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                                                      REPORTABLE

                IN THE SUPREME COURT OF INDIA

                CIVIL APPELLATE JURISDCITION

                 CIVIL APPEAL NO. 3496         OF 2008                  (Arising out of SLP (C) No.3142 of 2007)

New Indian Assurance Co. Ltd.                     ... Appellant

                                Versus

Roshanben Rahemansha Fakir & Anr.                 ... Respondents

                           JUDGMENT

S.B. Sinha, J.

1.    Leave granted.

2.    This appeal is directed against a judgment and order dated

13.11.2006 passed by a Division Bench of the High Court of Gujarat at

Ahmedabad in First Appeal No.3441 of 2006 whereby and whereunder

an appeal preferred by the appellant herein from a judgment and order

dated 5.5.2006 passed by the Motor Accident Claims Tribunal (Main),

Rajkot in MPCP No.1211 of 2005 has been dismissed.

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3.    One Majothee Salim Amadbhai was holder of a licence of a three

wheeler. The licence was not meant to be used to drive transport vehicle.

The vehicle was owned by one Rashmikant Natvarlal Joshi, Respondent

No.2. The Tribunal correctly noticed the description of the class of

vehicle, i.e., an Autorikshaw Delivery Van. It was not being used for a

private purpose.    It was a commercial vehicle.        Respondent No.2,

admittedly, entered into a contract of insurance in respect of the said

vehicle. Certificate of insurance shows that the vehicle was a goods

carrying public carrier within the meaning of Rule 51 of the Central

Motor Vehicles Rules, 1989.

4.    One of the contentions raised by the appellant was that the driver

of the said vehicle being not holder of a legal, valid and effective driving

licence, it was not liable to reimburse the claim of the claimants.

Learned Tribunal negatived the said plea.

5.    On an appeal preferred by the appellant before the High Court

under Section 173 of the Motor Vehicles Act, 1988 the High Court held

as under :

            "Section 41 of the Act provides for registration              of motor vehicles and sub-section (4) thereof              provides as under :

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     ‘(4) In addition to the other particulars       required to be included in the certificate       of registration, it shall also specify the       type of the motor vehicle, being a type as       the Central Government may, having       regard to the design, construction and use       of the motor vehicle, by notification in       the official Gazette, specify.’ In exercise of the aforesaid powers, the Central Government issued notification vide S.O.451 (E), dated 19th June, 1992 published in the Gazette of India, Extra Pt.II, Section 3(ii) dated 19th June, 1992 specifying the types of motor vehicles.     Relevant portion of the said notification reads as under :       ‘In exercise of the power conferred by       sub-Section (4) of Section 41 of the       Motor Vehicles Act, 1988 (59 of 1988)       and in supersession of the Notification       No.S.O.436(E), dated the 12th June, 1989       except or respects things done or omitted       to be done before such supersession, the       Central Government hereby specifies the       types of Motor Vehicles mentioned in       column 2 of the Table below as the type       and respect of Motor vehicles specified       in the corresponding entry in column 1       thereof for the purposes of sub-section(4)       :                     TABLE

Transport Vehicle          Non-Transport Vehicle (1)                        (2) (i)...                     (i)... (ii) to (ix)...            (ii) to (iv)... (x)        Three-wheeled   (v)        Three-wheeled vehicles transport of      vehicles for personal passenger/goods            use.

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            We find that the same classification is              maintained in the subsequent notification dated              5th November 2004 published in the Gazette of              India, Extra-ordinary, Part-II, Section 3(ii)              dated 5th November, 2004 in exercise of the              same powers under sub-section (4) of Section              41 of the Act. The relevant entries therein read              as under :

             Transport Vehicle         Non-Transport Vehicle               (1)                       (2)               (i) to (iv)               (i) to (iii)...               (v)       Three-wheeled   (iv)       Three-wheeled               vehicles for transport    vehicles for personal               of passenger/goods        use.              8. A bare perusal of the above statutory orders              would clearly show that an auto rickshaw being              a three wheeled vehicle will fall in the same              category whether it is for transporting goods or              for transporting passengers. There is nothing              on record to show that the licence in question              was for a three wheeled vehicle for personal              use and that it was not for an auto rickshaw for              carrying passengers or for carrying goods."

