Karnataka High Court
Manjappa S/O. Mahadevappa Mallapur, vs Smt. Mangala W/O. Suresh Kaginelli, on 8 August, 2017
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
MFA NO.23657/2013 (MV)
BETWEEN
MANJAPPA S/O. MAHADEVAPPA MALLAPUR,
AGE:30 YEARS, OCC:BUSINESS,
R/O. HEDIGONDA, TQ:BYADAGI,
DIST:HAVERI.
... APPELLANT
(BY SRI. LAXMAN T. MANTAGANI &
SRI. N.T.APPANNAVAR, ADVS.)
AND
1. SMT. MANGALA W/O. SURESH KAGINELLI,
AGE:33 YEARS, OCC:HOUSEHOLD WORK,
R/O. KURUBAGONDA, TQ & DIST. HAVERI.
2. KUMARI TEJASWINI D/O. SURESH KAGINELLI
AGE:4 YEARS, OCC:NIL,
(SINCE PETITIONER NO.2 IS THE MINOR
AND SHE IS REPRESENTED BY HER NATURAL
MOTHER AND M/G PETITIONER NO.1)
3. SMT.GURUSHANTHAVVA
W/O. BASAPPA KAGINELLI
AGE:57 YEARS, OCC:HOUSEHOLD WORK,
R/O. KURUBAGONDA, TQ&DIST. HAVERI,
4. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
SUJATA COMPLEX, OPP. P.B.ROAD,
HUBLI, DIST:DHARWAD.
... RESPONDENTS
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(BY SRI. M H PATIL, ADV. FOR R1 TO R3,
SRI. M.Y.KATAGI, ADV. FOR R4,
R2 MINOR REP. BY R1)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 26.06.2013
PASSED IN MVC NO.590/2011 ON THE FILE OF SENIOR CIVIL
JUDGE AND MEMBER, ADDL. MACT, ITERNATE COURT,
BYADAGI, AWARDING COMPENSATION OF RS.5,62,000/- WITH
INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF
PETITION TILL THE DATE OF ACTUAL REALISATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and the learned counsel for the respondents.
2. This appeal is preferred by the appellant - owner under Section 173(1) of MV Act against the judgment and award dated 26.06.2013 passed in MVC No.590/2011 on the file of Senior Civil Judge and Member, Addl. MACT, Iternate Court, Byadagi, (hereinafter referred to as 'Tribunal' for short) awarding compensation of Rs.5,62,000/- with interest at the rate of 6% per annum from the date of petition till the date of actual realisation.
3. Learned counsel for the parties submit that the issue involved in the present case has been elaborately discussed by the :3: Hon'ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited in Civil Appeal No.5826/2011 decided on 03.07.2017 and the same is squarely applicable to the facts and circumstance of the present case on hand, wherein it is held as follows:
"1. In the reference, the main question involved is whether a driver who is having a licence to drive 'light motor vehicle' and is driving 'transport vehicle' of that class is required additionally to obtain an endorsement to drive a transport vehicle?
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40. In S.Iyyapan (supra), this Court has considered the decisions in Ashok Gangadhar (supra), Annappa Irappa Nesaria (supra), Prabhu Lal (supra) and has laid down thus:
"18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in :4: holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment (Civil MIsc. Appeal No.1016 of 2002, order dated 31.10.2008 (Mad)) is, therefore, liable to be set aside."
This Court has rightly held in S.Iyyapan (supra) that it was not necessary for the driver to get any endorsement in the driving licence to drive Mahindra Maxi Cab as he was authorized to drive a light motor vehicle.
41. In Kulwant Singh v. Oriental Insurance Co. Ltd.
(2015) 2 SCC 186, this Court has referred to the decisions in S.Iyyapan (supra) and Annappa Irappa Nesaria (supra) and has laid down that once the driver is holding a licence to drive light motor vehicle, he can drive commercial vehicle of that category. In Kulwant Singh (supra) it has been laid down thus:
"8. We find that the judgments relied upon cover the issue in favour of the appellants. In Annappa Irappa Nesaria (2008) 3 SCC 464, this Court referred to the provisions of Sections 2(21) and (23) of the Motor Vehicles Act, 1988, which are definitions of "light motor vehicle" and "medium goods :5: vehicle" respectively and the Rules prescribing the forms for the licence i.e. Rule 14 and Form
4. It was concluded: (SCC p. 468, para 20) "20. From what has been noticed hereinbefore, it is evident that 'transport vehicle' has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time to cover both 'light passenger carriage vehicle' and 'light goods carriage vehicle'. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well."
9. In S. Iyyapan (2013) 7 SCC 62, the question was whether the driver who had a licence to drive "light motor vehicle" could drive "light motor vehicle" used as a commercial vehicle, without obtaining endorsement to drive a commercial vehicle. It was held that in such a case, the insurance company could not disown its liability. It was observed: (SCC p. 77, para 18) :6: "18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab.
Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment [Civil Misc. Appeal No.1016 of 2002, order dated 31.10.2008 (Mad)] is, therefore, liable to be set aside."
10. No contrary view has been brought to our notice.
11. Accordingly, we are of the view that there was no breach of any condition of insurance policy, in the present case, entitling the Insurance Company to recovery rights."
:7:Though, as held above, and for the reasons assigned by us, the conclusion in Kulwant Singh (supra) was correct, however for the post-amended position after 28.03.2001 also the law continues to be the same for LMV class of vehicles."
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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 28.03.2001. 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 1989, other provisions and also the forms which are in the 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 :8: 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the question 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 :9: section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.03.2001 in the form.
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.ef. 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 : 10 : holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."
4. In view of the dismissal of the appeal filed by the Insurance Company in MFA No.104163/2016 c/w MFA No.104162/2016 decided on 25.07.2017 relying on the decision in the case of Mukund Dewangan, referred supra, wherein the entire liability is fastened on the Insurance Company and the question of fixing the liability on the owner would not arise. Hence, the appeal filed by the owner is liable to be allowed in part.
5. In the result, I proceed to pass the following:
ORDER
(i) The appeal is hereby allowed in part.
(ii) The judgment and award insofar as liability is concerned, is modified only to the extent that the Insurance Company is liable to satisfy the compensation awarded by the Tribunal.
(iii) The rest of the judgment and award passed by the Tribunal shall remain in tact.: 11 :
The amount in deposit, if any, shall be transmitted to the concerned Tribunal, forthwith.
Sd/-
JUDGE Rsh