Karnataka High Court
M Subraya Prabhu vs Chidambara Rao Jambe on 10 July, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10th DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
M.F.A.NO.5620/2008 C/W M.F.A.NO.5624/2008 A/W
M.F.A.CROB.NO.08/2011 & M.F.A.NO.4644/2008
IN M.F.A.NO.5620/2008
BETWEEN:
M.Subraya Prabhu
S/o Krishna Prabhu,
Aged about 58 years,
Occ: Retail Merchant,
S.N.Nagar, Sagar Town,
Shimoga district. ...APPELLANT
(By Sri.R.V.Jayaprakash, Adv.)
AND:
1. Chidambara Rao Jambe,
S/o Govindappa,
Aged about 58 years,
Principal, NINASAM,
Theatrical Education Centre,
Heggodu, Sagar taluk,
Shimoga district.
2. The Branch Manager,
United India Insurance Co., Ltd.,
J.C.Road, Sagar Town,
Shimoga district-577401.
3. Athiq Ahmed,
S/o Ahmed Sharif,
Aged about 26 years,
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Driver of Tempo Trax bearing
Registration No.KA-15/1950
R/o Shivappa Nayak Nagar,
Sagar Town,
Shimoga district-577401. ...RESPONDENTS
(By Sri.K.T.Gurudeva Prasad, Adv. for R1,
Sri.O.Mahesh, Adv. for R2, R3 sd)
This M.F.A. is filed u/S 173(1) of M.V.Act against
the judgment and award dated 19.02.2008 passed in
M.V.C.No.95/04 on the file of the Civil Judge(Sr.Dn) &
Member, Addl. M.A.C.T., Sagar.
IN M.F.A.NO.5624/2008
BETWEEN:
M.Subraya Prabhu
S/o Krishna Prabhu,
Aged about 58 years,
Occ: Retail Merchant,
S.N.Nagar, Sagar Town,
Shimoga district. ...APPELLANT
(By Sri.R.V.Jayaprakash, Adv.)
AND:
1. C.G.Venugopal s/o C.V.Gurumurthy,
Aged about 27 years,
R/o Heggodu village, Sagar taluk,
Shimoga district-577401.
2. The Branch Manager,
United India Insurance Co., Ltd.,
J.C.Road, Sagar Town,
Shimoga district-577401.
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3. Athiq Ahmed,
S/o Ahmed Sharif,
Aged about 26 years,
Driver of Tempo Trax bearing
Registration No.KA-15/1950
R/o Shivappa Nayak Nagar,
Sagar Town,
Shimoga district-577401. ...RESPONDENTS
(By Sri.S.V.Prakash, Adv. for R1,
Sri.O.Mahesh, Adv. for R2, R3 sd)
This M.F.A. is filed u/S 173(1) of M.V.Act against
the judgment and award dated 19.02.2008 passed in
M.V.C.No.163/04 on the file of the Civil Judge(Sr.Dn) &
Member, Addl. M.A.C.T., Sagar.
IN M.F.A.CROB.NO.8/2011
BETWEEN:
C.G.Venugopal s/o C.V.Gurumurthy,
Aged about 25 years,
R/o Heggodu village, Sagar taluk,
Shimoga district-577401. ...CROSS OBJECTOR
(By Sri.S.V.Prakash, Adv.)
AND:
1. Athik Ahmed s/o Ahmed Shariff,
Aged about 24 years,
Driver of Tempo Trax,
R/o Shivappanayak Nagara,
Sagara town, Shimoga district.
2. M.Subraya Prabhu
S/o Krishna Prabhu,
Aged about 47 years,
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Owner of the Tempo Trax
R/o Shivappa Nayaka nagar,
Sagar Town, Shimoga district.
3. The Branch Manager,
United India Insurance Co., Ltd.,
J.C.Road, Sagar Town,
Shimoga district-577401.
...RESPONDENTS
(By Sri.R.V.Jayaprakash, Adv. for R2)
This M.F.A.Crob. is filed u/O XLI Rule 22 r/w
Section 173(1) of M.V.Act. praying to modify the
judgment and award dated 19.02.2008 passed in
M.V.C.No.163/04 on the file of the Civil Judge(Sr.Dn) &
Member, Addl. M.A.C.T., Sagar.
