Karnataka High Court
Manager Legal vs Ache Buden Sab on 11 August, 2017
Author: K.Somashekar
Bench: K.Somashekar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
MFA NO.20823/2009 (MV)
C/W MFA CROB NO.854/2012 (MV)
MFA NO.20823/2009:
BETWEEN
ICICI LOMBARD GEN INS CO LTD, BELLARY,
REP. BY ITS MANAGER LEGAL,
ICICI LOMBARD GEN INS CO LTD,
II FLOOR, BELLAD BUILDING
GOKUL ROAD, HUBBALLI
... APPELLANT
(BY SRI. NAGARAJ C KOLLORI, ADV.)
AND
1. ACHE BUDEN SAB
S/O ANCHE SHAIK SAB
AGE: 41 YEARS, OCC AGRICULTURE LABOUR
R/O BEHIND PATEL HIGH SCHOOL
HOSPET, DIST. BELLARY.
2. RUZWANBEE
W/O BUDEN SAB
OCC DOMESTIC WORK
R/O BEHIND PATELN HIGH SCHOOL
HOSPET, DIST. BELLARY.
3. DURGA PRASAD
S/O MALLIKARJUNA GOUDA
AGE: 23 YEARS, OCC DRIVER
R/O N NAGARJUNA BAR STATION ROAD
HOSPET, DIST. BELLARY.
:2:
4. YASHAVANTH L SABLE
S/O LAKSHMAN M SABLE
AGE: 36 YEARS, OCC OWNER OF KA-25/D-444
R/O N NAGARJUNA BAR STATION ROAD
HOSPET, DIST. BELLARY.
... RESPONDENTS
(BY SRI. Y LAKSHMIKANT REDDY, ADV. FOR R1 AND R2,
R3 AND R4 ARE SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 05/01/2009
PASSED IN MVC NO.299/2008 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL-VII AT HOSPET, AWARDING
COMPENSATION OF RS.3,49,000/- WITH THE INTEREST AT THE
RATE OF 6% P.A. FROM THE DATE OF THIS ORDER.
MFA CROB NO.854/2012:
BETWEEN
1. ANCHE BUDEN SAB, S/O. ANCHE SHAIK SAB
AGED ABOUT 44 YEARS, AGRICULTURAL LABOUR,
R/O. BEHIND PATEL HIGH SCHOOL, HOSPET,
BELLARY DISTRICT
2. RUZWAN BEE, W/O. BUDEN SAB
AGED ABOUT 43 YEARS, DOMESTIC WORK
R/O. NEAR PATEL HIGH SCHOOL, HOSPET,
BELLARY DISTRICT
... CROSS OBJECTORS
(BY SRI. Y LAKSHMIKANT REDDY, ADV.)
AND
1. YESHWANTH L. SABLE,
S/O. LAKSHMAN MALLAFI SABLE
AGED ABOUT 39 YEARS
OWNER OF THE MAHENDRA
JEEP NO.KA-25/D-444,
R/O.NEAR NAGARJUNA BAR,
STATION ROAD, HOSPET,
BELLARY DISTRICT
2. THE BRANCH MANAGER,
:3:
M/S. ICICI LOMBARD GENERAL
INSURANCE CO LTD.,
MOTOR INSURANCE DIVISION,
2ND FLOOR,
HOTEL MAYURA BUILDINGS,
DOUBLE ROAD, BELLARY.
... RESPONDENTS
(BY SRI. NAGARAJ C KOLLOORI, ADV. FOR R2)
THIS MFA. CROB IN MFA. NO.20823/2009 FILED UNDER
ORDER 41 RULE 22 OF CPC., AGAINST THE JUDGMENT AND
AWARD DATED 05-01-2009 PASSED IN MVC NO.299/2008 ON THE
FILE OF THE MEMBER, MACT.NO.VII, HOSPET, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA AND MFA CROB COMING ON FOR HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.20823/2009 is preferred by the appellant -
Insurance Company challenging the liability fastened on it to pay the compensation and also the quantum of compensation awarded in the impugned judgment and award dated 05.01.2009 in MVC No.299/2008 passed by the MACT VII, Hospet (hereinafter referred to as 'Tribunal' for short).
