Karnataka High Court
Shri.Suresh Vitthal Jadhav vs Shri.Kumar Kiran S/O Vittal Kurabar on 3 November, 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
DATED THIS THE 03RD DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
M.F.A.No.103378 OF 2015 (MV)
C/W
M.F.A.No.103377 OF 2015 (MV)
M.F.A.No.103047 OF 2014 (MV)
M.F.A.No.103402 OF 2015 (MV)
M.F.A.No.103403 OF 2015 (MV)
IN MFA No.103378 OF 2015
BETWEEN:
SHRI.SURESH VITTHAL JADHAV
AGE:58 YEARS, OCC:BUSINESS
R/O: JADHAV GALLI, NANDIHALLI
TQ AND DIST:BELAGAVI.
... APPELLANT
(BY SRI.ASHOK A. NAIK, ADVOCATE)
A N D:
1. SHRI.KUMAR KIRAN S/O VITTAL KURABAR
AGE: 9 YEARS, OCC: STUDENT,
SINCE MINOR REP. BY HIS NATURAL
FATHER/GUARDIAN SRI.VITTAL ARJUN KURABAR
AGE: 30 YEARS, OCC:AGRICULTURE,
R/O:K.K.KOPP, TQ & DIST:BELAGAVI.
2
2. THE NEW INDIA ASSURANCE COMPANY LIMITED
REP. BY SR. DIVISIONAL MANAGER,
DIVISIONAL OFFICE, BELAGAVI D.O.
AT MUDALAGI BUILDING, CLUB ROAD, BELAGAVI
... RESPONDENTS
(R1-SERVED)
(SMT. PREETI SHASHANK, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT,1988, AGAINST
THE JUDGMENT AND AWARD DATED 19.08.2014 PASSED IN
MVC NO.1271/2013 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE AND MEMBER MOTOR ACCIDENT
CLAIMS TRIBUNAL, BELAGAVI, AWARDING THE
COMPENSATION OF RS.94,000/-WITH INTEREST AT THE RATE
OF 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION
OF ENTIRE AMOUNT.
IN MFA No.103377 OF 2015
BETWEEN:
1. SHRI.SURESH VITTHAL JADHAV
AGE:58 YEARS, OCC: BUSINESS,
R/O: JADHAV GALLI, NANDIHALI,
TQ AND DIST: BELAGAVI.
... APPELLANT
(BY SRI. ASHOK A. NAIK, ADVOCATE)
A N D:
1. SHRI.KUMAR ARUN S/O VITTAL KURABAR
AGE: 9 YEARS, OCC: STUDENT,
SINCE MINOR REP. BY HIS NATURAL
FATHER/GUARDIAN SRI.VITTAL ARJUN KURABAR,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: K.K.KOPP. TQ & DIST:BELAGAVI.
3
2. THE NEW INDIA ASSURANCE CO.LTD.,
REP. BY SR. DIVISIONAL MANAGER,
DIVISIONAL OFFICE, BELAGAVI D.O. AT MUDALAGI
BUILDING, CLUB ROAD, BELAGAVI.
... RESPONDENTS
(R1-SERVED)
(SMT. PREETI SHASHANK, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT,1988, AGAINST
THE JUDGMENT & AWARD DATED:19.08.2014, PASSED IN
MVC.NO.1270/2013 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELGAUM, AWARDING THE
COMPENSATION OF RS.21,000/- WITH INTEREST AT THE RATE
FOF 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA No.103047/2014
BETWEEN:
SHRI. SURESH VITTAL JADHAV,
AGE: 60 YEARS, OCC: BUSINESS,
R/O. JADHAV GALLI, NANDIHALLI
TAL AND DIST: BELAGAVI.
... APPELLANT
(BY SRI. ASHOK A. NAIK, ADVOCATE)
A N D:
1. BASAPPA KUBERAPPA KURUBAR,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. K K KOPP. TAL AND DIST: BELGAVI.
2. SMT. NAGAVVA W/O BASAPPA KURABAR
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O: K.K. KOPPA, TQ AND DIST: BELAGAVI.
4
3. THE NEW INDIA ASSURANCE CO. LTD.,
R/BY SR. DIVISIONAL MANAGER,
DIVISIONAL OFFICE, BELGAUM D.O.
AT MUDALAGI BUILDING,
CLUB ROAD, BELAGAVI.