IN M.F.A.NO.4644/2008
BETWEEN:
Chidambara Rao Jambe,
S/o Govindappa,
Aged about 58 years,
Principal, NINASAM,
Theatrical Education Centre,
Heggodu, Sagar taluk,
Shimoga district. ...APPELLANT
(By Sri.K.T.Gurudeva Prasad, Adv.)
AND:
1. Sri.Athiq Ahamad,
S/o Ahammad Shariff,
Aged about 26 years,
Driver, S.N.Nagar,
Sagar town, Shimoga district.
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2. Sri.M.Subraya Prabhu,
S/o Sri.Krishna Prabhu,
58 years, Retail Merchant,
S.N.Nagar, Sagar town,
Shimoga district.
3. The Branch Manager,
United India Insurance Co., Ltd.,
J.C.Road, Sagar town,
Shimoga district. ...RESPONDENTS
(By Sri.O.Mahesh, Adv. for R3,
Sri.R.V.Jayaprakash, Adv. for R2,
R1 notice held sufficient)
This M.F.A. is filed u/S 173(1) of M.V.Act against
the judgment and award dated 19.02.2008 passed in
M.V.C.No.95/2004 (old M.V.C.No.244/2004) on the file
of the Civil Judge(Sr.Dn) & Member, Addl. M.A.C.T.,
Sagar, partly allowing the claim petition for
compensation and seeking enhancement of
compensation.
These M.F.As. a/w M.F.A. Crob. coming on for
hearing this day, the Court delivered the following:
JUDGMENT
As all these appeals and cross objection arise out of the same accident that occurred at about 5 p.m., on 12.06.2003, they were heard together and are being disposed of by this common judgment.
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2. The appellant in M.F.A.No.4644/2008 being the claimant in M.V.C.No.95/04 on the file of the Civil Judge (Sr.Dn) & Addl.M.A.C.T., Sagar, is dissatisfied with the quantum of compensation awarded by the tribunal. Appellant in M.F.A.No.5620/2008 was respondent No.2 in M.V.C.No.95/04 and he is the owner of the tempo trax bearing registration No.KA-15/1950. He is aggrieved by the judgment and award of the tribunal exonerating the insurer of the vehicle on the ground that the driver who was at the wheels of the vehicle at the time of accident did not possess a valid and effective driving licence. The very same owner of the tempo trax is the appellant in M.F.A.No.5624/2008 in relation to the judgment and award passed in M.V.C.No.163/2004 arising out of the same accident. Even in that appeal, the owner is aggrieved by the judgment and award of the tribunal exonerating the insurer of the vehicle. The claimant in M.V.C.No.163/2004 and respondent No.1 in M.F.A.No.5624/2008 C.G.Venogopal has filed the cross -7- objections in Crob.No.8/2011 seeking enhancement of compensation.
3. According to the case of the claimants in both the claim petitions M.V.C.Nos.95/04 & 163/04, while they were talking to each other by the side of the road near Masthikodlu cross of Heggodu in Sagar taluk at about 5 p.m., on 12.06.2003, tempo trax bearing registration No.KA-15/1950 came from Mundigesara village driven by its driver in rash and negligent manner and dashed against them, as a result of which, they sustained grievous injuries. Thus according to the claimants, the accident occurred on account of rash and negligent driving of the tempo trax by its driver. The claim petition was contested by the insurer of the tempo trax.
4. The tribunal on assessment of oral and documentary evidence by its independent but identical judgment passed in the above claim petitions answered issue regarding actionable negligence in 'affirmative' i.e., in favour of the claimants holding that the accident was -8- due to the negligence of the driver of the tempo trax, therefore, they are entitled to be compensated for the injuries suffered by them. The tribunal exonerated the insurer of the tempo trax from its liability on the ground that the driver did not possess a valid driving licence. According to the tribunal, the driver possessed licence to drive a light motor vehicle, whereas the vehicle in question is a transport vehicle and since the licence did not authorised him to drive the transport vehicle, he did not possess valid and effective driving licence to drive the class of vehicle involved in the accident, as such, the insurer is not liable to indemnify the owner (insured).
5. In M.V.C.No.163/04, the tribunal quantified the compensation at Rs.49,500/- while in M.V.C.No.95/04, the tribunal quantified the compensation at Rs.1,80,000/- and directed the owner of the tempo trax to pay the compensation amount with interest at 6% p.a. from the date of petition till the date of payment. -9-
6. I have heard learned counsel appearing for the parties and perused the records secured from the tribunal.
7. The finding of the tribunal on issue No.1 regarding actionable negligence is not seriously challenged before this Court. Therefore, there is no need to consider the correctness of the findings of the tribunal in this regard.