2. Whereas, MFA CROB No.854/2012 is preferred by the cross-objectors - claimants challenging the quantum of compensation awarded in the impugned judgment and award :4: dated 05.01.2009 in MVC No.299/2008 passed by the MACT VII, Hospet.
3. For the sake of convenience, the parties are referred to as per their status before the Tribunal.
4. The briefs facts of the case are, on 19.07.2007 at about 08:30 a.m., one Anche Chand Sab (son of petitioners) was traveling as a cleaner in Mahendra Open Jeep bearing No.KA-
25/D-444 from Jaisinghpur mining area to Hospet. On account of rash and negligent driving of the vehicle by its driver, 1st respondent at Jamunath road, Hospet an iron cross bar hit to the head of the deceased Anche Chand Sab, as a result of which he had sustained injuries and succumbs to the injuries, subsequently at VIMS Hospital, Bellary. On account of the death of Anche Chand Sab, the parents i.e., the petitioners filed a claim petition under Section 163A of the Motor Vehicles Act, 1989 before the Tribunal claiming compensation from the respondents i.e., the driver, owner and the insurer.
:5:5. After service of notice, all the respondents appeared through their counsel, filed their written statement and contested the claim petition.
6. Based on the pleadings of the parties, the Tribunal framed as many as four issues and held that issue No.1 in the affirmative, issue No.2 in the negative, issue No.3 partly affirmative for Rs.3,49,000/- with interest at 6% per annum from respondent Nos.1 to 3 and issue No.4, as per final order of the Tribunal.
7. In order to prove the case, petitioner examined herself as P.W.1 and got marked the documents at Exs.P1 to P109. On behalf of the respondents, RW1 has been examined on behalf of respondent No.2 and has got marked Exs.R1 and R2.
On evaluation of the oral and documentary evidence on record, the Tribunal came to the conclusion and awarded a sum of Rs.2,06,000/- with interest at 6% per annum from the date of petition till the date of realization.
:6:8. Sri.Nagaraj C. Kolloori, learned counsel for the appellant in MFA No. 20823/2009 contended that the Tribunal has committed an error in coming to the conclusion that the age of the victim is to be taken for computing compensation and the same is not correct. Further, he contended that the Tribunal has erred in taking the salary of the deceased as Rs.3,000/- per month minimum wages act and also contended that the Tribunal ought to have taken the multiplier 16 instead of 18 and prayed to set aside the impugned judgment and award passed by the Tribunal.
9. Per contra, Sri. Y.Lakshmikanth Reddy, learned counsel for the cross-objectors in MFA CROB No.854/2012 submits that the issue regarding fixing the liability is concerned, is already been elaborately discussed by the 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 circumstances in MFA No.20823/2009, wherein it is held as follows:
:7:"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?
xxxxx
42. In Nagashetty (supra), the vehicle involved was a tractor which was used for carrying goods. The goods were carried in a trailer attached to it. It was held that if a driver was holding an effective licence to drive a tractor, he could validly drive the tractor attached to a trailer. The contention that it was a transport vehicle, as the tractor was attached to a trailer and as such the driver was not holding a valid licence, was rejected. This Court has laid down thus.
9. Relying on these definitions, Mr. S.C. Sharda submitted that admittedly the trailer was filled with stones. He submitted that once a trailer was attached to the tractor the tractor became a transport vehicle as it was used for carriage of goods. He submitted that Section 10(2) of the Motor Vehicles Act provides for grant of licences to drive specific types of vehicles. He submitted that the driver only had a licence to drive a tractor. He submitted that the driver did not have a licence to drive a transport vehicle. He submitted that :8: therefore it could not be said that the driver had an effective and valid driving licence to drive a goods carriage or a transport vehicle. He submitted that thus the driver did not have a valid driving licence to drive the type of vehicle he was driving. He submitted that as the driver did not have a valid driving licence to drive a transport vehicle, the Insurance Company could not be made liable. He submitted that the High Court was right in so holding.