... RESPONDENTS
(SRI.BHAGOJI P.R. ADVOCATE FOR R1 AND R2)
(SMT. PREETI SHASHANK, ADVOCATE FOR R3)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT,1988, AGAINST
THE JUDGMENT & AWARD DATED:19.08.2014, PASSED IN
MVC.NO.1272/2013 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELGAUM, AWARDING THE
COMPENSATION OF RS.3,50,000/- WITH INTEREST AT THE
RATE FOF 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
IN MFA No.103402 OF 2015
BETWEEN:
KUMAR ARUN S/O VITTAL KURABAR
AGE: 9 YEARS, OCC: STUDENT,
SINCE MINOR R/BY HIS NATURAL
FATHER/GUARDIAN VITTAL ARJUN KURABAR,
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O: K K KOPP, TQ AND DIST: BELAGAVI
... APPELLANT
(BY SMT. GEETHA K M @ PAWAR, ADVOCATE)
A N D:
1. SURESH VITTAL JADHAV
AGE: MAJOR, OCC: BUSINESS,
R/O: JADHAV GALLI, NANDIHALLI,
TQ AND DIST: BELAGAVI,
OWNER OF TATA-407 GOODS VEHICLE
NO.KA-22/4623)
5
2. THE NEW INDIA ASSURANCE CO. LTD.,
R/BY SR. DIVISIONAL MANAGER,
DIVISIONAL OFFICE, BELAGAVI D.O.
AT MUDALAGI BUILDING,
CLUB ROAD, BELAGAVI.
(INSURER OF TATA 407 VEHICLE NO.KA-22-4623
BEARING POLICY NO.67110 331120100002833
VALID FROM 21.06.2012 TO 20.06.2013)
... RESPONDENTS
(R1-SERVED)
(SMT. PREETI SHASHANK & SHASHANK HEGDE
ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT,1988, AGAINST
THE JUDGMENT & AWARD DATED:19.08.2014, PASSED IN
MVC.NO.1270/2013 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELGAUM, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENATION.
IN MFA No.103403 OF 2015
BETWEEN
KIRAN S/O VITTAL KURABAR
AGE: 8 YEARS, OCC: STUDENT,
SINCE MINOR R/BY HIS NATURAL
FATHER/GUARDIAN VITTAL ARJUN KURABAR
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O: K K KOPP, TQ AND DIST: BELAGAVI.
... APPELLANT
(BY SMT. GEETHA K M @ PAWAR, ADVOCATE)
A N D:
1. SURESH VITTAL JADHAV
AGE: MAJOR, OCC: BUSINESS,
R/O: JADHAV GALLI, NANDIHALLI,
TQ AND DIST: BELAGAVI.
(OWNER OF TATA-407 GOODS VEHICLE NO.KA-22/4623)
6
2. THE NEW INDIA ASSURANCE CO. LTD.,
R/BY SR. DIVISIONAL MANAGER,
DIVISIONAL OFFICE, BELAGAVI D.O.
AT MUDALAGI BUILDING,
CLUB ROAD, BELAGAVI,
(INSURER OF TATA 407 VEHICLE NO.KA-22-4623
BEARING POLICY NO.67110 331120100002833
VALID FROM 21.06.2012 TO 20.06.2013)
... RESPONDENTS
(BY SRI.ASHOK A NAIK, ADVCOATE FOR R1)
(BY SMT. PREETI SHASHANK, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT,1988, AGAINST
THE JUDGMENT & AWARD DATED:19.08.2014, PASSED IN
MVC.NO.1271/2013 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELGAUM, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENATION.
THESE APPEALS ARE COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
M.F.A.No.103378 of 2015, M.F.A.No.103377 of 2015 and M.F.A.No.103047 of 2014 have been Preferred by the appellant/owner and M.F.A.No.103402 of 2015 and M.F.A.No.103403 of 2015 have been preferred by the appellant/claimant challenging the judgment and award passed by the III-Additional Senior Civil Judge and MACT Belagavi in M.V.C.No1270, 1271 and 1272 of 2013 dated 19.08.2014.
7
2. Heard. Though the appeal is listed for Admission, with the consent of the learned counsel appearing for the parties, it is taken up for final hearing and disposed of by this judgment.
