(Prayer: This Miscellaneous First Appeal is Filed Under Section 173 (1) of MV Act Against The Judgment and Award Dated:11.10.2013 Passed In MVC No.6101/2011 on The File of The Viii Additional Small Causes Judge, & Xxxiii Acmm, Member, Mact, Bangalore, Awarding Compensation of Rs.12,77,000/- With Interest @ 8% P.A. From The Date Of Petition Till Realization.)
1. The present appeal has been preferred by the appellant - owner of the tractor assailing the judgment and award passed by the VIII Additional Small Causes Judge and the Motor Accident Claims Tribunal (SCCH 5), Bengaluru in MVC No.6101/2011 dated 11.10.2013.
2. For the purpose of convenience the parties are referred to as per their ranking in the court below.
3. The brief facts leading to filing of the appeal are that, the petitioner was returning from his coolie work on25.04.2011 at about 4.00 p.m. near Shivanahalli and at that time a tractor bearing registration No.KA 51/T 1299 came rashly and negligently with high speed and dashed to the petitioner and as a result of the same petitioner sustained multiple injuries and thereafter he was shifted to Victoria Hospital in an ambulance and after giving the first aid he was shifted to BGS Global Hospital wherein he was treated as an inpatient for the said injuries. It is further contended that he was working as an agricultural coolie and the entire family is dependent upon him and because of injuries
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he is unable to do the work as before and as such a claim petition was came to be filed.
4. After issuance of the notice, the respondent No.1 - owner of the tractor appeared and he filed his objections by contending that the said vehicle which has been insured with the respondent No.2 and the driver of the tractor was possessing valid driving license as on the date of the accident and other contentions have been denied by the respondent No.1.
5. Respondent No.2 - Insurance Company has also filed the written statement by denying the contents of the petition. It is contended that though the said tractor has beeninsured with the said Insurance Company, the owner of the vehicle has allowed the person to drive the vehicle who was not having a valid and effective driving license to drive the tractor and trailer. He has also contended that there is breach of the conditions of the policy and as such he is not liable to pay any compensation.
6. On the basis of the above pleadings, the Tribunal framed the following issues:
1. Whether the petitioner proves that on 25.04.2011 at about 4.00 p.m. near Shivanahalli, Jigani Hobli, Anekal Taluk, Bangalore District, he met with an accident and sustained injuries due to actionable negligence on the part of the driver of the Tractor and Trailer bearing No.KA - 51 T 1299 - 1300?
2. Whether the petitioner is entitled for compensation as prayed?
3. What order or award?
7. In order to prove the case of the petitioner the petitioner himself got examined as PW.1 and got examinedPW.2 the doctor who has treated him in BGS Global Hospital and also got marked 18 documents at EXs.P1 to P18. On behalf of the respondent No.2 he examined the Executive Legal Advisor as RW.1 and got marked two documents at EXs.R1 and R2. After closure of the evidence and after hearing the arguments of the lis to the parties, the Tribunal answered Issue No.1 in the affirmative and while answering Issue No.2 awarded a compensation of Rs.12,77,000/- with interest at the rate of 8% p.a. and the liability has been fixed on the respondent No.1. By assailing the said order the owner of the tractor is before this Court.
8. I have heard the learned counsel for the appellant and the learned counsel for the respondent No.2 - Insurance Company.
9. The main grounds urged by the learned counsel for the appellant are that the driver of the tractor and trailer was having a valid and effective driving license to drive the tractor as per EX.R2 which has been produced by the Insurance Company. He has further contended that it is an admitted fact that the driver of the tractor was holding the license to drivelight motor vehicles, but the Tribunal by holding that there is no endorsement to drive the tractor with trailer, has fastened the liability on the owner instead of fixing the liability on the Insurance Company. He has further contended that as perSection 10of the Motor Vehicles Act, 1988 (herein after referred to as 'MV Act') the tractor and trailer comes within the definition of 'the Light Motor Vehicle' and as such the Tribunal ought to have held that there is a valid and effective driving license and it could have fixed the liability on the Insurance Company. On these grounds he prayed for allowing the appeal by fastening the liability on the Insurance Company.
10. Per contra, the learned counsel for the respondent No.2 - Insurance Company by contending that as perSection 2(21) of theMV Actthe Light Motor Vehicles does not include the transport vehicle. The admitted fact is that the tractor is not considered to be a light motor vehicle and the driver of the tractor was owning license to drive a light motor vehicle, but he is not having any driving license to drive the tractor, which is considered to be a transport vehicle. He has further contended that 'tractor' comes within the definition of 'Heavy Goods Vehicle' and under such circumstances the liability fastened onthe owner by holding that the driver of the said tractor was not having valid and effective driving license to drive the tractor and trailer is justifiable. On these grounds he prays for dismissal of the appeal by holding that the liability fixed on the owner is justifiable.
11. Admittedly, in the present case except the appellant challenging the liability fastened on him, he has not challenged the quantum of the compensation awarded to the respondents - claimants and as such, I am not going to deal with the said aspects in detail.
12. The main contention of the learned counsel for the appellant is that the Tribunal was not justifiable in fixing the liability on the appellant when the driver of the tractor was having effective driving license to drive the tractor along with the trailer and the endorsement which is insisted by the Insurance Company is not required as contemplated under the law. For the purpose of brevity, I quoteSection 10of the MV Act. It reads as under:
10. Form and contents of licences to drive.-- (1) Every learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.
(2) 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) transport vehicle;
(j) motor vehicle of a specified description.