10. We are unable to accept the submissions of Mr S.C. Sharda. It is an admitted fact that the driver had a valid and effective licence to drive a tractor. Undoubtedly under Section 10, a licence is granted to drive specific categories of motor vehicles. The question is whether merely because a trailer was attached to the tractor and the tractor was used for carrying goods, the licence to drive a tractor becomes ineffective. If the argument of Mr S.C. Sharda is to be accepted, then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle :9: would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make that tractor or motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid driving licence to drive a tractor or a motor vehicle, he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words, a person having a valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle.
11. In this case we find that the Insurance Company, when issuing the insurance policy, had also so understood. The insurance policy has been issued for a tractor. In this insurance policy, an additional premium of Rs.12 has been taken for a trailer. Therefore the insurance policy covers not just the tractor but also a trailer attached to the tractor. The insurance policy provides as : 10 : follows for the "persons or classes of persons entitled to drive":
"Persons or classes of persons entitled to drive.-Any person including insured provided that the person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence:
Provided also that the person holding an effective learner's licence may also drive the vehicle when not used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989, limitations as to use."
12. The policy is for a tractor. The "effective driving licence" is thus for a tractor. The restriction on a learner driving the tractor when used for transporting goods shows that the policy itself contemplates that the tractor could be used for carriage of goods. The tractor by itself could not carry goods. The goods would be carried in a trailer attached to it. That is why the extra premium for a trailer. The restriction placed on a person holding a learner's licence i.e. not to drive when goods are : 11 : being carried is not there for a permanent licence-holder. Thus a permanent licence-holder having an effective/valid licence to drive a tractor can drive even when the tractor is used for carrying goods. When the policy itself so permits, the High Court was wrong in coming to the conclusion that a person having a valid driving licence to drive a tractor would become disqualified to drive the tractor if a trailer was attached to it."
43. Section 10(2)(a) to (j) lays down the classes of vehicles to be driven not a specific kind of motor vehicles in that class. If a vehicle falls into any of the categories, a licence holder holding licence to drive the class of vehicle can drive all vehicles of that particular class. No separate endorsement is to be obtained nor provided, if the vehicle falls in any of the particular classes of section 10(2). This Court has rightly observed in Nagashetty (supra) that in case submission to the contrary is accepted, then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle it by itself does not mean that driver ceased to have : 12 : valid driving licence. In our considered opinion, even if such a vehicle is treated as transport vehicle of the light motor vehicle class, legal position would not change and driver would still have a valid driving licence to drive transport vehicle of light motor vehicle class, whether it is a transport vehicle or a private car/tractor attached with trolley or used for carrying goods in the form of transport vehicle. The ultimate conclusion in Nagashetty (supra) is correct, however, for the reasons as explained by us.
44. In Natwar Parikh & Co. v. State of Karnataka & Ors. (2005) 7 SCC 364, this Court was concerned with the taxation under the Karnataka Motor Vehicles Taxation Act, 1957 and question arose whether the tractor along with trailer for transporting goods was to constitute distinct category of goods carrier which requires permission under Section 2(14) of the Motor Vehicles Act, 1957 and absence thereof would render it liable to tax under Section 3(2). This court held that the tractor when attached with the trailer carrying goods, would become a transport vehicle for the purpose of taxation. This Court has discussed the question thus:
"Section 2(28) is a comprehensive definition of the words "motor vehicle".
Although a "trailer" is separately defined in Section 2(46) to mean any vehicle drawn or intended to be drawn by a motor vehicle, it is : 13 : still included in the definition of the words "motor vehicle" have been defined in the comprehensive sense by the legislature.
Therefore, we have to read the words "motor vehicle" in the broadest possible sense keeping in mind that the Act has been enacted in order to keep control over motor vehicles, transport vehicles, etc. A combined reading of the aforestated definitions under Section 2, reproduced hereinabove, shows that the definition of "motor vehicle" includes any mechanically propelled vehicle apt for use upon roads irrespective of the source of power and it includes a trailer. Therefore, even though a trailer is drawn by a motor vehicle, it by itself is a motor vehicle, the tractor-trailer would constitute a "goods carriage" under Section 2(14) and consequently, a "transport vehicle"
under Section 2(47). The test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods, it can be stated that it is adapted for the carriage of goods. Applying the above test, we are of the view that the tractor-: 14 :
trailer in the present case falls under Section 2(14) as a "goods carriage" and consequently, it falls under the definition of "transport vehicle" under Section 2(47) of the MV Act, 1988."
