M/S NEW INDIA ASSURANCE CO LTD vs HARIDWAR ALIAS HARIDWAR SINGH & ORS.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 15 January, 2024
Judgment pronounced on: 04 March, 2024
+ MAC.APP. 33/2024 & CM APPL. 2084/2024 (STAY)
NEW INDIA ASSURANCE CO LTD ….. Appellant
Through: Ms. Kanchan Kaur, Adv.
versus
KANTA DEVI & ORS. ….. Respondents
Through: Mr. Jatin Teotia, Adv. for R-1
Ms. Prema Priyadarshini, Adv.
for R-3
+ MAC.APP. 34/2024 & CM. APPL. 2174/2024
M/S NEW INDIA ASSURANCE CO LTD ….. Appellant
Through: Ms. Kanchan Kaur, Adv.
versus
HARIDWAR ALIAS HARIDWAR SINGH & ORS.
….. Respondents
Through: Mr. Jatin Teotia, Adv. for R-1
Ms. Prema Priyadarshini, Adv.
for R-3
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
J U D G M E N T
1. The appellant/insurance company in this appeal filed under
Section 173 of The Motor Vehicles Act, 19881 is assailing the
1 The Act
common Judgment-cum-award dated 21.08.2023 passed by the
learned Presiding Officer, Motor Accident Claims Tribunal-02,
Central District, Tis Hazari Courts, Delhi2, whereby the learned
Tribunal granted compensation in favour of both the claimants and
fastened the liability to pay the compensation upon the appellant
insurance company.
2 Tribunal
FACTUAL BACKGROUND:
2. Shorn of unnecessary details, a claim petition was instituted by
the claimants/respondents No. 1 and 2 viz., widow and son of the
deceased, apart from Ms. Akansha (both the son and daughter are not
arrayed in the present appeal) on 08.05.2019, seeking compensation
for the death of the deceased Raj Kumar S/o Ms. Shanti Lal, who met
with an accident on 18.10.2018 at about 10.00 p.m. at a spot under the
Flyover Burari, falling within the jurisdiction of Police Station Burari,
Delhi, when his Phat Phat Seva vehicle, in which he was travelling
as a passenger, was struck by a Metro Rail Feeder bus bearing
registration No. Delhi-1PD-0482 (hereinafter referred to as the
offending vehicle”) driven in a rash and negligent manner, and though
the victim was removed to Sushruta Trauma Centre, Civil Lines,
Delhi, he succumbed to his injuries on 29.10.2018.
3. The appellant/insurance company has assailed the impugned
judgment-cum-award in so far as the liability for making the payment
of compensation has been fastened upon it primarily on the ground
that the respondent No.2 i.e. the driver3, namely Sonu, who was
employed with the respondent No.3/Delhi Metro Rail Corporation
Limited, was evidently holding a driving license4 for plying the
vehicle in the category of LMV-TR5 but instead, he was driving the
offending bus in question, which comes under the category of a Heavy
Motor Vehicle, or, to be specific, a HPMV6 category vehicle.
4. Advance notice has been issued to both the respondent No.1 as
well as respondent No.3. None had appeared for the respondent No.2
i.e. the driver, during the course of proceedings.
3 Section 2(9) driver includes, in relation to a motor vehicle which is drawn by another motor
vehicle, the person who acts as a steersman of the drawn vehicle;
4 Section 2(10) driving licence means the licence issued by a competent authority under Chapter
II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a
motor vehicle of any specified class or description;
5 Light Motor Vehicle -Transport
6 Heavy Passenger Motor Vehicle
ANALYSIS AND DECISION:
5. Having heard the learned counsels for the parties at the
admission stage, and on perusal of the record, learned counsel for the
appellant/insurance company alluded to the statement of R3W1/Uttam
Foujdar, Motor Vehicle Inspector, Wazirpur Transport Authority,
Delhi, which reads as under:
I am a summoned witness. The copy of my employment ID Card
is Ex. R3W1/1 (OSR). I have brought the summoned record i.e. the
extract of driving license of Sonu. The attested copies of the same
are Ex. R3W1/2 (Colly). As per records, the driving license of
Sonu comes under the category of LMV (TR) at the time of
accident i.e., 18.10.2018. As per the RC which is already Ex.
