Karnataka High Court
The Manager Director vs Kavitha W/O Veerabasappa Hunasihal on 24 June, 2024
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NC: 2024:KHC-D:8874
MFA No. 103081 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO.103081 OF 2018 (MV-D)
BETWEEN:
THE MANAGING DIRECTOR
STATE BANK OF INDIA, GENERAL INSURANCE CO. LTD,
3/1, RUKMINI TOWER PLOT FROM ROAD,
SHESHADRIPURAM ROAD, DIAGONALLY HOSPITAL
OPPOSITE TO MANTRI MAHAL BENGALURU-500020,
NOW REPRESENTED BY ITS
AUTHORISED SIGNATORY.
...PETITIONER
(BY SRI SUBHASH J. BADDI, ADVOCATE)
AND:
Digitally
signed by 1. KAVITHA
MANJANNA E
Location: W/O. VEERABASAPPA HUNSIHAL,
HIGH COURT
OF AGE: 44 YEARS, OCC: HOUSEHOLD.
KARNATAKA
2. KUM. SANGEETHA
D/O. VEERBASAPPA HUNSIHAL,
AGE: 18 YEARS, OCC: STUDENT.
3. KUM. NAVEEN
S/O. VEERBASAPPA HUNSIHAL,
AGE: 20 YEARS, OCC: STUDENT.
4. VEERBASAPPA
S/O. SHARANAPPA HUNSIHAL,
AGE: 49 YEARS,
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MFA No. 103081 of 2018
OCC: AGRICULTURE & BUSINESS,
R/O: KALABHAVI, TQ: YELBURGA
DIST: KOPPAL-583236.
5. DURGAPPA
S/O. NAGAPPA @ BAGAPPA GOUDAR,
AGE: 29 YEARS, OCC: DRIVER,
R/O: BUDAKUNTI, TQ: YELBURGA,
DIST: KOPPAL-584121.
6. SHARANAPPA S/O. MAILAPPA KAJI,
AGE: 49 YEARS,
OCC: OWNER OF THE TRACTOR AND
TRAILER BEARING NO.KA-37/T-9139
AND TRAILER NO.KA-37/T-9140,
R/O: YADDONI, TQ: YELBURGA,
DIST: KOPPAL-583279.
...RESPONDENTS
(BY SRI S. S. BAWAKHAN, ADV. FOR R1 TO R4;
SRI ANAND R. KOLLI, ADV. FOR R5 AND R6)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, 1988, PRAYING TO CALL THE
RECORDS, HEAR THE PARTIES, AND ALLOW THE APPEAL AS PRAYED
FOR BY SETTING ASIDE THE JUDGMENT AND AWARD DATED
06.06.2018 PASSED BY THE SENIOR CIVIL JUDGE AND M.A.C.T AT
YELBURGA IN MVC NO.140/2014 WITH COST IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 103081 of 2018
JUDGMENT
Heard learned counsel for the appellant-Insurance company, learned counsel for respondent Nos.1 to 4 and lerned counsel for respondent Nos.5 and 6.
This appeal is filed by the Insurance company seeking reduction of compensation awarded by the tribunal and also challenging the liability saddled upon the insurance company.
2. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
3. The claim petition was filed seeking compensation of Rs.45.00 lakhs on account of the death of one Chetan V. Hunisihal on account of the injury sustained in the road traffic accident that occurred on 25.10.2013 at 7.15 p.m. when deceased Chetan had been to Kalbhavi for personal work in his motor cycle bearing registration No.KA-37-U-0872 and when he was returning from Kalbhavi to Kushtagi after completion of his day-to-day work, on Kusthagi-Hosapete NH-50 road in service road, near D.S. Kandkur House cross, Kusthagi, respondent No.1 being the driver of the Tractor and Trailer bearing -4- NC: 2024:KHC-D:8874 MFA No. 103081 of 2018 registration No.KA-37-T-9139 & 9140 drove the same in rash and negligent manner and dashed to the motor cycle of Chetan, who was standing on the extreme left side of the road. Due to the said impact, Chetan died on the spot.
