Karnataka High Court
The Branch Manager, vs Smt.Reshma Rajesab Multani, on 5 December, 2017
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 5th day of December 2017
Before
THE HON'BLE MR. JUSTICE B.A. PATIL
Miscellaneous First Appeal No.24938/2010 (WC)
C/w M.F.A. No.20620/2012 (WC)
IN MFA NO.24938/2010
BETWEEN
THE BRANCH MANAGER,
THE NEW INDIA ASSURANCE CO. LTD.,
CLUB ROAD, BELGAUM.
NOW REPRESENTED BY ITS
REGIONAL MANAGER,
NEW INDIA ASSURANCE CO.LTD.,
DIVISIONAL OFFICE, MTP HUB.
SRINATH COMPLEX, NCM, HUBLI. ...APPELLANT
(BY SRI. LAXMAN B. MANNODDAR, ADVOCATE)
AND
1. SMT.RESHMA RAJESAB MULTANI,
AGE: 25 YEARS,
OCC: HOUSE HOLD WORK,
R/O SULTANPUR, TAL: HUKKERI,
DIST: BELGAUM
2. MURULAL RAJESAB MULTANI,
AGE: 5 YEARS, MINOR
3. ROSANA RAJESAB MULTANI,
AGE: 4 YEARS, MINOR
(RESPONDENT NOS.2 & 3 ARE MINORS
R/BY MINOR GUARDIAN - RESPONDENT No.1)
2
4. SHRI.SANJEEV BHIMAPPA JINARALE,
AGE: MAJOR, OCC: VAKKALUTANA,
R/O MADIHALLI,
TAL: HUKKERI, DIST: BELGAUM. ...RESPONDENTS
(BY SRI. JAGADISH PATIL, ADVOCATE FOR R1-R3
SRI. SRINAND A. PACHHAPURE, ADVOCATE FOR R1)
THIS MFA IS FILED UNDER SECTION 30(1) OF WC ACT,
1923, AGAINST THE JUDGMENT AND ORDER DATED
12-08-2010 PASSED IN KAPAKA/SR-40/2009, ON THE FILE OF
THE LABOUR OFFICER AND COMMISSIONER FOR WORKMENS
COMPENSATION, SUB-DIVISION-I, BELGAUM DISTRICT,
BELGAUM, AWARDING THE COMPENSATION OF RS.4,30,560/-
WITH INTEREST AT THE RATE OF 7.5% P.A., FROM DATE OF
15-04-2009 TILL 12-08-2010 AND THE INTEREST AT THE RATE
OF 12% P.A., FROM 12-08-2010 TILL ITS DEPOSIT.
----------
IN MFA NO.20620/2012
BETWEEN
1. RUBANABI
W/O. MOHAMMADSAB MULTAI
AGE : 60 YRS, R/O SULTANPUR
TQ: HUKERI, DIST: BELGAUM-590001.
2. SHAKILA,
W/O. RAJESAB MULTANI
AGE: 26 YRS, OCC: H/W
R/O.SULTANPUR, TQ : HUKKERI,
DIST: BELGAUM.
3. RUBINA, D/O. RAJESAB MULTANI
AGE: 5 YRS, R/O. SULTANPUR
TQ: HUKKERI, DIST: BELGAUM.
(SINCE MINOR REPRESENTED BY NATURAL
GUARDIAN APPELLANT NO.1) ...APPELLANTS
(BY SRI. SACHIN S. MAGADUM, ADVOCATE)
3
AND
1. SANJEEV
S/O.BHIMAPPA JINARALI
AGE: MAJOR, OCC: AGRICULTURE,
R/O. MUDIHALLI, TQ : HUKKERI,
BELGAUM-590001.
2. NEW INDIA INSURANCE CO. LTD.,
CLUB ROAD, BELGAUM,
BELGAUM-590001.
(POLICY NO.151203/31/07/02/00002922)
3. RESHAM, W/O. RAJESAB MULTANI
AGE: 25 YRS, OCC : H/W
R/O.SULTANPUR
TQ : HUKKERI, BELGAUM-590001.
4. MURULAL, S/O. RAJESAB MULTANI
AGE: 6 YRS, R/O. SULTANPUR
TQ : HUKKERI, BELGAUM-590001.
