Karnataka High Court
Sri Mahadevappa vs The Manager Legal on 22 November, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
M.F.A.CROB.NO.100186/2016 (M.V.)
C/W
M.F.A.NO.22435/2013 (M.V.)
M.F.A.CROB.NO.100186/2016 (M.V.)
BETWEEN:
1. SRI MAHADEVAPPA
S/O HONAPPA BHAGAVATHI,
AGED ABOUT: 53 YEARS,
OCC: AGRICULTURE,
R/O: KUNTOJI,
TQ: RON, DIST: GADAG,
NOW AT VIDYA NAGAR,
TQ: KUSHTAGI, DIST: KOPPAL.
2. SMT.SANGAWWA
W/O MAHADEVAPPA BHAGAVATHI,
AGED ABOUT: 46 YEARS,
OCC: HOUSEHOLD,
R/O: KUNTOJI,
TQ: RON, DIST: GADAG,
NOW AT VIDYA NAGAR,
TQ: KUSHTAGI, DIST: KOPPAL.
... CROSS OBJECTORS
(BY SRI. A B PATIL, ADVOCATE)
AND
1. THE MANAGER LEGAL,
SRIRAM GENERAL INSURANCE
COMPANY LIMITED,
(JOINT VENTURE WITH SANALAM,
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SOUTH AFRICA,) CORPT,
OFFICE E-8 EPIP, RIICO SITAPUR,
JAIPUR 302022, RAJASTAN STATE.
2. SRI.GOUDAPPA S/O ANDANEPPA METI,
AGED ABOUT: 31 YEARS, OCC: DRIVER,
R/O: KUNTOJI, POST: KUNTOJI,
TQ: RON, DIST: GADAG.
3. SRI.MAHANTESH
S/O KALAKAPPA PARANATTI,
AGED ABOUT: 34 YEARS,
OCC: OWNER OF TEMPO TOOFAN VEHICLE
BEARING REG.NO.KA-25/B-3828,
R/O: VADEGOLE, POST: KUNTOJI,
TQ: RON, DIST: GADAG.
... RESPONDENTS
(BY SRI. NAGARAJ C KOLLOORI, ADVOCATE FOR R-1,
R2 AND R3 NOTICE DISPENSED WITH)
THIS MFA CROB IS FILED U/S. 173(1) OF M.V. ACT, 1988,
R/W ORDER XLI RULE 22 OF C.P.C., AGAINST THE
JUDGEMENT AND AWARD DATED 11.01.2013 PASSED IN
M.V.C. NO.525/2010 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, YELBURGA, AT KUSTAGI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
M.F.A.NO.22435/2013
BETWEEN:
THE MANAGER LEGAL,
SHRIRAM GEN. INS. CO. LTD.,
(JOINT VENTURE WITH SANALAM,
SOUTH AFRICA) CROPT OFFICE,
E-8, EPIP, RIICO, SITAPUR,
JAIPUR, RAJASTHAN-302022.
REPRESENTED BY ITS
AUTHORIZED SIGNATORY.
... APPELLANT
(BY SRI. NAGARAJ C KOLLOORI, ADVOCATE)
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AND
1. MAHADEVAPPA
S/O HONNAPPA BAGAVATHI,
AGE: 47 YEARS,
OCC: AGRICULTURE,
R/O: KUNTOJI VILLAGE,
TQ: RON, DIST: GADAG.
NOW AT VIDYANAGAR,
TQ: KUSTAGI, DIST: KOPPAL.
2. SANGAWWA
W/O MAHADEVAPPA BAGAVATHI,
AGE:22 YEARS, OCC:HOUSE HOLD,
R/O: KUNTOJI VILLAGE,
TQ: RON, DIST: GADAG.
NOW AT VIDYANAGAR,
TQ: KUSTAGI, DIST: KOPPAL.
3. GOUDAPPA S/O ANDANEPPA METI,
AGE: 25 YEARS, OCC: DRIVER,
R/O: KUNTOJI VILLAGE,
TQ: RON, DIST: GADAG.
4. MAHANTESH
S/O KALAKAPPA PARANATI,
AGE: 28 YEARS, OCC: BUSINESS,
R/O: KUNTOJI VILLAGE,
TQ: RON, DIST: GADAG.