3. Brief facts of the case as per the petition are that, on 14.06.2013 Kumar Arun, Kumar Kiran and the deceased were proceeding by walk towards the Dhamapur village. At that time, the TATA 407 goods vehicle bearing registration No.KA-22/4623 came rashly and negligently and driver of the vehicle lost control over the vehicle and dashed to the petitioners. As a result, the petitioners were injured and the deceased succumbed to the injuries when he was shifted to VIMS Hospital. For having sustained injuries and for having lost their son the claim petitions were came to be filed claiming compensation under section 166 of MV Act. 8
4. In pursuance of the notice, respondent Nos.1 and 2 appeared, respondent No.1 by denying the averments of the petition, he further contended that the driver was having valid and effective driving licence and the said vehicle has been duly insured with respondent No.2, if at all any liability is there, it is on the respondent No.2 who has to pay the compensation.
Respondent No.2 also filed his objections, by denying the contents of the petition he further contended that though the said vehicle was insured with respondent No.2, but the driver was not holding valid and effective driving licence and hence there is a breach of terms and conditions of the policy and as such the petition is liable to be dismissed.
On the basis of the above pleadings the Tribunal has framed the following issues:-
9
In MVC Nos.1270/2013 and 1271/2013
1. Whether petitioner proves that due to the rash and negligent driving of the Tata- 407 Goods vehicle bearing No.KA-22/4623, the accident occurred and in the said accident, he has sustained injuries ?
2. Whether the petitioner is entitled for compensation ? If so, what is the quantum and from whom ?
3. What order or award ?In MVC No.1272/2013
1. Whether petitioners prove that due to the rash and negligent driving of the Tata - 407 goods vehicle bearing No.KA-22/4623, the accident occurred and in the said accident, one Kuber s/o Basappa Kurabar died to the injuries sustained in the accident ?
2. Whether the petitioner is entitled for compensation ? If so, what is the quantum and from whom ?
3. What order or award ?
In order to prove their case, on behalf of the minors their next friends' were examined as PW-1 and 2 and PW-3 a Doctor also came to be examined and got marked Ex.P1 to P18. On behalf of the respondents' R.W.1 came to examined and they got marked documents as Ex.R1 to R4.
10
After hearing the parties to the lis the impugned order was passed.
5. The main grounds urged by the learned counsel for the appellant/owner of the vehicle are that the driver of the vehicle Tata 407 vehicle bearing registration No.KA-22/4623 was holding a valid and effective driving licence and he was holding licence to drive the light motor vehicle non-transport, but he was not holding any valid and effective driving licence to drive the transport vehicle and as such Tribunal has fastened the liability on the owner. He further contended that in view of the decision of the Hon'ble Apex Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited reported in AIR 2017 SC 3668, if the driver is having a driving licence to drive the light motor vehicle with non-transport, then under such circumstances, he can also drive the light motor vehicle transport. Under such circumstances, the 11 liability which has been fixed on the appellant/owner is not sustainable in law and as such he prayed to fasten the liability on respondent No.2 as there was valid policy which is going to cover the said accident. On these grounds he prayed for allowing the appeal by setting aside the impugned judgment and award.
6. The learned counsel on behalf of the appellant/claimants has vehemently argued and contended that the compensation awarded under the various heads is on the lower side. She also further contended in view of the decision of the Hon'ble Apex Court in the case of Master Mallikarjun v. Divisional Manager, The National Insurance Compnay Limited & Anr. reported in AIR 2014 SC 736, the compensation which has been awarded, by the Tribunal has to be enhanced. She further contended that the Tribunal has not taken into consideration the disability and the future prospectus of the injured, now he cannot 12 participate in the sports activities and not concentrate on his studies. On these grounds. she prayed for enhancement of the compensation.
7. Per contra, the learned counsel appearing on behalf of the respondent No.2 insurer vehemently argued by contending that the Tribunal after considering the injuries, as the injured have suffered only abrasion and simple injuries, awarded just compensation. Under such circumstances, there is no need to enhance the compensation to the appellants/claimants. She further contended by justifying the judgment and award by stating that at the time of the accident, the driver was not holding valid and effective driving licence to drive the transport vehicle and as such Tribunal rightly fixed the liability on the owner and as such the appeal preferred by the appellant/owner is liable to be dismissed. On these grounds she prayed for dismissal of the appeals 13
8. The accident is not in dispute, so also the involvement of the offending vehicle insured with the respondent/insurance company.