8. There is no serious dispute that the offending vehicle is a transport vehicle while the driver who was on the wheels at the time of the accident possessed a licence to drive "light motor vehicle". As could be seen from Ex.R2 marked in each of the cases, which is the extract of driving licence issued by the Asst.R.T.O- Sagar, the driving licence was issued on 08.11.2000 and it was valid up to 7.11.2020. Therefore question for consideration in the appeals filed by the owner of the offending vehicle is, 'whether the licence held by the driver authorised him to drive a transport vehicle, if the vehicle answers description of light motor vehicle'.
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9. Learned counsel for the owner of the offending vehicle by placing reliance on the decisions of the Apex Court in National Insurance Co. Ltd., vs. Swaran Singh and others (2004 AIR SCW 663) and in the case of National Insurance Company Ltd., vs. Annappa Irappa Nesaria @ Nesargi and others reported in (2008) 3 SCC 464, contended that the licence held by the driver of the vehicle in question authorised him to drive the said vehicle also since the vehicle in question was a light goods carriage. He also contended that since the claimants are all third parties, the claim of the third parties cannot be defeated on the ground of violation of the terms of the policy.
10. On the other hand, Sri.O.Mahesh, learned counsel for the insurer sought to justify the judgment of the tribunal and contended that though the driving licence was issued in the year 2000, in the light of the mandate of Section 3 of the Act, and in the absence of the licence authorising the licencee to drive the transport vehicle, the driver could not have driven the vehicle in question which is a transport vehicle,
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therefore, the tribunal is justified in exonerating the insurer.
11. Learned Counsel for the insurer further contended that after Section 10 was amended with effect from 14.11.1994, the mere fact that the corresponding rules and the forms prescribed thereunder were not amended immediately in tune with the amended Section, but were amended after a long lapse of about 6 ½ years, the rules which stood between 14.11.1994 to 28.03.2001 could not override the very Section. Therefore, amended Section 10 should be applied to hold that the driver had no effective driving licence.
12. This very arguments had been canvassed before the Apex Court in Nisaria's case referred to supra. The Apex Court in the said case at para-21 held that the amendments carried out in the Rules having prospective operation, the licence held by the driver of the vehicle in question cannot be said to be invalid in law. It was for the rule making authority to immediately
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act to bring the rules and forms prescribed thereunder in tune with the amended Section. The applicant seeking grant of licence would be guided by the prescribed forms to be submitted on the date of the application for grant of licence.
13. In the case on hand, for the purpose of grant of licence, the driver must have filed the application prior to 08.11.2000. As on that date, Form-4 which was in force did not provide for seeking issue of licence in respect of a transport vehicle. The prescribed form as on that date contained class of vehicle such as light motor vehicle, medium goods vehicle, heavy goods vehicle etc., Even the From-10 which is the prescribed form in which the Authority was required to issue licence prescribed the very same description of the class of vehicle. Therefore, as long as the rules and the forms prescribed thereunder was not suitably amended, the applicants for licence were governed by the unamended rules and the forms. As held by the Apex Court in Nisaria's case, the driver who had a valid licence issued prior to 28.03.2001 to drive a light motor vehicle was
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also authorised to drive a light goods vehicle. Therefore, I find no substance in the contentions urged by the learned counsel for the insurer.
14. The tribunal in the judgments under appeal, after referring to the judgment of the Apex Court in Swaran Singh's case referred to supra, which is rendered by a bench of three Hon'ble Judges, has held that in the light of subsequent decision of the Apex Court in New India Assurance Co., Ltd., vs. Prabhu Lal (2007 AIR SCW 7677), which is rendered by a bench of two Hon'ble Judges, the judgment in Swaran Singh's case is no longer good law. In my opinion, the learned member of the tribunal without understanding the purport of the expression 'no longer good law', appears to have used the said word. The tribunal could not have described the decision of the larger bench as not a good law in the light of the judgment rendered by a smaller bench. In Swaran Singh's case, the Apex Court after referring to Section 10 and also Section 3 of the Act has observed thus in para-84:-
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84.xxxxxxxxxxxxxxxxxxxxxxxxxxxx In
each case on evidence led before the
Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence".