... RESPONDENTS
(BY SRI. A B PATIL, ADVOCATE FOR R1 & R2;
R3 AND R4 - NOTICE SERVED)
THIS MFA IS FILED U/S. 173(1) OF M.V. ACT, AGAINST
THE JUDGEMENT AND AWARD DATED 11.01.2013 PASSED IN
M.V.C. NO.525/2010 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, YELBURGA, AT KUSHTAGI, AWARDING THE
COMPENSATION OF RS.3,44,000/- WITH INTEREST AT THE
RATE OF 6% P.A., FROM THE DATE OF PETITION TILL THE
DATE OF REALIZATION.
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THE MFA CROB AND THE MFA COMING ON FOR
ORDERS THIS DAY, THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
M.F.A.No. 22435/2013 has been preferred by the appellant-insurer and M.F.A.Crob. No. 100186/2016 has been preferred by the cross-objectors/claimants aggrieved by the judgment and award passed by the Senior Civil Judge and Additional M.A.C.T., Yelburga, At Kushtagi in M.V.C.No.525/2010 dated 11.01.2013.
2. Heard. Though the appeal and cross-objection are posted for orders, with the consent of the learned counsel appearing for the parties, they have been taken up for final disposal.
3. Brief facts leading to the case are that on 16.03.2010 at about 9.00 a.m., one Ravi, son of the petitioners, who was working as a cleaner in Tempo Toofan vehicle bearing registration No. KA-25/B-3828 was proceeding from Kuntoji to Ilkal in the said vehicle and when the said vehicle came near Mudatagi village, the driver of the said vehicle drove it rashly and negligently and lost control 5 over the vehicle due to which the said vehicle toppled on the right side of the road. As a result, the said Ravi sustained grievous injuries and succumbed to the injuries. For having lost the bread earner and loving son, the petitioners filed a claim petition claiming compensation.
4. In spite of service of notice, respondent No.1 and 2 remained absent and they were placed exparte. In response to the notice, respondent No.3-insurer appeared before the Tribunal and filed his written statement by denying the contents of the petition. It is further contended that the driver of the offending vehicle was not holding valid and effective driving licence to drive the vehicle involved in the accident and the owner of the vehicle has violated the terms and conditions of the policy and as such, the insurer is not liable to pay any compensation. On these grounds, he prayed for dismissal of petition.
5. On the basis of the pleadings of the parties, the Tribunal framed the following:
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ISSUES
1. Whether the petitioners prove that, on dated 16.03.2010 at about 9-00 a.m., near Mudutagi village at distance 5 kms from Hanamasagar the petitioner's son going on tempo toofan vehicle bearing No.KA-25/B-
3828 at that time the respondent No.1 driven the said vehicle in a rash and negligent manner and he lost the control over the vehicle and vehicle fell down on the right side of the road and the petitioners son sustained grievous injuries and died on the spot?
2. Whether respondent No.3 proved that the respondent No.1 was not having any valid and specific D.L., to drive the vehicle on the date of incident?
3. Whether petitioners entitle for compensation and if so, for how much and from whom?
4. What order or award?
6. In order to prove the case of the petitioners, petitioner No.1 got examined himself as P.W.1 and got examined one witness as P.W.2 and also got marked documents as per Ex.P.1 to P.9. On behalf of the respondent No.3-insurer, got examined the legal officer of the insurance 7 company as R.W.1 and M.V. Inspector as R.W.2 and also got marked documents as per Ex.R.1 to R.7.
7. After hearing the parties to the lis, the impugned judgment and award was passed by the Tribunal.
8. The main grounds urged by the appellant- insurer are that the driver of the offending vehicle was not holding valid and effective driving licence at the time of the accident and as such, the appellant-insurer is not liable to pay any compensation. He further contended that the compensation awarded under various heads is also on the higher side. On these grounds, he prayed for allowing the appeal by setting aside the impugned judgment and award.
9. The learned counsel appearing for the cross- objectors/claimants has vehemently argued and contended that the Tribunal has taken the income of the deceased on the lower side and the compensation awarded under the head of loss of dependency as well as conventional heads are on the lower side. As such, he prayed for allowing the cross- objections by enhancing the compensation amount. 8
10. The accident in question, so also involvement of the vehicle in the accident, insured with the appellant- insurer is not in dispute.
11. As could be seen from the judgment and award of the Tribunal, the insurer contended that the driver of the offending vehicle was not holding valid and effective driving licence and as such, he is not liable to pay any compensation and there is a breach of policy condition.
