Karnataka High Court
United India Insurance Company Ltd., vs Smt.Mahajanbi W/O Rahimsab Jakati, on 7 April, 2017
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
IN THE HIGH COURT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 7 T H DAY OF APRIL 2017
BEFORE
THE HON'BLE MR. JUS TICE S.N. SA TYANARAYANA
M.F.A.NO .20897/2011 (MV)
BETWEEN:
UNITED INDIA INSURANCE COMPANY LTD .,
REP.BY ITS SENIOR DIVIS IONAL MANAGER,
DIVISIONAL OFFICE, ANKOLA ARCADE,
OPP: KALABHAVAN, DHARWAD.
... APPELLANT.
(BY SRI S S YADRAMI, ADVOCATE.)
AND:
1. SMT.MAHAJARBI W/O RAHIMSAB JAKA TI,
AGE: 44 YEARS , OCC: COOLIE,
R/O. JAMALPUR ONI, NARAGUND,
DIST: GADAG
2. SRI PRAKASH S/O CHANDRASHEKHARAPPA
ANGADI,
AGE: MAJOR, OCC: OWNER OF TEMPO
TRAX BEARING NO.KA-26/4215,
R/O L.P.B. COMPLEX, MULGUND NAKA ,
GADAG.
... RESPONDENTS
(BY SRI S M KALWAD, ADVOCA TE, FOR R.1;
R.2 - NO TICE S ERVED.)
2
THIS MISCELLANEOUS F IRS T APPEAL IS FILED
UNDER SECTION 173(1) OF M.V.ACT, 1988, PRAYING
TO MODIFY THE JUDGMENT & AWARD DATED
21.07.2010, PASSED IN MVC NO.26/2007, ON THE F ILE
OF FAST TRACK COURT & ADDL. MACT, GADAG, ETC.,.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The 2nd respondent insurer in MVC No.26/2007, on the file of Addl. MACT, Gadag, has come up in this appeal impugning the judgment dated 21.7.2010 so far as it pertains to saddling the liability to pay compensation on the insurer.
2. Admitted facts leading to this appeal are that: on 13.1.2007 at about 9.00 p.m. the claimants son Mahaboobsab aged about 13 years met with an accident involving tempo trax bearing registration No.KA-26/4215 resulting in his instant death. In the said proceedings the driver 3 of the aforesaid tempo trax was charge sheeted for the offence of rash and negligent driving and also causing the death of claimants son. Thereafter claim petition was filed against the owner and insurer of offending tempo trax, which caused the accident.
3. Admittedly the said vehicle was registered as luxury cab with RTO and the person who was driving the said vehicle did not have valid driving licence to drive the same. Since the said vehicle was registered as luxury taxy, the same will have to be considered as transport vehicle as defined under Section 2(47) of M.V.Act and the person who is driving the said vehicle as per Section 14(2) of the M.V.Act is required to have endorsement for driving transport vehicle as contemplated under Section 14(2) of the Act.
4. In the instant case the driving licence which is produced and marked as Ex.D.3 clearly 4 indicate that it is LMV licence issued to drive light motor vehicle (NT) for the period from 3.12.2005 to 2.12.2025.
5. The relevant endorsement as contemplated under Section 14(2) namely the transport endorsement which is renewable once in three years was not seen on the said licence thereby clearly indicating that the owner of the vehicle had entrusted the same to the person who did not have necessary endorsement to drive the transport vehicle at the relevant point of time. Though the said deficiency in driving licence is brought to the notice of the Tribunal, the same is ignored and liability to pay compensation is fastened on the insurer of the offending vehicle while awarding compensation in a sum of Rs.2,35,000/- with interest at 6% p.a. from the date of petition till the date of deposit. The 5 respondent being aggrieved by the same has come up in this appeal.
6. Heard the learned counsel for the appellant and contesting respondents. The learned counsel for the appellant bring to the notice of this Court the relevant provision of law which govern the legal position as on the date of accident and would like to bring to the notice of this Court the judgment rendered by the Apex Court in the matter of New India Assur ance Company Ltd., vs. Roshanben Rahemansha Fakir, repor ted in ACJ-2008-0-2161, wherein at paragraphs No.5 and 7 the said legal position is discussed at length, which are culled out as under.