15. In Annappa Irappa Nesaria's case, referred to supra, the Apex Court referring to the Form No.4 prescribed for applying grant of licence, prior to its amendment dated 28.03.2001, has held that a driver who had a valid licence to drive light motor vehicle, is authorised to drive light goods vehicle as well. In that case, the driver possessed licence to drive light motor vehicle and the licence had been issued prior to 28.03.2001. Though Section 10 of the Act was
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amended with effect from 14.11.1994, whereby, the term 'transport vehicle' was included under clause (e) by deleting the other classes of vehicle such as heavy goods vehicle, heavy passenger vehicle, medium goods vehicle and medium passenger vehicle. The Form prescribed for applying grant of licence in Form No.4 and Form No.10 prescribed form in which the driving licence was to be issued, came to be amended only with effect from 28.03.2001. It is in that context, the Apex Court has held that the driver who possessed licence issued prior to 28.03.2001 to drive light motor vehicle, would also be authorised to drive the light goods vehicle as well.
16. In the case on hand also, the driver of the offending vehicle possessed the driving licence issued prior to 28.03.2001 authorising him to drive light motor vehicle. Therefore, in the light of the aforesaid decision of the Apex Court, the driver was authorised to drive the light goods vehicle also. The vehicle in question was a light goods carrier falling within the description of a light motor vehicle. Therefore, in my opinion, the driver of the offending vehicle possessed valid driving licence
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to drive the class of vehicle involved in the accident. In this view of the matter, the tribunal is not justified in exonerating the insurer of the offending vehicle. Therefore, the finding of the tribunal in that regard is liable to be set aside and the appeal filed by the owner of the offending vehicle deserves to be allowed as he is entitled to be indemnified by the insurer.
17. Regarding quantum in M.V.C.No.95/04, as per the evidence, the claimant sustained fractures of three bones of left leg. Ex.P6 the wound certificate indicates that he had suffered closed comminuted fracture of shaft of left femur, bi-condylar fracture of left tibia and fracture of shaft of left tibia and left fibula. The evidence on record further established that the claimant was treated as inpatient in the hospital for 26 days, during which period, he underwent surgery and the fractures were reduced by using implants. The tribunal has awarded a sum of Rs.1 lakh towards pain and sufferings, mental agony, loss of happiness and amenities of life.
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18. According to learned counsel for the claimant, the compensation awarded under this composite head is grossly inadequate and deserves to be enhanced. Further grievance of the claimant is that medical expenses awarded by the tribunal at Rs.55,000/- is also on the lower side. According to the claimant, the tribunal has not awarded any amount towards loss of earning during the period of treatment and rest and having regard to the nature of the injuries suffered by the claimant, the duration of hospitalisation and also period of rest, the tribunal ought to have awarded loss of earnings atleast for a period of three months. The claimant contends that the tribunal has not awarded any compensation towards special diet and Misc.expenses and also attendant charges awarded is on the lower side.
19. The tribunal after referring to all the medical bills produced, has awarded a sum of Rs.55,000/- towards medical expenses. Having regard to the evidence on record, I find no error committed by the tribunal in this regard. There is no scope for
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enhancement towards medical expenses. Though the claimant had sought for future medical expenses, the tribunal has not awarded any amount under the said head on the ground that there is no evidence to indicate that he needs any future treatment. In the absence of any evidence on record, the tribunal is justified in not awarding any amount under the said head.
20. Though the tribunal has referred to the documents produced with regard to the misc.expenses, amount spent towards special diet and misc.expenses has not awarded any amount. Having regard to the fact that the claimant was inpatinet for about 26 days and underwent surgery, he was required to have special diet during the treatment in the hospital and also some time thereafter. The tribunal is not justified in not awarding any amount under the said head. Regard being had to the facts and circumstances of the case, I deem it fit to award a sum of Rs.5,000/- towards nourishment, food and special diet. Having regard to the fact that the claimant was inpatient for 26 days, attendant charges
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awarded by the tribunal at Rs.5,000/- is just and proper and there is no scope for enhancement.
21. As noticed supra, the tribunal has awarded Rs.1 lakh under the composite head i.e, pain and sufferings, loss of amenities of life etc., The claimant had suffered fracture of all the three major bones of the left leg. He was inpatient for 26 days and has undergone surgery. The fractures were reduced by using implants. In spite of the treatment, there must be some discomfort expressed by the claimant on account of the fractures of the bones of the left leg. Having regard to the nature of the injuries suffered by the claimant, I am of the opinion that award of Rs.1 lakh on the composite head is on the lower side. I deem it fit to enhance the same to Rs.1,25,000/-.