4. The claimants filed a petition under section 166 of M.V. Act on the ground that claimant No.1 is the mother of deceased Chetan, claimants Nos.2 and 3 are the sister and brother and claimant No.4 is the father and claimant No.5 is the elder brother of the deceased. Before the accident, the deceased was earning a sum of Rs.30,000/- p.m. and he was working in his own electrical workshop at Kushtagi and due to untimely death of deceased Chetan, they have lost the sole bread earner of the family and hence, they have sought for enhancement of compensation.
5. Heard the learned counsel appearing for the appellant/insurance company and learned counsel for the respondents-claimants and perused the judgment and award of the tribunal.
6. The main contention of the insurance company is that deceased Chetan has violated the provision of Section 128 of -5- NC: 2024:KHC-D:8874 MFA No. 103081 of 2018 M.V. Act by not protecting his head by wearing a helmet.
Further, the vehicle involved in the accident was a transport vehicle i.e., tractor and trailer. Thus, it requires a specific driving licence for tractor and trailer unit, but the driver of the tractor and trailer possessed the driving license -LMV-LT, but the tribunal has wrongly fastened the liability on the insurance company. The learned counsel for the insurance company also challenged the quantum of compensation awarded. He submits that the tribunal awarded a compensation of Rs.10,000/-, Rs.20,000/- and Rs.15,000/- under the head 'loss of love and affection', 'mental shock and starvation' and 'funeral and transportation expenses'. The tribunal has wrongly deducted 1/4th towards personal expenses of the deceased and taken 3/4th contribution which is in contravention of the decision in the case of Sarla Verma and others vs. Delhi Transport Corporation and another reported in (2009)6 SCC 121.
Hence, learned counsel prayed to allow the appeal.
7. Learned counsel for the respondents/claimants submit that the tribunal considering the oral and documentary evidence on record has granted fair compensation. Hence, he prayed to dismiss the appeal.
-6-NC: 2024:KHC-D:8874 MFA No. 103081 of 2018 Perused the material available on record.
8. As there is no dispute regarding the death of deceased Chetan in a road traffic accident that occurred on 25.10.2013 due to rash and negligent driving of the Tractor & Trailer bearing registration KA.37/T-9139 & No.KA-37/T-9140 by its driver and liability on the Insurer, the following points that arise for Court's consideration in the appeal are:
1. 'Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for interference?
2. Whether the driver of the offending vehicle did not possess valid and effective driving licence to drive the Tractor and Trailer, thus the Insurance company is liable to pay any compensation?
9. The Insurance company has taken up the contention that the driver of the tractor and trailer did not possess valid and effective driving licence as on the date of the accident.
Infact, the driver of the tractor and trailer possessed driving -7- NC: 2024:KHC-D:8874 MFA No. 103081 of 2018 licence-LMV NT. Hence, the owner of the Tractor has breached the policy condition. Thus, the Insurance company is not liable to pay the compensation to the claimants.
10. In order to substantiate the contention of the insurance company, it examined RW-1 to 3 and also relied upon Ex-R1 Insurance policy copy, Exs-R2 & R3- Tractor and trailer RC cards, Ex-R4- driving licence, Ex-R5- ID Cards, Ex-R6- Extract of driving license and Ex-R7 Insurance policy copy.
11. From the perusal of the driving licence, the driver of tractor and trailer possessed LMV-NT. But the vehicle involved in the accident was not a light goods vehicle, the driver should possess LMV-PNT. Considering the oral and documentary evidence on record, the tribunal held that the insurance company is liable to pay the compensation.
12. In view of the ratio laid down in the case of Mukund Dewangan vs Oriental Ins.Co.Ltd., reported in 2016(4) SCC 298, the insurer is liable to pay the compensation on account of negligence caused by the driver of the offending vehicle.
