Karnataka High Court
Shadaksharayya S/O Shivaputrappa ... vs Prabhayya S/O Veerayya Hiremath on 23 September, 2019
Author: K.Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23rd DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 20904 of 2013 (MV)
BETWEEN:
SHADAKSHARAYYA
S/O SHIVAPUTRAPPA SALIMATH
AGE: 60 YEARS, OC: DRIVER
R/O: HUNAGUND, TQ: RON,
DIST: GADAG
... APPELLANT
(By Sri. SANTOSH S.HATTIKATAGI, ADVOCATE )
AND:
1. PRABHAYYA S/O VEERAYYA HIREMATH
AGE: 18 YEARS,
OCC: AGRICULTURE & COOLIE
R/O: MADALGERI, TQ: RON
DIST: GADAG
SINCE DECEASED BY HIS LRS.
1A. VEERAYYA S/O BASAYYA HIREMATH
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O.MADALGERI, TQ: RON, DIST: GADAG
1B. IRAMMA W/O VEERAYYA HIREMATH
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O.MADALGERI, TQ: RON,
DIST: GADAG
2. THE NATIONAL INSURANCE COMPANY
BY ITS AUTHORISED SIGNATORY
FIRST FLOOR, RENUKA ARCADE
OPP. TONTADARAYA MATH, GADAG
... RESPONDENTS
(By Sri. CHANDRASHEKHAR P PATIL, ADVOCATE FOR R1(A)
2
SRI. M.Y. KATAGI, ADVOCATE FOR R2. )
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:01-02-2013 PASSED IN MVC
NO.43/2011 ON THE FILE OF SENIOR CIVIL JUDGE AND
MEMBER, MACT, RON, AWARDING THE COMPENSATION OF
RS.3,63,400/- WITH INTEREST AT THE RATE OF 6% P.A., FROM
THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Though this appeal came up for admission, with the consent of both parties, it is heard finally.
2. This appeal is filed by the owner of the tractor-trailer assailing the judgment and award dated 01.02.2013 passed by the Senior Civil Judge and MACT, Ron (hereinafter referred to as the 'Tribunal', for short) in MVC No.43 of 2011.
3. Heard the arguments of the learned counsel appearing for the parties.
4. Rank of the parties before the Tribunal is retained for convenience.
3
5. The claimant Prabhyayya Hiremath filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.15,00,000/- inter alia contending that on 28.02.2011 at about 5.00 pm, when he was traveling in a tractor bearing registration No.KA- 26/T-8882 and trailer bearing No.KA-26/T-8883 loaded with steel, was driven by the first respondent in a rash and negligent manner endangering human life and due to which the tractor turned turtle. The petitioner sustained grievous injuries and was taken to the hospital and treated as an inpatient. At that time, he had filed a claim under Section 166 of the MV Act for the injuries sustained by him and subsequently on his death on 04.03.2012, his legal representatives were brought on record and the claim petition was converted into a death case. The claimants contended that due to untimely death of Prabhyayya, they lost their dependency. Hence, claimed compensation on various heads.
4
6. In pursuance to the notice, first and second respondent appeared through counsel and filed statement of objections by denying the averments made in the petition as false. However, admitted that the deceased was a coolie under him in the tractor trailer and the accident had not taken place due to the fault of the tractor and trailer but due to the breaking of the joining hook and also contended that the driver had valid licence as on the date of the accident and the vehicle was insured with respondent No.2 and if any liability, the same shall be fastened on the insurer. Hence, prayed for dismissal of the claim petition.
Second respondent appeared through counsel and filed statement of objections by denying rash and negligent driving and also taken a contention that the driver of the vehicle had no valid driving licence as on the date of the accident. However, admitted issuance of policy for the vehicle in question which was valid as on the date of the accident. If any liability, the same is 5 subject to the terms and conditions of the policy. Hence, prayed for dismissal of the claim petition.
7. Based on the rival pleadings, the Tribunal framed the following issues:
1. Whether the petitioners prove that, on 28.2.2011 at about 5.00 pm in the evening, at about 1 km away from Hunagundi village on Ron-Hunagundi road, while the petitioner along-with two others was traveling in the tractor bearing No.KA-26/T-8882 and trailer bearing No.KA-26/T-8883 loaded with steel was being driven by respondent No.1 in a rash and negligent manner, endangering the human life and made to turtle, due to which the petitioner fell down and caused the grievous injuries and further the original petitioner succumbed to the same on 4.3.2012?
2. Whether the petitioners are entitled to get compensation? If so, how much and from whom?
3. What order or award?
8. After considering the evidence on record, the Tribunal answered issue No.1 in the affirmative and 6 issue No.2 partly in the affirmative and awarded compensation of Rs.3,63,400/-. However, the Tribunal fastened the liability on the owner by absolving the insurance company.
