NATIONAL INSURANCE CO LTD Vs. BASHIR AHMAD CHOPAN

JUDGEMENT

(1.) The civil first miscellaneous appeal on hand is directed against the award of the Motor Accidents Claims Tribunal, Srinagar dated 16.12.2008 in claim petition titled Chopan v. Syed Rafiq Ahmad whereby learned Tribunal has awarded Rs. 6,69,000 (rupees six lakh and sixty-nine thousand) as compensation to the claimants-respondents in the present appeal, on account of death of wife of the claimant-respondent No. 1 and mother of claimant-respondent No. 2 in a vehicular accident on 21.8.2003 at Umarabad, Srinagar. The award is assailed on following two grounds:

(2.) I have gone through the memorandum of appeal as also the record received from the Tribunal and have heard learned counsel for the parties.

(3.) The driver of the offending vehicle as evident from the material brought on the file, including Exh. PR3, was holding the driving licence that declared him competent to drive a heavy goods vehicle/medium goods vehicle and light motor vehicle. The offending vehicle is a bus having capacity of carrying 52 passengers. The offending vehicle, thus, falls within the definition of 'heavy passenger motor vehicle' as defined under section 2 (17) of the Motor Vehicles Act, 1988 inasmuch as its weight exceeds 12,000 kilograms. Section 2 (21) of the Act defines a light motor vehicle as 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. The offending vehicle, thus, does not fall within the definition of 'light motor vehicle'. There is no question of the offending vehicle falling within the definition of 'medium goods vehicle' or 'heavy goods vehicle' inasmuch as the offending vehicle admittedly was a passenger vehicle. The driver of the offending vehicle was, therefore, not competent to drive a 'heavy passenger motor vehicle' and his licence was not effective as regards the vehicle he was driving at the time of tragic accident. Learned Tribunal has misread 'heavy goods vehicle' as 'heavy transport vehicle' and proceeding on such assumption held the offending vehicle to be a transport vehicle inasmuch as the light motor vehicle included the transport vehicle. Reliance placed by the Tribunal on law laid down in National Insurance Co. Ltd. v. Irfan Sidiq Bhat, 2004 2 SLJ 623 and National Insurance Co. Ltd. v. Swaran Singh, 2004 ACJ 1, is, therefore, misplaced. The assumption made by Tribunal is erroneous and so are the conclusions drawn. In the first place, the 'light motor vehicle' defined under section 2 (21) of the Act does not make reference to 'transport vehicle' as it is defined under section 2 (47). In the second place, the licence held by the driver of the offending vehicle did not authorise him to drive a transport vehicle as was assumed by the Tribunal. The driving licence, it may be said, at the cost of repetition, authorised its holder to drive a light motor vehicle, medium goods vehicle and heavy goods vehicle. The offending vehicle did not fall within the description of any of the aforesaid types of vehicles. The driving licence did not have "PSV endorsement" recorded on it. There is, thus, merit in the stand taken by the appellant insurance company that the driver of the offending vehicle was not holding an effective driving licence at the time of accident. It is nobody's case that the owner of the vehicle had made such verification as is expected of a man of ordinary prudence to verify whether the driver he employed to drive the offending vehicle was having a valid and effective driving licence. The owner of the offending vehicle, in the circumstances, is held to have committed breach of the insurance contract while entrusting the vehicle to driver, who was not having an effective driving licence. The appellant insurance company, thus, has a right to escape its lia bility to indemnify the owner of the vehi cle. However, the respondents-claimant! cannot, almost ten years after the tragic accident took place and the claim petition was laid, be asked to chase the owner of the offending vehicle. The right course in such case is to ask the appellant insurance company to pay the compensation assessed to the respondents-claimants and recover it from the owner of the vehicle by ap proaching the Tribunal, without instituting the suit. Such a course has found approva of the Supreme Court and superior courts of the country. The latest in the point is the judgment reported as Kusum Lata v. Sat bir, 2011 ACJ 926. In the said case the Supreme Court observed: