MUKUND DEWANGAN Vs. ORIENTAL INS.CO.LTD.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 5826 of 2011, Judgment Date: Feb 11, 2016
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5826 OF 2011
Mukund Dewangan … Appellant
Vs.
Oriental Insurance Co. Ltd. etc. … Respondents
[With SLP [C] Nos.32828, 32833 and 32835/2010, 8709-8710 and 8712-
8713/2014, 20072, 3300 and 3302/2015, 887-890/2013, 16082/2012, 28455-
28456/2013, CA No. 6379/2013, SLP (C) Nos.13008, 15759-15760 and 14333-
14334/2014, 6429/2015, 36364-36365/2014, 15924/2015, CA No.9990/14, SLP (C)
Nos. 8704-8706/2014, CA Nos. 4068-4069/2012, SLP (C) No. 32827/2010 and CA
No.8992/2012]
ORDER
ARUN MISHRA, J.
1. The question raised is whether for the drivers having licence to
drive light motor vehicles there is a necessity of obtaining endorsement to
drive the transport vehicle when the transport vehicle is of class of light
motor vehicle.
2. We have heard learned counsel for the parties at length. For
consideration of aforesaid question, it is necessary to refer to various
provisions and decisions.
3. Driving licence has been defined in section 2(10) of the Act of 1988.
The provision is extracted hereinbelow :
“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.”
Gross vehicle weight has been defined in section 2(15) thus :
“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;”
Heavy goods vehicle has been defined in section 2(16) to mean:
“2(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;”
Heavy passenger motor vehicle has been defined in section 2(17) thus
:
“2(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;”
Light motor vehicle has been defined in section 2(21) of the Act thus
:
“2(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;”
Medium goods vehicle has been defined in section 2(23) to mean :
“2(23) “medium goods vehicle" means any goods carriage other than a light
motor vehicle or a heavy goods vehicle;”
Medium passenger motor vehicle is defined under section 2(24) thus :
“2(24) “medium passenger motor vehicle" means any public service vehicle or
private service vehicle, or educational institution bus other than a motor-
cycle, invalid carriage, light motor vehicle or heavy passenger motor
vehicle;”
Motor car has been defined in section 2(26) of the Act of 1988 thus :
“2(26) “motor-car" means any motor vehicle other than a transport vehicle,
omnibus, road-roller, tractor, motor-cycle or invalid carriage;”
“Omnibus” has been defined in section 2(29) thus :
“2(29) “omnibus" means any motor vehicle constructed or adapted to carry
more than six persons excluding the driver;”
“Tractor” has been defined in section 2(44) of the Act thus :
“2(44) “tractor" means a motor vehicle which is not itself constructed to
carry any load (other than equipment used for the purpose of propulsion);
but excludes a road-roller;”
“Transport vehicle has been defined in section 2(47) thus :
“2(47) “transport vehicle" means a public service vehicle, a goods
carriage, an educational institution bus or a private service vehicle;”
“Unladen weight” has been defined in section 2(48) thus :
“2(48) “unladen weight" means the weight of a vehicle or trailer including
all equipments 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;”
4. The provisions under section 2 define heavy goods vehicles, heavy
passenger motor vehicle, medium goods vehicle, medium passenger motor
vehicle and light motor vehicle separately. Section 2(21) deals with class
of Light Motor Vehicle which includes a transport vehicle or omnibus, the
gross vehicle weight of either of which does not exceed 7500 kgs. or a
motor car or tractor or road roller, the unladen weight of any of which
does not exceed 7500 kgs. The transport vehicle has been defined in section
2(47), omnibus has been defined in section 2(29). However, the transport
vehicle or omnibus the gross vehicle weight of which does not exceed 7500
kgs., has been included in section 2(21) of the Act of 1988. The gross
vehicle weight has been defined in section 2(15). In the case of Light
Motor Vehicle, the total weight of the transport vehicle or omnibus, the
load certified by the Registering Authority should not exceed 7500 kgs. and
in case of motor car, tractor or road roller, it is necessary that unladen
weight as defined in section 2(48) of the Act of 1988 should not exceed
7500 kgs.
5. To dilate further upon the issue, it is necessary to take note of
other provisions of the Act. Public service vehicle, goods carriage, an
educational institution bus and private service vehicle are included in
transport vehicles. They are defined in Sections 2(35), 2(14), 2(11) and
2(33) respectively. The provisions are extracted hereunder:-
“2(35) “public service vehicle" means any motor vehicle used or adapted to
be used for the carriage of passengers for hire or reward, and includes a
maxi-cab, a motor-cab, contract carriage, and stage carriage;”
“2(14) “goods carriage" means any motor vehicle constructed or adapted for
use solely for the carriage of goods, or any motor vehicle not so
constructed or adapted when used for the carriage of goods;”
“2(11) “educational institution bus" means an omnibus, which is owned by a
college, school or other educational institution and used solely for the
purpose of transporting students or staff of the educational institution in
connection with any of its activities;”
“2(33) “private service vehicle" means a motor vehicle constructed or
adapted to carry more than six persons excluding the driver and ordinarily
used by or on behalf of the owner of such vehicle for the purpose of
carrying persons for, or in connection with, his trade or business
otherwise than for hire or reward but does not include a motor vehicle used
for public purposes;”
6. Section 3 of the Act of 1988 deals with the necessity for driving
licence. Same is extracted below :
“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 than a motor cab or motor cycle hired for
his own use or rented under any scheme made under sub-section (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.”
7. Section 9 deals with grant of driving licence which reads as under :
“9. Grant of driving licence.-- (1) Any person who is not for the time
being disqualified for holding or obtaining a driving licence may apply to
the licensing authority having jurisdiction in the area—
(i) in which he ordinarily resides or carries on business, or
in which the school or establishment referred to in section 12 from where
he is receiving or has received instruction in driving a motor vehicle is
situated,
for the issue to him of a driving licence.
(2) Every application under sub-section (1) shall be in such form and shall
be accompanied by such fee and such documents as may be prescribed by the
Central Government.
(3) If the applicant passes such test as may be prescribed by the Central
Government, he shall be issued the driving licence:
Provided that no such test shall be necessary where the applicant produces
proof to show that –
(i) the applicant has previously held a driving licence and that the period
between the date of expiry of that licence and the date of such application
does not exceed five years; or
the applicant holds or has previously held a driving licence to drive such
class of vehicle issued under section 18; or
the applicant holds a driving licence to drive such class of vehicle issued
by a competent authority of any country outside India, subject to the
condition that the applicant complies with the provisions of sub –section
(3) of section 8,
(b) the applicant is not suffering from any disease or disability which is
likely to cause the driving by him to be a source of danger to the public;
and the licensing authority may, for that purpose, require the applicant to
produce a medical certificate in the same form and in the same manner as is
referred to in sub-section (3) of section 8.
Provided further that where the application is for a driving
licence to drive a motor vehicle (not being a transport vehicle), the
licensing authority may exempt the applicant from the test of competence to
drive prescribed under this sub-section, if the applicant possesses a
driving certificate issued by an automobile association recognised in this
behalf by the State Government.
(4) Where the application is for a licence to drive a transport vehicle, no
such authorisation shall be granted to any applicant unless he possesses
such minimum educational qualification as may be prescribed by the Central
Government and a driving certificate issued by a school or establishment
referred to in section 12.
(5) Where the applicant does not pass the test, he may be permitted to
reappear for the test after a period of seven days:
Provided that where the applicant does not pass the test even after
three appearances, he shall not be qualified to reappear for such test
before the expiry of a period of sixty days from the date of last such
test.
(6) The test of competence to drive shall be carried out in a vehicle of
the type to which the application refers:
Provided that a person who passed a test in driving a motor cycle with
gear shall be deemed also to have passed a test in driving a motor cycle
without gear.
(7) When any application has been duly made to the appropriate licensing
authority and the applicant has satisfied such authority of his competence
to drive, the licensing authority shall issue the applicant a driving
licence unless the applicant is for the time being disqualified for holding
or obtaining a driving licence:
Provided that a licensing authority may issue a driving licence to
drive a motor cycle or a light motor vehicle notwithstanding that it is not
the appropriate licensing authority, if the licensing authority is
satisfied that there is good and sufficient reason for the applicant's
inability to apply to the appropriate licensing authority:
Provided further that the licensing authority shall not issue a new
driving licence to the applicant, if he had previously held a driving
licence, unless it is satisfied that there is good and sufficient reason
for his inability to obtain a duplicate copy of his former licence.
(8) If the licensing authority is satisfied, after giving the applicant an
opportunity of being heard, that he—
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5826 OF 2011
Mukund Dewangan … Appellant
Vs.
Oriental Insurance Co. Ltd. etc. … Respondents
[With SLP [C] Nos.32828, 32833 and 32835/2010, 8709-8710 and 8712-
8713/2014, 20072, 3300 and 3302/2015, 887-890/2013, 16082/2012, 28455-
28456/2013, CA No. 6379/2013, SLP (C) Nos.13008, 15759-15760 and 14333-
14334/2014, 6429/2015, 36364-36365/2014, 15924/2015, CA No.9990/14, SLP (C)
Nos. 8704-8706/2014, CA Nos. 4068-4069/2012, SLP (C) No. 32827/2010 and CA
No.8992/2012]
ORDER
ARUN MISHRA, J.
1. The question raised is whether for the drivers having licence to
drive light motor vehicles there is a necessity of obtaining endorsement to
drive the transport vehicle when the transport vehicle is of class of light
motor vehicle.
2. We have heard learned counsel for the parties at length. For
consideration of aforesaid question, it is necessary to refer to various
provisions and decisions.
3. Driving licence has been defined in section 2(10) of the Act of 1988.
The provision is extracted hereinbelow :
“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.”
