Full Text
HIGH COURT OF DELHI
Date of Decision: 14.09.2023
34839/2021 MANGLA GOODS CARRIER ..... Appellant
Through: Mr. Kanwal Chaudhary, Adv.
Through: Mr. S.L. Gupta, Mr. Ashutosh Sharma, Ms. Gunjan Sharma &
Mr. Ankit Bhatnagar, Advs.
JUDGMENT
1. This appeal has been filed by the appellant challenging the Award dated 02.03.2020 passed by the learned Motor Accidents Claims Tribunal-02, West District, Tis Hazari Courts, Delhi in Petition no. 78132/2016, titled Hemlata @Baby & Ors. v. Monu Kumar & Ors..
2. The limited challenge of the appellant against the Impugned Award is on the right granted to the respondent no.1 to recover the compensation paid to respondent nos.[2] to 4 herein from the appellant. The appellant is the owner of the truck by which the accident had taken place resulting in the death of Shri Rahul.
3. The learned Tribunal, by the Impugned Award has granted a right to recover the compensation paid by the respondent no.1 to respondent nos.[2] to 4 from the appellant and respondent no.5, holding that the driver of the offending vehicle, that is, respondent no.5 herein, was not having a valid licence to drive a Heavy Motor Vehicle (HMV) in view of Section 7 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’). The learned Tribunal held that in terms of Section 7 of the Act, the respondent no.5 could not have been granted a licence to drive a transport vehicle without issuance of a learner’s licence first; the learner’s licence itself could not have been granted unless the respondent no.5 had held a driving licence to drive a Light Motor Vehicle (LMV) for at least one year. The learned Tribunal held that in the present case, the respondent no.5 was granted a driving licence for the LMV on 16.07.2010; the licence was, however, endorsed for Medium Motor Vehicle (MMV) and HMV on 01.11.2010, that is, prior to the expiry of one year period. The learned Tribunal held that, therefore, the driving licence issued in favour of the respondent no.5 to drive the offending vehicle was invalid.
4. The learned Tribunal further held that though the respondent no. 5 had got examined Mr.Ankit Tyagi, Instructor, Om Sai Motor Driving Training School, B-21, Sector-10, Noida-201301 as R1-W[2], to prove that the respondent no.5 was duly certified to drive a vehicle containing dangerous/ hazardous goods, his testimony was not creditworthy.
5. The learned Tribunal further held that as the driving licence had not been duly endorsed to authorize respondent no.5 to drive a vehicle which was carrying dangerous or hazardous goods, even otherwise, it would have been a case of the offending vehicle being driven by a person not holding a valid driving licence, thereby entitling the respondent no.1 herein to recover the compensation paid from the appellant.
6. The learned counsel for the appellant submits that through the testimony of R3-W2/Mr.Manhei, LDA-cum- Computer Assistant, District Transport Office, Tuensang, Nagaland, it had been proved that the respondent no.5 held a driving licence for driving HMV issued on 01.11.2010. He submits that as the owner of the offending vehicle, once the appellant had been presented with a driving licence, which on the face of it was valid, the respondent no.1 could not have been granted a right to recover the compensation paid from the appellant only because it is later discovered that the licence has not been validly issued by the RTO.
7. I find merit in the submission made by the learned counsel for the appellant. In United India Insurance Co. Ltd. v. Lehru and Others, (2003) 3 SCC 338, the Supreme Court has observed as under:-
8. In the present case as well, though it cannot be disputed that the respondent no.5 could not have been issued the driving licence as on 01.11.2010, one year period of holding an LMV licence not having expired, at the same time, once the respondent no.5 has produced a driving licence which, on the face of it, appears to be validly issued, the appellant was not supposed to make further inquires on the authenticity of the said driving licence from the RTO. In fact, even the learned Tribunal has observed the same, as under:-
9. However, the above observation is not sufficient to deny the respondent no.1 a right to recover the compensation paid, from the appellant. It had been proved on record that at the time of the accident, the offending vehicle was being used to transport LPG cylinders, which comes in the category of ‘hazardous goods’. Though the learned Tribunal has doubted that the respondent no.5 had even completed the training course for driving a vehicle carrying hazardous goods, admittedly, the driving licence of the respondent no.5 did not contain an endorsement authorizing him to drive a transport vehicle carrying hazardous goods.
