Karnataka High Court
United India Insurance Co Ltd vs Mallappa Basappa Desai & Anr on 9 August, 2017
Author: K.Somashekar
Bench: K.Somashekar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
MFA NO.5580/2008 C/W MFA NO.5583/2008 (WC)
MFA NO.5580/2008:
BETWEEN
UNITED INDIA INSURANCE CO LTD
DIVISIONAL OFFICE
ENKAY COMPLEX, HUBLI
REP BY ITS DIVISIONAL MANAGER
SRI H.N KHILLEDAR.
... APPELLANT
(BY SRI. N.R.KUPPELLUR, ADV.)
AND
1. MALLAPPA BASAPPA DESAI
AGED ABOUT 32 YEARS
R/O. MASANAGI VILLAGE
BYADAGI TALUK, HAVERI DISTRICT.
2. SRI PARAMESHWARAPPA C MARADI
AT AND POST HEDIGONDA
BYADAGI TALUK, HAVERI DISTRICT
(OWNER OF MINI GOODS
VEHICLE KA.27/6554)
... RESPONDENTS
(BY SRI. NAGARAJ J. APPANNANAVAR FOR
SRI. LAXMAN T. MANTAGANI, ADVS. FOR R1,
SRI. UMESH C. AINAPUR, AD. FOR R2)
THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT,
PRAYING TO CALL FOR THE RECORDS CONNECTED WITH
CWC:WCA:NF:150/2007 ON THE FILE OF THE WORKMEN'S
:2:
COMPENSATION COMMISSIONER, HAVERI DIST., HAVERI AND
SET ASIDE THE ORDER DATED 07.02.2008.
MFA NO.5583/2008:
BETWEEN
UNITED INDIA INSURANCE CO LTD
DIVISIONAL OFFICE
ENKAY COMPLEX, HUBLI
REP. BY ITS DIVISIONAL MANAGER
SRI H N KHILLEDAR
... APPELLANT
(BY SRI. N.R.KUPPELLUR, ADV.)
AND
1. MALLANAGOUDA RAMANAGOUDA RAMALINGANNAVAR
AGED 32 YEARS R/O ITAGI VILLAGE
BYADAGI TQ, HAVERI DIST
2. SRI PARAMESHWARAPPA C MARADI
AT AND POST HEDIGONDA
BYADAGI TQ HAVERI DIST.
... RESPONDENTS
(BY SRI. LAXMAN T. MANTAGANI, ADV. FOR R1,
SRI. UMESH C. AINAPUR, ADV. FOR R2)
THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT
PRAYING TO CALL FOR THE RECORDS CONNECTED WITH
CWC:WCA:NF:149/2007 ON THE FILE OF THE WORKMEN'S
COMPENSATION COMMISSIONER, HAVERI DIST., HAVERI AND
SET ASIDE THE ORDER DATED 07.02.2008.
THESE MFAs. COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.5580/2008 is preferred by the appellant - Insurance Company challenging the liability fastened on it to pay the compensation and also the quantum of compensation :3: awarded in the impugned judgment and award dated 07.02.2008 in CWC:WCA:NF:150/2007 passed by the Commissioner for Workmen's Compensation, Haveri (hereinafter referred to as 'Commissioner' for short).
2. Whereas, MFA No.5583/2008 is also preferred by the appellants - Insurance Company challenging the relationship between the employer and employee and also the quantum of compensation awarded in the impugned judgment and award dated 07.02.2008 in CWC:WCA:NF:150/2007 passed by the Commissioner for Workmen's Compensation, Haveri.