Gross vehicle weight has been defined in section 2(15) thus :
“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;”
Heavy goods vehicle has been defined in section 2(16) to mean:
“2(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;”
Heavy passenger motor vehicle has been defined in section 2(17) thus
:
“2(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;”
Light motor vehicle has been defined in section 2(21) of the Act thus
:
“2(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;”
Medium goods vehicle has been defined in section 2(23) to mean :
“2(23) “medium goods vehicle" means any goods carriage other than a light
motor vehicle or a heavy goods vehicle;”
Medium passenger motor vehicle is defined under section 2(24) thus :
“2(24) “medium passenger motor vehicle" means any public service vehicle or
private service vehicle, or educational institution bus other than a motor-
cycle, invalid carriage, light motor vehicle or heavy passenger motor
vehicle;”
Motor car has been defined in section 2(26) of the Act of 1988 thus :
“2(26) “motor-car" means any motor vehicle other than a transport vehicle,
omnibus, road-roller, tractor, motor-cycle or invalid carriage;”
“Omnibus” has been defined in section 2(29) thus :
“2(29) “omnibus" means any motor vehicle constructed or adapted to carry
more than six persons excluding the driver;”
“Tractor” has been defined in section 2(44) of the Act thus :
“2(44) “tractor" means a motor vehicle which is not itself constructed to
carry any load (other than equipment used for the purpose of propulsion);
but excludes a road-roller;”
“Transport vehicle has been defined in section 2(47) thus :
“2(47) “transport vehicle" means a public service vehicle, a goods
carriage, an educational institution bus or a private service vehicle;”
“Unladen weight” has been defined in section 2(48) thus :
“2(48) “unladen weight" means the weight of a vehicle or trailer including
all equipments 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;”
4. The provisions under section 2 define heavy goods vehicles, heavy
passenger motor vehicle, medium goods vehicle, medium passenger motor
vehicle and light motor vehicle separately. Section 2(21) deals with class
of Light Motor Vehicle which includes a transport vehicle or omnibus, the
gross vehicle weight of either of which does not exceed 7500 kgs. or a
motor car or tractor or road roller, the unladen weight of any of which
does not exceed 7500 kgs. The transport vehicle has been defined in section
2(47), omnibus has been defined in section 2(29). However, the transport
vehicle or omnibus the gross vehicle weight of which does not exceed 7500
kgs., has been included in section 2(21) of the Act of 1988. The gross
vehicle weight has been defined in section 2(15). In the case of Light
Motor Vehicle, the total weight of the transport vehicle or omnibus, the
load certified by the Registering Authority should not exceed 7500 kgs. and
in case of motor car, tractor or road roller, it is necessary that unladen
weight as defined in section 2(48) of the Act of 1988 should not exceed
7500 kgs.
5. To dilate further upon the issue, it is necessary to take note of
other provisions of the Act. Public service vehicle, goods carriage, an
educational institution bus and private service vehicle are included in
transport vehicles. They are defined in Sections 2(35), 2(14), 2(11) and
2(33) respectively. The provisions are extracted hereunder:-
“2(35) “public service vehicle" means any motor vehicle used or adapted to
be used for the carriage of passengers for hire or reward, and includes a
maxi-cab, a motor-cab, contract carriage, and stage carriage;”
“2(14) “goods carriage" means any motor vehicle constructed or adapted for
use solely for the carriage of goods, or any motor vehicle not so
constructed or adapted when used for the carriage of goods;”
“2(11) “educational institution bus" means an omnibus, which is owned by a
college, school or other educational institution and used solely for the
purpose of transporting students or staff of the educational institution in
connection with any of its activities;”
“2(33) “private service vehicle" means a motor vehicle constructed or
adapted to carry more than six persons excluding the driver and ordinarily
used by or on behalf of the owner of such vehicle for the purpose of
carrying persons for, or in connection with, his trade or business
otherwise than for hire or reward but does not include a motor vehicle used
for public purposes;”
6. Section 3 of the Act of 1988 deals with the necessity for driving
licence. Same is extracted below :
“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 than a motor cab or motor cycle hired for
his own use or rented under any scheme made under sub-section (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.”
7. Section 9 deals with grant of driving licence which reads as under :
“9. Grant of driving licence.-- (1) Any person who is not for the time
being disqualified for holding or obtaining a driving licence may apply to
the licensing authority having jurisdiction in the area—
(i) in which he ordinarily resides or carries on business, or
in which the school or establishment referred to in section 12 from where
he is receiving or has received instruction in driving a motor vehicle is
situated,
for the issue to him of a driving licence.
(2) Every application under sub-section (1) shall be in such form and shall
be accompanied by such fee and such documents as may be prescribed by the
Central Government.
(3) If the applicant passes such test as may be prescribed by the Central
Government, he shall be issued the driving licence:
Provided that no such test shall be necessary where the applicant produces
proof to show that –
(i) the applicant has previously held a driving licence and that the period
between the date of expiry of that licence and the date of such application
does not exceed five years; or
the applicant holds or has previously held a driving licence to drive such
class of vehicle issued under section 18; or
the applicant holds a driving licence to drive such class of vehicle issued
by a competent authority of any country outside India, subject to the
condition that the applicant complies with the provisions of sub –section
(3) of section 8,
(b) the applicant is not suffering from any disease or disability which is
likely to cause the driving by him to be a source of danger to the public;
and the licensing authority may, for that purpose, require the applicant to
produce a medical certificate in the same form and in the same manner as is
referred to in sub-section (3) of section 8.
Provided further that where the application is for a driving
licence to drive a motor vehicle (not being a transport vehicle), the
licensing authority may exempt the applicant from the test of competence to
drive prescribed under this sub-section, if the applicant possesses a
driving certificate issued by an automobile association recognised in this
behalf by the State Government.
(4) Where the application is for a licence to drive a transport vehicle, no
such authorisation shall be granted to any applicant unless he possesses
such minimum educational qualification as may be prescribed by the Central
Government and a driving certificate issued by a school or establishment
referred to in section 12.
(5) Where the applicant does not pass the test, he may be permitted to
reappear for the test after a period of seven days:
Provided that where the applicant does not pass the test even after
three appearances, he shall not be qualified to reappear for such test
before the expiry of a period of sixty days from the date of last such
test.
(6) The test of competence to drive shall be carried out in a vehicle of
the type to which the application refers:
Provided that a person who passed a test in driving a motor cycle with
gear shall be deemed also to have passed a test in driving a motor cycle
without gear.
(7) When any application has been duly made to the appropriate licensing
authority and the applicant has satisfied such authority of his competence
to drive, the licensing authority shall issue the applicant a driving
licence unless the applicant is for the time being disqualified for holding
or obtaining a driving licence:
Provided that a licensing authority may issue a driving licence to
drive a motor cycle or a light motor vehicle notwithstanding that it is not
the appropriate licensing authority, if the licensing authority is
satisfied that there is good and sufficient reason for the applicant's
inability to apply to the appropriate licensing authority:
Provided further that the licensing authority shall not issue a new
driving licence to the applicant, if he had previously held a driving
licence, unless it is satisfied that there is good and sufficient reason
for his inability to obtain a duplicate copy of his former licence.
(8) If the licensing authority is satisfied, after giving the applicant an
opportunity of being heard, that he—
(a) is a habitual criminal or a habitual drunkard; or
(b) is a habitual addict to any narcotic drug or psychotropic substance
within the meaning of the Narcotic Drugs and Psychotropic Substances Act,
1985; (61 of 1985); or
is a person whose licence to drive any motor vehicle has, at any time
earlier, been revoked,
it may, for reasons to be recorded in writing, make an order refusing to
issue a driving licence to such person and any person aggrieved by an order
made by a licensing authority under this sub-section may, within thirty
days of the receipt of the order, appeal to the prescribed authority.
(9) Any driving licence for driving a motor cycle in force immediately
before the commencement of this Act shall, after such commencement, be
deemed to be effective for driving a motor cycle with or without gear.”
8. The application has to be made in such form as may be prescribed.
Section 10 deals with the form and contents of the licence to drive.
Section 10 before its amendment made in 1994 by Act 54 of 1994 provided as
under :
“10. Form and contents of licences to driver.-- (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) medium goods vehicle;
(f) medium passenger motor vehicle;
(g) heavy goods vehicle;
(h) heavy passenger motor vehicle;”
(i) road-roller;
(j) motor vehicle of a specified description. ”
9. It is clear from the provisions of section 10(2) that the classes of
vehicles have been separately provided. Light motor vehicle has been
provided in section 10(2)(d). Transport vehicle had been inserted in 1994
in place of sections 10(2)(e) to 10(2)(h), in place of medium goods
vehicle as provided in section 10(2)(e), medium passenger motor vehicle
provided in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and
heavy passenger motor vehicle in section 10(2)(h). Thus it is apparent that
transport vehicles were included under the Act of 1988 under the category
of “light motor vehicle”, “heavy motor vehicle” etc. as per gross vehicle
weight or unladen weight, as the case may be, is apparent from a bare
reading of the aforesaid classification given in section 10(2) of the Act
read with definition of light motor vehicle as defined in section 2(21) of
the Act.
The provisions contained in section 10 of the Act had been amended vide
Amendment Act 54 of 1994. The Statement of Objects and Reasons of the
Amendment Act 54 of 1994 reads :
“Amendment Act 54 of 1994 - Statement of Objects and Reasons. – The Motor
Vehicles Act, 1988 (59 of 1988) consolidated and rationalised various laws
regulating road transport. The Act came into force with effect from 1st
July, 1989 replacing the Motor Vehicles Act, 1939.
2. After the coming into force of the Motor Vehicles Act, 1988, Government
received a number of representations and suggestions from the state govt.
transport operators and members of public regarding the inconvenience faced
by them because of the operation of some of the provisions of the 1988 Act.
A Review Committee was, therefore, constituted by the Government in March,
1990 to examine and review the 1988 Act.
3. The recommendations of the Review Committee were forwarded to the State
Governments for comments and they generally agree with these
recommendations. The Government also considered a large number of
representations received, after finalisation of the Report of the Review
Committee, from the transport operators and public for making amendments in
the Act. The draft of the proposals based on the recommendation of the
Review Committee and representations from the public were placed before the
Transport Development Council for seeking their views in the matter. The
important suggestions made by the Transport Development Council relate to,
or are on account of, -
(a) The introduction of newer type of vehicles and fast increasing number
of both commercial and personal vehicles in the country.
