- (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. 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. 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.
(3.) 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 : ' (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): JUDGEMENT_793_TLPRE0_2008Html1.htm 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 : JUDGEMENT_793_TLPRE0_2008Html2.htm 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. " 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.;