22. Having regard to the fact that the claimant after the accident was promoted as Director of Rangayana in Mysore from the post of Principal in NEENASAM and he is being paid higher salary, the tribunal has rightly not awarded any compensation
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towards loss of future earnings though there is some disability suffered by the claimant. However, having regard to the fact that the claimant was inpatient for 26 days for treatment and even after the discharge from the hospital, regard being had to the nature of the fractures he had suffered atleast for another two months, he would not have been able to attend to his regular work. Therefore, the tribunal ought to have awarded reasonable compensation for loss of earnings during this period. At the time of accident, the claimant was the Principal of NEENASAM and was earning monthly salary of Rs.18,317/-. Having regard to the facts and circumstances of the case, I deem it fit to award loss of pay for a period of three months which works out to Rs.55,000/-. Thus, the claimant is entitled for enhanced compensation of Rs.85,000/-. To this extent, appeal filed by the claimant in M.F.A.No.4644/2008 deserves to be allowed.
23. Regarding Cross objections in Crob.No.8/2011, as could be seen from the records in M.V.C.No.163/04, the claimant had suffered six injuries
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as described in the wound certificate Ex.P5. As per the opinion of the doctor, injury No.4 namely undisplaced fracture of lateral condyle of left tibia was grievous in nature and the other injuries were simple in nature. The claimant has examined PW-2 Dr.Bhaskar Anand Kumar who treated him at K.M.C.Hospital, Manipal. As per the evidence of PW-2, the X-ray taken revealed undisplaced fracture of (L) lateral Condyle of (L) Tibia and the same was treated conservatively. According to the doctor, to the left leg plaster cast was applied for reduction of the fracture. The tribunal has awarded a sum of Rs.30,000/- towards pain and sufferings, mental agony, loss of happiness and amenities of life. It has further awarded a sum of Rs.19,500/- towards medical, travelling and miscellaneous expenses and thus, awarded total compensation of Rs.49,500/-.
24. From the above, it is clear that the claimant was not treated as inpatient nor he has undergone surgery. Nevertheless, he has suffered fracture. There is absolutely no evidence placed by the claimant to indicate that he has suffered any permanent disability
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affecting his future earnings. Having regard to the nature of the injuries and probable unhappiness in future life on account of this fracture, in my opinion, compensation of Rs.30,000/- awarded under composite heads is inadequate and it deserved to be enhanced to Rs.50,000/-.
25. The tribunal has not awarded any compensation towards loss of earning during treatment and laid up period. Having regard to the fact that the claimant had suffered fracture of left tibia, atleast for a period of two months he was unable to attend to his regular work and therefore, he is entitled for loss of earnings for a period of two months. Though the claimant contended that he was earning Rs.10,000/- per month from venila business and also agricultural work, no acceptable evidence is produced. Nevertheless having regard to the fact that the claimant was aged about 23 years as on the date of the accident, even if he is treated as coolie worker, his monthly earnings could be safely taken at Rs.4,000/-. Thus, the claimant is entitled for Rs.8,000/- towards loss of earnings during
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laid up period. Thus, the claimant is entitled for enhanced compensation of Rs.28,000/-. To this extent, cross objection filed deserves to be allowed.
26. Accordingly, the appeals as well as the cross objection are allowed. In modification of the judgment and award exonerating the insurer of the offending vehicle, it is ordered that the insurer of the offending vehicle shall indemnify the insured and is directed to satisfy the awards in both the claim petitions as enhanced by this Court.
The claimant in M.V.C.No.163/04 is entitled for enhanced compensation of Rs.28,000/- with interest at 6% p.a. from the date of petition till the date of payment. The claimant in M.V.C.No.95/04 is entitled to enhanced compensation of Rs.85,000/- with interest at 6% p.a. from the date of petition till the date of payment. The Insurance Company shall deposit the entire compensation as determined by the tribunal and as enhanced by this Court with interest within eight weeks from today. The statutory deposit made in
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M.F.A.Nos.5620/2008 & 5624/2008 is ordered to be refunded to the appellant-owner.
SD/-
JUDGE Srl.