PW1/5 (Colly) in DAR, the driver of the offending vehicle is not
eligible to drive the offending vehicle bearing registration No.DL-
1PD-0482.
6. It was vehemently urged that although an issue about the
respondent No.2/driver not possessing a valid driving license to ply
the offending vehicle was addressed at the time of making final
submissions, the same was not decided correctly as per the law by the
learned Tribunal. It would be expedient to reproduce the relevant
portions of the common impugned judgment-cum-award that dealt
with the aforesaid issue, which is as follows:
73. On the point of liability, an objection has been raised by R-
3/ Insurance Company. Ld. Counsel for R-3/ Insurance Company
has submitted that R-1 was driving the vehicle for which he was
not entitled as the license possessed by R-1 was valid for 3W-
CAB, LMV-TR and MCWG. Perusal of DAR reveals that the
offending vehicle bearing registration no. DL-1PD-0482 is
registered with MLO, HQ, Govt. of NCT of Delhi. As per the
Registration Certificate of the offending vehicle (placed on record
with the DAR), the unladen weight of the said vehicle is 3813
kilograms. Light Motor Vehicles have been defined under Section
2(21) of M.V. Act, 1988, which is reproduced as under :-
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 which, does
not exceed to 7,500 kilograms”.
73.1 Admittedly, the unladen weight of the offending vehicle is
less than 7,500 kilograms. Admittedly, the driver of offending
vehicle (R-1) was holding a driving licence permitting him to drive
LMVs. Therefore, the license of R-1 would be deemed valid for
driving the offending vehicle. Accordingly, it could be safely
assumed that R-1 was driving the offending vehicle with a valid
and effective driving licence at the relevant time. This dis-
entities R-3 to be granted recovery rights.
74. R-3/ Insurance Company is directed to deposit the above
award amount within 30 days from the date of this Award by way
of NEFT or RTGS mode in the account of this Tribunal maintained
with SBI, Tis Hazari Courts, Delhi (account holder’s name-Motor
Accident Claims Tribunal 02 Central, A/C No. 40743576901,
IFSC Code SBIN0000726) under intimation to the petitioner and
this Tribunal in terms of the format for remittance of compensation
as provided in Divisional Manager Vs. Rajesh, 2016 SCC Online
Mad. 1913 (and reiterated by Hon’ble Supreme Court in the
orders dated 16.03.2021 and 16.11.2021 titled as Bajaj Allianz
General Insurance Co. Pvt. Ltd. Vs. Union of India & Ors)
along with interest @ 9% per annum till the deposit of the
compensation as awarded, failing which he shall be liable to pay
interest at the rate of 12% per annum for the period of delay.
7. Learned counsel for the appellant/insurance company in her
submissions relied upon the decisions in Oriental Insurance
Company Limited v. Zaharulnisha7 and Mukund Dewangan v.
Oriental Insurance Co. Ltd.8.
8. First things first, it is an admitted fact that the offending
vehicle was insured for third party risk. Secondly, the driving license
(A-5) was valid from 18.05.2016 to 17.05.2019 for transport for 3W-
CAB9, LMV, LMV-TR, MCWG10 category of the vehicles,
specifically providing that it was valid for Non-Transport Hazardous
Vehicle” from 05.04.2010 to 04.04.2030. Thirdly, the registration
certificate of the offending vehicle bearing registration No. DL-1PD-
0482 would show that evidently, it contained the following key
features of the vehicle:
7 (2008) 12 SCC 385
8 (2017) 14 SCC 663
9 Three-wheeler cab
10 Motor Cycle with Gear
Vehicle Class/body type : Bus
Seat (inc.driver) : 27
Unladen Wt (kg) : 3813
Laden Wt (kg) : 9600
Fuel : CNG only
Permit Category : Stage Carriage (MPV)
9. In light of the aforesaid structural characteristics of the
offending vehicle, let us examine the relevant provisions of. Section
2(15), (16), (17), (21), (29), (40), (47) (48) and (49) of the Act provide
as under:
2(15) “gross vehicle weight” means in respect of any vehicle the
total weight of the vehicle and load certified and registered by the
registering authority as permissible for that vehicle;
(16) “heavy goods vehicle” means any goods carriage the gross
vehicle weight of which, or a tractor or a road-roller the unladen
weight of either of which, exceeds 12,000 kilograms;
(17) “heavy passenger motor vehicle” means any public service
vehicle or private service vehicle or educational institution bus or
omnibus the gross vehicle weight of any of which, or a motor car
the unladen weight of which, exceeds 12,000 kilograms
* * * * *
(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;
(29) “omnibus” means any motor vehicle constructed or adapted to
carry more than six persons excluding the driver;
(40) “stage carriage” means a motor vehicle constructed or adapted
to carry more than six passengers excluding the driver for hire or
reward at separate fares paid by or for individual passengers, either
for the whole journey or for stages of the journey;
(47) “transport vehicle” means a public service vehicle, a goods
carriage, an educational institution bus or a private service vehicle;
(48) unladen weight means the weight of a vehicle or trailer
including all equipment ordinarily used with the vehicle or trailer
when working, but excluding the weight of a driver or attendant;
and where alternative parts or bodies are used the unladen weight
of the vehicle means the weight of the vehicle with the heaviest
such alternative part or body;
(49) “weight” means the total weight transmitted for the time being
by the wheels of a vehicle to the surface on which the vehicle
rests [or moves].