10. Rule 9 of the Central Motor Vehicles Rules, 1989 (hereinafter referred to as the ‘Rules’), reads as under:-
11. A reading of the above Rule would show that the driver of a goods carriage carrying dangerous or hazardous goods should not only be able to read and write at least one Indian language out of those specified in Schedule VIII of the Constitution, and English, but should also possess a certificate of having successfully passed a course consisting of the syllabus and periodicity connected with the transport of such goods and as specified in Sub-Rule 1 of Rule 9 of the Rules.
12. Sub-Rule 2 of Rule 9 of the Rules further requires that on completion of the course, the holder of the driving licence shall make an application along with his driving licence and the relevant certificate to the licencing authority to make entry in his driving licence, on which application, the licencing authority shall make an endorsement in the driving licence to the effect that the driver is authorized to drive a goods carriage carrying goods of dangerous or hazardous nature to human life.
13. Rule 132 of the Rules casts an additional responsibility on the transporter and owner of goods carriage carrying dangerous or hazardous goods. Sub Rule 5 of Rule 132 casts an additional duty on the owner to ensure that the driver of the goods carriage carrying dangerous or hazardous goods holds a driving licence as per provisions of Rule 9 of the Rules. The same reads as under:-
14. In the present case, admittedly, the requisite endorsement was not made on the driving licence of the respondent no.5. The appellant, therefore, cannot claim that he had done his due diligence before handing over the vehicle carrying hazardous goods to the respondent no.5 for driving.
15. In similar circumstances, this Court in United India INS Co. Ltd. v. Saminuddin and Ors., 2019 SCC OnLine Del 10534, has held as under:- “5. What emanates from the above is that the owner was able to establish that the driver possessed the requisite driving skills as certified by the aforementioned Governmentlicenced Motor Driving Training School. However, it is nobody's case that mere possession of the certificate will necessarily result in the Transport Authority certifying and/or licencing the person as having the requisite skills to drive a hazardous-goods carrying vehicle. As the name itself suggests, a motor driving training school is a school/institute which trains candidates to drive motor vehicles. It purports to impart a trainee the requisite skills as well as teach them the basic road signs and rules related to driving of motor vehicles on roads.
6. Nevertheless, at the end of any such training, whenever a candidate appears before the Transport Authority, his motor driving skills and knowledge of the applicable rules are tested by the Authority. It is only when the candidate passes the tests that he is issued a driving licence. Mere possession of a certificate from a training school cannot substitute the statutory requirement of a Driving Licence to be issued by the relevant authority. For driving of hazardous-goods carrying vehicles, a further endorsement is required on the Driving Licence.
7. In the present case, for indemnification against insurance claims under the said policy, the insurer had proceeded in good faith, that the driver of the hazardous-goods carrying motor vehicle would have been duly licenced by the relevant Licencing Authority, to drive the said vehicle. But on the driving licence, there was no such endorsement. In other words, the driver had neither been tested nor approved by the Licencing Authority to drive the hazardous-goods carrying vehicle. There is a breach of policy condition, therefore, the owner of the vehicle would be liable to indemnify the loss
9. In view of the above, the insurer will have the right to recover the awarded amount from the owner of the vehicle but first it shall pay the amounts to the claimants. It is so ordered.”
16. The High Court of Allahabad in Ramesh Chandra Tiwari v. Madan Singh and 4 Others NC NO. 2021:AHC:36813, also examined the scheme of the Rules, and has held as under:-
17. In view of the above dictum, even if it is accepted that the respondent no.5 had undertaken the certificate course for driving a vehicle carrying hazardous goods, in absence of an endorsement in the driving licence authorizing him to do so, it will remain a case of the respondent no.5 not having a valid and proper driving licence to drive a vehicle carrying hazardous goods.
18. In that view of the matter, the respondent no.1 has righty been granted the right to recover the compensation paid to the claimants from the appellant.
19. I, therefore, find no infirmity in the Impugned Award.
20. The appeal alongwith the pending applications is accordingly dismissed.
21. The statutory amount deposited by the appellant be released in favour of the respondent no.1 along with interest accrued thereon, to be adjusted against its claim against the appellant herein.
22. There shall be no order as to costs.
NAVIN CHAWLA, J SEPTEMBER 14, 2023/rv/am