13. As could be seen from the above said preposition of law,Section 10of the MV Act separately provides for classes of vehicles, which have been bifurcated on the basis of grossvehicle weight. In that light, the license is going to be issued for a particular type of vehicle to a person who has been given a license for a particular type of vehicle and he cannot be said to have no license for driving any type of vehicle which is of same category, but of a different type. In the instant case, EX.R2, the endorsement of the driving license which has been produced by the Insurance Company indicates that the driver was having a valid and effective driving license to drive the light motor vehicle and the same was in currency as on the date of the accident. The said fact is also not disputed by the parties to the proceedings. Now it is well settled principles of law that if a person has been given a license to drive particular type of vehicle, he cannot be said to have no license for driving another type of vehicle which is of the same category, but of a different type. This preposition of law has been laid down by the Apex Court in the case ofMukund Dewangan vs. Oriental Insurance Company Limited and othersreported in 2016 (4) SCC 298, which reads as under:
"42.In Oriental Insurance Co. Ltd., vs. Zaharulnisha( (2008) 12 SCC 385 : (2009) 1 SCC (Cri) 431) this Court has referred to the decision inNational Insurance Co. Ltd., vs. Swaran Singh( (2004) 3 SCC 297 : 2004 SCC (Cri) 733) to the effect that if a person has been given a licence for a particular type of vehicle he cannot be said to have no licence for driving another type of vehicle which is of the same category but of a different type. As for example when a person is granted a licence for driving a light motor vehicle he can drive either a car or a jeep and it is not necessary that he must have driving licence both for car and jeep separately. This Court has laid down that since the driver was having licence to drive heavy motor vehicle but at the time of accident was driving a scooter which is a totally different class of vehicle, the act was held to be in violation ofSection 10(2)of the MV Act."
14. This judgment of the Hon'ble Apex Court was placed before the larger Bench and the same has also been confirmed by the larger Bench of the Apex Court in Mukund Dewangan's Case (2017 SCC SC 788).
15. Keeping in view the law laid down by the Apex Court and the discussion as held by me above, the observation of the Tribunal that the driver of the tractor must possess an endorsement to drive the trailer along with the tractor is not considered to be correct and the same is liable to be set aside.
16. Be that as it may, the Tribunal has observed that the driver is having the driving license to drive the light motor vehicles, that too, only tractor and he is not permitted to drive the same along with the trailer. As could be seen from the ratio laid down in the above decision and on careful perusal ofSection 2(21)of the MV Act, it clearly indicates that the tractor is also considered to be a light motor vehicle. It is the specific contention of the learned counsel for the appellant that the tractor is a light motor vehicle and the driver was having valid and effective driving license to drive such type of vehicle and the contention of the Insurance Company that he cannot drive the tractor attached with the trailer is not correct. The contention of the learned counsel for the appellant appears to have some force and his contention is also supported by the decision of the Hon'ble Apex Court in the case ofNagashettyvs. United India Insurance Co. Ltd., and othersreported in (2001) 8 SCC 56, wherein it is observed as under:
"10. We are unable to accept the submissions of Mr. S. C. Sharda. It is an admitted fact that the driver had a valid and effective licence to drive a tractor. Undoubtedly underSection 10, a licence is granted to drive specific categories of motor vehicles. The question is whether merely because a trailer was attached to the tractor and the tractor was used for carrying goods, the licence to drive a tractor becomes ineffective. If the argument of Mr. S. C. Sharda is to be accepted, then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make that tractoror motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid driving licence to drive a tractor or a motor vehicle, he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words, a person having a valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle."
17. As could be seen from the above said decision, it has been held that underSection 10of the MV Act a license is granted to drive the specific categories of motor vehicles, but the person having a valid driving license to drive a particular category of vehicle does not become disable to drive that vehicle merely because a trailer is added to that vehicle. In the instant case, the Tribunal has not kept into view the ratio laid down by the Apex Court and has wrongly fixed and fastened the liability on the owner of the tractor instead of fixing the liability on the Insurance Company when the Insurance Company isadmittedly having a valid and effective policy and the driver is also having the driving license to drive the light motor vehicles.
18. Leave apart this, even the above said preposition of law has also been upheld by the Division Bench of this Court in the case of Neela and Nellawwa W/o Balappa, Chikaladinni and Others Vs. the Divisional Manager, Oriental Insurance Co. Ltd., Belgaum, in MFA No.101004/2014 c/w MFA No.100821/2014. When already the said preposition of law has been settled by the Division Bench of this Court as well as by the Apex Court holding that endorsement is not required to drive such type of vehicle. Taking into consideration the above said facts and circumstances the liability fixed on the owner appellant by the Tribunal appears to be not just and proper and in this behalf the findings given by the Tribunal is liable to be set aside.
19. Keeping in view the above said facts and circumstances of the case, the impugned order to the extent of fixing the liability on the appellant - owner is set aside and it is hereby made it clear that the respondent No.2 Insurance Company is liable to pay the compensation awarded by the Tribunal with upto date interest, in accordance with law.
20. If the statutory amount has been deposited by the appellant before this Court, the same may be returned to the appellant on proper receipt and acknowledgement.
Appeal is allowed accordingly.