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13. In the case of Mukund Dewangan vs Oriental Ins.Co.Ltd., the Hon'ble Apex Court at paras 2 to 14 held as follows:-
2. In Ashok Gangadhar Maratha v. Oriental Insurance Co.
Ltd., S. Iyyapan v. United India Insurance Co. Ltd., Nagashetty v. United India Insurance Co. Ltd. [Nagashetty v. United India Insurance Co. Ltd., the view taken by this Court was that when a driver is holding a licence to drive "light motor vehicle", he is competent to drive a "transport vehicle" of that category without specific endorsement to drive the transport vehicle; whereas in New India Assurance Co. Ltd. v. Prabhu Lal, a view had been taken that before 2001 also, it was necessary for a driver possessing driving licence to drive light motor vehicle to obtain an endorsement to drive transport vehicle of that class; whereas in National Insurance Co. Ltd. v. Annappa Irappa Nesaria , a distinction was made in the legal position which existed before 28-3-2001 i.e. the date of amendment of the form and subsequent thereto. It was opined that before 28-3- 2001 there was no necessity for the holder of a licence to drive light motor vehicle to obtain an endorsement to drive transport vehicle of that class. He could drive transport vehicle of light motor vehicle category on the basis of holding a licence to drive light motor vehicle. In New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir and Oriental Insurance Co. Ltd. v. Angad Kol [Oriental Insurance Co. Ltd. v. Angad Kol, the view had been taken that a driver holding licence to drive light motor vehicle in order to drive "transport vehicle" of that class has to obtain a specific endorsement on licence authorising him to drive a transport vehicle.
3. Following questions have been referred for decision to the larger Bench:
"1. What is the meaning to be given to the definition of "light motor vehicle" as defined in Section 2(21) of the MV Act? Whether transport vehicles are excluded from it?-9-
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2. Whether "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 roadroller, "unladen weight" of which does not exceed 7500 kg and holder of a licence to drive the class of "light motor vehicle" as provided in Section 10(2)(d) would be 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 roadroller, the "unladen weight" of which does not exceed 7500 kg?
3. What is the effect of the amendment made by virtue of Act 54 of 1994 w.e.f. 14-11-1994 while substituting clauses (e) to (h) of Section 10(2) which contained "medium goods vehicle", "medium passenger motor vehicle", "heavy goods vehicle" and "heavy passenger motor vehicle" by "transport vehicle"? Whether insertion of expression "transport vehicle" under Section 10(2)(e) is related to said substituted classes only or it also excluded transport vehicle of light motor vehicle class from the purview of Sections 10(2)(d) and 2(41) of the Act?
4. What is the effect of amendment of Form 4 as to the operation of the provisions contained in Section 10 as amended in the year 1994 and whether the procedure to obtain the driving licence for transport vehicle of the class of "light motor vehicle" has been changed?"
4. There is a conflict in the aforesaid decisions of this Court with respect to the legal position as to pre-amended and also the post-amendment legal position of the amendment made on 28-3-2001 in the forms for driving licence. In order to answer the questions, it is necessary to consider the various provisions of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").
5. Section 3 of the Act deals with the necessity for driving licence which is extracted hereunder:
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NC: 2024:KHC-D:8874 MFA No. 103081 of 2018 "3. 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 [Subs. by Act 54 of 1994, Section 3, for "a motor cab" (w.e.f. 14-11-
1994).] [a motor cab or motorcycle] 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.
(2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government."
It is apparent from the provisions contained in Section 3 that it is necessary to have a licence to drive a motor vehicle in any public place and in order to drive a transport vehicle, the driving licence must specifically entitle him to do so. The question is what is the meaning to be given to "transport vehicle" under Section 3.
6. "Driving licence" has been defined in Section 2(10) of the Act. The section is extracted hereunder:
"2. (10) "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;"
It is apparent from the definition of driving licence that licence is issued authorising the person specified in the licence to drive a motor vehicle or a motor vehicle of any specified class or description. Significantly, the definition of "driving licence" categorises the licence of any specified class or description.
