Karnataka High Court
New India Assurance Company Limited, ... vs B.V. Paramesh And Others on 23 June, 2000
Equivalent citations: 2001ACJ913, 2001(4)KARLJ173
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
JUDGMENT N.S. Veerabhadraiah, J.
1. The Insurer M/s. New India Assurance Company has questioned the common judgment and award of the Claims Tribunal passed in M.V.C. Nos. 635, 1148 and 609 of 1991 insofar as it relates to the liability whereas the wife, sons and mother of the deceased Pushparaj in M.V.C. No. 635 of 1991 being dissatisfied with the quantum of compensation awarded at Rs. 2,13,000/- preferred M.F.A. No. 1731 of 1994.
2. The brief facts of the case areas follows:
That on 1-2-1991 at about 9.10 a.m. the deceased Muniswamy in M.V.C. No. 609 of 1991, the deceased S. Pushparaj in M.V.C. No. 635 of 1991 and another injured Revanna in M.V.C. No. 1148 of 1991 were waiting for the traffic signal at the intersection of Magadi Road and West of Chord Road to proceed towards Kamaksbipalya on their respective vehicles. While they were so waiting for the traffic signal, that a lorry bearing Registration No. CNX 5337 came in a high speed in a rash and negligent manner and dashed against them as a result Muniswamy who was sitting on the TVS 50, Pushparaj who was on his Luna bearing Registration No. CAQ 6806 succumbed to injuries whereas Revanna was able to save his life sustaining some injuries. On account of the death of K.P. Muniswamy, his wife, son, daughters and mother presented a claim petition M.V.C. No. 609 of 1991 whereas the wife, daughter, sons and mother of the deceased Pushparaj filed claim petition in M.V.C. No. 635 of 1991 and the injured Revanna filed claim petition in M.V.C. No. 1148 of 1991 for award of compensation respectively.
3. The owner of the vehicle, respondent 1-B.V. Paramesh filed common objections statement stating that the policy was in force as on the date of the accident and to absolve his liability whereas the insurer filed the objections statement disputing the quantum of compensation claimed. It has however admitted the policy covering for the period 9-4-1990 to 8-4-1991 and contended that the driver had no effective driving licence as on the date of the accident and therefore, not liable to pay the compensation and the driver had only driving licence to drive heavy passenger vehicle or heavy motor vehicle. Therefore, prayed to absolve its liability.
4. All the claim petitions were clubbed together. The claimants examined P.Ws. 1 to 5 and marked Exts. P-l to P-21 whereas the owner and the insurer did not choose to lead any evidence. Considering the evidence on record, the Claims Tribunal awarded a compensation of Rs.
2,13,000/- in M.V.C. No. 609 of 1991, a sum of Rs. 2,13,000/- in M.V.C. No. 635 of 1991 and in the case of injured in M.V.C. No. 1148 of 1991, awarded Rs. 30,000/- fastening the liability jointly and severally on the owner and the insurer. The insurer alone questioned the liability on the ground that the driver did not possess any valid driving licence whereas the wife and children of the deceased Pushparaj in M.V.C. No. 635 of 1991 sought for enhancement. Hence all these appeals.
5. Learned Counsel for the appellant-Insurance Company vehemently contended that the award of the Claims Tribunal fastening the liability on the insurer is not sustainable as the vehicle involved in the accident is a heavy goods vehicle, whereas the driver did not possess valid driving licence to drive the heavy goods vehicle. On this ground, prayed to absolve the liability of the Insurance Company whereas on the other hand, the learned Counsel representing the claimants vehemently contended that there is no legal bar as such for a person holding driving licence to drive heavy passenger motor vehicle or to drive the heavy goods vehicle as the unladen weight of both the vehicles exceed 12,000 Kgs. It is secondly contended that the quantum of compensation of Rs. 2,13,000/- awarded on account of the death of Pushparaj is also very low and inadequate. Accordingly, prayed to enhance the compensation.
6. In the light of the submissions, the points for consideration that arise are:
1. Whether the person holding driving licence to drive heavy passenger motor vehicle unladen weight of which exceeds 12,000 Kgs. is legally precluded from driving heavy goods vehicle of the same unladen weight? If not, the liability of the insurer is liable to be absolved?
2. Whether the quantum of compensation awarded in M.V.C. No. 635 of 1991 is just and reasonable? If not, entitled for enhancement?
3. What orders?
7. The short question for consideration is whether a driver holding the licence to drive passenger motor vehicle is not authorised to drive heavy goods vehicle. It is the specific defence of the insurer that at the time of the accident, the driver involved in the accident was possessing driving licence to drive heavy passenger vehicle. Therefore, not entitled to drive heavy goods vehicle and thereby, the liability of the insurer is to be absolved.
