Karnataka High Court
The United India Insurance Company vs Annapurna W/O Devappa Hadimani on 9 November, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9th DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
MISCELLANEOUS FIRST APPEAL NO.21742 of 2012(WC)
BETWEEN
THE UNITED INDIA INSURANCE COMPANY
LTD., DIVISIONAL OFFICE, P.B. ROAD
DHARWAD REP. BY SR. DIVISIONAL MANAGER
APPELLANT
(By Sri.: B V SOMAPUR, ADV)
AND
1. ANNAPURNA W/O DEVAPPA HADIMANI
AGE: 28 YRS, OCC: HOUSEHOLD WORK,
2. SIDDAPPA S/O DEVAPPA HADIMANI
AGE: 9 YRS, OCC: STUDENT
3. SUMA D/O DEVAPPA HADIMANI
AGE: 5 YRS, OCC: STUDENT
RESP. 2 & 3 ARE MINOR REP. BY
NATURAL MOTHER & MINOR GAUARDIAN
RESP. 1 ANNAPURNA W/O DEVAPPA HADIMANI
4. SIDDAVVA W/O FAKIRAPPA HADIMANI
AGE: 53 YRS, OCC: HOUSEHOLD WORK,
5. FAKKIRAPPA LAXMAPPA HADIMANI
AGE: 53 YRS, OCC: NIL,
ALL ARE R/O SHIRAHATTI, GADAG DIST.
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6. SHASHIDHAR S/O MALLANAGOUDA PATIL
AGE: 45 YRS, OCC: BUSINESS,
R/O BANASHANKARI KIRANI STORES,
BAZAR ROAD, R/O SHIRAHATTI
... RESPONDENTS
(By Sri. LAXMAN T MANTAGANI, ADV FOR R1, R4, AND R5. R2,
AND R3 ARE MINORS. REP. BY R1
R.NO.6 SERVED )
THIS MFA IS FILED UNDER SECTION 30 OF THE W.C.
ACT, 1923 AGASINT THE JUDGMENT AND AWARD DATED
15.02.2012 PASSED IN W.C. NO.,11 OF 2009 ON THE FILE OF
THE LABOUR OFFICER AND COMMISIONER FOR WORKMEN'S
COMPENSATION, GADAG DISTRICT GADAG AWARDING THE
COMPENSATION OF RS.4,15,960/- WITH INTERST AT THE RATE
OF 12% P.A. FROM 21.01.2009 TILL ITS DEPOSIT.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal has been preferred by the appellant-insurer assailing the judgment and order, dated 15.02.2012, passed by the Labour Officer and Commissioner for Workmen's Compensation, Gadag, in W.C.No.11/2009.
2. Heard. Appeal is admitted and with the consent of the learned counsel appearing for the parties, it is taken up for final disposal.
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3. Brief facts of the case are that, one Devappa Hadimani was working as a driver in the lorry bearing registration No.KA-26/3993 under respondent No.6 herein. While working as a driver in the said lorry on 22.12.2008, when he was coming on Mahalingapur-Soratur road, near Kusahalpura tank, the said lorry met with an accident and in the said accident, said Devappa Hadimani, who was driving the lorry, sustained grievous injuries and died on the spot. For having lost the bread-earner, the wife and children, being the legal heirs of the deceased, filed the claim petition before the Labour Officer and Commissioner for Workmen's Compensation, Gadag, In pursuance of the notice, respondent No.1 (before the Commissioner) filed his objections admitting that the deceased was working as a driver and the deceased was paid an amount of Rs.4,000/- per month and Rs.50/- per day as batta. He further contended that since the vehicle was insured with the 2nd respondent, the insurer is liable to pay the compensation.
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Respondent No.2-insurer filed its written statement by denying the contents of the petition. It further contended that the driver of the lorry-deceased was not holding valid and effective driving licence to drive a transport vehicle. It was further contended that he was carrying unauthorized passenger and as such there is breach of conditions of the policy and as such the insurer is not liable to pay any compensation. On these grounds, it prayed for dismissal of the petition.