7. Section 10 deals with the form and contents of the licences to drive. Section 10 as it stood before its
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NC: 2024:KHC-D:8874 MFA No. 103081 of 2018 amendment made in the year 1994 by virtue of Amendment Act 54 of 1994 is extracted hereunder:
"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) motorcycle without gear;
(b) motorcycle 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) roadroller;
(j) motor vehicle of a specified description."
8. It is apparent from the pre-amended provision which existed before the amendment made in the year 1994 that class or description of the vehicle for which licence used to be issued were categorised inter alia as light motor vehicle, medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle and motor vehicle of a specified description. Transport vehicle was not a separate class, and it could be categorised under Sections 10(1)(d) to (h).
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9. The amendment had been made in Section 10 by virtue of Amendment Act 54 of 1994. The Statement of Objects and Reasons of the Amendment Act being relevant is extracted hereunder:
"Amendment Act 54 of 1994 -- Statement of Objects and Reasons.--The Motor Vehicles Act, 1988 (59 of 1988) consolidated and rationalised various laws regulating road transport. The Act came into force with effect from 1-7-1989 replacing the Motor Vehicles Act, 1939.
2. After the coming into force of the Motor Vehicles Act, 1988, Government received a number of representations and suggestions from the State Governments, transport operators and members of public regarding the inconvenience faced by them because of the operation of some of the provisions of the 1988 Act. A Review Committee was, therefore, constituted by the Government in March 1990 to examine and review the 1988 Act.
3. The recommendations of the Review Committee were forwarded to the State Governments for comments and they generally agree with these recommendations. The Government also considered a large number of representations received, after finalisation of the report of the Review Committee, from the transport operators and public for making amendments in the Act. The draft of the proposals based on the recommendation of the Review Committee and representations from the public were placed before the Transport Development Council for seeking their views in the matter. The important suggestions made by the Transport Development Council relate to, or are on account of--
(a) the introduction of newer type of vehicles and fast increasing number of both commercial and personal vehicles in the country;
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(b) providing adequate compensation to victims of road accidents without going into long-drawn procedure;
(c) protecting consumers' interests in transport sector;
(d) concern for road safety standards, transport of hazardous chemicals and pollution control;
(e) delegation of greater powers to State Transport Authorities and rationalising the role of public authorities in certain matters;
(f) the simplification of procedures and policy liberalisation in the field of road transport;
(g) enhancing penalties for traffic offenders.
4. Therefore, the proposed legislation has been prepared in the light of the above background. The Bill inter alia provides for--
(a) modification and amplification of certain definitions of new type of vehicles;
(b) simplification of procedure for grant of driving licences;
(c) putting restrictions on the alteration of vehicles;
(d) certain exemptions for vehicles running on non-polluting fuels;
(e) ceilings on individuals or company holdings removed to curb "benami"
holdings;
(f) States authorised to appoint one or more State Transport Appellate Tribunals;
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(g) punitive checks on the use of such components that do not conform to the prescribed standards by manufacturers, and also stocking/sale by the traders;
(h) increase in the amount of compensation of the victims of hit-and-run cases;
(i) removal of time-limit for filling of application by road accident victims for compensation;
(j) punishment in case of certain offences is made stringent;
(k) a new pre-determined formula for payment of compensation to road accident victims on the basis of age/income, which is more liberal and rational.
5. The Law Commission in its 119th Report had recommended that every application for a claim be made to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, at the option of the claimant. The Bill also makes necessary provision to give effect to the said recommendation."
(emphasis supplied)
10. The pre-amended provision of Section 10 contained the vehicles of ten kinds in Sections 10(2)(a) to (j). In order to simplify the procedure for obtaining the licence, categories like medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, and heavy passenger motor vehicle were deleted and one category was inserted for these four kinds of vehicles in the form of "transport vehicle" in Section 10(2)(e) so that drivers are not required to obtain the licence again and again for the aforesaid four kinds of vehicles. The provision of Section
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NC: 2024:KHC-D:8874 MFA No. 103081 of 2018 10 after amendment made by Act 54 of 1994 is extracted hereunder:
"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) motorcycle without gear;
(b) motorcycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) transport vehicle;
(f)-(h)***
(i) roadroller;
(j) motor vehicle of a specified
description."