8. The vehicle involved in the accident is bearing Registration No. CNX 5337 which is a goods vehicle with the laden weight of 15,225 Kgs. as per the entries found in the Goods Carriage Permit produced before this Court. It is also seen that the vehicle in question is covered by the policy and one of the conditions is that the driver should possess valid driving licence. In the case on hand, the driver of the vehicle involved in the accident is by name Basavaraj and he possessed driving licence issued by the Assistant Regional Transport Officer, Bangalore East, in respect of the following vehicles:
(1) Light Motor Vehicle;
(2) Medium Passenger Vehicle; and (3) Heavy Passenger Vehicle. It is in this background, prayed to absolve the liability.
9. Clause (ii) of sub-section (2) of Section 149 of the Motor Vehicles Act. 1988 reads thus:
'"(ii) a condition excluding driving by a named person or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification".
In case if the driver does not possess valid licence to drive the vehicle, then it is open for the insurer to repudiate the liability. It is in this context, it has to be examined as to whether on the date of the accident, the driver in question possessed with him valid driving licence or not?
10. Section 2(10) of the Motor Vehicles Act, 1988 reads thus:
"Driving licence" means the licence issued by a Competent Authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description".
A reading of the section makes it clear that a person should possess driving licence issued by the Competent Authority to drive vehicles of any specified class or description.
11. Section 3 of the Motor Vehicles Act, 1988 reads thus:
"Necessity for driving licence.--(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under sub-section (2) of Section 75 unless his driving licence specifically entitles him so to do".
A reading of the above section makes it clear that without an effective driving licence issued to him, no person shall drive a transport vehicle. Therefore, it is required to be examined as to whether the goods vehicle is a transport vehicle or not further to examine the definition of effective driving licence.
12. Section 2(47) of the Motor Vehicles Act, 1988 reads thus:
"Transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle".
Tho definition of the transport vehicle includes all class or description of the vehicles.
13. Section 2(21) of the Motor Vehicles Act, 1988 reads thus:
"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".
Therefore, it is clear from the section that if the unladen weight does not exceed 7,500 Kgs. it is classified as a Light Motor Vehicle.
14. Section 2(23) of the Motor Vehicles Act, 1988 reads thus:
" "Medium goods vehicle" means any goods carriage other than a light motor vehicle or a heavy goods vehicle".
The section abundantly makes clear that it neither includes light motor vehicles nor heavy goods vehicles.
15. Section 2(16) of the Motor Vehicles Act, 1988 reads thus:
" "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 Kilograms".
The section makes it clear that if the unladen weight exceeds 12,000 Kgs. then it is classified as a Heavy Goods Vehicle.
16. Section 2(17) of the Motor Vehicles Act, 1988 reads thus:
" "Heavy passenger motor vehicle" means any public service vehicle or private service vehicle or educational institution bus or omnibus the gross vehicle weight of any of which, or a motor car the unladen weight of which, exceeds 12,000 Kilograms".
Therefore, even in the case of the passenger vehicle, if the unladen weight exceeds 12,000 Kga. it also comes within the same definition.
17. That on a perusal of the copy of the driving licence made available, the driver who was driving the vehicle possessed with valid driving licence authorising to drive three varieties of vehicles viz., light motor vehicle, medium passenger vehicle and heavy passenger vehicle. For all purposes, this makes clear that as per Section 3, the driver possessed effective driving licence to drive a transport vehicle. Under Chapter II of the Motor Vehicles Act, 1988, it nowhere states that the person possessing with driving licence to drive heavy passenger vehicle is debarred from driving the heavy goods vehicle, the unladen weight of which also exceeds 12,000 Kilograms. In that view of the matter, the contention of the learned Counsel for the insurer that the driver did not possess a valid and effective licence to drive heavy goods vehicle cannot be accepted since the driver has been authorised to drive a heavy passenger vehicle. The unladen weight of heavy passenger vehicle exceeds 12,000 Kgs. whereas in the case of heavy goods vehicle also, the unladen weight exceeds 12,000 Kgs. Therefore, a mere non-mention authorising the driver to drive heavy goods vehicle does not mean that he is not competent to drive the vehicle under the Act in the light of the definition of "transport vehicle" as defined under Section 2(47). The vehicle involved in the accident, coming within the definition of "transport vehicle" under Section 2(47) of the Motor Vehicles Act, it is not open for the insurer to contend that the liability is absolved.
18. The words "effective driving licence" is nowhere defined under Chapter II of the Motor Vehicles Act. Therefore, it connotes the meaning that the person driving the vehicle should possess driving licence as on the date of the accident.
19. Section 10 of the Motor Vehicles Act, 1988 as it stood under Act 59 of 1988 reads thus:
"10. Form and contents of licences to drive.--(1) Every learner's licence and driving licence, except a driving licence issued under Section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.