5. ROSNA RAJESAB MULTANI
AGE: 4 YRS R/O. SULTANPUR
TQ: HUKKERI, BELGAUM-590001.
(RESPONDENTS 4 & 5 SINCE MINOR
REPRESENTED BY THEIR NATURAL
GUARDIAN RESPONDENT NO.3) ...RESPONDENTS
(BY SRI. LAXMAN B.MANNODDAR, ADVOCATE FOR R2)
(R1 & R3-SERVED AND UNREPRESENTED; R4 & R5 MINORS
REPRESENTED BY R3)
THIS MFA IS FILED UNDER SECTION 30 OF THE
W.C.ACT, AGAINST THE JUDGEMENT AND AWARD
DATED:12.08.2010, PASSED IN WC NO.40/2009 ON THE FILE
OF THE LABOUR OFFICER AND COMMISSIONER FOR
WORKMEN COMPENSATION, SUB-DIVISION-I, BELGAUM,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ORDERS ON I.A. THIS
DAY, THE COURT, DELIVERED THE FOLLOWING:
4
JUDGMENT
M.F.A. No.24938/2010 has been preferred by the appellant-insurer and M.F.A. No.20620/2012 has been preferred by the appellants being aggrieved by the judgment and order dated 12.08.2010 passed by the Labour Officer and Commissioner for Workmen's Compensation, Sub- Division-I, Belgaum District, Belgaum (hereinafter referred to as 'the Commissioner', for short), in KAPAKA/SR-40/2009.
2. Heard. The appeals are admitted and with the consent of the learned counsel appearing for the parties, they are taken up for final disposal.
3. Brief facts of the case are that, One Rajesab Multani was working as a driver under respondent No.1 in the tractor bearing registration No.KA- 23/T-5727 and trailers bearing Nos.KA-49/T1481 and KA-49/T-1482. On 27.10.2008, Rajesab Multani was under the employment of respondent No.1 and, after unloading sugarcane from Renuka Sugars at Munavalli, while returning, he lost control over the said vehicle and the said tractor turtled by the side of the road. Due to the said impact, he sustained injuries and died on the spot. 5 For having lost the bread-earner of the family, the wife and children of the deceased Rajesab Multani filed a claim petition claiming compensation by contending that the deceased was getting a monthly salary of Rs.4,000/- per month and Rs.50/- as batta per day.
In response to the notice, respondent Nos.1 and 2 appeared and filed their written statements by denying the contents of the petition, they contended that the liability is subject to the terms and conditions of the policy.
After framing necessary issues and considering the evidence on records, the Commissioner passed the judgment and order.
4. Assailing the said judgment and order of the Commissioner, the insurer and the appellants are before this Court.
5. The main grounds urged by learned counsel for the appellant/insurer are that though the deceased was holding driving licence to drive light motor vehicle (non-transport), there is no endorsement authorising him to drive the transport vehicle, as required under the law, as such, there is breach of policy conditions and the Commissioner, without considering the said fact, has fastened the liability on the 6 appellant/insurance company. On these grounds, he prayed for allowing the appeal fastening the liability on the owner of the offending vehicle.
6. Learned counsel appearing for the appellants has contended that the Commissioner has come to the conclusion that the interest on the compensation is payable at the rate of 12% per annum, but while passing the impugned order, erroneously, it has been ordered that the claimants are entitled to interest at the rate of 7.5% from 15.04.2009 to 12.08.2010 and at 12% from 12.08.2010 onwards, the same is not sustainable in law, and the interest has to be awarded at the rate of 12% per annum from one month after the date of the accident. On these grounds, he prayed for allowing the appeal and modifying the judgment and order passed by the Commissioner.
7. It is further contended that the 1st appellant is the mother, the 2nd appellant is the legally wedded wife and the 3rd appellant is the daughter of the deceased and hence, they 7 are also entitled for the compensation. On these grounds, learned counsel prayed for allowing the appeal.
8. The accident in question is not in dispute and so also the involvement of the offending vehicle insured with the insurer.