11. Before dilating further, it is necessary to consider other definitions as "gross vehicle weight" which has co-
relation with the classification of vehicles into a light motor vehicle, medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle and heavy passenger motor vehicle. The definitions of aforesaid class of vehicles are extracted hereunder:
"2. Definitions.--*** (16) "heavy goods vehicle" means any goods carriage the gross vehicle weight of which, or a
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NC: 2024:KHC-D:8874 MFA No. 103081 of 2018 tractor or a roadroller the unladen weight of either of which, exceeds 12,000 kilograms;
(17) "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;
*** (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 roadroller the unladen weight of any of which, does not exceed 7500 kilograms;
*** (23) "medium goods vehicle" means any goods carriage other than a light motor vehicle or a heavy goods vehicle;
(24) "medium passenger motor vehicle"
means any public service vehicle or private service vehicle, or educational institution bus other than a motorcycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle;"
12. The definitions of "gross vehicle weight" and "unladen weight" are also significant as the expressions find place in the aforesaid definitions. Said definitions in Sections 2(15) and 2(48) are as under:
"2. (15) "gross vehicle weight" means in respect of any vehicle the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle;
***
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NC: 2024:KHC-D:8874 MFA No. 103081 of 2018 (48) "unladen weight" means the weight of a vehicle or trailer including all equipment ordinarily used with the vehicle or trailer when working, but excluding the weight of a driver or attendant; and where alternative parts or bodies are used, the unladen weight of the vehicle means the weight of the vehicle with the heaviest such alternative part or body;"
13. "Transport vehicle" has been referred in Section 2(47) of the Act thus:
"2. (47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;"
Various expressions find a place in the aforesaid definition of "transport vehicle". Each of them has been defined separately and they are extracted thus:
"2. (11) "educational institution bus" means an omnibus, which is owned by a college, school or other educational institution and used solely for the purpose of transporting students or staff of the educational institution in connection with any of its activities;
*** (14) "goods carriage" means any 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;
*** (33) "private service vehicle" means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not
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NC: 2024:KHC-D:8874 MFA No. 103081 of 2018 include a motor vehicle used for public purposes;
*** (35) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxi cab, a motor cab, contract carriage, and stage carriage;"
14. "Motor car", "omnibus" and "tractor" have been defined in the Act thus:
"2. (26) "motor car" means any motor vehicle other than a transport vehicle, omnibus, roadroller, tractor, motorcycle or invalid carriage;
*** (29) "omnibus" means any motor vehicle constructed or adapted to carry more than six persons excluding the driver;
*** (44) "tractor" means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a roadroller;"
14. In view of the facts and circumstances of the present case and in view of the ratio laid down in the decision cited supra, the Insurance company is liable to pay the entire compensation.
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15. After hearing the learned counsel appearing for the parties and perusing the judgment and award of the tribunal, I am of the view that the compensation awarded by the tribunal is just and reasonable. Infact, it is on the lower side when we consider the income of the deceased. The tribunal calculated the 'loss of dependency' at Rs.9,72,000/- by taking the income of the deceased at Rs.6,000/-. The tribunal ought to have considered the monthly income at Rs.7,000/- since the accident has occurred in the year 2013. If Rs.7,000/- is calculated, then 'loss of dependency' comes to Rs.10,58,400/-. The tribunal also granted compensation under the head 'loss of love and affection', 'funeral expenses' and 'mental shock and starvation'.
Looking into any angle, there is no merit in the contention of the learned counsel for the insurance company.
Accordingly, the appeal is dismissed as being devoid of merit.
Sd/-
JUDGE MN/ct-vr