(b) Providing adequate compensation to victims of road accidents without
going into longdrawn procedure;
(c) Protecting consumers’ interest in Transport Sector;
(d) Concern for road safety standards, transport of hazardous chemicals and
pollution control;
(e) Delegation of greater powers to State Transport Authorities and
rationalising the role of public authorities in certain matters;
(f) The simplification of procedures and policy liberalisation in the field
of Road Transport;
(g) Enhancing penalties for traffic offenders.
4. Therefore, the proposed legislation has been prepared in the light of
the above background. The Bill inter alia provides for –
(a) modification and amplification of certain definitions of new type of
vehicles ;
(b) simplification of procedure for grant of driving licences;
(c) putting restrictions on the alteration of vehicles;
(d) certain exemptions for vehicles running on non-polluting fuels;
(e) ceilings on individuals or company holdings removed to curb “benami”
holdings;
(f) states authorised to appoint one or more State Transport Appellate
Tribunals;
(g) punitive checks on the use of such components that do not conform to
the prescribed standards by manufactures, and also stocking / sale by the
traders;
(h) increase in the amount of compensation of the victims of hit and run
cases;
(i) removal of time limit for filling of application by road accident
victims for compensation;
(j) punishment in case of certain offences is made stringent;
(k) a new pre-determined formula for payment of compensation to road
accident victims on the basis of age/income, which is more liberal and
rational.
5. The Law Commission in its 119th Report had recommended that every
application for a claim be made to the Claims Tribunal having jurisdiction
over the area in which the accident occurred or to the Claims Tribunal
within the local limits of whose jurisdiction the claimant resides or
carries on business or within the local limits of whose jurisdiction the
defendant resides, at the option of the claimant. The bill also makes
necessary provision to give effect to the said recommendation.”
Section 10 has been amended vide Act 54/1994 to the following effect
:
“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.
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:--
motor cycle without gear;
motor cycle with gear;
invalid carriage;
light motor vehicle;
transport vehicle;
(i) road-roller;
(j) motor vehicle of a specified description.”
10. Form 4 which was in vogue till 28.3.2001 as prescribed under Rule
14 of the Central Motor Vehicles Rules, 1989 (hereinafter referred to as
‘the Rules of 1989’), is extracted hereunder :
“FORM 4
[See Rule 14]
Form of Application for Licence to drive a Motor Vehicle
To, [passport size
Photograph]
THE LICENSING AUTHORITY, ……………………………………..
I apply for a licence to enable me to drive vehicles of the following
description:-
Motor cycle without gear
Motor cycle with gear
Invalid Carriage
Light Motor Vehicle
Medium Goods Vehicle
Medium Passenger Motor Vehicle
Heavy Goods Vehicle
Heavy Passenger Motor Vehicle
Road roller
Motor Vehicle of the following description.
Particulars to be furnished by the Applicant
1. Name ………………………………
2. Son/wife/daughter of ……………………………….
3.Permanent address ………………………………
(Proof to be enclosed)
4.Temporary address/ Official address (if any) ………….
5. Date of birth …………………………………….
(Proof to be enclosed)
6. Educational qualification ………………………..
7. Identification mark (1)……………………… (2)………………………
8. Optional/Blood Group -- RH factor…………………
9. Have you previously held driving licence?……………
If so, give details.
10. Particulars and date of every conviction
which has been ordered to be endorsed
on any licence held by the applicant….……………..
11. Have you been disqualified for obtaining
a licence to drive? If so, for what reason?...………..
12. Have you been subjected to a driving test as to your fitness or ability
to drive a vehicle in respect of which a licence to drive is applied for?
If so, give the following details :-
Date of test Testing Authority Result of test
(1)
(2)
(3)
13. I enclose three copies of my recent [passport size photographs](where
laminated card is used, no photographs are required) … …………………
14. I enclose Learner’s licence No. ………….. dated ……………. issued by
Licensing Authority.
15. I enclose the Driving Certificate No. ….…………….dated …………issued
by……………..
16. I have submitted along with my application for learner’s licence the
written consent of parent / guardian.
17. I have submitted along with the application for learner’s licence./I
enclose the medical fitness certificate.
18. I am exempted from the medical test under rule 6 of the Central Motor
Vehicles Rules , 1989.
19. I am exempted from preliminary test under rule 11 (2) of the Central
Motor Vehicles Rules 1989.
20. I have paid the fee of Rs.
I hereby declare that to the best of my knowledge and belief the
particulars given above are true.
Note : Strike out whichever is inapplicable.
Date : ……………..
Signature/Thumb impression
of applicant.
Certificate of test of competence to drive
The applicant has passed the test prescribed under rule 15 of the Central
Motor Vehicles Rules, 1989. The test was conducted on (here enter the
registration mark and description of the vehicle)………..…… on (date).
The applicant has failed in the test.
(The details of deficiency to be listed out.)
Date_________________
Signature of Testing Authority
Full name and designation
Two specimen signatures of applicant:
Strike out whichever is inapplicable.”
11. It is apparent from the Form prescribed under Rule 14 till
28.3.2001, the aforesaid classification of vehicles remained the same As
provided in Section 10(2) of the Act of 1988 for the first time transport
vehicle was inserted w.e.f. 28.3.2001 by deleting the existing classes,
medium passenger and goods vehicle, heavy goods vehicle and heavy passenger
motor vehicles to bring in tune with Section 10(2)(e) to (h). Form 4 has
undergone other changes with respect to item ‘a’ motorcycle without gear
which was substituted vide GSR 684(E) on 5.10.1999 w.e.f. 22.10.1999 and
again substituted by GSR 76(E) dated 31.1.2000 w.e.f. 31.1.2000. With
aforesaid changes brought about by notifications in 1989 and 2000 in
Section 10(2)(a) we are not concerned here. Amended Form ‘4’ is extracted
hereunder:
“FORM 4
[See Rule 14(1)]
Form of Application for Licence to Drive a Motor Vehicle
To
The Licensing Authority
……………………………… Space for ………………………………
Passport size
photograph
I apply for a licence to enable me to drive vehicles of the following
description:-
(a) Motor cycle without gear
(b) Motor cycle with gear
(c) Invalid carriage
(d) Light Motor vehicle
(e) Transport vehicle
(f) Medium passenger motor vehicle
[*****]
Road roller
(j) Motor vehicles of the following description:
Particulars to be furnished by Applicant
1.Full Name……………………
2.Son/Wife/Daughter of ………………………… ...........
3.Permanent address ……………………… ……………
(Proof to be enclosed) ………………………… .............
4.Temporary address/ Official address (if any)..................
5.Date of birth………………………… ..
(proof to be enclosed) …..………… ................................
6. Educational qualification .……………………… .......
7. Identification mark(s) 1.……………… ………
2….…………………….
8.Optional
Blood Group
RH FACTOR
9. Have you previously held driving ……………… ... Licence? If so, give
details.
10. Particulars and date of every……………………… .. conviction which has been
ordered to be
endorsed on any licence held by applicant
11. Have you been disqualified for……………………… obtaining a Licence to drive?
If so,
for what reason?
12. Have you been subjected to a driving
test as to your fitness or ability
to drive a vehicle in respect of which
a licence to drive is applied for ?
If so, give the following details. …………………………
Date of test Testing Authority Result of test
1.
2.
13. I enclose 3 copies of my recent (passport size photograph) (where
laminated card is used no photographs are required).
14. I enclose the learner’s Licence No .................. dated ………… issued
by Licensing Authority.
15. I enclose the Driving Certificate No. ............. Dated
................ issued by ........................
16. I have submitted along with my application for Learner’s Licence the
written consent of parent/guardian.
17. I have submitted along with the application for learner’s licence/I
enclose the medical fitness certificate.
18. I am exempted from the medical test under rule 6 of the Central Motor
Vehicles Rules, 1989.
19. I am exempted from preliminary test under rule 11(2) of the Central
Motor Vehicles Rules. 1989.
20. I have paid the fee of Rs…………..
I hereby declare that to the best of my knowledge and belief the
particulars given above are true.
* Strike out whichever is inapplicable.
Date ................... Signature/Thumb
impression of Applicant
Certificate of test of competence to drive
The applicant has passed the test prescribed under rule 15 of the Central
Motor Vehicles Rules 1989. The test conducted on (here enter the
registration mark and description of the
vehicle)..................................... on (date) …………..
The applicant has failed in the test.
(The details of the deficiency to be listed out)
Date .................. Signature of Testing Authority Full name &
designation
Two specimen signatures of Applicant:
1.
2.
Strike out whichever is inapplicable.”
12. Thus, as per Amendment of Section 10 vide Act 54 of 1994, there is
deletion of categories of medium goods vehicle, medium passenger motor
vehicle, heavy goods vehicle and heavy passenger motor vehicle and these
have been substituted by the classification “transport vehicle”. It is
pertinent to note here that the definition and classification of light
motor vehicle in the Act remains intact as it existed. It is also apparent
from the Statement of Objects and Reasons of the Amendment Act No.54 of
1994 that the transport operators and members of public faced inconvenience
because of operation of some of the provisions of the Act of 1988. It was
intended for simplification of procedures and policy liberalization and it
became necessary due to introduction of newer type of vehicles and faced
increasing numbers of both personal and commercial vehicles in the country.
Hence, it was intended to modify and amplify certain definitions of new
types of vehicles for simplification of procedure for grant of driving
licences as provided in para 4(a) and (b) of the Statement of Objects and
Reasons. The question is whether intendment appears not to touch the
classification of light motor vehicle which has to be understood in the
light of the definition in section 2(21) of the Act of 1988 and it was
never intended that the transport vehicles of light motor vehicle category
should be taken out of the purview of the existing classification of light
motor vehicles and the transport vehicles as inserted in section 10 has to
be understood in the light of the amendment brought about vide deletion of
the provisions of medium goods vehicle, medium passenger motor vehicle,
heavy goods vehicle and heavy passenger motor vehicle. Thus, no change had
been brought about with respect to the transport vehicles of class of light
motor vehicle as defined in section 2(21) of the Act of 1988.
