Karnataka High Court
Sri. Muttu S/O Shivappa Mulimani vs Sri. Manjayya S/O Fakirayya Hiremath on 13 December, 2017
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF DECEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
M.F.A.NO.24102/2011 (M.V.)
C/W
M.F.A.NO.21817/2012 (M.V.)
M.F.A.NO.24102/2011 (M.V.)
BETWEEN:
SRI. MUTTU S/O SHIVAPPA MULIMANI
AGE: 22 YEARS, OCC: CLEANER
R/O. BYAHATTI,
NOW AT GANGAVATHI, DIST. KOPPAL.
... APPELLANT
(BY SRI. B SHARANABASAWA & A B PATIL, ADVOCATES)
AND
1. SRI. MANJAYYA S/O FAKIRAYYA HIREMATH,
AGE: 22 YEARS,
OCC: DRIVER OF TOOFAN MAXI CAB
BEARING REG. NO. KA-25/C-1595.
2. K. JEEVAMANI D/O K. J. PAPU
AGE: 22 YEARS,
OCC: OWNER OF THE TOOFAN MAXI CAB
BEARING REGN. NO. KA-25/C-1595,
R/O: PLOT NO. 4, BLOCK NO. 14,
AKSHAY PARK, GOKUL ROAD,
HUBLI, DIST: DHARWAD
3. THE DIVISIONAL MANAGER,
DIVISIONAL OFFICE,
NEW INDIA ASSURNACE COMPANY LIMITED,
2
EDIGA COMPLEX, COURT ROAD,
BELLARY.
... RESPONDENTS
(BY SRI. M. K. SOUDAGAR, ADVOCATE FOR R3;
R1- NOTICE SERVED; R2- NOTICE DISPENSED WITH)
THIS MFA IS FILED U/SEC.173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 28.04.2011
PASSED IN M.V.C.NO.322/2009 ON THE FILE OF THE SENIOR
CIVIL JUDGE & MEMBER M.A.C.T., GANGAVATHI, PARTLY
ALLOWING THE CLAIM PEITTION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A.NO.21817/2012 (M.V.)
BETWEEN:
J. HASAINSAB S/O LATE NABISAB,
AGE: 38 YEARS,
OCC: BUSINESS & AGRIL.
R/O BASAPATTANA,
TQ GANGAVATHI, DIST: KOPPAL.
... APPELLANT
(BY SRI.CHANDRASHEKAR P PATIL, ADVOCATE)
AND
1. THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE COMPANY LTD.,
DIVISIONAL OFFICE, ARYA EDIGA BUILDING,
OPP. OLD BUS-STAND, BELLARY,
DIST: BELLARY
2. MANJAYYA S/O FAKEERAPPA,
AGE: 25 YEARS,
OCC: DRIVER OF CRUSHER
VEHICLE NO.KA-25/C-1595,
R/O: BYAHATTI, TQ: HUBLI,
DIST: DHARWAD.
3. KONGONDAN JEEVAMANI
S/O. SRI. DAUGHTER OF K. J. PAPU JOSEPH
AGE: 45 YEARS,
3
OWNER OF CRUSHER VEHICLE
NO.KA-25/C-1595,
PLOT NO. 4, BLOCK NO.14
AKSHAYA PARK, GOKUL ROAD,
HUBLI, DIST: DHARWAD
... RESPONDENTS
(BY SRI. M. K. SOUDAGAR, ADVOCATE FOR R1;
R3- NOTICE DISPENSED WITH; R2-NOTICE SERVED)
THIS MFA IS FILED U/SEC.173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 28.04.2011
PASSED IN MVC.NO.269/2009 ON THE FILE OF THE SENIOR
CIVIL JUDGE & MEMBER MACT, GANGAVATHI, PARTLY
ALLOWING THE CLAIM PEITTION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ORDERS THIS DAY,
THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals have been preferred by the appellants-claimants being aggrieved by the judgment and award passed by the Senior Civil Judge and M.A.C.T., Gangavathi in M.V.C.No.322/09 and M.V.C. No.269/2009, dated 28.04.2011.
