ORAL JUDGMENT

1. By way of this Appeal, the Appellant-claimant has challenged the judgment and award dated 18.09.2018 passed by the learned Motor Accident Claims Tribunal, Ahmedabad in M.A.C.P. No.28 of 2009. The Claim Petition was partly allowed and vide the judgment and award, the claimant was entitled to recover the compensation of Rs.1,97,600/- from the respondent No.2 – the owner of the vehicle, while the Insurance Company came to be exonerated from the liability to pay the compensation to the claimant. The owner of the vehicle has filed a Cross Objection No.66 of 2019 challenging the order of the learned Tribunal to pay compensation to the claimant.

2. The facts giving rise to the present Appeal can be put succinctly as under :-

On 07.10.2008 in the afternoon at 3.30 p.m., the appellant was walking at Meenabajar, at that time, the respondent No.1 came driving his Rickshaw bearing Registration No.GJ-1-AZ-1473 in a rash and negligent manner, on the wrong side and in full speed and dashed the appellant causing serious injuries to the appellant. The appellant suffered fracture on the left hand, fracture on the jaw and injuries were also caused on the chest and head. The appellant was taken to Civil Hospital, Ahmedabad for primary treatment and thereafter, for further treatment, he was hospitalized at Shilp Orthopedic Hospital, Isanpur, Ahmedabad, where the appellant was operated. A complaint in this regard was registered at Meghaninagar Police Station as I-

C.R. No.248 of 2008.

3. Learned Advocate for the appellant – claimant Mr.

Tirth Nayak has submitted that the respondent No.1 driver who has been deleted from the cause title by an order below Exhibit 26 was found negligent in driving the Rickshaw bearing Registration No.GJ-01- AZ-1473 owned by the respondent No.2. It is further submitted that the vehicle was insured with the Insurance Company – respondent No.3. The learned Tribunal on submission of the Insurance Company who had placed reliance on the decision of the Hon’ble Apex Court in the case of National Insurance Company Limited v. Swaran Singh reported in 2004 ACJ 1 (SC) and had found the driver of the vehicle not holding valid license of driving a transport vehicle on the date of the accident and thus, considering the same had found it to be breach of the terms and conditions of the Insurance Policy. It is further submitted that the learned Tribunal was required to consider the vehicle as a passenger rickshaw and not as a transport vehicle. Further, the person was holding a license to drive a rickshaw and hence, it cannot be said that the driver was not holding any valid or effective license in view of the judgment of the Hon’ble Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Limited reported in (2017) 14 SCC 663. It is also submitted that the license to drive a light motor vehicle would include a license to drive a transport vehicle considering the unladen weight of both the vehicles and therefore, submitted that the license would not require any endorsement for the driving the transport vehicle falling under the Light Motor Vehicle (LMV) Class.

4. Per contra, learned Advocate for the respondent –

Insurance Company Mr. Vibhuti Nanavati submitted that the learned Tribunal has rightly considered the decision of the Hon’ble Apex Court in the case of Swaran Singh (supra). Learned Advocate Mr. Vibhuti Nanavati has supported the judgment and award of the learned Tribunal to consider the driver of the rickshaw not holding valid license, and stated that the judgment and award is proper in context of Swaran Singh (supra).

5. Having heard the submissions canvassed and on perusing the records of the case, it transpires that the primary contention of the learned Advocates representing the parties is with regard to the validity of the license to drive the rickshaw. During the course of the trial, Exhibit 60 was produced on record which was the certified copy of the RTO Certificate for the information regardi