Karnataka High Court
Pawadeppa S/O Basanondappa Malagar vs Basavaraj @ Basavennappa S/O Gurappa ... on 5 June, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA,
GULBARGA BENCH
DATED THIS THE 5TH DAY OF JUNE, 2014
BEFORE
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
MISCELLANEOUS FIRST APPEAL NO.32211 /2011
C/W
MISCELLANEOUS FIRST APPEAL NO.32210 /2011
C/W
MISCELLANEOUS FIRST APPEAL NO.32212 /2011 (MV)
MFA 32211/2011
BETWEEN:
Pawadeppa S/o Basagondappa Malagar
Age: 36 year, Occupation: Vehicle Owner
R/o Basava Nagar,
Basavana Bagewadi,
Taluka: Basavana Bagewadi
District: Bijapur.
... APPELLANT
(Shri R.S. Lagali, Advocate)
AND:
1. Shanta W/o Basavaraj Dhaduti
Age: 32 years, Occupation: Weaver
R/o Kengirmaddi
KHDC Colony,
Mahalingapur
2
Taluka:Mudhol
District: Bagalkot
2. The Branch Manager
Reliance General Insurance Company Limited
Branch Office No.48,
Block Asian Plaza Complex
Station Main Road
Near S.V.Patel Chowk,
Gulbarga.
... RESPONDENTS
(Shri Sudhirsingh R. Vijapur, Advocate for Respondent-1
Shri Sudarshan M. Advocate for Respondent-2 )
This Miscellaneous First Appeal is filed under Section
173 (1) of Motor Vehicles Act, 1988 against the Judgement and
Award dated 18.07.2011 passed in MVC No. 103/2010 on the
file of the Senior Civil Judge and Member Motor Accident
Claims Tribunal-IX at Basavana Bagewadi, partly allowing the
claim petition and awarding the compensation of Rs. 48,825/-
with interest @ 8% p.a.
MFA 32212/2011
BETWEEN:
Pawadeppa S/o Basagondappa Malagar
Age: 36 year, Occupation: Vehicle Owner
R/o Basava Nagar,
Basavana Bagewadi,
Taluka: Basavana Bagewadi
District: Bijapur.
... APPELLANT
(Shri R.S. Lagali, Advocate)
3
AND:
1. Kamalabai W/o Basavaraj Kamanaker
Age: 43 years, Occupation: Teacher
R/o Basava Nagar,
Basavana Bagewadi,
Taluka: Basavana Bagewadi
District: Bijapur.
2. The Branch Manager
Reliance General Insurance Company Limited
Branch Office No.48,
Block Asian Plaza Complex
Station Main Road
Near S.V.Patel Chowk,
Gulbarga.
... RESPONDENTS
(Shri Sudhirsingh R. Vijapur, Advocate for Respondent-1
Shri Sudarshan M. Advocate for Respondent-2 )
This Miscellaneous First Appeal is filed under Section
173 (1) of Motor Vehicles Act, 1988 against the Judgement and
Award dated 18.07.2011 passed in MVC No. 1254/2010 on the
file of the Senior Civil Judge and Member Motor Accident
Claims Tribunal-IX at Basavana Bagewadi, partly allowing the
claim petition and awarding the compensation of Rs. 19,400/-
with interest @ 8% p.a.
MFA 32210/2011
BETWEEN:
Pawadeppa S/o Basagondappa Malagar
4
Age: 36 year, Occupation: Vehicle Owner
R/o Basava Nagar,
Basavana Bagewadi,
Taluka: Basavana Bagewadi
District: Bijapur.
... APPELLANT
(Shri R.S. Lagali, Advocate)
AND:
1. Basavaraj @ Basavennappa S/o Gurappa Hullar
Age: 56 years, Occupation: Teacher
R/o Laxmi Nagar,
Basavana Bagewadi,
Taluka: Basavana Bagewadi
District: Bijapur.
2. The Branch Manager
Reliance General Insurance Company Limited
Branch Office No.48,
Block Asian Plaza Complex
Station Main Road
Near S.V.Patel Chowk,
Gulbarga.
... RESPONDENTS
(Shri Sudhirsingh R. Vijapur, Advocate for Respondent-1
Shri Sudarshan M. Advocate for Respondent-2 )
This Miscellaneous First Appeal is filed under Section
173 (1) of Motor Vehicles Act, 1988 against the Judgement and
Award dated 18.07.2011 passed in MVC No. 102/2010 on the
file of the Senior Civil Judge and Member Motor Accident
Claims Tribunal-IX at Basavana Bagewadi, partly allowing the
5
claim petition and awarding the compensation of Rs. 1,90,000/-
with interest @ 8% p.a.