6.    An appeal preferred by the appellant was dismissed summarily.

Before the High Court, a decision of this Court in National Insurance

Company v. Kusum Rai [(2006) 4 SCC 250] was cited. The High Court

opined that the said decision has no application in the instant case.

7.    Dr. Meera Agarwal, learned counsel appearing on behalf of the

appellant, would submit that in view of the fact that the registration

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certificate as also the policy of insurance having clearly mentioned that

the vehicle in question was a transport vehicle and as the driver thereof

was not possessing a licence which was not valid for a transport vehicle,

the impugned judgment cannot be sustained.

8.    Ms. Sarda Devi, learned counsel appearing on behalf of the

respondent, on the other hand would submit that the driver of the vehicle

was having an effective driving licence for auto rickshaw and it did not

matter as to whether it was adapted for carrying passengers or goods.

9.    Section 3 of the Motor Vehicles Act reads as under :

           "Section 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 than1[a motor cab or             motor cycle] hired for his own use or rented             under any scheme made under subsection (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."

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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 liecence 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 13.05.2004 to

12.05.2024. 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.

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11.   The same is also borne out from the licence in question. The

attention of the High Court, however, was not drawn to these aspects of

the matter.

     The learned Tribunal also, in its judgment dated 5.5.2006 noticed

the facts in the following terms :

             "When they were proceeding on road on foot               and reached near Fire brigade, a rickshaw               bearing No.GRP 5432 with closed body came               in fast speed, rashly and negligently from               behind and dashed with the complainant Ikbala               and deceased Mahamadsha as a result of which               both of them fell down, sustained injuries,               deceased sustained serious injuries on his head               and other parts of the body, and during the               course of treatment he succumbed to the               injuries."

12.   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.

13.   In National Insurance Co. Ltd. v. Swaran Singh and Ors. [(2004) 3

SCC 297], this Court opined :

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"89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are "goods carriage", "heavy goods vehicle", "heavy passenger motor vehicle", "invalid carriage", "light motor vehicle", "maxi-cab", "medium goods vehicle", "medium passenger motor vehicle", "motor-cab", "motorcycle", "omnibus", "private service vehicle", "semi-trailer", "tourist vehicle", "tractor", "trailer" and "transport vehicle". In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for "motorcycle without gear", [sic may be driving a vehicle] for which he has no licence. Cases may also arise where a holder of driving licence for "light motor vehicle" is found to be driving a "maxi-cab", "motor-cab" or "omnibus" for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of

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            accident. If on facts, it is found that the              accident was caused solely because of some              other unforeseen or intervening causes like              mechanical failures and similar other causes              having no nexus with the driver not possessing              requisite type of licence, the insurer will not be              allowed to avoid its liability merely for              technical breach of conditions concerning              driving licence.

     The said decision has been considered by this Court in Kusum Rai

(supra).

14.   In National Insurance Company Ltd. v. Annappa Irappa Nesaria

and Ors. [(2008) 1 SCALE 642], it was noticed that the provisions of the

Act have undergone a change. The definition of ‘light motor vehicle’

would not include a light transport vehicle. In that case, keeping in view

the date on which the accident took place, it was held :

            "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."

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15.   For the reasons aforementioned, the impugned judgment cannot be

sustained. The same is set aside accordingly. However, in exercise of

our jurisdiction under Article 142 of the Constitution of India, we direct

that the appellant may satisfy the award in favour of the claimants to

recover the same from the owner.       The appeal is allowed with the

aforementioned directions. No costs.

                                               .............................J.                                                 [S.B. Sinha]

                                             ..............................J.                                                   [Lokeshwar Singh Panta]

New Delhi; May 12, 2008