13. To consider further on the issue, certain rules and forms are also
required to be referred to. Rule 8 provides for minimum educational
qualification for driving transport vehicles which is 8th standard. However
proviso makes it clear that the qualification of 8th standard shall not
apply in the case of renewal of driving licence to drive a transport
vehicle and/or addition of another class of transport vehicle to the
driving licence already held before the commencement of the Motor Vehicles
Act, 2007. Rule 8 of the Rules of 1989 inserted on 10.4.2007 is quoted
below :
“8. Minimum educational qualification for driving transport vehicles.--
The minimum educational qualification in respect of an applicant for
obtaining a licence to drive a transport vehicle shall be a pass in the
eighth standard:
Provided that the minimum educational qualification specified in this
rule shall not apply in the case of –
renewal of a driving licence to drive a transport vehicle : or
addition of another class of transport vehicle to the driving licence,
already held before the commencement of the Motor Vehicles (Amendment)
Rules, 2007.”
14. Earlier Rule 8 was omitted by GSR No.933(E) dated 28.10.1989 w.e.f.
28.10.1989. The Rule has been inserted in the year 2007 and it is provided
that Eighth standard qualification will not apply in the case of addition
of another class of transport vehicle to the driving licence. Thus, it is
clear that Rule 8 contemplates addition of transport vehicle of other
category than the existing one in the licence. Question arises whether that
refers to the addition to light motor vehicle’s category, and gross vehicle
weight or the unladen weight of vehicle in section 2(21) does not exceed
7500 kgs. would remain a light motor vehicle. Section 10 of the Act
contains the provisions as to class of vehicles of the transport vehicle
and light motor vehicle separately. The question arises whether the
transport vehicle insertion in Section 10(2)(e) is confined to the category
of substitution made by deleting existing sections 10(2)(e), (f), (g) and
(h) which were for medium goods vehicle, medium passenger motor vehicle,
heavy goods vehicle and heavy passenger motor vehicle, and in case
“transport vehicle” even of the weight of light motor vehicle is treated in
one category under section 10(2)(e) in that case whether any purpose would
be left behind insertion of Rule 8 again in the year 2007.
15. Rule 16 provides for the Form of driving licence. Same shall be
issued or renewed by licensing authority in Form 6. Rule 16 and Form 6 are
quoted below :
“16. Form of driving licence.—(1) Every driving licence issued or
renewed by a licensing authority shall be in Form 6.
(2) Where the licensing authority has the necessary apparatus, [for the
issue of a laminated card type or Smart Card type driving licence, such
card type or Smart Card type driving licence, as may be specified in the
Notification issued by the concerned State Government or Union Territory
Administration] shall be in Form 7.
(3) On and from the date of commencement of this sub-rule, every driving
licence issued or renewed by the licensing authority shall be in Form 7.
(4) Every International Driving Permit issued by a licensing authority
shall be in Form 6-A and shall be valid for a period of not more than one
year from the date of issue, as the case may be, or till the validity of
the driving licence, whichever is earlier.
(5) The automobile associations authorised by the State Government/ Union
Territory Administration shall be allowed to issue International Driving
Permit to their own members as also others subject to counter-signature by
competent authority.”
“FORM 6
[See Rule 16(1)]
(To be printed in book form of the size six centimeters by eight
centimeters)
FORM OF DRIVING LICENCE
Name of the Licence holder………………………..…
Son/wife/daughter of …………………………..
[Passport size
photograph]
Name to be written across the photograph……………….
(Part of the seal and signature Specimen signature/
of the Licencing Authority Thumb impression of
to be on the photograph the holder of the
and part on the driving licence) licence
Signature and designation
of the Licencing
Authority
1. Driving Licence Number …………………..
2. Date of issue …………………..
3. Name …………………...
4. Son /Wife/ Daughter of …………………..
5. Temporary address/ official …………………..
address (if any)
6. Permanent address …………………..
7. Date of Birth …………………..
8. Educational Qualifications ………………….
9. Optional ………………….
Blood Group
RH Factor
10. The holder of this licence is licenced
to drive throughout India vehicles of
the following description:-
Motor Cycle without gear
Motor Cycle with gear
Invalid Carriage
Light Motor Vehicle
[Transport vehicle]
Medium passenger motor vehicle
11. A Motor vehicle of the following description :
The licence to drive a motor The licence to drive
vehicle other than transport transport vehicle is
vehicle is valid valid from …. to…..
from ……. to………
Name and designation of Signature and designation
the Authority who of the Licencing Authority
conducted the driving test.
Authorisation to drive transport vehicle
Number………………………. Date…………….
Authorised to drive transport vehicle with effect from ……….
Badge Number………………………….
Signature ………
Designation of the licensing Authority
Name and designation of the authority who conducted the driving test.
Space for addition of other classes of vehicles
Number…………………… Date……………
Also authorized to drive the following class or description of motor
vehicles:-
Name and designation Signature and designation
of the Authority of Licencing Authority
who conducted
the driving test.
Dated:………….. Signature and designation
of the Licencing Authority
Space for renewal of driving licence
The licence to drive motor The licence to drive
vehicles other than transport transport vehicles
vehicles is hereby renewed. is hereby renewed
From…….. to ………… From…………to…..……
Signature of Licencing Signature of Licencing Authority
Authority
From…………to…………. From…………to…………
Signature of Licencing Signature of Licencing Authority
Authority
From………….to……………
Signature of Licencing Authority
Space for endorsement by Court
Space for endorsement by licensing authority
It is pertinent to mention that in the Form light motor vehicle
and transport vehicle are separately given.
16. Rule 17 of the Rules deals with the additional driving licence. Same
has to be applied for in Form 8. Rule 17 and Form 8 read thus :
“17. Addition to driving licence.-- (1) An application for addition of
another class of description of motor vehicle to the driving licence shall
be made in Form 8 to the licensing authority and shall be accompanied by—
(a) an effective learner’s licence and driving licence held by the
applicant;
(b) in the case of an application for addition of a transport vehicle, the
driving certificate in Form 5;
(c) [* * *]
(d) appropriate fee as specified in Rule 32.
(2) The provisions of sub-section (1), sub-section (3) and sub-section (4)
of Section 9 shall, insofar as may be, apply in relation to an application
under sub-section (1) as they apply in relation to an application for the
grant of a driving licence.”
Form 8 as provided in Rule 17(1) of the Rules reads as under :
“FORM 8
[See Rule 17(1)]
APPLICATION FOR THE ADDITION OF A NEW CLASS OF VEHICLE TO A DRIVING LICENCE
To
The Licensing Authority,
…………………………
I, Shri/Smt./ Kumari…... hereby apply for the addition of the following
class/classes of motor vehicles to the attached licence:-
(a) Motor cycle without gear
(b) Motor cycle with gear
(c) Invalid carriages,
(d) Light motor vehicles,
(e) Transport vehicle
(f) Medium passenger motor vehicles
(g) x x x
(h) x x x
(i) Road rollers,
(j) Motor vehicle of the following description :
I enclose,
(a) a Medical Certificate in Form 1-A
(b) Learner’s licence in Form 3,
(c) Driving licence in Form 6/7,
I hereby apply for the addition of the following :
(d) Driving Certificate in Form 5 if the application is to drive a
transport vehicle,
(e) I have paid the fee of Rs. … … … … … … … … … ..
Dated: …….. Signature or thumb-impression
of the Applicant
CERTIFICATE OF TEST OF COMPETENCE TO DRIVE
The applicant has passed/failed in the test specified in Rule 15 of the
Central Motor Vehicles Rules, 1989. The test was conducted on a ….(here
enter description of vehicles) on date.…
Signature of Testing Authority
Name & Designation”
17. Form 8 also separately provide the light motor vehicle and transport
vehicle. Question arises whether in Forms 4, 5 and 8, transport vehicle has
to be understood for the categories of vehicles for which substitution has
been made in section 10(2) by deleting the existing provisions of section
10(2)(e), (f), (g) and (h). However the form still contains the provision
with respect to “medium passenger motor vehicles”, notwithstanding the
insertion of the changed classification of the vehicles in section 10(2) of
the Act or it may be printer’s omission to delete ?
18. Rule 34 has also been referred to which deals with the trade
certificate. Rule 34(2) provides that separate application shall be made
for the classes of vehicles prescribed therein. Rule 34 is quoted below:
“34. Trade certificate.-- (1) An application for the grant or renewal of a
trade certificate shall be made in Form 16 and shall be accompanied by the
appropriate fee as specified in Rule 81.
(2) Separate applications shall be made for each of the following classes
of vehicles, namely:—
(a) motorcycle;
(b) invalid carriage;
(c) light motor vehicle;
(d) medium passenger motor vehicle;
(e) medium goods vehicle;
(f) heavy passenger motor vehicle;
(g) heavy goods vehicle;
(h) any other motor vehicle of a specified description.”
Rule 34 also makes a distinction between light motor vehicle, medium
passenger motor vehicle, medium goods vehicle, heavy passenger motor
vehicle and heavy goods vehicle. As per Rule 126 of the Rules, proto-type
of every motor vehicle is subject to test by the Vehicle Research &
Development Establishment of the Ministry of Defence of the Government of
India or Automotive Research Association of India. Testing Agency has to
conduct test as provided in Rule 126A to verify whether these vehicles
conform to the provisions of the Rules made under section 110 of the Act.
All the relevant information has to be inserted as per section 41 of the
Act in the registration particulars as may be prescribed by the Central
Government. Application for registration of motor vehicle has to be made in
Form 20. Class of vehicle, gross vehicle weight as well as unladen weight
are to be mentioned.
19. Rule 31 of the Rules contains a syllabus for imparting instructions
in driving of motor vehicles in schools or establishments. That syllabus is
divided in parts A to K. Part A deals with driving theory-1. B- Traffic
education-I. C-light vehicles driving practice. D- Vehicle mechanism and
repairs. E-Medium and heavy vehicle driving. F- Traffic education-II. G-
Public relations for drivers. H-Heavy vehicle driving practice. I-Fire
hazards. J- Vehicle maintenance. K- First-aid.
20. It is apparent from the syllabus that there is a separate syllabus
for light motor vehicle and for medium and heavy vehicle driving practice.
No separate syllabus has been provided for transport vehicles. They are
included in the aforesaid categories. Thus, it appears that as per the
weight of the vehicles, the syllabus has been provided and different
teaching is prescribed as per different weights of the vehicles. A driving
licence has to be issued as per Rule 16 in Form 6. Form 6 also separately
provides for light motor vehicle, transport vehicle.