These appeals coming on for Admission this day, the
Court delivered the following:
JUDGMENT
Heard the learned Counsel for the appellant. The present appeals are heard and disposed of by this common judgment.
2. The appeals are preferred by the owner of an Auto rickshaw, which was involved in a motor accident. The insured claimants having preferred claim petitions, the same were resisted by the insurance company as regards its liability on the ground that the driver of the auto rickshaw did not possess a valid driving licence. This has been held in favour of the insurance company and the liability has been fastened on the owner. Hence, the appellant is in appeal.
6
3. The bone of contention is whether a licence issued in favour of the driver, whereby it was endorsed that he was enabled to drive the following, was a valid driving licence:
(1) Motor Cycle without gear (2) Light Motor Vehicle (NT) (3) Light Motor Vehicle (A/R) It was contended that the licence was a valid driving licence to enable the driver to drive an auto rickshaw.
However, since the Insurance Company had contended that an auto rickshaw is a transport vehicle and since the driver was licensed to drive a non-transport vehicle only, on account of a further endorsement indicating that the driver could also drive a Light Motor Vehicle (A/R)= (Auto rickshaw), could not be interpreted to imply that it enabled the driver to drive a commercial, passenger carrying, vehicle, for which the licensing conditions were different. The Tribunal having upheld the said contention, the present appeals. 7
4. The learned Counsel for the appellant would contend that the question is no longer res integra, in that, a learned Single Judge of this court in the case of Bajaj Allianz General Insurance Company Limited vs. Devappa, (2013) Kant.MAC 420 (Kant.), has held as follows:
"This ground must necessarily fail as there is no endorsement in the licence issued to the effect that the driver shall drive only a non-transport vehicle. We have to go by the definition in sub-section(21) of Section 2 of the Motor Vehicles Act which defines 'light motor vehicle' as under:
'Light motor vehicle' 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 7,500 kilograms.' This would show that basically a light motor vehicle is a transport vehicle and one the RTP grants licence to driver LMV without any endorsement, it is deemed to be licence to drive a a LMV and other types of vehicles like Auto rickshaw coming within that definition. In this view, the ground urged by the insurance company fails and consequently the appeals 8 filed by it, i.e., M.F.A. Nos. 32033/2009 and 32035/2009 are dismissed.
The learned Counsel would submit that in the present case on hand, the situation is more advantageous to the appellant, in that, there was an endorsement in the driving licence indicating that the driver can drive a Light Motor Vehicle (A/R) or (Auto Rickshaw). Hence, the Tribunal was not justified in upholding the contention of the insurance company.
5. While the learned Counsel for the respondent -
insurance company would draw attention to Section 10 of the Motor Vehicles Act, 1988 (Hereinafter referred to as the 'MV Act', for brevity) and would point out that prior to the amendment incorporating clause (e) to sub-section (2) of Section 10, a licence issued enabling a person to drive a Light Motor Vehicle was construed as enabling him to drive both a transport and a non-transport vehicle. However, with the 9 amendment incorporated by Act 54/1994 with effect from 14.11.1994, is not longer possible to assume that a licence issued to drive a Light Motor Vehicle could also include a transport vehicle, unless there was a specific endorsement enabling the licensee to drive a transport vehicle. Hence, unless there was a specific endorsement in the licence, it did not enable a driver to drive a transport vehicle. The auto rickshaw in this case was a transport vehicle and there was no endorsement to that effect. Further, with reference to Section 14 which pertains to currency of licence to drive a motor vehicle, it is pointed out that there are different periods of currency of licences, namely, a learner's licence would be valid for a period of six months and a licence to drive a transport vehicle would be effective for a period of three years and if, in case, a person obtaining a licence has not attained the age of 50 years, it would be for 20 years. In the present case on hand, the licensee was holding a licence, which was valid for 20 years, therefore, implying that it was not a licence issued enabling the 10 appellant to drive a transport vehicle. It is on these contentions that it is sought to be urged that the driver was justified in holding that the driver did not hold a valid driving licence.