3. For the sake of convenience, the parties are referred to as per their status before the Commissioner.
4. The briefs facts of the case are, on 21.04.2007 at about 05:50 p.m., the petitioner (in MVC No.150/2007) was the driver and the other petitioner (in MVC No.149/2007) was the hamal, going in the vehicle bearing registration No.KA-27/6554 from Itagi to Haveri side after loading the goods as per the directions of the respondent No.1. When the vehicle came at :4: Chatra Village, after 1 k.m. towards Haveri side, at that time one vehicle bearing registration No.KA-25/B-7245 came from Haveri side towards Ranebennur side and the driver of the said vehicle, driving the same in a rash and negligent manner without following the traffic rules and regulations, dashed to the vehicle bearing registration No.KA-27/6554 and caused the accident. Due the accident the petitioner (in MVC No.150/2007) sustained grievous injuries to all over the body and fracture of right side 6th, 7th right side ribs and L.5 vertebra. Whereas, the other petitioner (in MVC No.149/2007) sustained grievous injuries to all over the body and fracture of right knee and right hip and right pubic bone. As such, in view of the injuries suffered, both of them filed applications under Section 22 read with Schedule 4 of the Workmen's Compensation Act, 1923 claiming compensation.
5. After service of notice, the respondents appeared through their counsel by filing objections and contested the matter.
6. Based on the pleadings of the parties, the Commissioner framed as many as five issues. :5:
7. In order to prove the case, the petitioners examined three witnesses as P.Ws.1 to 3 and got marked the documents at Exs.P-1 to P-16. On behalf of the respondents, one witness was examined and marked the documents at Exs.R-1 to R-4.
8. On evaluation of the oral and documentary evidence on record, the Commissioner came to the conclusion and awarded a sum of Rs.1,51,373/- to the petitioner in MVC No.150/2007 and Rs.1,49,745/- to the petitioner in MVC No.149/2007 with interest at the rate of 12% per annum, one month after the date of the award till its deposit.
9. Sri. N.R.Kuppellur, learned counsel for the appellant Insurance Company submits that the Commissioner has erred in assessing the loss of earning capacity at 35% to the 1st respondent in MFA No.5580/2008 and 40% to the 1st respondent in MFA No.5583/2008 by ignoring the fact that the wound certificate issued by Ranebennur Government Hospital was not produced by both the respondents and had chosen to examine a stock witness who tenders evidence in such cases on regular basis without substantiating the evidence with any dependable medical records. :6:
10. Sri. N.R.Kuppellur, learned counsel further contended that the Commissioner erred in holding that the 1st respondent in MFA No.5583/2008 was a workman under the 2nd respondent and that he suffered employment injury by ignoring the contents of the admitted document at Ex.P-2 which provide that he was a passenger in the goods vehicle. Further contended that the Commissioner ought to have negatived the fraudulent admission of the 2nd respondent about the employment injury to the 1st respondent for the simple reason that such admission is contrary to the records and that the owner of the vehicle might have admitted such employment with a view to avoid personal liability towards an unauthorized passenger in the goods vehicle. It is also contended that the Commissioner acted contrary to the terms of policy in making the appellant liable to pay the compensation assessed in respect of the alleged hamaal in a goods auto in which the risk of only one employee i.e., driver is covered under the policy marked at Ex.R-2. The vehicle in question being a mini goods vehicle was not permitted to carry any workman and the 2nd respondent had not paid any additional premium to cover :7: the risk of the hamals. On these primary grounds, he sought to allow the appeals by setting aside the judgment and award passed by the Commissioner.
11. Per contra, Sri. Nagaraj J. Appannanavar, appearing for Sri.Laxman T. Mantagani, learned counsel for the respondent No.1 submits that the issue involved in MFA No.5580/2008 has already been elaborately discussed by the Hon'ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited in Civil Appeal No.5826/2011 decided on 03.07.2017 is squarely applicable to the facts and circumstances of MFA No.5580/2008 and the same is liable to be dismissed, wherein, in the said judgment, referred supra, it is held as follows:
"1. In the reference, the main question involved is whether a driver who is having a licence to drive 'light motor vehicle' and is driving 'transport vehicle' of that class is required additionally to obtain an endorsement to drive a transport vehicle?
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40. In S.Iyyapan (supra), this Court has considered the decisions in Ashok Gangadhar (supra), :8: Annappa Irappa Nesaria (supra), Prabhu Lal (supra) and has laid down thus:
"18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment (Civil MIsc. Appeal No.1016 of 2002, order dated 31.10.2008 (Mad)) is, therefore, liable to be set aside."
This Court has rightly held in S.Iyyapan (supra) that it was not necessary for the driver to get any endorsement in the driving licence to drive Mahindra Maxi Cab as he was authorized to drive a light motor vehicle.
