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judgment

2008 INDLAW SC 813

[SUPREME COURT OF
INDIA]

New
India Assurance Company Limited
v
Roshanben
Rahemansha Fakir and
Another

S. B.
Sinha

12 May 2008

BENCH
S. B. Sinha & L. S. Panta

CASES REFERRED TO
National
Insurance Company Limited v Kusum Rai and Others 2006 Indlaw SC
100
National Insurance Company Limited v Swaran
Singh and Others 2004 Indlaw SC
14
National Insurance Company Ltd. v. Annappa
Irappa Nesaria and Ors [2008 (1) Scale 642]

ACTS REFERRED
Motor Vehicles Act, 1988[s. 3, s. 10, s. 41(4), s. 173]
Constitution Of India, 1950[art.
142]

RULES REFERRED
Central Motor Vehicles Rules, 1989 [r. 51]

CASE
NO
Civil Appeal No. 3496 of 2008 (Arising Out of Slp
(C) No.3142 of 2007)

EDITOR'S
NOTE
Motor Vehicles Act, 1988 - Motor Accident
Claims - Held, it is evident that the driver of the vehicle
was not holding an effective licence - Possession of an
effective licence is necessary in terms of s. 10 of the Motor
Vehicles Act - Insurance Company was not liable to reimburse
the claim of the claimants - Appeal
allowed.

KEYWORDS
Claims Tribunal, Contract Of Insurance, Breach Of
Conditions, Appeal allowed, Period, PRACTICE &
PROCEDURE, CARRIERS & TRANSPORTATION, Motor Vehicles
Act, 1988, Constitution Of India, 1950, Motor Vehicle,
Motor Cycle, Insurance Company, National Insurance,
Policy Of Insurance, INSURANCE, Certificate Of
Registration, Registration Certificate, Breach Of
Condition, Definition Clause, Central Motor Vehicles
Rules, 1989, Public Service Vehicle, Public Place, Motor
Accident Claim, Motor Accident Claims Tribunal,
Certificate Of Insurance, Motor Accident, Passengers,
Passenger, Valid Licence, Goods Carriage, Light Motor
Vehicle, Cause Of Accident, Intervening Cause,
Commercial Vehicle

.JUDGMENT TEXT

The Judgment was delivered by
: S. B. SINHA

1. Leave granted.

2. This appeal
is directed against a judgment and order dated 13.11.2006
passed by a Division Bench of the High Court of Gujarat at
Ahmedabad in First Appeal No.3441 of 2006 whereby and
whereunder an appeal preferred by the appellant herein from a
judgment and order dated 5.5.2006 passed by the Motor Accident
Claims Tribunal (Main), Rajkot in MPCP No.1211 of 2005 has
been dismissed.

3. One Majothee Salim Amadbhai was
holder of a licence of a three wheeler. The licence was not
meant to be used to drive transport vehicle. The vehicle was
owned by one Rashmikant Natvarlal Joshi, Respondent No.2. The
Tribunal correctly noticed the description of the class of
vehicle, i.e., an Autorikshaw Delivery Van. It was not being
used for a private purpose. It was a commercial vehicle.
Respondent No.2, admittedly, entered into a contract of
insurance in respect of the said vehicle. Certificate of
insurance shows that the vehicle was a goods carrying public
carrier within the meaning of Rule 51 of the Central Motor
Vehicles Rules, 1989.

4. One of the contentions raised
by the appellant was that the driver of the said vehicle being
not holder of a legal, valid and effective driving licence, it
was not liable to reimburse the claim of the claimants.
Learned Tribunal negatived the said plea.

5. On an
appeal preferred by the appellant before the High Court under
Section 173 of the Motor
Vehicles Act, 1988 the High Court held as under
:

"Section 41 of the Act provides for registration
of motor vehicles and sub-section (4) thereof provides as
under :

(4) In addition to the other particulars
required to be included in the certificate of registration, it
shall also specify the type of the motor vehicle, being a type
as the Central Government may, having regard to the design,
construction and use of the motor vehicle, by notification in
the official Gazette, specify.' *

In exercise of
the aforesaid powers, the Central Government issued
notification vide S.O.451 (E), dated 19th June, 1992 published
in the Gazette of India, Extra Pt.II, Section 3(ii) dated 19th
June, 1992 specifying the types of motor vehicles. Relevant
portion of the said notification reads as under :

'In
exercise of the power conferred by sub-Section (4) of Section
41 of the Motor
Vehicles Act, 1988 (59 of 1988) and in supersession of
the Notification No.S.O.436(E), dated the 12th June, 1989
except or respects things done or omitted to be done before
such supersession, the Central Government hereby specifies the
types of Motor Vehicles mentioned in column 2 of the Table
below as the type and respect of Motor vehicles specified in
the corresponding entry in column 1 thereof for the purposes
of sub-section(4)

TABLE

Transport Vehicle;

Non-Transport Vehicle

(1)

(2)

(i)... ;

(i)...

(ii) to (ix)...;

(ii) to (iv)...

(x) Three-wheeled vehicles transport of
passenger/goods

(v) Three-wheeled vehicles for personal
use.

We find that the same
classification is maintained in the subsequent notification
dated 5th November 2004 published in the Gazette of India,
Extra-ordinary, Part-II, Section 3(ii) dated 5th November,
2004 in exercise of the same powers under sub-section (4) of
Section 41 of the Act. The relevant entries therein read as
under :

Transport Vehicle;

Non-Transport Vehicle

(1)

(2)

(i) to (iv) ;

(i) to (iii)...