2. Heard. Appeals are admitted. Though these appeals are listed for orders, with the consent of the learned counsel for the parties, they are taken up for final disposal. 4
3. The brief facts averred in the claim petitions are that on 11.02.2009 petitioner, J. Hasansab, was proceeding in a cruiser vehicle bearing registration No.KA-25/C-1595 from Hubli to Gangavathi and one Muttu, petitioner in MVC No.322/2009, was working as a cleaner in the said vehicle. When the said vehicle came on Koppal-Gangavathi main road, near Basapattan, at about 5.00 a.m., the driver of the said vehicle drove it rashly and negligently and dashed to Tata canter which was parked by the side of the road. Due to the said impact, the petitioners sustained grievous injuries and immediately they were taken to government hospital at Gangavathi and thereafter they availed further treatment at private hospital. For having sustained injuries in the accident, they filed separate claim petitions under section 166 of the M.V. Act, claiming compensation.
4. Inspite of service of notice, respondent No.1 did not appear before the Tribunal and was placed exparte. In response to the notice, respondent No. 2 and 3 appeared before the Tribunal and filed their written statements. Respondent No.2 filed his written statement by denying the 5 contents of the claim petition, he further contended that the respondent No.1-driver of the vehicle was holding valid and effective driving licence as on the date of the accident and the vehicle was insured with respondent No.3-insurer and it was in currency and as such, respondent No.3-insurer is liable to pay the compensation. Respondent No.3-insurer has filed his written statement by denying the contents of the claim petition, he further contended that the driver of the offending vehicle was not holding valid and effective driving licence and there is a violation of terms and conditions of the policy. He further contended that the compensation claimed by the petitioners is exorbitant and he is not liable to pay any compensation.
5. On the basis of the above pleadings, the Tribunal framed the following:-
ISSUES IN MVC NO.322/2009
1. Whether the petitioner proves that on 11-2-
2009 at about 5-00 A.M. on Koppal to Gangavathi Main Road, Near Basapatna village, he has sustained grievous injuries in a motor vehicle accident on account of the rash and negligent driving of the Toofan 6 Maxi Cab bearing No.KA-25/C-1595 by the respondent No.1?
2. Whether the petitioner proves that he is entitled for the compensation? From whom, to what extent?
3. What order?
ISSUES IN MVC NO.269/2009
1. Whether the petitioner proves that on 11-2- 2009 at about 5-00 A.M. on Koppal -
Gangavathi Main Road, Near Basapatna Seema, he has sustained grievous injuries in a motor vehicle accident on account of the rash and negligent driving of the Cruiser bearing No.KA-25/C-1595 by the respondent No.1?
2. Whether the petitioner proves that he is entitled for the compensation? From whom, to what extent?
3. What order?
6. In order to prove their cases, petitioner in MVC No.322/2009 got examined himself as P.W.1 and got examined Dr. Ramakrishna as P.W.2 and got marked documents as per Ex.P.1 to P.16. The petitioner in MVC No.269/2009 got examined himself as P.W.1 and got examined Dr.Ramakrishna as P.W.2 and got marked 7 documents as per Ex.P.1 to P.101. On behalf of respondent No.-3 insurer, the administrative officer of the insurance company got examined as R.W.1 and got marked documents as per Ex.R.1 and R.2.
7. After hearing the parties to the lis, the impugned judgment and award came to be passed by the Tribunal wherein the Tribunal awarded compensation amount of Rs.1,64,720/- and Rs.3,02,200/- respectively, with 6% interest per annum but however the liability was fixed on respondent No.2 by saddling the liability on respondent No.3. Assailing the same, both the petitioners are before this Court.
8. The main grounds urged by the learned counsel for the appellant-claimant in MFA No. 24102/2011 are that the compensation awarded by the Tribunal under various heads is on the lower side. The notional income taken by the Tribunal is on the lower side, as the accident is of the year 2009. He further contended that the appellant-claimant has incurred the medical expensed to the tune of Rs.50,000/- but the Tribunal has awarded only Rs.5,000/- towards 8 medical expenses. He further contended that though the doctor, P.W.2, has assessed the disability to the extent of 24% to 28%, the Tribunal has taken the disability only to the extent of 14% and awarded the compensation on the lower side. He further contended by filing I.A. to take out additional grounds by amending the appeal memo. In the said memo, he further contended that the driver of the offending vehicle was holding valid and effective driving licence to drive LMV (NT) and it was in currency and in view of the decision of the Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Limited, reported in AIR 2017 SC 3668, the respondent No.3- insurer is liable to pay the compensation. On these grounds, he prayed for allowing the appeal.