After hearing the parties to the lis, the impugned judgment and award came to be passed.
Being aggrieved by the judgment and order of the Commissioner, the insurer is before this court.
4. The main grounds urged by the learned counsel for the appellant is that though the driver of the lorry-Devappa- deceased was having a licence to drive a LMV(non-transport), he was not holding valid and effective driving licence to drive a transport vehicle. As such, the question of the insurer paying compensation does not arise as there is a breach of conditions of the policy. Secondly, he contended that the 5 driver was carrying gratuitous passengers and as such there is breach of conditions of the policy. Thirdly, he contended that the compensation and the interest awarded at the rate of 12% by the Commissioner is on the higher side. On these grounds he prayed for allowing the appeal by setting aside the judgment and order of the Commissioner.
5. Per contra, learned counsel for the respondents- claimants vehemently argued and contended that it is an admitted fact that the driver of the said lorry was having driving licence of LMV(non-transport) which is valid for the period from 08.06.1999 to 07.06.2019. By relying on the decision of the Apex Court in the case Mukund Dewangan v. Oriental Insurance Company Limited reported in AIR 2017 Supreme Court 3668, he contended that in view of the aforesaid decision, the insurer cannot escape from its liability. He further contended that the compensation awarded under various heads is also just and proper and that the appellant-insurer has not made out any good ground to interfere with the impugned judgment and award and prayed for dismissal of the appeal.
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6. The accident is not in dispute so also involvement of the offending vehicle insured with the appellant-insurance company.
7. The main contention taken up by the learned counsel for the appellant-insurer that though the deceased was having a licence to drive LMV and it is valid from 08.06.1999 to 07.06.2019, he was not authorized to drive a transport vehicle, as such there is a breach of condition of the policy, is concerned, the Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Limited reported in AIR 2017 Supreme Court 3668 at paras 45 and 46 has held as under:
"45. Transport vehicle has been defined in section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab, a motor cab, contract carriage, and stage carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) to mean a motor vehicle constructed or adapted for use solely for the 7 carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994.
46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any 8 other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of 'light motor vehicles' and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act 'Transport Vehicle' would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:
(i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does 9 not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."
By going through the aforesaid paragraphs, it is clear that if a person is holding a driving licence to drive a particular type of vehicle, he cannot be said to have no 10 licence to drive another type of vehicle which is of the same category but of a different type. In that view of the matter, the contention taken up by the learned counsel for the appellant does not stand to reason and the same is liable to be rejected.
8. The second contention taken up by the appellant is that the deceased-driver was carrying gratuitous passenger at the time of the accident and as such there is a breach of conditions of the policy. In order to substantiate the said fact, neither any documents have been produced nor any evidence led. In that light, the second contention is also not sustainable in law.
9. The 3rd contention taken up by the learned counsel for the appellant is that the compensation awarded by the Commissioner is too high and the interest awarded is also on the higher side.
10. As could be seen from the judgment and order of the Commissioner, the Commissioner after taking into consideration that the deceased was earning Rs.4,000/- per 11 month and after deducting 50% of the income and applying the factor of 207.98, has awarded an amount of Rs.4,15,960/-. Even the factor which has been adapted by the Commissioner appears to be just and proper. In that light also, the contention of the appellant is not sustainable in law and the same is liable to be rejected.
Under the above said facts and circumstances, the appellant-insurer has not made out any grounds to interfere with the judgment and award of the Commissioner.
Keeping in view the above said facts and circumstances, the appeal is devoid of merit and the same stands dismissed.
Registry is directed to draw the award accordingly. The amount in deposit shall be transmitted to the jurisdictional Commissioner for disbursement to the claimants as per the award of the Commissioner.
Sd/-
JUDGE Kms & Kmv