9. As could be seen from the judgment and award passed by the Tribunal in M.V.C.No.1271 of 2013 the petitioner/minor has sustained the following injuries :
1. 7 x 6 cm degloving injury to the dorsum of the right foot,
2. Abrasion over the posterior aspect of right elbow.
3. Abrasion over right ear pinna.
The petitioners have produced the wound certificate as well as the discharge summary and they have also got examined PW-3 the Doctor. PW-3, the Doctor, who came to be examined has deposed that the petitioner has suffered a permanent physical disability to an extent of 15% in respect of light lower limb as per the ALMCOI book and after considering the evidence of 14 PW-3, the Tribunal after taking the disability to the extent of 5% has awarded the compensation on following head:-
1. Pain and suffering already undergone, and put to loss due to mental and physical shock, Rs.50,000-00 hardship, and loss of amenities of life on account of permanent disability.
2. Towards discomfort, inconvenience Rs.10,000-00 and loss of earning of the parents.
3. Towards medical expenses Rs.24,000-00
4. Towards conveyance, attendants, Rs.10,000-00 nutritious food and nourishment.
Total Rs.94,000-00
10. Though under the normal circumstances, the compensation awarded is justifiable, but if compared to the facts and figures of the case the petitioner was aged about six years at the time of alleged accident and even the injuries which were sustained are simple in nature. Even the Doctor who came to be examined has not categorically stated in what way the physical disability comes to the extent of 15%. Though the injury sustained is said to have been 15 grievous in nature, but how and in what manner the injury has affected the petitioner in future or to the loss of income has not been specifically stated by the Doctor. Under the said fact and circumstances, I feel that the compensation which was awarded by the Tribunal appears to be justifiable and it does not require any enhancement.
11. In so far as M.V.C.No.1270/2013 is concerned the petitioner sustained the following injuries:-
1. CLW over fore head 1 x 2.5 cm.
2. Multiple abrasions over the face.
3. Abrasions over sterclum.
4. Multiple abrasions over the back.
5. Abrasions over the right Achilles tender.
6. Multiple abrasions over the abdomen.
The above said injuries are simple in nature and after considering the said fact the Tribunal awarded the compensation on following heads :
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1. Towards pain, shock and Rs.12,000-00 suffering
2. Towards conveyance, attendants Rs. 5,000-00 charges, food and nourishment
3. Medical expenses. Rs. 4,0000-00 Total Rs. 21,000-00
12. Keeping in view of the injuries suffered by the appellant/claimant the compensation awarded appears to be just and proper and there are no good grounds to interference of this Court to enhance the compensation.
13. The next contention taken up by the learned counsel for the appellant/owner of the vehicle is that the driver of the said TATA 407 vehicle bearing registration No. KA-22/4623 was holding valid and effective driving licence and the fastening the liability on the appellant owner is not justifiable. As could be seen from the records Ex.R1 is the driving license extract issued by the RTO and copy of the same is as per Ex.R3. As per the said documents, the driver was 17 holding valid and effective driving license to drive a light motor vehicle (non-transport) and it is valid from 04.10.2004 to 03.10.2040. The alleged accident has took place on 14.06.2013 which indicates that the driver was holding valid and effective driving licence. But the tribunal only because of the reason that there was no endorsement to drive transport vehicle, the liability has been fixed on the appellant/owner. Now in view of the decision of the Hon'ble Apex Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited reported in AIR 2017 SC 3668, wherein it has been observed by the Hon'ble Apex Court that, if the driver was having a valid and effective driving licence to drive the light motor vehicle non transport and if the same is in currency as on the date of the accident, under such circumstances, he can also drive the light motor vehicle transport. It is further observed in the above said decision at paragraph Nos. 45 and 46 which reads as under:-
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"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 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 54/1994.19
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 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:20
(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 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 21 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."
14. It is further observed that if a person has been given a licence for a particular type of vehicle, he cannot be said to have no licence for driving another type of vehicle which is of a same category, but of a different type.
15. Keeping in view the law laid down by the Hon'ble Apex Court and the discussion as held by me above, the observation of the tribunal that the driver of the said offending vehicle must possess an endorsement to drive the transport vehicle is not considered to be correct and the same is liable to set-aside.
16. Keeping in view of the above said fact and circumstances of the case, the impugned order to the extent of fixing the liability on the appellant owner is set 22 aside and it is hereby made clear that the respondent insurer is liable to pay the compensation awarded by the tribunal with up-to- date interest in accordance with law.
17. Insofar as appeal in M.F.A.Nos.103402 and 103403 of 2015 preferred by the appellants/claimants are dismissed by confirming the judgment and award passed by the tribunal as devoid of merits.
18. The registry is directed to draw the award accordingly and if any statutory amount has been deposited by the appellant-owner the same may be refunded to the appellant-owner on proper identification and acknowledgement and send back the records.
Sd/-
JUDGE RHR/-