10. A bare perusal of the aforesaid provisions would show that
Section 2(21) of the Act defines a Light Motor Vehicle to mean a
transport vehicle or omnibus, where the unladen weight11 does not
11 Section 2(48) unladen weight means the weight of a vehicle or trailer including all equipment
ordinarily used with the vehicle or trailer when working, but excluding the weight of a driver or
attendant; and where alternative parts or bodies are used the unladen weight of the vehicle means
the weight of the vehicle with the heaviest such alternative part or body;
exceed 7,500 kilograms. Further, Section 2(29) of the Act defines
omnibus to mean a motor vehicle constructed or adapted to carry
more than six persons excluding the driver. Evidently, the offending
vehicle was registered as a bus manufactured by Tata Motors with a
seating capacity of 27 persons and having an unladen weight of 3,183
kilograms.
11. It is borne out from the records that notwithstanding the
statement of R3W1, the respondent No.2/driver/Sonu, was having a
driving licence to ply a LMV (Non-Transport Hazardous Vehicle) and
it was valid for TR (Transport Vehicle). The offending bus by all
means was a transport vehicle. The testimony of R3W1 is not the
gospel truth and his interpretation of the validity of the driving licence
is contrary to the provisions of the law. By all means, the respondent
No.2/Sonu was driving the offending vehicle with a valid and
effective driving licence at the time of accident. In any case, there was
no breach of any fundamental condition in the insurance policy either,
so as to fix the financial liability to pay the compensation upon the
driver and the owner of the offending vehicle. Therefore, the
appellant/Insurance Company is not entitled to seek any recovery
rights against the driver and the registered owner of the offending
vehicle.
12. As regards the case law cited by the learned counsel for the
appellant insurance company, Zaharulnisha (supra) was a case
wherein the driver was possessing a driving licence for HMV while he
caused the accident driving a motorcycle and it is under such
circumstances that liability to the pay compensation was jointly and
severally fastened on the shoulders of the driver and the registered
owner of the motorcycle. In so far as decision by three Judges Bench
in the case of Mukund Dewangan (supra) is concerned, the same has
been referred to the Constitution Bench, which is yet to be answered
and as on today the decision to the following effect holds the field12:
12 Bajaj Alliances General Insurance Company Limited v. Rambha Devi, Civil Appeal no.
841/2018 pending in the Supreme Court
60.1. 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 Sections 2(15) and 2(48). Such transport
vehicles are not excluded from the definition of the light motor
vehicle by virtue of Amendment Act 54 of 1994.
60.2. 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 of 1994 and 28-3-2001 in the form. 1 (2017) 14 SCC 6635
13. In view of foregoing discussion, the appeals are dismissed in
limine. The appellant/Insurance Company is directed to deposit the
entire amount of compensation with interest accrued thereon, with the
learned Tribunal within one month from today failing which, the
appellant/Insurance Company shall be liable to pay the interest at an
enhanced rate of 15% per annum from the date of filing of this appeal
till its realisation. The amount, when deposited with the learned
Tribunal, be released to the respondents/claimants forthwith thereafter
as per the directions of the learned Tribunal.
14. The pending applications also stand disposed of.
DHARMESH SHARMA, J.
MARCH 04, 2024
Sadiq/ck