New India Assurance Co.Ltd. Vs. Ku.Minu Dwivedi, and ors. - Court Judgment

Excerpt:
[mohit s. shah; s.j. vazifdar, jj.] - the respondents contended that they are the proprietors inter-alia of the trade mark 555 written in a stylized manner. the respondents claim to be the assignees of this mark. the mark was assigned from time to time. ultimately by a deed of assignment dated 14.9.2004, the registered trade mark label 555 was assigned to the respondents. the application for renewal of the mark is pending. the respondents have used the trade mark label 555 in conjunction with other marks such as meredian, merelane delux and merelane premium. see also, fuentes trade marks (1891, 2 ch.,166)." the above observations establish that it is a defence even to an action for passing off or infringement of a trade mark that the plaintiffs (in this case the respondents) marks are an imitation of the mark of another to wit that the respondents had themselves infringed the mark of another. it is thus clear that the principle was applied to an action for infringement of trade mark and passing off. if the purchasers were in such a case to stamp their goods with the trade mark, "a.b. the basis of the ratio is to deny an infringer a right based on the mark or work which infringes the mark or work of another. the respondents in their affidavit in rejoinder denied the allegations that they had infringed the mark of state express 555. there are no averments, much less is there any evidence, to indicate that the respondents' marks/cartons/labels are an imitation of the mark state express 555. it is significant to note that there is no evidence whatsoever to the effect that the third party has used the mark 555 or created the labels/cartons or marks prior to the creation of and use by the respondents of these marks/labels and cartons which may have persuaded the court to come to the conclusion that the respondents had infringed the mark. if it is established that the mark is a well known mark, the mark being used in respect of different goods may make no difference. firstly, whether the principle would apply even if the mark is not established to be a well known mark. secondly, whether the principle would apply if such a mark i.e. not a well known mark, infringed by the respondents is applied to different goods. the goods need not be identical even if a well known mark is not involved. 1. shri ajit agrawal, learned counsel for the appellant. none for the respondents.2. this is an appeal under section 173 of the motor vehicles act, 1988 challenging the award dated 1.4.2003 passed by the first additional motor accidents claims tribunal satna in claim case no.88/2002 wherein a sum of rs.60,000/- has been awarded towards the compensation.3. the facts leading to this appeal are that an accident took place when ku. minu dwivedi, aged about 12 years was travelling in safari moped no. mp/19/e/6059 as pillion rider alongwith her uncle from satna and was going to village padri on 27.11.2000. the said moped was on the way and while passing through satna-kothi road near village barra, one suzuki motorcycle bearing no. mp/19/ c/2716 owned by respondent no.3 and driven by respondent no.2, laxmikant tripathi rashly and negligently dashed against the moped. as a result of the said accident, minu fell down and sustained non-fatal injury on her leg and thereafter she as taken to district hospital satna and got treatment on 27.11.2000 and 28.11.2000. she was shifted to pushpanjali nursing home satna where she was treated from 28.11.2000 to 8.12.2000 before she was shifted to triveni hospital, jabalpur of dr. jamdar and operation was performed on her leg. in this background, the claim was submitted for compensation of rs.3,00,000/-.4. it was the defence of the insurance company that driver, laxmikant was having a licence to drive light motor vehicle, therefore, motorcycle no. mp/19/c/2716 not being a light motor vehicle he was not entitled to ride the same and thus there was a breach of policy and the insurance company was not responsible to pay compensation.5. there is no dispute that laxmikant, driver of motorcycle was having licence to drive light motor vehicle. the word "light motor vehicle" is defined under section 2 (21) of the motor vehicles act, 1988 which 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 7500 kilograms. keeping in view the definition of "light motor vehicle", light motor vehicle can be a non- transport vehicle as well but in the present case, neither the motorcycle nor the suzuki motorcycle are light motor vehicle as observed hereinabove. under the circumstances, the motorcycle which was driven by the person holding the licence to drive light motor vehicle, was not entitled to drive the same, therefore, the liability of insurance company cannot be fixed. learned counsel for the appellant relied upon the judgment passed by the apex court in oriental insurance co. ltd. v. zaharulnisha and others, 2008 acj 1928 wherein the similar question was involved whether the driver had valid and effective licence and insurance company is liable. the apex court held that driver was driving a different class of vehicle in violation of the insurance policy and therefore the insurance company was directed to satisfy the award and shall have right to recover the amount from owner. in the present case, the insurance company has examined shri ratnesh tripathi from satna office. he has proved verification report ex.d-1 issued by the office of the licencing authority, satna wherein it is specifically stated that the nature of the licence was for light motor vehicle (lmv). the insurance policy has also been placed on record as ex.d-3 wherein the persons or classes of persons entitled to drive are described. according to the same, any person including insured provided that a person driving holds an effective driving licence at the time of 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 and such a person satisfies the requirements of rule 3 of the central motor vehicles rules, 1989. in the present case, driver laxmikant has not appeared in the witness box to depose that the verification report, ex.d-1, is incorrect and he was having valid and effective licence of light motor vehicle but there was endorsement in the licence to drive light motor vehicle.6. in view of the aforesaid, i am inclined to hold that the tribunal was not justified in fixing the liability of the insurance company. however, the award passed by the tribunal against the other respondents is upheld. as the compensation has already been paid by the insurance company it is directed that the insurance company i.e. the present appellant shall be entitled to recover the same from the owner. the appeal is accordingly allowed.