(v) Three-wheeled vehicles for
transport of passenger/goods

(iv) Three-wheeled vehicles for
personal use.

8. A bare
perusal of the above statutory orders would clearly show that
an auto rickshaw being a three wheeled vehicle will fall in
the same category whether it is for transporting goods or for
transporting passengers. There is nothing on record to show
that the licence in question was for a three wheeled vehicle
for personal use and that it was not for an auto rickshaw for
carrying passengers or for carrying goods."

6. An
appeal preferred by the appellant was dismissed summarily.
Before the High Court, a decision of this Court in National
Insurance Company v. Kusum Rai Â 2006
Indlaw SC 100 was cited. The High Court opined that the
said decision has no application in the instant
case.

7. Dr. Meera Agarwal, learned counsel appearing
on behalf of the appellant, would submit that in view of the
fact that the registration certificate as also the policy of
insurance having clearly mentioned that the vehicle in
question was a transport vehicle and as the driver thereof was
not possessing a licence which was not valid for a transport
vehicle, the impugned judgment cannot be sustained.

8.
Ms. Sarda Devi, learned counsel appearing on behalf of the
respondent, on the other hand would submit that the driver of
the vehicle was having an effective driving licence for auto
rickshaw and it did not matter as to whether it was adapted
for carrying passengers or goods.

9. Section 3 of the
Motor
Vehicles Act, 1988 reads as under :

"Section
3 - Necessity for driving licence.--

(1) No person
shall drive a motor vehicle in any public place unless he
holds an effective driving licence issued to him authorising
him to drive the vehicle; and no person shall so drive a
transport vehicle other than1[a motor cab or motor cycle]
hired for his own use or rented under any scheme made under
subsection (2) of section 75] unless his driving licence
specifically entitles him so to do.

(2) The conditions
subject to which sub-section (1) shall not apply to a person
receiving instructions in driving a motor vehicle shall be
such as may be prescribed by the Central Government." *

10. Section 10 of the Act provides for classes of
the driving licence. Different classes of vehicle have been
defined in different provisions of the Motor
Vehicles Act, 1988. The 'transport vehicle' is defined
in Section 2 (47) of the Act to mean a public service vehicle,
a goods carriage, an educational institution bus or a private
service vehicle. We have noticed hereinbefore the provisions
of sub-section (4) of Section 41. We have also noticed the
notification issued by the Central Government in this behalf.
The said notification clearly postulates that a three wheeled
vehicle for transport of passengers or goods comes within the
purview of class 5 of the table appended thereto. The liecence
granted in favour of the said Salim Amadbhai goes to show that
the same was granted for a vehicle other than the transport
vehicle. It was valid from 13.05.2004 to 12.05.2024. Section
14(2)(a) provides that a driving licence issued or renewed
under the Act shall, in case of a licence to drive a transport
vehicle will be effective for a period of three years whereas
in the case of any other vehicle it can be issued or renewed
for a period of 20 years from the date of issuance or renewal.
The fact that the licence was granted for a period of 20
years, thus, clearly shows that Salim Amadbhai, driver of the
vehicle, was not granted a valid driving licence for driving a
transport vehicle.

11. The same is also borne out from
the licence in question. The attention of the High Court,
however, was not drawn to these aspects of the
matter.

The learned Tribunal also, in its judgment
dated 5.5.2006 noticed the facts in the following terms
:

"When they were proceeding on road on foot and
reached near Fire brigade, a rickshaw bearing No.GRP 5432 with
closed body came in fast speed, rashly and negligently from
behind and dashed with the complainant Ikbala and deceased
Mahamadsha as a result of which both of them fell down,
sustained injuries, deceased sustained serious injuries on his
head and other parts of the body, and during the course of
treatment he succumbed to the injuries." *

12.
From the discussions made hereinbefore, it is evident that
the driver of the vehicle was not holding an effective
licence. Possession of an effective licence is necessary in
terms of Section 10 of the Motor
Vehicles Act, 1988. #

13. In National
Insurance Co. Ltd. v. Swaran Singh and Ors. Â 2004 Indlaw
SC 14, this Court opined :

"89. 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 the Central Government to
prescribe forms of driving licences for various categories of
vehicles mentioned in sub-section (2) of the 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 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 as a person
possessing a driving licence for "motorcycle without gear",
[sic may be driving a vehicle] 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 the accident was caused solely because of
some other unforeseen or intervening causes like mechanical
failures and similar other causes having no nexus with the
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. *

The said decision has been considered by this
Court in Kusum Rai (supra).

14. In National Insurance
Company Ltd. v. Annappa Irappa Nesaria and Ors. Â 2008
(1) Scale 642, it was noticed that the provisions of the Act
have undergone a change. The definition of 'light motor
vehicle' would not include a light transport vehicle. In that
case, keeping in view the date on which the accident took
place, it was held :

"From what has been noticed
hereinbefore, it is evident that transport vehicle has now
been substituted for 'medium goods vehicle' and 'heavy goods
vehicle'. The light motor vehicle continued, at the relevant
point of time, to cover both, light passenger carriage vehicle
and light goods carriage vehicle.

A driver who had a
valid licence to drive a light motor vehicle, therefore, was
authorized to drive a light goods vehicle as well." *

15. For the reasons aforementioned, the impugned
judgment cannot be sustained. The same is set aside
accordingly. However, in exercise of our jurisdiction under
Article 142 of the Constitution
Of India, 1950, we direct that the appellant may
satisfy the award in favour of the claimants to recover the
same from the owner. The appeal is allowed with the
aforementioned directions. No costs.

Note: The headnotes and editorial
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publication and may not be reflected as such in the original
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