RATILAL LALJIBHAI PATEL Vs. JAKUBEN

JUDGEMENT

(1.) BY way of these appeals, the appellants have challenged the common judgment and award dated 21.02.2002, passed by the Motor Accident Claims Tribunal(Auxi.I), Ahmedabad(Rural) at Ahmedabad, in M.A.C.P. Nos.879 of 1985 and 80 of 1988, whereby the tribunal has awarded compensation in the sum of Rs. 2,03,000/- to the claimants of M.A.C.P. NO.879 of 1985 and Rs.90,000/- to the claimant of M.A.C.P. No.80 of 1985 respectively with interest at the rate of 9% per annum from the date of filing of the petition till realization.

(2.) THE facts as emerging from the record are that on 21.11.1984 while deceased-Amarsinh was driving his motor cycle bearing registration No.GJ-N-3132 with one Vanabhai Motibhai Bharvad as pillion rider, a Jeep bearing registration No. GJ-G-7643 came in full speed and dashed the said motorcycle. As a result of the said accident, Amarsinh died and Vanubhai Motibhai Bharvad sustained grievous injuries. THErefore, the legal heirs of the deceased filed claim petition being M.A.C.P. No.879 of 1985 and Vanunbhai Motibhai Bharvad filed M.A.C.P. No.80 of 1988 before the Tribunal for compensation. THE Tribunal after hearing learned advocates for both the parties and after recording the evidence decided the claim petitions and passed the award as stated herein above against which the present appeal is filed by the appellants.

(3.) HE also relied upon the decision of the this Court in the case of Manguben Wd/o Dhiraji S. Parmar and Ors Vs. Bhuptaji R. Parmar and Ors, reported in 2005(3) GLH 81, more particularly, paragraphs 10.1 and 10.2, which reads as under:- 10.1 According to the definition of light motor vehicle as appearing in Section-2 Sub-Section 21 of the M.V.Act of 1988 and Section-2 Sub-Section 13 of the Motor Vehicles Act,1939, a 'light motor vehicle' would mean a transport vehicle or omnibus. the gross vehicle weight of either of which or a motor car or tractor or road-roller unladen weight of any of which does not exceed 7500 kilogram. The weight of 7500 kilogram is enhanced from 6000 kilogram by Amendment Act (54 of 1994). At the time of the accident, it was 4000 kilogram as such. It is, thus, clear that tractor would be included in the definition of light motor vehicle. There is no evidence on record to show as to what was the unladen weight of the vehicle involved in the accident and no inference can be drawn. 10.2 Apart from that, even if it is assumed that it was more than permissible unladen weight, it would only be a technical breach of provisions of the Motor Vehicles Act and it cannot be considered as sufficient to exonerate the Insurance Co. from its liability arising out of the insurance policy. Respondent No.1 driver of the vehicle is shown to be holding a valid driving licence to drive a light motor vehicle, a medium motor vehicle and heavy goods vehicle. HE cannot be said to be a person not authorized to drive a vehicle. It would be appropriate to refer to decision in the case of National Insurance Co. Vs. Swaran Singh and Ors. (Supra) where it has been held that whether a plea is taken by the Insurance Co. about breach of policy condition on account of want of a valid driving licence, the burden of proof lies on the Insurance Co. to establish such a breach and as discussed above, the Insurance Co. has neither taken a plea in the written statement nor has adduced any evidence in support of such a plea which is taken by the learned advocate at the time of the arguments for the first time. The Insurance Co. could not have been exonerated from the liability of paying compensation as indemnifier, once it is held that the claimant is entitled to claim compensation from the driver and the owner of the vehicle involved in the accident. In the said judgment of National Insurance Co. Vs. Swaran Singh (Supra), the Apex Court took into consideration the provisions contained in Section 149(2) (A) (ii) equivalent to Section 96(2)(a) of the Motor Vehicles Act,1939 and observed that where a driver possessing licence for one type of motor vehicle was found to be driving another type of motor vehicle, the insurer will not be allowed to avoid its liability merely on technical breach of condition concerning driving licence. Minor breaches of licence conditions are inconsequential so far as the benefit of coverage of insurance to third party are concerned. In Para.82 of the said judgment, it is observed, thus :