21. The Central Government, inter alia, has the power to frame the rules
provided under section 27 of the Act, regarding minimum qualification,
regarding forms and contents of the licences referred to in sub-section (1)
of section 10 and providing for authority to grant licences and other
matters as provided in section 27. State Government is enjoined to
maintain a register of motor vehicles under Rule 75 as provided in Form 41
which includes gross vehicle weight, unladen weight etc. Thus it is clear
that the scheme of the Act, Rules and the Forms emphasise the gross vehicle
weight and unladen weight which is required to be mentioned specifically in
the State registration particulars etc. so as to ascertain the class of
vehicle whether it is light, medium or heavy etc.
22. In Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan & Ors. (1987)
2 SCC 654, it was held that in order to consider the intention of the
Legislature in the course of interpretation, motive and philosophy of the
relevant provisions keeping in mind the goals to be achieved by enacting
the same, has to be taken into consideration. It was observed thus :
“12. The defence built on the exclusion clause cannot succeed for three
reasons, viz.:
On a true interpretation of the relevant clause which interpretation is at
peace with the conscience of Section 96, the condition excluding driving by
a person not duly licensed is not absolute and the promisor is absolved
once it is shown that he has done everything in his power to keep, honour
and fulfil the promise and he himself is not guilty of a deliberate breach.
Even if it is treated as an absolute promise, there is substantial
compliance therewith upon an express or implied mandate being given to the
licensed driver not to allow the vehicle to be left unattended so that it
happens to be driven by an unlicensed driver.
(3) The exclusion clause has to be “read down” in order that it is not at
war with the “main purpose” of the provisions enacted for the protection of
victims of accidents so that the promisor is exculpated when he does
everything in his power to keep the promise.
13. In order to divine the intention of the legislature in the course of
interpretation of the relevant provisions there can scarcely be a better
test than that of probing into the motive and philosophy of the relevant
provisions keeping in mind the goals to be achieved by enacting the same.
Ordinarily it is not the concern of the legislature whether the owner of
the vehicle insures his vehicle or not. If the vehicle is not insured any
legal liability arising on account of third party risk will have to be
borne by the owner of the vehicle. Why then has the legislature insisted on
a person using a motor vehicle in a public place to insure against third
party risk by enacting Section 94? Surely the obligation has not been
imposed in order to promote the business of the insurers engaged in the
business of automobile insurance. The provision has been inserted in order
to protect the members of the community travelling in vehicles or using the
roads from the risk attendant upon the user of motor vehicles on the roads.
The law may provide for compensation to victims of the accidents who
sustain injuries in the course of an automobile accident or compensation to
the dependants of the victims in the case of a fatal accident. However,
such protection would remain a protection on paper unless there is a
guarantee that the compensation awarded by the courts would be recoverable
from the persons held liable for the consequences of the accident. A court
can only pass an award or a decree. It cannot ensure that such an award or
decree results in the amount awarded being actually recovered, from the
person held liable who may not have the resources. The exercise undertaken
by the law courts would then be an exercise in futility. And the outcome of
the legal proceedings which by the very nature of things involve the time
cost and money cost invested from the scarce resources of the community
would make a mockery of the injured victims, or the dependants of the
deceased victim of the accident, who themselves are obliged to incur not
inconsiderable expenditure of time, money and energy in litigation. To
overcome this ugly situation the legislature has made it obligatory that no
motor vehicle shall be used unless a third party insurance is in force. To
use the vehicle without the requisite third party insurance being in force
is a penal offence (Section 94 of the Motor Vehicles Act). The legislature
was also faced with another problem. The insurance policy might provide for
liability walled in by conditions which may be specified in the contract of
policy. In order to make the protection real, the legislature has also
provided that the judgment obtained shall not be defeated by the
incorporation of exclusion clauses other than those authorised by Section
96 and by providing that except and save to the extent permitted by Section
96 it will be the obligation of the insurance company to satisfy the
judgment obtained against the persons insured against third party risk
(vide Section 96). In other words, the legislature has insisted and made it
incumbent on the user of a motor vehicle to be armed with an insurance
policy covering third party risks which is in conformity with the
provisions enacted by the legislature. It is so provided in order to ensure
that the injured victims of automobile accidents or the dependants of the
victims of fatal accidents are really compensated in terms of money and not
in terms of promise. Such a benign provision enacted by the legislature
having regard to the fact that in the modern age the use of motor vehicles
notwithstanding the attendant hazards, has become an inescapable fact of
life, has to be interpreted in a meaningful manner which serves rather than
defeats the purpose of the legislation. The provision has therefore to be
interpreted in the twilight of the aforesaid perspective.”
14. Section 96(2)(b)(ii) extends immunity to the insurance company if a
breach is committed of the condition excluding driving by a named person or
persons or by any person who is not fully licensed, or by any person who
has been disqualified for holding or obtaining a driving licence during the
period of disqualification. The expression “breach” is of great
significance. The dictionary meaning of “breach” is “infringement or
violation of a promise or obligation” (See Collins English Dictionary). It
is therefore abundantly clear that the insurer will have to establish that
the insured is guilty of an infringement or violation of a promise that a
person who is duly licensed will have to be in charge of the vehicle. The
very concept of infringement or violation of the promise that the
expression “breach” carries within itself induces an inference that the
violation or infringement on the part of the promisor must be a wilful
infringement or violation. If the insured is not at all at fault and has
not done anything he should not have done or is not amiss in any respect
how can it be conscientiously posited that he has committed a breach? It is
only when the insured himself places the vehicle in charge of a person who
does not hold a driving licence, that it can be said that he is “guilty” of
the breach of the promise that the vehicle will be driven by a licensed
driver. It must be established by the insurance company that the breach was
on the part of the insured and that it was the insured who was guilty of
violating the promise or infringement of the contract. Unless the insured
is at fault and is guilty of a breach the insurer cannot escape from the
obligation to indemnify the insured and successfully contend that he is
exonerated having regard to the fact that the promisor (the insured)
committed a breach of his promise. Not when some mishap occurs by some
mischance. When the insured has done everything within his power inasmuch
as he has engaged a licensed driver and has placed the vehicle in charge of
a licensed driver, with the express or implied mandate to drive himself it
cannot be said that the insured is guilty of any breach. And it is only in
case of a breach or a violation of the promise on the part of the insured
that the insurer can hide under the umbrella of the exclusion clause. In a
way the question is as to whether the promise made by the insured is an
absolute promise or whether he is exculpated on the basis of some legal
doctrine. The discussion made in para 239 of Breach of Contract by Carter
(1984 Edn.) under the head Proof of Breach, gives an inkling of this
dimension of the matter. In the present case even if the promise were to be
treated as an absolute promise the grounds for exculpation can be found
from Section 84 of the Act which reads thus:
“84. Stationary vehicles—No person driving or in charge of a motor vehicle
shall cause or allow the vehicle to remain stationary in any public place,
unless there is in the driver’s seat a person duly licensed to drive the
vehicle or unless the mechanism has been stopped and a brake or brakes
applied or such other measure taken as to ensure that the vehicle cannot
accidentally be put in motion in the absence of the driver.”
In view of this provision apart from the implied mandate to the licensed
driver not to place an unlicensed person in charge of the vehicle, there is
also a statutory obligation on the said person not to leave the vehicle
unattended and not to place it in charge of an unlicensed driver. What is
prohibited by law must be treated as a mandate to the employee and should
be considered sufficient in the eye of law for excusing non-compliance with
the conditions. It cannot therefore in any case be considered as a breach
on the part of the insured. To construe the provision differently would be
to rewrite the provision by engrafting a rider to the effect that in the
event of the motor vehicle happening to be driven by an unlicensed person,
regardless of the circumstances in which such a contingency occurs, the
insured will not be liable under the contract of insurance. It needs to be
emphasised that it is not the contract of insurance which is being
interpreted. It is the statutory provision defining the conditions of
exemption which is being interpreted. These must therefore be interpreted
in the spirit in which the same have been enacted accompanied by an anxiety
to ensure that the protection is not nullified by the backward looking
interpretation which serves to defeat the provision rather than to fulfil
its life-aim. To do otherwise would amount to nullifying the benevolent
provision by reading it with a non-benevolent eye and with a mind not tuned
to the purpose and philosophy of the legislation without being informed of
the true goals sought to be achieved. What the legislature has given, the
Court cannot deprive of by way of an exercise in interpretation when the
view which renders the provision potent is equally plausible as the one
which renders the provision impotent. In fact it appears that the former
view is more plausible apart from the fact that it is more desirable. When
the option is between opting for a view which will relieve the distress and
misery of the victims of accidents or their dependants on the one hand and
the equally plausible view which will reduce the profitability of the
insurer in regard to the occupational hazard undertaken by him by way of
business activity, there is hardly any choice. The Court cannot but opt for
the former view. Even if one were to make a strictly doctrinaire approach,
the very same conclusion would emerge in obeisance to the doctrine of
“reading down” the exclusion clause in the light of the “main purpose” of
the provision so that the “exclusion clause” does not cross swords with the
“main purpose” highlighted earlier. The effort must be to harmonize the two
instead of allowing the exclusion clause to snipe successfully at the main
purpose. This theory which needs no support is supported by Carter’s
“Breach of Contract” vide paragraph 251. To quote:
“Notwithstanding the general ability of contracting parties to agree to
exclusion clauses which operate to define obligations there exists a rule,
usually referred to as the “main purpose rule”, which may limit the
application of wide exclusion clauses defining a promisor’s contractual
obligations. For example, in Glynn v. Margetson & Co (1893 AC 351, 357,
Lord Halsbury, L.C. stated:
It seems to me that in construing this document, which is a contract of
carriage between the parties, one must in the first instance look at the
whole instrument and not at one part of it only. Looking at the whole
instrument, and seeing what one must regard ... as its main purpose, one
must reject words, indeed whole provisions, if they are inconsistent with
what one assumes to be the main purpose of the contract.’