5. SECT ION 10 of the Act provides for classes of the dr iving licence. Diff erent classes of vehicle have been def ined in diff erent provisions of the Motor Vehicles Act. The 'tr anspor t 6 vehicle' is def ined in Section 2(47) of the Act to mean a public service vehicle, a goods carr iage, an educational institu tion bus or a private service vehicle. We have no ticed hereinbef ore the provisions of sub-section (4) of Section 41. We have also noticed the notif ication issued by the Centr al Government in this behalf . The said notif ication clearly postulates that a three wheeled vehicle f or tr anspor t of passengers or goods comes within the purview of class 5 of the table appended thereto. The liecence gr anted in f avour of the said S alim Amadbhai goes to sho w th at the same was gr an ted f or a vehicle other than the transpor t vehicle. It was valid f rom 13.05.2004 to 12.05.2024. Section 14(2)(a) provides that a dr iving licence issued or renewed under the Act shall, in case of a licence to dr ive a tr anspor t vehicle will be effective f or a per iod of three years whereas in the case of any other vehicle it can be issued or renewed f or a per iod of 20 years f rom the d ate of issuance or renewal. The f act 7 th at the licence was gr anted f or a per iod of 20 years, thus, clearly shows that Salim Amadbhai, dr iver of the vehicle, was not gr anted a valid driving licence for driving a tr anspor t vehicle.
7. IN National Insur ance Company Ltd. v. Annappa Ir appa Nesar ia and Ors. [(2008) 1 SCALE 642], it was noticed th at the provisions of the Act have undergone a change. The def inition of 'ligh t mo tor vehicle' would not include a light tr anspor t vehicle. In that case, keeping in view the d ate on which the accident took place, it was held:
"f rom what has been noticed hereinbef ore, it is evident that tr anspor t vehicle has now been substitu ted f or 'medium goods vehicle' and 'heavy goods vehicle'. The light motor vehicle continued, at the relevan t poin t of time, to cover both, light passenger carr iage vehicle and light goods carr iage vehicle. A driver who had a valid licence to dr ive a light motor vehicle, theref ore, was au thor ized to drive a light goods vehicle as well."
8
For the reasons af orementioned, the impugned judgment cannot be sustained. The same is set aside accord ingly. However, in exercise of our jur isdiction under Ar ticle 142 of the Constitu tion of India, we direct th at the appellant may satisf y the award in f avour of the claimants to recover the same f rom the owner.
The appeal is allowed with the
af orementioned directions. No
costs.
7. As against this judgment learned
counsel for respondents relied upon the judgment rendered in S.Iyyapan vs. M/s.United Ind ia Insur ance Company Limited and another, repor ted in 2013 ACJ 1944 and would rely upon paragraph No.19 of the judgment wherein obviously there is no reference to the relevant provision of Section 2(47) and section 14(2) of the M.V.Act and explaining the provision of law and distinguishing the same with reference to fact as done in the matter of New Ind ia Assur ance Company Ltd., vs. Roshanben Rahemansha Fakir (supr a). In fact in the said subsequent judgment of S.Iyyapan 9 (supr a), earlier judgment of New Ind ia Assur ance Company Ltd., (supr a) is neither referred nor overruled. In the absence of the same, this Court find it difficult to follow the judgment rendered in S.Iyyapan (supr a).
8. Even though it is a recent judgment, the legal position discussed and distinguished with reference to earlier judgment with the statutory provision governing law as on date. In that view of the matter, this Court would respectfully follow the earlier judgment rendered in the matter of New Ind ia Assurance Company Ltd., (supr a), and not the judgment which is referred to by the learned counsel for the respondent.
9. Along with this judgment he would also refer to another judgment in the matter of Kulwant Singh & Ors. vs. Orien tal Insur ance Co. Ltd., wherein the subsequent judgment is followed without giving reference to the earlier judgment as 10 stated supra. Therefore this Court feel in the fact situation what is required to be followed is the earlier judgment not the later judgment which does not spell out reason as to why they are deferring with the judgment rendered by the earlier bench with reference to said provision.
10. Accordingly this Court hold that the judgment dated 21.7.2010, passed in MVC No.26/2007, on the file of Addl. MACT, Gadag, in fastening the liability to pay compensation on the insurer of offending tempo trax luxury cab does not arise in as much as there is violation of the provision of M.V.Act and also the policy condition by the owner while entrusting the said vehicle to the driver at the relevant point of time. Accordingly the liability of the insurer is hereby expunged and the right to receive compensation is confined to the owner of the vehicle, by allowing this appeal.
11
11. In view of this appeal filed by the insurance company being allowed, the amount in deposit is ordered to be refunded it.
Sd/-
JUDGE Mrk/-