There is no dispute with the aforesaid proposition, that tractor if drawing a trailer with goods would constitute goods carrier and consequently would be a transport vehicle. The aforesaid discussion was with respect to taxation and not with respect to the competence of driver holding light motor vehicle licence to drive the tractor attached with trailer/trolley carrying goods. The driver had the competence to drive such a vehicle, tractor with a trailer carrying goods being of light motor vehicle category transport vehicle which is the question involved in the instant case. Therefore, the decision renders no help with the cause espoused by the insurer.
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 : 15 : 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 authorized 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 28.03.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) of the provisions of section 10(2)(d), Rule 8 of the : 16 : 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 periodof 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 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.54/199.
(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 : 17 : 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 28.03.2001 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)(hj) 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 : 18 : 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."
10. Learned counsel for the cross-objectors in MFA CROB No.854/2012 also contended that the Tribunal has grossly erred in awarding a meager sum of Rs.5,000/- towards transportation, Rs.5,000/- towards funeral and obsequies, Rs.5,000/- towards loss of estate, Rs.10,000/- towards loss of love and affection and also contended that the Tribunal failed to take note of the fact that the petition was filed under Section 163A and the Tribunal ought to have deducted 1/3rd for personal expenses instead of ½ as it is a statutory section 163A clearly : 19 : states that 1/3rd should be deducted in case of death and prayed for setting aside the impugned judgment and award passed by the Tribunal by enhancing the compensation.
11. Heard the learned counsel for the parties. Perused the impugned judgment and award passed by the Tribunal and the documents produced and also the judgment of the 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.
12. In view of the submission made by the learned counsel appearing for the parties and on considering the observations made in Mukund Dewangan's case, referred supra, in regard to fixing the liability upon the Insurance Company is concerned, the appeal in MFA No.20823/2009, do not survive for consideration and the same require to be dismissed in this regard.
13. With regard to the issue relating to the loss of dependency is concerned, it is worked out to as follows:
(Rs.3,000 - 1/3 X 12 X 16 = Rs.3,84,000/-) : 20 : However, as the petition filed by the claimants under Section 163A of the Motor Vehicles Act, 1989, the compensation of Rs.10,000/- towards loss of love and affection and Rs.5,000/- as cost of transportation of injured to the hospital and from the hospital to their village, the Tribunal should not have awarded compensation under these heads. Whereas, the compensation under the head funeral expenses and loss of love and affection are on higher side. Therefore, the cross objectors in MFA CROB No.854/2012 are entitled to the enhanced compensation as follows:
Sl.
Heads Amount
No.
1 Loss of dependency Rs.3,84,000/-
2 Funeral expenses Rs.2,000/-
3 Loss of estate Rs.2,500/-
Total Rs.3,88,500/-
14. In the result, I proceed to pass the following:
ORDER
(i) MFA No.20823/2009 is allowed in part..
(ii) MFA CROB No.854/2012 is allowed in part.: 21 :
(iii) The judgment and award dated 05.01.2009 in MVC No.299/2008 passed by the Member, MACT VII, Hospet is hereby modified.
(iv) The cross-objectors in MFA CROB No.854/2012 are entitled to a sum of Rs.3,88,500/- instead of Rs.3,49,000/- with interest at 6% per annum from the date of filing of petition, till realization of the award amount.
(v) The appellant - Insurance Company in MFA No.20823/2009 is liable to pay the entire compensation awarded.
(vi) The rest of the judgment and award passed by the Tribunal shall remain in tact.
The amount in deposit, if any, in MFA No.20823/2009 shall be transferred to the concerned Tribunal forthwith.
Sd/-
JUDGE Rsh