41. In Kulwant Singh v. Oriental Insurance Co. Ltd. (2015) 2 SCC 186, this Court has referred to the decisions in S.Iyyapan (supra) and Annappa Irappa Nesaria :9: (supra) and has laid down that once the driver is holding a licence to drive light motor vehicle, he can drive commercial vehicle of that category. In Kulwant Singh (supra) it has been laid down thus:
"8. We find that the judgments relied upon cover the issue in favour of the appellants. In Annappa Irappa Nesaria (2008) 3 SCC 464, this Court referred to the provisions of Sections 2(21) and (23) of the Motor Vehicles Act, 1988, which are definitions of "light motor vehicle" and "medium goods vehicle" respectively and the Rules prescribing the forms for the licence i.e. Rule 14 and Form
4. It was concluded: (SCC p. 468, para 20) "20. From what has been noticed hereinbefore, it is evident that 'transport vehicle' has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time to cover both 'light passenger carriage vehicle' and 'light goods carriage vehicle'. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well.": 10 :
9. In S. Iyyapan (2013) 7 SCC 62, the question was whether the driver who had a licence to drive "light motor vehicle" could drive "light motor vehicle" used as a commercial vehicle, without obtaining endorsement to drive a commercial vehicle. It was held that in such a case, the insurance company could not disown its liability. It was observed: (SCC p. 77, para 18) "18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle.
There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab.
Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment [Civil Misc. Appeal : 11 : No.1016 of 2002, order dated 31.10.2008 (Mad)] is, therefore, liable to be set aside."
10. No contrary view has been brought to our notice.
11. Accordingly, we are of the view that there was no breach of any condition of insurance policy, in the present case, entitling the Insurance Company to recovery rights."
Though, as held above, and for the reasons assigned by us, the conclusion in Kulwant Singh (supra) was correct, however for the post-amended position after 28.03.2001 also the law continues to be the same for LMV class of vehicles."
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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 28.03.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) of the provisions of section 10(2)(d), Rule 8 of the : 12 : Rules 1989, other provisions and also the forms which are in the 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 periodof 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 question 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.54/199.
(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 : 13 : 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 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 28.03.2001 in the form.
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.ef.
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)(hj) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does : 14 : 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."
12. Sri. Nagaraj J. Appannanavar, learned counsel for the respondent No.1 in MFA No.5583/2008 supports the impugned judgment and award passed by the Commissioner and prayed for dismissal of the appeal.
13. Having heard the learned counsel for the parties in both the appeals and on perusal of the impugned judgment and award passed by the Commissioner and the documents produced : 15 : and also the judgment of the Hon'ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited in Civil Appeal No.5826/2011 decided on 03.07.2017, the entire liability is to be fastened on the Insurance Company and the question of fixing the liability on the owner would not arise. Hence, on the aspect of liability is concerned, MFA No.5580/2008 filed by the appellant - Insurance Company is liable to be dismissed.
14. Whereas, considering the submissions made in MFA No.5583/2008 and on perusal of the impugned judgment and award passed by the Commissioner and the documents produced therein, it is seen that during the enquiry before the Commissioner, the workman established the jural relationship of employer and employee and that the injuries sustained by him are during the course of his employment. Therefore, the Commissioner awarded a sum of Rs.1,51,373/- to the respondent No.1 in MFA No.5580/2008 and Rs.1,49,745/- to the respondent No.1 in MFA No.5583/2008 with interest at 12% per annum from one month after the date of award till its deposit and as : 16 : regards the question regarding reduction of the compensation, the amount awarded by the Commissioner being just and reasonable, the same does not call for interference and accordingly, both the appeals are liable to be dismissed.
15. In the result, I proceed to pass the following:
ORDER
(i) MFA Nos.5580 and 5583 of 2008 are hereby dismissed.
(ii) The appellant - Insurance Company in both the appeals, is liable to pay the compensation awarded by the Commissioner.
(iii) The rest of the judgment and award passed by the Commissioner shall remain in tact.
The amount in deposit, if any, shall be transmitted to the concerned jurisdictional Court forthwith.
Sd/-
JUDGE Rsh