9. The substantial question raised is, whether the judgment and order passed by the commissioner is justifiable?
10. The main contention, which has been raised by the learned counsel for the appellant/insurer is that the driver of the offending vehicle was holding a driving licence to drive light motor vehicle (non-transport), but he was not holding any valid and effective driving licence to drive the transport vehicle as there was no endorsement to that effect. As could be seen from the licence, which is made available to the Court by the learned counsel appearing for the owner of the offending vehicle and which is perused with the consent of the parties, it indicates that the deceased was holding a valid and effective driving licence to drive light motor vehicle (non- 8 transport) and it was in currency from 24.01.2003 to 23.01.2023. The only contention, which has been taken up by the learned counsel for the appellant/insurer is that the driver of the offending vehicle had not obtained an endorsement to drive the transport vehicle. In this regard, it is relevant to refer to 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. At paragraphs 45 and 46, the Hon'ble Apex Court has observed as under:
"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 9 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.
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 10 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:
(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.11
(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 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."
On going through the decision quoted supra, it makes it clear that if a person is 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. In view of the decision of the Hon'ble Apex Court and, that too, when the 12 driver of the offending vehicle was holding a valid and effective driving licence to drive the light motor vehicle (non-transport) and it was in currency as on the date of the accident, then under such circumstances, it can be safely held that the driver was holding valid and effective driving licence and policy was in currency, in that light, the insurance company is liable to pay the compensation. On this count, the contention taken up by the learned counsel for the appellant/insurer is not sustainable, the same is rejected.
11. The next contention which has been raised by the learned counsel appearing for the appellants is that the Tribunal has erroneously fixed the interest at the rate of 7.5% per annum from 15.04.2009 to 12.08.2010 and 12% from 12.08.2010. As could been seen from the impugned judgment and order of the Commissioner, an observation has been made at para no.19, that the claimants are entitled for interest at the rate of 12% and it will start immediately one month after date of accident, but in the operative portion of the judgment, it is ordered that the interest is payable at the rate of 7.5% per annum from 15.04.2009 to 12.08.2010 and 12% from 13 12.08.2010, and the same is not justifiable. The substantial question which arises for consideration is, from what date the interest starts to accrue?
12. As per Section 4-A.(3)(a) of the Workmen's Compensation Act, 1923, interest falls due on the date of the accident and the interest starts accruing one month after the date of the accident. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Oriental Insurance Co. Ltd. vs. Siby George and others reported in 2012 ACJ 2126. Keeping in view the decision quoted supra, the finding given by the Commissioner in respect of the interest is not sustainable in law and the same requires to be modified and accordingly, it is modified. It is made clear that the appellant-insurer has to pay interest at the rate of 12% from one month after the date of the accident.
13. The next contention which has been raised by the appellants in M.F.A. No.20620/2012 is that the appellant No.1 is the mother, appellant No.2 is the wife and appellant No.3 is the daughter of the deceased and hence, they are 14 entitled to claim compensation. Though, this Court, by order dated 29.01.2015, allowed I.A. No.3/2012 and permitted the appellants to prosecute the appeal, but in this case, this Court cannot adjudicate the right of the parties because of the reason that respondent Nos.3 to 5 in M.F.A. No.20620/2012 had filed the claim petition before the Commissioner and the said claim petition was adjudicated and finalized by the Commissioner. Thereafter, challenging the judgment and order of the Commissioner, M.F.A. No.20620/2012 has been filed by the appellants seeking permission to prosecute the appeal. This Court can only adjudicate the correctness of the prerogative of the order challenged and cannot decide the civil rights of the parties. In this behalf, the appellants are directed to get their rights adjudicated before the appropriate Court, if they are advised to do so. With the above observation, M.F.A. No.20620/2012 is disposed of.
14. M.F.A. No.24938/2010 filed by the insurer is dismissed as devoid of merits. However, the impugned judgment and order, dated 12.08.2010, passed by the Commissioner in No.KAPAKA/SR-40/2009 is modified to the 15 extent that the interest on the compensation is payable at the rate of 12% per annum from one month after the date of the accident.
However, the Commissioner is directed not to disburse the amount in deposit till the right of the parties are finally decided by a competent Civil Court. It is further directed that the amount in deposit may be invested in any Nationalized Bank of the choice of the claimants before the Commissioner, initially for a period of one year and if the suit is not disposed off or finalized, then it may be renewed till the rights of the parties are decided.
The amount in deposit before this Court, if any, may be transmitted to the jurisdictional Commissioner.
Registry is directed to draw the award accordingly and also to send back the lower court records forthwith.
Sd/-
JUDGE Kms