9. Per contra, the learned counsel appearing on behalf of the appellant-claimant in MFA No.21817/2012 has vehemently argued and contended that the compensation awarded by the Tribunal is on the lower side and at the time of the accident the claimant was working as driver and cleaner, and he was getting income of Rs.6,000/- per month 9 but the tribunal has assessed the compensation taking the notional income @ Rs.3,000/- per month which is on the lower side. He further contended that the driver of the offending vehicle was holding driving licence and it was in currency and in view of the decision quoted supra, the liability has to be fixed on respondent No.3- insurer. On these grounds he prayed for allowing the appeal by enhancing the compensation and to fasten the liability on respondent No.3-insurer.
10. The accident in question, so also the involvement of the offending vehicle in the accident, insured with respondent No.3-insurer is not in dispute.
11. As could be seen from the judgment and award passed by the Tribunal and on perusal of the records, it indicates that in MVC No. 322/2009, the petitioner has sustained fracture of 4th and 5th ribs, fracture of right femur and he was also admitted in hospital for some period and incurred medical expenses to the tune of Rs.50,000/- . It is further contended in the petition that he was working as driver and cleaner and was earning Rs.6,000/- per month. 10 But in order to substantiate the said fact no documents have been produced and in the absence of documents, the Tribunal by taking notional income at the rate of Rs.3,000/- per month has assessed the compensation. The doctor who came to be examined as P.W.2 has deposed the physical impairment and considering the difficulty found in the petitioner, has assessed the disability to the extent of 24% to 28% to his right hip and chest and about 14% disability to the whole body. By taking the notional income @ 3,000/- and the disability to the extent of 14%, the Tribunal has awarded the compensation as mentioned below.
1. Injury pain and sufferings Rs. 40,000/-
2. Loss of earnings during medical Rs. 9,000/-
treatment
3. Medical expenses Rs. 5,000/-
4. Loss of future earnings Rs. 90,720/-
5. Loss of amenities Rs. 15,000/-
6. Conveyance, nourishment, food Rs. 5,000/-
and attending charges.
Total Rs.1,64,720/-
12. Though in the normal circumstances, the compensation awarded by the Tribunal is justifiable, but it 11 appears to be on the lower side. The Tribunal while taking the notional income has to keep in view the year of the accident and wages prevailing during that particular period. Admittedly, the accident is of the year 2009 and at that time the notional income of Rs.5,000/- is the yardstick which used to be adopted even in the settlement of cases before the Lok Adalath. If that were to be adopted, by taking the disability to the extent of 14%, then the appellant-claimant is entitled to the reassessed compensation under the following heads, as mentioned below.
1. Pain and sufferings Rs. 40,000/-
2. Loss of earning during the laid off period Rs. 15,000/-
3. Medical expenses Rs. 5,000/-
4. Loss of future earnings(5000 x 12 x 14% Rs.1,51,200/-
x 18 = 1,51,200)
5. Loss of amenities Rs. 30,000/-
6. For attendant, conveyance, nourishment Rs. 10,000/-
and diet and other incidental charges Total Rs. 2,51,200/-
13. Though the learned counsel for the appellant- claimant has contended that the appellant-claimant has spent Rs.50,000/- towards medical expenses, but in order to 12 substantiate the said fact, no documents have been produced in this behalf. The appellant-claimants have produced medical bills before the Tribunal as per Ex.P.8 to P.13, and after considering the same the Tribunal has awarded an amount of Rs.5,000/- towards medical expenses. The same does not requires to be changed or enhanced. In the light of the above discussions held by me, the appellant-claimant is entitled to total compensation of Rs.2,51,200/-. Since the Tribunal has already awarded the compensation of Rs.1,64,720/-, after deducting the same, the appellant-claimant is entitled to the additional compensation of Rs.86,480/-.
