated, be quashed.

Learned Counsel for respondent Nos. 1 to 4 submits that he has no objection in allowing the appeal and also the application.

Learned Counsel for respondent No. 5 opposes the application and submits that documents need to be proved. It is submitted that since offending vehicle was a crane, therefore, learned Tribunal has rightly held that requires special type of licence u/s 10 of Motor Vehicles Act. It is submitted that appeal filed by the appellants has no merit and same be dismissed.

Section 10 of the Motor Vehicles Act deals with the form and contents of licences to drive. Sub-section (1) reads as under:--

Every learner''s licence and driving licence, except a driving licence issued u/s 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.

Sub-section (2) lays down :--

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) medium goods vehicle;

(f) medium passenger motor vehicle;

(g) heavy goods vehicle;

(h) heavy passenger motor vehicle;

(i) road-roller;

(j) motor vehicle of a specific description.

From perusal of class of vehicle mentioned under sub-section (2) of Section 10, it is evident that crane is not defined as a separate category of motor vehicle and it is only road-roller which has been defined as a separate category of road-roller.

In exercise of the powers conferred by sub-section (4) of Section 41 of the Motor Vehicles Act, 1988 (59 of 1988), the Central Government has specified the types of vehicles mentioned in column (2) of the Table below as the type in respect of motor vehicles specified in the corresponding entry in column (1) thereof for the purpose of sub-section (4):--

It is true that documents which are filed by the appellants before this Court ought to have been filed by the appellants before the learned Tribunal itself, however since the document which has been filed is a notification and a certificate issued by the RTO, therefore, the application filed by the appellants is allowed subject to cost of Rs. 25,000/- which shall be payable to respondent No. 1.

From perusal of record, it is evidence that in the written statement filed by the appellants, nothing has been stated about the licence and in the written statement filed by respondent No. 5, no specific plea was taken that respondent No. 2 was not possessing the valid driving licence. On the contrary, plea was taken that offending vehicle was not insured with respondent No. 5. However, learned Tribunal framed issue to the effect whether respondent No. 2 was possessing the valid driving licence for driving the crane. Since no evidence was adduced by the respondent No. 5 to avoid the liability and keeping in view the notification which has been filed by appellants before this Court and the certificate issued along with the application which has been allowed, this Court is of the view a case of remand is made out.

In view of this, appeal filed by the appellants is allowed. The impugned award so far as it relates to the findings of exoneration of respondent No. 5 is concerned, is set aside. Case is remanded with a direction to the learned Tribunal to redecide the issue whether the driver of the offending vehicle was possessing valid licence or not and whether the Insurance Company is liable for payment of compensation or not.

Parties are directed to remain present before the learned Tribunal on 18-10-2011. Learned Tribunal is directed to redecide the aforesaid issues after recording of evidence of both the parties if any. So far as the amount deposited by the appellants is concerned, the same be paid to respondent Nos. 1 to 4 subject to final award relating to the liability of appellants and respondent No. 5. With the aforesaid, appeals stands disposed of.