9. Assailing the judgment and award passed by the Tribunal, the owner is before this Court. However, neither the insurance company nor the claimants have preferred any appeal.
10. Counsel for the appellant-owner strenuously contended that the Tribunal has committed an error in fastening the liability on the owner of the vehicle even though the driver of the tractor-trailer was holding HMV and HPV licence which is heavy goods vehicle licence and he is entitled to drive the tractor which falls under the LMV as well as HMV which does not require an endorsement of specific class of vehicle as the tractor trailer. The Tribunal has committed an error in absolving the insurance company and hence prayed for fastening the liability on the insurance company. The 7 learned counsel for the appellants contended that even in respect of specific endorsement, the Hon'ble Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Limited reported in AIR 2017 SUP[REME COURT 3668, has clarified that separate transport endorsement is not required.
11. Per contra, Sri. M.Y. Katagi, learned counsel for the insurance company countered the arguments and supported the judgment and award passed by the Tribunal.
12. However, Sri. Chandrashekhar P. Patil, advocate for the claimants contended that there is no need for obtaining specific endorsement for driving tractor trailer and even if there is any violation, the insurer shall satisfy the award and then recover the same from the owner of the vehicle. Hence, prayed this Court to pass appropriate orders.
8
13. Upon hearing the arguments of the learned counsel for the parties and on perusal of the records, the points that arise for my consideration are:
(i). Whether the Tribunal is not justified in fastening the liability on the owner of the tractor-trailer when the driver of the vehicle was holding licence of HMV and HPV?
(ii). What order?
14. The claimants have established the factum of accident that occurred due to the rash and negligent driving by the driver of the tractor-trailer bearing registration Nos.KA.26/T-8882 and KA.26/T-8883, due to which the tractor turtled and Prabhayya sustained grievous injuries all over his body and was under
treatment and while undergoing treatment, he succumbed to the injuries on 04.03.2012 and the doctors have also opined that the death was due to the injuries sustained by him in the road traffic accident.
There is no dispute in this regard. The only controversy in this appeal is with regard to fastening of the liability 9 by the Tribunal on the owner of the tractor-trailer on the ground that there is violation of the terms and conditions of the policy as the driver of the vehicle was not holding a valid DL.
15. Admittedly, the driver of the tractor was holding DL of HMV-Heavy Motor Vehicle as per Ex.R-1. The Tribunal has held that though the driver of the tractor trailer was holding heavy transport vehicle and heavy passenger vehicle licence, but he has not obtained specific class of licence for driving the tractor trailer. In this regard, it is wroth to extract the definition of "heavy goods vehicle" as defined under Section 2(16) of the Act.
" 2. Definitions.- xxxx (16) "heavy goods vehicle" means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kolograms"
Further Section 2(21) with regard to "light motor vehicle" is defined as under:
10
(21) "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 7500 kilograms;"
16. A bare reading of both the definitions makes it clear that the tractor falls under both the category of "heavy goods vehicle" as well as "light motor vehicle." Even on perusal of Section 10(2) of the Act, with respect to necessity of licence wherein the tractor trailer is not stated specifically, it means, the tractor falls under the category of "light motor vehicle" if it does not exceed 7500 kilograms as well as under "heavy goods vehicle" if it exceeds the unladen weight of 12000 kgs. Such being the case, when law does not specifically mention about specific class of driving licence for tractor and trailer and the tractor is included under both LMV and HMV, the question of holding requirement of specific class of DL for driving tractor trailer is not correct. Therefore, the finding of the Tribunal in respect of requirement of specific class of DL for driving the 11 tractor trailer is not correct. Hence, the said finding is liable to be set aside. Therefore, I am of the considered view that there is no violation of the terms and conditions of the policy by respondent No.1, who is the owner of the tractor and the driver was holding a valid DL as on the date of the accident. Such being the case, the insurance company is liable to pay the compensation. Accordingly, I answer point No.(i) in favour of the appellant and against the insurer.
17. Accordingly, the appeal filed by the owner is allowed. The insurance company is liable to pay the compensation awarded by the Tribunal. The judgment and award dated 01.02.2013 passed by the Senior Civil Judge and MACT, Ron, in MVC No.43 of 2011 is modified to the above extent. The finding of the Tribunal regarding fastening of liability on the owner of the vehicle and absolving the insurance company is set aside. The insurance company is directed to pay the compensation together with interest at the rate of 6% per annum from the date of petition till realization 12 within four weeks from the date of petition till realization.
18. Apportionment made by the Tribunal is retained.
19. The amount in deposit is ordered to be refunded to the appellant on due identification.
Sd/-
JUDGE kmv