12. As could be seen from the records made available, Ex.P8 is the driving licence of respondent No.1- driver of the offending vehicle, which shows that he was holding valid and effective driving licence to drive LMV (non- transport) and it was in currency from 20.05.2009 to 19.05.2029. The only contention, which has been taken by the learned counsel for the appellant-insurer is that though the driver was holding the driving licence to drive LMV (non- transport), but he was not having endorsement to drive the type of vehicle involved in the accident. But the Hon'ble Apex Court, in the case of Mukund Dewangan v. Oriental Insurance Company Ltd., and others, reported in AIR 9 2017 SC 3668 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 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 10 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 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 11 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.12
(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."
13. The Hon'ble Apex Court, in the above said judgment has observed that if the driver of the offending 13 vehicle is holding licence to drive LMV (non-transport), then under such circumstances, he is also capable of driving the same type of vehicle and no separate endorsement is required to drive LMV (transport). It has been further observed that if 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.
14. In view of the ratio laid down by the Hon'ble Apex Court in the above decision, I am of the considered opinion that the contention taken up by the appellant- insurer does not stand to any reason and same is liable to be rejected. It is the contention of the learned counsel for the appellant-insurer that the compensation awarded under various heads is on the higher side.
15. Per contra, the learned counsel for the cross- objectors/claimants has contended that the compensation 14 awarded is on the lower side and he prayed for enhancement of the compensation.
16. As could be seen from the judgment and award, the claimants have contended that the deceased was working as a cleaner under the respondent-owner of the offending vehicle and was earning Rs.6,000/- per month. But in order to substantiate the said fact, the claimants have not produced any material. In the absence of the material, the Tribunal after taking notional income @ Rs.100/- per day and after deducting half of the income towards personal expenses of the deceased, and after applying multiplier '18', has awarded an amount of Rs. 3,24,000/- towards loss of dependency. In the normal course the method adopted by the Tribunal is justifiable but in the absence of the documentary evidence with regard to the income of the deceased, an overall assessment keeping in view the avocation and period of the accident, will have to be made. In the instant case, admittedly the accident is of the year 2010. During that period, in respect of daily wage earner the notional income of Rs.5,500/- per month is the yardstick 15 which used to be adopted even in the settlement of cases before the Lok Adalath. It is contended by the learned counsel for the cross-objector/claimants that the deceased was aged about 18 years and as such, the multiplier, which the Tribunal applied, is justifiable. As could be seen from the records of this case and principles laid down by the Hon'ble Apex Court, the tribunal shall award the compensation by taking the age of the youngest parent of the deceased, which is just and proper. In that light, the age of the youngest parent of the deceased is 46 years and after taking the notional income @ Rs.5,500/-, and after deducting half of the same towards personal expenses of the deceased by applying the multiplier '13', the claimants are entitled to the compensation amount of Rs.4,29,000/- (2750 x 12 x 13 = 4,29,000/-) towards loss of dependency.
17. The compensation awarded under the conventional heads is also appears to be on the lower side. In the light of the decision of the Hon'ble Apex Court in the case of National Insurance Company Ltd v. Pranaya Sethi in Special Leave Petition (Civil) No.25590 of 2014, 16 decided on 31.10.2017, the cross-objectors/claimants are entitled for a sum of Rs.15,000/- towards 'loss of estate' and Rs.15,000/- towards 'funeral expenses'. In that light, the total compensation of Rs.30,000/- is awarded under the conventional heads.
18. Keeping in view the above said facts and circumstances, the cross-objectors/claimants are entitled to total compensation of Rs.4,59,000/-.
19. Since already the Tribunal has awarded compensation of Rs.3,44,000/-, after deducting the same, the cross-objectors/claimants are entitled to an additional compensation of Rs. 1,55,000/- with interest @ 6% per annum.
20. Keeping in view the above said facts and circumstances, MFA No. 22435/2013 filed by the appellant- insurer and MFA Crob. No.100186/2016 are disposed of by modifying the judgment and award in M.V.C. No. 525/2010 passed by the Senior Civil Judge and Additional M.A.C.T., Yelburga, as indicated above.
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21. Appellant-insurer is directed to deposit the compensation awarded by the Tribunal and additional compensation awarded by this Court with up to date interest @ 6% per annum within a period of six weeks from the date of receipt of the certified copy of the order.
22. The appellant-insurer, while depositing the compensation amount is permitted to deduct the interest for the delayed period of 769 days as per the order of this court dated 22.11.2017.
23. Registry is directed to transmit the amount in deposit made by the appellant-insurer to the jurisdictional tribunal for disbursement of the same to the cross- objectors/claimants in accordance with law, forthwith.
24. Registry is directed to draw the award accordingly.
Sd/-
JUDGE yan