Judgment:
1. Shri Ajit Agrawal, learned counsel for the appellant. None for the respondents.

2. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 challenging the award dated 1.4.2003 passed by the First Additional Motor Accidents Claims Tribunal Satna in Claim Case No.88/2002 wherein a sum of Rs.60,000/- has been awarded towards the compensation.

3. The facts leading to this appeal are that an accident took place when Ku. Minu Dwivedi, aged about 12 years was travelling in Safari Moped No. MP/19/E/6059 as pillion rider alongwith her uncle from Satna and was going to village Padri on 27.11.2000. The said moped was on the way and while passing through Satna-Kothi road near village Barra, one Suzuki Motorcycle bearing No. MP/19/ C/2716 owned by respondent No.3 and driven by respondent No.2, Laxmikant Tripathi rashly and negligently dashed against the moped. As a result of the said accident, Minu fell down and sustained non-fatal injury on her leg and thereafter she as taken to District Hospital Satna and got treatment on 27.11.2000 and 28.11.2000. She was shifted to Pushpanjali Nursing Home Satna where she was treated from 28.11.2000 to 8.12.2000 before she was shifted to Triveni Hospital, Jabalpur of Dr. Jamdar and operation was performed on her leg. In this background, the claim was submitted for compensation of Rs.3,00,000/-.

4. It was the defence of the insurance company that driver, Laxmikant was having a licence to drive light motor vehicle, therefore, motorcycle No. MP/19/C/2716 not being a light motor vehicle he was not entitled to ride the same and thus there was a breach of policy and the insurance company was not responsible to pay compensation.

5. There is no dispute that Laxmikant, driver of motorcycle was having licence to drive light motor vehicle. The word "light motor vehicle" is defined under Section 2 (21) of the Motor Vehicles Act, 1988 which 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 7500 kilograms. Keeping in view the definition of "light motor vehicle", light motor vehicle can be a non- transport vehicle as well but in the present case, neither the motorcycle nor the Suzuki motorcycle are light motor vehicle as observed hereinabove. Under the circumstances, the motorcycle which was driven by the person holding the licence to drive light motor vehicle, was not entitled to drive the same, therefore, the liability of insurance company cannot be fixed. Learned counsel for the appellant relied upon the judgment passed by the Apex Court in Oriental Insurance Co. Ltd. v. Zaharulnisha and others, 2008 ACJ 1928 wherein the similar question was involved whether the driver had valid and effective licence and insurance company is liable. The Apex Court held that driver was driving a different class of vehicle in violation of the insurance policy and therefore the insurance company was directed to satisfy the award and shall have right to recover the amount from owner. In the present case, the insurance company has examined Shri Ratnesh Tripathi from Satna office. He has proved verification report Ex.D-1 issued by the office of the Licencing Authority, Satna wherein it is specifically stated that the nature of the licence was for light motor vehicle (LMV). The insurance policy has also been placed on record as Ex.D-3 wherein the persons or classes of persons entitled to drive are described. According to the same, any person including insured provided that a person driving holds an effective driving licence at the time of 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 and such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989. In the present case, driver Laxmikant has not appeared in the witness box to depose that the verification report, Ex.D-1, is incorrect and he was having valid and effective licence of light motor vehicle but there was endorsement in the licence to drive light motor vehicle.

6. In view of the aforesaid, I am inclined to hold that the tribunal was not justified in fixing the liability of the insurance company. However, the award passed by the tribunal against the other respondents is upheld. As the compensation has already been paid by the insurance company it is directed that the insurance company i.e. the present appellant shall be entitled to recover the same from the owner. The appeal is accordingly allowed.