Although this rule played a role in the development of the doctrine of
fundamental breach, the continued validity of the rule was acknowledged
when the doctrine was rejected by the House of Lords in Suissee Atlantique
Societe d’ Armement Maritime S.A. v. N.V. Rotterdamsche Kolen Centrale
(1967) 1 AC 361, 393, 412-413, 427-428, 430. Accordingly, wide exclusion
clauses will be read down to the extent to which they are inconsistent with
the main purpose, or object of the contract.
(emphasis supplied)”
23. A 3-Judge Bench of this Court in Sohan Lal Passi v. P. Sesh Reddy &
Ors. (1996) 5 SCC 21 examined the correctness of the aforesaid view in
Skandia’s case (supra) and has laid down thus :
“12. … According to us, Section 96(2)(b)(ii) should not be interpreted in
a technical manner. Sub-section (2) of Section 96 only enables the
insurance company to defend itself in respect of the liability to pay
compensation on any of the grounds mentioned in sub-section (2) including
that there has been a contravention of the condition excluding the vehicle
being driven by any person who is not duly licensed. This bar on the face
of it operates on the person insured. If the person who has got the vehicle
insured has allowed the vehicle to be driven by a person who is not duly
licensed then only that clause shall be attracted. In a case where the
person who has got insured the vehicle with the insurance company, has
appointed a duly licensed driver and if the accident takes place when the
vehicle is being driven by a person not duly licensed on the basis of the
authority of the driver duly authorised to drive the vehicle whether the
insurance company in that event shall be absolved from its liability? The
expression ‘breach’ occurring in Section 96(2)(b) means infringement or
violation of a promise or obligation. As such the insurance company will
have to establish that the insured was guilty of an infringement or
violation of a promise. The insurer has also to satisfy the Tribunal or the
Court that such violation or infringement on the part of the insured was
wilful. If the insured has taken all precautions by appointing a duly
licensed driver to drive the vehicle in question and it has not been
established that it was the insured who allowed the vehicle to be driven by
a person not duly licensed, then the insurance company cannot repudiate its
statutory liability under sub-section (1) of Section 96…..”
24. It is relevant to note the various decisions rendered by this Court.
In Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd. (1999) 6 SCC 620,
this Court considered the definition of light motor vehicle and held thus :
“10. The definition of "light motor vehicle" as given in clause (21)
of Section 2 of the Act can apply only to a "light goods vehicle" or a
"light transport vehicle". A "light motor vehicle" otherwise has to be
covered by the definition of "motor vehicle" or "vehicle" as given in
clause (28) of Section 2 of the Act. A light motor vehicle cannot always
mean a light goods carriage. Light motor vehicle can be a non-transport
vehicle as well.”
25. In Oriental Insurance Co. Ltd. v. Zaharulnisha & Ors. (2008) 12 SCC
385 this Court has referred to the decision in National Insurance Co. Ltd.
v. Swaran Singh (2004) 3 SCC 297 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 of Section 10(2) of the MV Act. The relevant
provisions read thus :
“18. A three-Judge Bench of this Court in National Insurance Co. Ltd. v.
Swaran Singh (2004) 3 SCC 297 has extensively dealt with the meaning,
application and interpretation of various provisions, including Sections
3(2), 4(3), 10(2) and 149 of the MV Act. In para 47 of the judgment, the
learned Judges have held that if a person has been given a licence for a
particular type of vehicle as specified therein, he cannot be said to have
no licence for driving another type of vehicle which is of the same
category but of 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. In para 48, it is held as under: (SCC pp. 324-25)
“48. Furthermore, the insurance company with a view to avoid its
liabilities is not only required to show that the conditions laid down
under Section 149(2)(a) or (b) are satisfied but is further required to
establish that there has been a breach on the part of the insured. By
reason of the provisions contained in the 1988 Act, a more extensive remedy
has been conferred upon those who have obtained judgment against the user
of a vehicle and after a certificate of insurance is delivered in terms of
Section 147(3). After a third party has obtained a judgment against any
person insured by the policy in respect of a liability required to be
covered by Section 145, the same must be satisfied by the insurer,
notwithstanding that the insurer may be entitled to avoid or to cancel the
policy or may in fact have done so. The same obligation applies in respect
of a judgment against a person not insured by the policy in respect of such
a liability, but who would have been covered if the policy had covered the
liability of all persons, except that in respect of liability for death or
bodily injury.”
19. The judgment (in Swaran Singh case) proceeds to hold that under the
MV Act, holding of a valid driving licence is one of the conditions of the
contract of insurance. Driving of a vehicle without a valid licence is an
offence. However, the question herein is whether a third party involved in
an accident is entitled to the amount of compensation granted by the Motor
Accidents Claims Tribunal although the driver of the vehicle at the
relevant time might not have had a valid driving licence but would be
entitled to recover the same from the owner or driver thereof. It is trite
that where the insurers, relying upon the provisions of violation of law by
the assured, take an exception to pay the assured or a third party, they
must prove a wilful violation of the law by the assured. In some cases,
violation of criminal law, particularly violation of the provisions of the
MV Act, may result in absolving the insurers but, the same may not
necessarily hold good in the case of a third party. In any event, the
exception applies only to acts done intentionally or “so recklessly as to
denote that the assured did not care what the consequences of his act might
be”. The provisions of sub-sections (4) and (5) of Section 149 of the MV
Act may be considered as to the liability of the insurer to satisfy the
decree at the first instance. The liability of the insurer is a statutory
one. The liability of the insurer to satisfy the decree passed in favour of
a third party is also statutory.
20. The learned Judges having considered the entire material and relevant
provisions of the MV Act and conflict of decisions of various High Courts
and this Court on the question of defences available to the insurance
companies in defending the claims of the victims of the accident arising
due to the harsh and negligent driving of the vehicle which is insured with
the insurance companies, proceeded to record the following summary of
findings: (Swaran Singh case, SCC pp. 341-42, para 110)
“110. (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory
insurance of vehicles against third-party risks is a social welfare
legislation to extend relief by compensation to victims of accidents caused
by use of motor vehicles. The provisions of compulsory insurance coverage
of all vehicles are with this paramount object and the provisions of the
Act have to be so interpreted as to effectuate the said object.
(ii) An insurer is entitled to raise a defence in a claim petition filed
under Section 163-A or Section 166 of the Motor Vehicles Act, 1988 inter
alia in terms of Section 149(2)(a)(ii) of the said Act.
The breach of policy condition e.g. disqualification of the driver or
invalid driving licence of the driver, as contained in sub-section
(2)(a)(ii) of Section 149, has to be proved to have been committed by the
insured for avoiding liability by the insurer. Mere absence, fake or
invalid driving licence or disqualification of the driver for driving at
the relevant time, are not in themselves defences available to the insurer
against either the insured or the third parties. To avoid its liability
towards the insured, the insurer has to prove that the insured was guilty
of negligence and failed to exercise reasonable care in the matter of
fulfilling the condition of the policy regarding use of vehicles by duly
licensed driver or one who was not disqualified to drive at the relevant
time.
Insurance companies, however, with a view to avoid their liability must not
only establish the available defence(s) raised in the said proceedings but
must also establish ‘breach’ on the part of the owner of the vehicle; the
burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how the said burden would
be discharged, inasmuch as the same would depend upon the facts and
circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of the
insured concerning the policy condition regarding holding of a valid
licence by the driver or his qualification to drive during the relevant
period, the insurer would not be allowed to avoid its liability towards the
insured unless the said breach or breaches on the condition of driving
licence is/are so fundamental as are found to have contributed to the cause
of the accident. The Tribunals in interpreting the policy conditions would
apply “the rule of main purpose” and the concept of “fundamental breach” to
allow defences available to the insured under Section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to
find out as to whether the driving licence produced by the driver, (a fake
one or otherwise), does not fulfil the requirements of law or not will have
to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a
learner’s licence, the insurance companies would be liable to satisfy the
decree.
(ix) The Claims Tribunal constituted under Section 165 read with Section
168 is empowered to adjudicate all claims in respect of the accidents
involving death or of bodily injury or damage to property of third party
arising in use of motor vehicle. The said power of the Tribunal is not
restricted to decide the claims inter se between the claimant or claimants
on one side and the insured, insurer and driver on the other. In the course
of adjudicating the claim for compensation and to decide the availability
of defence or defences to the insurer, the Tribunal has necessarily the
power and jurisdiction to decide disputes inter se between the insurer and
the insured. The decision rendered on the claims and disputes inter se
between the insurer and insured in the course of adjudication of claim for
compensation by the claimants and the award made thereon is enforceable and
executable in the same manner as provided in Section 174 of the Act for
enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the Tribunal arrives
at a conclusion that the insurer has satisfactorily proved its defence in
accordance with the provisions of Section 149(2) read with sub-section (7),
as interpreted by this Court above, the Tribunal can direct that the
insurer is liable to be reimbursed by the insured for the compensation and
other amounts which it has been compelled to pay to the third party under
the award of the Tribunal. Such determination of claim by the Tribunal will
be enforceable and the money found due to the insurer from the insured will
be recoverable on a certificate issued by the Tribunal to the Collector in
the same manner under Section 174 of the Act as arrears of land revenue.
The certificate will be issued for the recovery as arrears of land revenue
only if, as required by sub-section (3) of Section 168 of the Act the
insured fails to deposit the amount awarded in favour of the insurer within
thirty days from the date of announcement of the award by the Tribunal.
(xi) The provisions contained in sub-section (4) with the proviso
thereunder and sub-section (5) which are intended to cover specified
contingencies mentioned therein to enable the insurer to recover the amount
paid under the contract of insurance on behalf of the insured can be taken
recourse to by the Tribunal and be extended to the claims and defences of
the insurer against the insured by relegating them to the remedy before
regular court in cases where on given facts and circumstances adjudication
of their claims inter se might delay the adjudication of the claims of the
victims.”
21. In the light of the above settled proposition of law, the appellant
Insurance Company cannot be held liable to pay the amount of compensation
to the claimants for the cause of death of Shukurullah in road accident
which had occurred due to rash and negligent driving of scooter by Ram
Surat who admittedly had no valid and effective licence to drive the
vehicle on the day of accident. The scooterist was possessing a driving
licence of driving HMV and he was driving a totally different class of
vehicle, which act of his is in violation of Section 10(2) of the MV Act.”