14. As could be seen from the judgment and award passed in MVC No.269/2009, the wound certificate, which has been produced before the Tribunal as per Ex.P.2, indicates that the petitioner sustained communited fracture of right acetebulum and dislocation of right hip. He got examined the doctor as P.W.2. In his evidence, P.W.2 has deposed that the petitioner is having physical impairment of 20% to the whole body. The Tribunal after taking the 13 notional income at the rate of 3,000/- per month, by taking the disability to the extent of 20% has awarded the compensation as mentioned below.
1. Injury pain and sufferings Rs. 52,000/-
2. Loss of earnings during medical Rs. 12,000/-
treatment
3. Medical expenses Rs. 98,000/-
4. Loss of future earnings Rs.1,15,200/-
5. Loss of amenities Rs. 20,000/-
6. Conveyance, nourishment, food Rs. 5,000/-
and attending charges.
Total Rs.3,02,200/-
15. Though in the normal circumstances, the compensation awarded by the Tribunal is justifiable but the Tribunal while taking the notional income, it ought to have kept into view the year of the accident and wages prevailing during that particular period. If that were to be taken, then under such circumstances, the appellant-claimant is entitled to the re-assessed compensation under the following heads as mentioned below:
14
1. Pain and sufferings Rs. 52,000/-
2. Loss of earning during the laid off period Rs. 15,000/-
3. Medical expenses Rs. 98,000/-
4. Loss of future earnings(5000 x 12 x 20% Rs.1,92,000/-
x 16 = 1,92,000)
5. Loss of amenities Rs. 30,000/-
6. For attendant, conveyance, nourishment Rs. 10,000/-
and diet and other incidental charges Total Rs. 3,97,000/-
16. In view of my above discussions, the appellant- claimant is entitled to total compensation of Rs.3,97,000/-. Since the Tribunal ha already awarded compensation of Rs.3,02,200/-, after deducting the same, the appellant- claimant is entitled to additional compensation of Rs. 94,800/- with interest @ 6% per annum.
17. The next contention of the learned counsel for the appellants-claimants is that the driver of the offending vehicle was holding valid and effective driving licence to drive LMV (NT) but the Tribunal only because there is no endorsement to drive LMV (transport, has fixed the liability on respondent No.1- owner of the offending vehicle. 15
18. As could be seen from the records, the appellants have produced the driving licence of the driver of the offending vehicle as per Ex.P.6. The said driving licence was issued by the competent authority to drive LMV(NT) and the same is in currency from 21.06.2006 to 20.10.2026. When the driver of the offending vehicle was holding valid and effective driving licence to drive LMV (NT) he is also competent to drive LMV(transport), without there being any endorsement as held by the Hon'ble Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Limited, reported in AIR 2017 SC 3668. The Hon'ble Apex Court, in the above decision, at para No.45 and 46 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 16 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 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 17 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 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 18 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.
(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.19
(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."
19. By going through the above paragraphs, it makes clear that if a person is holding driving licence to drive LMV (NT), without there being any endorsement, he is competent to drive LMV(transport) also. Admittedly, the vehicle involved in the accident is LMV (transport) and the driver was holding valid and effective driving licence to drive LMV(NT) and it was in currency at the time of the accident. The Tribunal ought to have fixed the liability on the respondent No.3-insurer, instead of it fixed the liability on the owner of the offending vehicle. As such, the finding given by the Tribunal in this behalf is liable to be set aside. Accordingly, the judgment and award passed by the Tribunal 20 in MVC No.322/2009 and 269/2009 to the extent of fastening of liability is set aside and it is made clear that the respondent No.3-insurer is liable to pay the compensation awarded by the Tribunal and additional compensation awarded by this Court with up to date interest within a period of six weeks from the date of receipt of certified copy of this order.
20. Accordingly, the judgment and award passed by the Tribunal in MVC No.322/2009 and 269/2009 is modified as indicated above.
21. Registry is directed to draw the award accordingly.
Sd/-
JUDGE yan