The learned Counsel also places reliance on a division bench judgment of this court in the case of National Insurance Company Ltd. vs. Yalgurdappa, ILR 2010 Kar 4733, wherein there is an elaborate discussion of the scope of Section 10 and it has been held that a person licensed to drive a Light Motor Vehicle cannot be enabled to drive a transport vehicle. The learned Counsel also places reliance on a decision of a learned single judge of this court in MFA 21079/2009 dated 8.11.2013, wherein the decision of the Supreme Court in the case of S.Iyyapan vs. United India Insurance Company Limited, (2013)3 TAC 392(SC) has been held to have been rendered per incuriam on the footing that the said judgment of the apex court does not discuss the provisions of law, namely, Sections 3 to 9 of the MV Act and therefore, the learned Single Judge has opined that no sustenance can be drawn from the said judgment 11 in respect of the contention that once a driving licence to drive a light motor vehicle was issued, it would enable the licensee to also drive a auto rickshaw, when there was no distinction between transport and non-transport vehicles as long as the licensee held a licence to drive a light motor vehicle.
6. In the light of the above contentions, the basic line of defence adopted by the insurance company is that it has indemnified the owner of the vehicle against the accident claims, only if there was strict compliance with the conditions. The condition that is said to have been breached is in the owner having permitted the driver, not holding a valid driving licence, to have driven an auto rickshaw at the time of the accident. However, the law requires that the owner to have exercised reasonable caution in examining the validity or otherwise of a licence of a driver before entrusting a vehicle to such driver. In the instant case, it is not in dispute that the licence contains an 12 endorsement in respect of a Light Motor Vehicle (Auto rickshaw).
The contention of the learned Counsel for the respondent that an Auto rickshaw could be self driven and apparently, the endorsement related only to a owner driven Auto rickshaw and not to a commercial passenger carrying vehicle, which would be a transport vehicle and therefore, the endorsement did not enable the driver to drive an Auto rickshaw or the owner could not have permitted the driver to drive the auto rickshaw with such an endorsement. However, in the opinion of this court, the owner of a vehicle is expected to act as a reasonable person without any forensic knowledge of the niceties of the law. The endorsement by itself, on the face of it, would indicate that the driver was enabled to drive a light motor vehicle and specifically, an Auto rickshaw and this could have apparently convinced the owner of the vehicle that it was a valid driving licence and he could not be blamed or accused of having breached the conditions in entrusting the vehicle to such a 13 driver. As already noticed in a decision of this court in Devappa's case, supra that even if a licence was issued only in respect of a Light Motor Vehicle, it did not preclude the licensee from driving an Auto rickshaw. In the circumstances, the case of the present appellant can safely be decided while holding that the endorsement contained in the licence had clearly indicated that the driver was licensed to drive an Auto rickshaw. There is no indication that it referred only to a owner's self driven Auto rickshaw and not a Commercial passenger carrying vehicle. This is a distinction and a gloss sought to be placed on the circumstances by the learned Counsel for the appellant. Therefore, on the facts and circumstances, the appellant could not be accused of having committed a breach of the policy conditions in having entrusted the vehicle to a driver, who did not possess a valid driving licence. On the face of it, the licence appears to be a valid driving licence, which enabled the driver to drive an Auto rickshaw, as well.
14
Insofar as the decision in MFA 21079/2009 is concerned, the opinion that the decision in Iyyappa, supra, was rendered per incuriam was with reference to the facts of the case dealt with by the learned Single Judge and cannot be held to be a precedent that is to be followed by this bench. It is an authority for the case that is decided therein. Therefore, it would not advance the case of the counsel for the respondent. Insofar as the division bench judgment in National Insurance Company Limited vs. Yalgurdappa, supra is concerned, it was with reference to a licence, which enabled the driver to drive only a light motor vehicle and there was no indication or endorsement that he could drive an Auto rickshaw. On the other hand, as already pointed out, in the present case on hand, the licence did contain an endorsement that the driver was licensed to drive a Light Motor Vehicle (Auto rickshaw).
The further inconsistency that is to be found in the licence that the driver could drive a light motor vehicle/non- transport vehicle is a matter which is best understood by the 15 transport authorities since there is also an endorsement that he can drive an Auto rickshaw. In any event, the owner of the vehicle is not expected to know these niceties of law when he was only concerned with whether the driver had a licence to drive an Auto rickshaw. The endorsement that he can drive a light motor vehicle (Auto rickshaw) was sufficient to satisfy that question. Therefore, the Tribunal having taken a strict view and accepting the argument of the insurance company that an Auto rickshaw is a transport vehicle and unless there was a specific endorsement in the licence to drive a transport vehicle, the driver did not hold a valid driving licence, is not wholly justified in the facts and circumstances.
Accordingly, the appeals are allowed. The award of the tribunal is modified to hold that the insurance company shall bear the liability imposed in the judgment and award. The appellant is absolved of the liability.
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The amount in deposit to be refunded to the appellant in each of these appeals.
Sd/-
JUDGE nv