26. In New India Assurance Co. Ltd. v. Prabhu Lal (2008) 1 SCC 696 this
Court considered the question of driving a transport vehicle by a driver
having valid licence to ply only light motor vehicle, no endorsement was
made on the licence enabling the driver to drive transport vehicle. A two
Judge Bench of this Court has laid down that the owner of the said vehicle
cannot claim indemnification in such circumstances from the insurer. It has
been held that goods carrier will be a transport vehicle. The accident took
place on 17.4.1998. The vehicle involved was Tata 709. The District Forum
held it to be a goods carrier and covered by transport vehicle whereas the
State Commission held that it was a light motor vehicle relying on the
gross weight of the vehicle. This Court laid down that the said Commission
was wrong in reversing the finding of the District Forum. This Court has
considered the question thus :
“38. We find considerable force in the submission of the learned counsel
for the Insurance Company. We also find that the District Forum considered
the question in its proper perspective and held that the vehicle driven by
Ram Narain was covered by the category of transport vehicle under Clause
(47) of Section 2 of the Act. Section 3, therefore, required the driver to
have an endorsement which would entitle him to ply such vehicle. It is not
even the case of the complainant that there was such endorsement and Ram
Narain was allowed to ply transport vehicle. On the contrary, the case of
the complainant was that it was Mohd. Julfikar who was driving the vehicle.
To us, therefore, the District Forum was right in holding that Ram Narain
could not have driven the vehicle in question.
39. The learned counsel for the complainant, however, heavily relied upon
Ashok Gangadhar (1999) 6 SCC 620. In that case, the appellant was the owner
of a truck, light motor vehicle, which was insured with the respondent
Insurance Company. The vehicle met with an accident and a claim was lodged
by the complainant before the Consumer Commission. It was contended by the
Insurance Company that the truck was a goods carriage or a transport
vehicle and since the driver of the truck was holding a driving licence
issued in Form 6 to drive light motor vehicle only, he was not authorised
to drive transport vehicle as there was no endorsement on his driving
licence authorising him to drive such transport vehicle. The aggrieved
complainant approached this Court. Allowing the appeal and setting aside
the order passed by the Commission, this Court held that the driver of the
vehicle was holding a valid driving licence for driving a light motor
vehicle and there was no material on record to show that he was
disqualified from holding an effective valid licence at the time of
accident. In view of those facts, the Court held that the policy did not
insist on the driver to have a licence to drive a transport vehicle by
obtaining a specific endorsement. Considering the definition of “light
motor vehicle” as given in Clause (21) of Section 2 of the Act, this Court
held that such light motor vehicle (LMV) cannot always mean a light goods
carriage. A light motor vehicle (LMV) can be a non-transport vehicle as
well. The Court proceeded to observe that since there was neither a
pleading nor a permit produced on record, the vehicle remained as a light
motor vehicle. And though it can be said to have been designed to be used
as a transport vehicle or a goods carriage, it could not be so held on
account of statutory prohibition contained in Section 66 of the Act to be a
transport vehicle. It was, therefore, held that the Commission was not
right in rejecting the claim of the claimant. Accordingly this Court set
aside the order passed by the Commission and directed the Insurance Company
to pay compensation to the complainant.
40. It is no doubt true that in Ashok Gangadhar (supra) in spite of the
fact that the driver was holding valid driving licence to ply light motor
vehicle (LMV), this Court upheld the claim and ordered the Insurance
Company to pay compensation. But, in our considered opinion, the learned
counsel for the Insurance Company is right in submitting that it was
because of the fact that there was neither pleading nor proof as regards
the permit issued by the Transport Authority. In absence of pleading and
proof, this Court held that, it could not be said that the driver had no
valid licence to ply the vehicle which met with an accident and he could
not be deprived of the compensation. This is clear if one reads para 11 of
the judgment, which reads thus: (SCC p. 626)
“11. To reiterate, since a vehicle cannot be used as a transport vehicle on
a public road unless there is a permit issued by the Regional Transport
Authority for that purpose and since in the instant case there is neither a
pleading to that effect by any party nor is there any permit on record, the
vehicle in question would remain a light motor vehicle. The respondent also
does not say that any permit was granted to the appellant for plying the
vehicle as a transport vehicle under Section 66 of the Act. Moreover, on
the date of the accident, the vehicle was not carrying any goods and though
it could be said to have been designed to be used as a transport vehicle or
a goods carrier, it cannot be so held on account of the statutory
prohibition contained in Section 66 of the Act.”
(emphasis supplied)
41. In our judgment, Ashok Gangadhar (supra) did not lay down that the
driver holding licence to drive a light motor vehicle need not have an
endorsement to drive transport vehicle and yet he can drive such vehicle.
It was on the peculiar facts of the case, as the Insurance Company neither
pleaded nor proved that the vehicle was transport vehicle by placing on
record the permit issued by the Transport Authority that the Insurance
Company was held liable.
42. In the present case, all the facts were before the District Forum. It
considered the assertion of the complainant and defence of the Insurance
Company in the light of the relevant documentary evidence and held that it
was established that the vehicle which met with an accident was a
“transport vehicle”. Ram Narain was having a licence to drive light motor
vehicle only and there was no endorsement as required by Section 3 of the
Act read with Rule 16 of the Rules and Form 6. In view of necessary
documents on record, the Insurance Company was right in submitting that
Ashok Gangadhar (supra) does not apply to the case on hand and the
Insurance Company was not liable.”
27. In New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir & Anr.
(2008) 8 SCC 253 the driver was holder of a licence to drive a three-
wheeler. This Court noted that the licence was not meant to be used to
drive a transport vehicle. The vehicle involved was an autorickshaw
delivery van and was a goods carrier. Contention was raised that the driver
of the vehicle was not holder of a legal and valid licence. Question arose
whether driver was holding a licence to drive a transport vehicle. This
Court held thus :
“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. 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 licence 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
13.5.2004 to 12.5.2024. 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.
x x x x x
13. 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.”
28. In National Insurance Co. Ltd. v. Annappa Irappa Nesaria alias
Nesaragi & Ors. (2008) 3 SCC 464, a Division Bench of this Court has
considered the question with respect to an accident which took place on
9.12.1999 involving a Matador van, a “goods carriage” vehicle. The driver
was holding a licence to drive light motor vehicle. Submission was raised
before this Court that “light motor vehicle” cannot be a transport vehicle.
Forms 4 and 6 were also referred along with Rules 14 and 16 of the 1989
Rules. After referring to Form 4 as it has been amended w.e.f. 28.3.2001,
this Court has held that transport vehicle has been substituted for “medium
goods vehicle” and “heavy goods vehicle”, and continued at the relevant
time, to cover both “light passenger carriage vehicle” and “light goods
carriage vehicle”. The driver who had a valid licence to drive a light
motor vehicle, therefore, was authorized to drive a light goods vehicle as
well. This Court has laid down thus :
“20. 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.
21. The amendments carried out in the Rules having a prospective
operation, the licence held by the driver of the vehicle in question cannot
be said to be invalid in law.”
29. Thus, this Court has opined that prior to the amendment made in the
form in 2001 a person holding a licence to drive “light motor vehicle”
could have driven “light passenger carriage vehicle” and “light goods
carriage vehicle” also.
30. In Oriental Insurance Co. Ltd. v. Angad Kol & Ors. (2009) 11 SCC 356,
this Court has considered the decision in National Insurance Co. Ltd. v.
Annappa Irappa Nesaria (supra) and Prabhu Lal (supra). The accident in the
said case took place on 31.10.2004. A mini door auto dashed against the
insured. Question arose whether the driver was not having an effective
driving licence to drive “goods carriage vehicle”. Driver was holding a
licence to drive motor-cycle and light motor vehicle. Licence was granted
for a period of 20 years. Therefore, this Court presumed that it was meant
for the purpose of a vehicle other than a transport vehicle. This Court
observed thus :
“21. Licence having been granted for a period of 20 years, a presumption,
therefore, arises that it was meant for the purpose of a vehicle other than
a transport vehicle. Had the driving licence been granted for transport
vehicle, the tenure thereof could not have exceeded to three years.”
31. This Court observed that the grant of licence to drive transport
vehicle became effective from 28.3.2001 i.e. date on which the form was
amended and held that the vehicle was a “goods vehicle” as such the driver
did not hold a valid driving licence for driving a “goods vehicle”.
32. In S.Iyyapan v. United India Insurance Co. (2013) 7 SCC 62, this
Court has considered the decisions in Ashok Gangadhar (supra), Annappa
Irappa Nesaria (supra), Prabhu Lal (supra) and other decisions and laid
down thus :
“18. In the instant case, admittedly the driver was holding a valid
driving licence to drive light motor vehicle. There is no dispute that the
motor vehicle in question, by which accident took place, was Mahindra Maxi
Cab. Merely because the driver did not get any endorsement in the driving
licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the
High Court has committed grave error of law in holding that the insurer is
not liable to pay compensation because the driver was not holding the
licence to drive the commercial vehicle. The impugned judgment is,
therefore, liable to be set aside.”
33. This Court in Kulwant Singh & Ors. v. Oriental Insurance Co. Ltd.
(2015) 2 SCC 186, referring to the decisions of this Court in S.Iyyapan
(supra) and Annappa Irappa Nesaria (supra) has laid down that when one
driver is holding a licence to drive light motor vehicle, he can drive
commercial vehicle of that category. This Court has considered the question
thus :
“8. We find that the judgments relied upon cover the issue in favour of the
appellants. In Annappa Irappa Nesaria (2008) 3 SCC 464, this Court
referred to the provisions of Sections 2(21) and (23) of the Motor Vehicles
Act, 1988, which are definitions of “light motor vehicle” and “medium goods
vehicle” respectively and the rules prescribing the forms for the licence
i.e. Rule 14 and Form 4. It was concluded: (SCC p. 468, para 20)
“20. 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 authorised to drive a light goods vehicle as well.”
9. In S. Iyyapan (2013) 7 SCC 62, the question was whether the driver who
had a licence to drive “light motor vehicle” could drive “light motor
vehicle” used as a commercial vehicle, without obtaining endorsement to
drive a commercial vehicle. It was held that in such a case, the insurance
company could not disown its liability. It was observed: (SCC p. 77, para
18)
“18. In the instant case, admittedly the driver was holding a valid driving
licence to drive light motor vehicle. There is no dispute that the motor
vehicle in question, by which accident took place, was Mahindra Maxi Cab.