(2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely.--
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) medium goods vehicle;
(f) medium passenger motor vehicle;
(g) heavy goods vehicle;
(h) heavy passenger motor vehicle;
(i) road-roller;
(j) motor vehicle of specified description".
Under the amendment Act, 1994, the following provisions in Section 10 were substituted and omitted. That section reads thus:
"10. Form and contents of licences to drive.--(1) Every learner's licence and driving licence except a driving licence issued under Section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.
(2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely.--
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carnage;
(d) light motor vehicle;
(e) transport vehicle;
(f) xxxx;
(g)xxxx;
(h) xxxx;
(i) road-roller;
(j) motor vehicle of a specified description".
20. From the reading of the above provisions, by Act No. 54 of 1994, 2(e) medium goods vehicle, 2(0 medium passenger motor vehicle, 2(g) heavy goods vehicle and 2(h) heavy passenger motor vehicle came to be omitted by substituting in its place "transport vehicle". Thereby, it is clear by the intention of the legislature that the person holding driving licence to drive light motor vehicle, or medium passenger vehicle, or heavy passenger vehicle is also competent to drive heavy goods vehicle of such unladen weight as defined under the definitions in respect of the heavy goods vehicle or heavy passenger vehicle. That apart, under Chapter II of the Motor Vehicles Act, it nowhere debars or precludes the person holding driving licence of heavy passenger motor vehicle to drive heavy goods vehicle. Even in that context also, the submission of the learned Counsel that the insurer is not liable to make good the compensation is not sustainable in law and the same is without any force. It is also to be borne in mind that the heavy goods vehicle as welt as the heavy passenger vehicle conies within the definition of "transport vehicle". Therefore, the person possessing driving licence to drive heavy passenger motor vehicle is also competent to drive heavy goods vehicle.
21. A similar question has come up for consideration before the Apex Court in the case of Ashok Gangadhar Maratha v. Oriental Insurance Company Limited , wherein, it is clearly observed as follows:
"Motor Vehicles Act (59 of 1988), Sections 147, 2(21), 2(14) --Liability of insurer -- Light motor vehicle -- Cannot always mean a light goods carriage -- It can be a non-transport vehicle as well
-- Vehicle in question weighing 5,920 Kilos -- Permit to ply vehicle in question as transport vehicle neither pleaded nor produced
-- Vehicle even though designed as goods carrier cannot in view of Section 66 be held to be transport vehicle -- Person driving it at the time of accident authorised to drive only L.M.V. and not transport vehicle -- Cannot be said to be having no effective valid licence -- Insurer cannot escape liability on ground of breach of policy by insured".
It is clearly held that the insurer cannot escape liability on the ground of breach of policy by insured.
22. In the case of United India Insurance Company Limited, Sheshfidripuram, Bangalore v Smt. Lakskmamma and Others, this Court has held as follows:
"Motor Vehicles Act, 1988, Section 149(2)(a)(ii) read with Section 2(47) -- Motor insurance -- Defences available to insurance company -- Driving licence -- Driver had licence to drive a transport vehicle -- Whether the insurance company is exempted from liability when the offending vehicle was a goods vehicle, held, no; goods carriage is transport vehicle as defined under Section 2(47)".
It is observed that the goods carriage is a transport vehicle as defined under Section 2(47) and rejected the contention of the insurer fastening the liability.
23. For the foregoing reasons, the contention of the learned Counsel that the liability of the insurer has to be absolved is without any merits. Accordingly, the Claims Tribunal has rightly held that the liability is joint and several. Therefore, on this ground, all the three appeals of the insurer fail and the same are liable to be dismissed.
24. Insofar as the enhancement of the compensation is concerned, the Claims Tribunal has taken into consideration the earnings of the deceased as Rs. 2,250 p.m. and after deducting l/3rd, the loss of dependency was determined at Rs. 1,500/- and applying the multiplier of 11, determined the total loss of dependency at Rs. 1,98,000/-. The Claims Tribunal has also awarded a sum of Rs. 5,000/- towards loss of consortium, Rs. 5,000/- towards funeral expenses and Rs. 5,000/- towards loss of expectation of life, in all awarded a total compensation of Rs. 2,13,000/-. On examining the materials on record, the compensation awarded by the Claims Tribunal appears to be just and reasonable. Accordingly, the appellants are not entitled for any further enhancement of the compensation.
25. For the foregoing reasons, the appeals of the insurer in M.F.A. Nos. 2451, 2468 and 2672 of 1994 as well as the appeal of the claimants in M.F.A. No. 1731 of 1994 are hereby dismissed.
26. The parties shall bear their own costs.