Merely because the driver did not get any endorsement in the driving
licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the
High Court has committed grave error of law in holding that the insurer is
not liable to pay compensation because the driver was not holding the
licence to drive the commercial vehicle. The impugned judgment [Civil Misc.
Appeal No. 1016 of 2002, order dated 31-10-2008 (Mad)] is, therefore,
liable to be set aside.”
10. No contrary view has been brought to our notice.
11. Accordingly, we are of the view that there was no breach of any
condition of insurance policy, in the present case, entitling the Insurance
Company to recovery rights.”
34. The decision in Nagashetty v. United India Insurance Co. Ltd. & Ors.
(2001) 8 SCC 56 has also been referred in which it has been laid down that
the tractor will be used for carrying goods. The goods will be carried in a
trailer attached to it. Thus it was held that the holder having an
effective driving licence can drive a tractor, if used for carrying goods.
He would not become disqualified to drive a tractor if a trailer is
attached to it. The contention that it was a transport vehicle, as trailer
was attached to it, consequently, driver was not holding a valid licence,
was rejected. This Court considered the submission and held as under :
“9. Relying on these definitions, Mr S.C. Sharda submitted that admittedly
the trailer was filled with stones. He submitted that once a trailer was
attached to the tractor the tractor became a transport vehicle as it was
used for carriage of goods. He submitted that Section 10(2) of the Motor
Vehicles Act provides for grant of licences to drive specific types of
vehicles. He submitted that the driver only had a licence to drive a
tractor. He submitted that the driver did not have a licence to drive a
transport vehicle. He submitted that therefore it could not be said that
the driver had an effective and valid driving licence to drive a goods
carriage or a transport vehicle. He submitted that thus the driver did not
have a valid driving licence to drive the type of vehicle he was driving.
He submitted that as the driver did not have a valid driving licence to
drive a transport vehicle, the Insurance Company could not be made liable.
He submitted that the High Court was right in so holding.
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 under Section 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 tractor or 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.
11. In this case we find that the Insurance Company, when issuing the
insurance policy, had also so understood. The insurance policy has been
issued for a tractor. In this insurance policy, an additional premium of
Rs.12 has been taken for a trailer. Therefore the insurance policy covers
not just the tractor but also a trailer attached to the tractor. The
insurance policy provides as follows for the “persons or classes of persons
entitled to drive”:
“Persons or classes of persons entitled to drive.—Any person including
insured provided that the person driving holds an effective driving licence
at the time of the accident and is not disqualified from holding or
obtaining such a licence:
Provided also that the person holding an effective learner’s licence may
also drive the vehicle when not used for the transport of goods at the time
of the accident and that such a person satisfies the requirements of Rule 3
of the Central Motor Vehicles Rules, 1989, limitations as to use.”
12. The policy is for a tractor. The “effective driving licence” is thus
for a tractor. The restriction on a learner driving the tractor when used
for transporting goods shows that the policy itself contemplates that the
tractor could be used for carriage of goods. The tractor by itself could
not carry goods. The goods would be carried in a trailer attached to it.
That is why the extra premium for a trailer. The restriction placed on a
person holding a learner’s licence i.e. not to drive when goods are being
carried is not there for a permanent licence-holder. Thus a permanent
licence-holder having an effective/valid licence to drive a tractor can
drive even when the tractor is used for carrying goods. When the policy
itself so permits, the High Court was wrong in coming to the conclusion
that a person having a valid driving licence to drive a tractor would
become disqualified to drive the tractor if a trailer was attached to it.”
35. “Transport vehicle” as defined in section 2(47) means a public
service vehicle, a goods carriage, an educational institution bus or a
private service vehicle. Public service vehicle has been defined in section
2(35) to mean any motor vehicle used or adapted to be used for the carriage
of passengers for hire or reward, and includes a maxicab, a motorcab,
contract carriage, and stage carriage. “Goods carriage” which is also a
transport vehicle, is defined in section 2(14) to mean any motor vehicle
constructed or adapted for use solely for the carriage of goods, or any
motor vehicle not so constructed or adapted when used for the carriage of
goods. It was submitted that a person holding licence to drive Light Motor
Vehicle who is driving a vehicle registered for private use, is driving a
similar vehicle, which is registered or insured, for the purpose of
carrying passengers for hire or reward, would require endorsement as to
drive a “transport vehicle” is not contemplated by the provisions of the
Act. There are several vehicles which can be used for private use as well
as for carrying passengers for hire or reward. It was also submitted that
a driver who is competent to drive a vehicle for private use, would be
entitled to drive the same vehicle if it is used for hire or reward or for
even carrying the goods in the said vehicle. It was also submitted that
it was intended by the Amendment Act 54/1994 to simplify the procedure not
to make it complicated and invalidate the licence of light motor vehicle
and its holder could drive transport vehicle of the weight specified in
section 2(21) of the Act.
36. It was further submitted that there is difference in ‘class of
vehicles’ and ‘type of vehicles’ and it is not necessary to obtain
endorsement to drive transport vehicle of Light Motor Vehicle category when
a person is competent to drive the same class of vehicle i.e. a light motor
vehicle, as per the Amendment Act 54 of 1994 and Forms 4 and 6 as amended
in 2001.
37. It was also submitted that when this Court has held in Annappa Irappa
Nesaria (supra) that prior to insertion of the Forms in 2001 the holder of
licence of “light motor vehicle” was competent to drive a transport vehicle
also. It was further submitted that no change has been brought by insertion
of the Forms in the provisions contained in section 10(2)(d).
38. It was also submitted that Section 3 of the MV Act, 1988 from the
very beginning provided about the transport vehicle. However, classes of
vehicle classified in section 10(2) were light motor vehicle, medium goods
and passenger motor vehicle, and heavy goods and passenger vehicle. The
change brought about in 1994 was substitution of transport vehicle in place
of medium and heavy goods and passenger vehicles and in view of the
decisions of this Court in Ashok Gangadhar (supra), Annappa Irappa Nesaria
(supra) and Kulwant Singh (supra), a person holding LMV licence was
competent to drive a transport vehicle. The provisions of “light motor
vehicle” in section 10(2)(d) remains intact. It has not been amended. It
was also submitted that the Forms which have been amended would not govern
the interpretation of the provisions of Act; whereas the intendment of the
Rule 8 inserted in 2007 was that type of vehicle could be added. What is
the effect and purpose of insertion of Rule 8 in 2007, has not been taken
into consideration. The Form has to be interpreted in tune with provisions
of the Act and Rules. The object of the Act and Amendment Act 54/1994 has
also not been taken into consideration in any of the decisions, and the
effect of different syllabus having been prescribed for “light motor
vehicle”, heavy and medium vehicles was also not placed for consideration.
39. In Ashok Gangadhar Maratha in para 10 (supra), S.Iyyapan v. United
India Insurance Co. (supra), Kulwant Singh & Ors. v. Oriental Insurance Co.
Ltd. (supra), and Nagashetty v. United India Insurance Co. Ltd. & Ors.
(supra), the view taken is that when driver is holding licence to drive
light motor vehicle, he is competent to drive transport vehicle of that
category; whereas in New India Assurance Co. Ltd. v. Prabhu Lal (supra) the
view taken is that before 2001 also it was necessary for a driver
possessing licence to drive Light Motor Vehicle to obtain endorsement to
drive transport vehicle of that category; whereas in National Insurance Co.
Ltd. v. Annappa Irappa Nesaria (supra), this Court laid down that before
28.3.2001 there was no necessity for holder of licence to drive light motor
vehicle to have endorsement to drive transport vehicle; whereas in New
India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir & Anr. (supra) and
Oriental Insurance Co. Ltd. v. Angad Kol & Ors. (supra), the view taken is
that it is necessary for holder of light motor vehicle licence to obtain
specific endorsement on licence, to drive transport vehicle of the light
motor vehicle weight as provided in section 2(41).
Thus, there appears to be a conflict in the decisions of this Court with
respect to the pre-amended position and also after amendment has been
effected in the Forms in 2001. In view of aforesaid discussion, following
questions are required to be referred to larger Bench :
What is the meaning to be given to the definition of “light motor vehicle”
as defined in section 2(21) of the MV Act ?
Whether transport vehicles are excluded from it ?
Whether ‘transport vehicle’ and ‘omnibus’ the “gross vehicle weight” of
either of which does not exceed 7500 kgs. would be a “light motor vehicle”
and also motor-car or tractor or a road roller, “unladen weight” of which
does not exceed 7500 kgs. and holder of licence to drive class of “light
motor vehicle” as provided in section 10(2)(d) would be competent to drive
a transport vehicle or omnibus, the “gross vehicle weight” of which does
not exceed 7500 kgs. or a motor-car or tractor or road roller, the “unladen
weight” of which does not exceed 7500 kgs. ?
What is the effect of the amendment made by virtue of Act No.54 of 1994
w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2)
which contained “medium goods vehicle”, “medium passenger motor vehicle”,
“heavy goods vehicle” and “heavy passenger motor vehicle” by “transport
vehicle”? Whether insertion of expression ‘transport vehicle’ under section
10(2)(e) is related to said substituted classes only or it also excluded
transport vehicle of light motor vehicle class from purview of Sections
10(2)(d) and 2(41) of the Act?
What is the effect of amendment of the Form 4 as to operation of the
provisions contained in section 10 as amended in the year 1994 and whether
procedure to obtain driving licence for transport vehicle of class of
“Light Motor Vehicle” has been changed ?
40. Let the matters be placed before Hon’ble the Chief Justice of India
to constitute a larger Bench in order to resolve conflict in the views
expressed by different Benches of this Court.
…………………………J.
(Kurian Joseph)
New Delhi; ………………………..J.
February 11, 2016. (Arun Mishra)
-----------------------
Date
Section and Rule
Fine or other punishment
Signature of the endorsing authority
1
2
3
4
Date
Proceedings number and date
Disqualification period
From to
Signature of the licensing authority
1
2
3
4”