Karnataka High Court
The Divisional Manager, vs T Jambaiah on 8 November, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 08TH DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
M.F.A.No. 100865/2016 (M.V)
C/W
M.F.A.No. 103858/2016 (M.V)
M.F.A.No. 100865/2016
BETWEEN:
THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE,
NEAR RADHIKA TALKIES ROAD,
RAGHAVACHARI ROAD, BALLARI,
NOW C/O AT: SHREE SANKARA COMPLEX,
OPPE SONY COMPLEX, PARVATHI NAGAR,
MAIN ROAD, BALLARI,
REP. BY ITS DIVISIONAL MANAGER.
... APPELLANT
(BY SRI. SHARNAPPA S KOLIWAD, ADVOCATE)
AND
1. T JAMBAIAH S/O T.HANUMANTHAPPA,
AGED: 37 YEARS,
OCC: BELDAR (MESHTRI),
R/O: NEAR SLV TEMPLE,
PATEL NAGAR, BALLARI.
2. JUNJAPPA S/O NINGAPPA,
AGED : 30 YEARS,
OCC: DRIVER OF TATA ACE AUTO
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BEARING NO. KA-35/A-851,
R/O: KITTNUR VILLAGE,
H.B. HALLI TALUK, BALLARI,
DIST: BALLARI.
3. B.NAGARAJ S/O HULUGAPPA,
AGED: 42 YEARS,
R/O: ANANTHASHAYANA GUDI,
PUNDURANGA COLONY, 9TH WARD,
HOSAPETE, DIST: BALLARI.
(OWNER OF TATA ACE AUTO
BEARING NO.KA-35/A-851)
... RESPONDENTS
(BY SRI. HANUMANTHAREDDY SAHUKAR, ADV., FOR R-1;
SRI. S.M.KALWAD, ADV., FOR R-2 & R-3.)
THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES
ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
19.10.2015, PASSED IN M.V.C.NO.1028/2014 ON THE FILE OF
THE MOTOR ACCIDENT CLAIMS TRIBUNAL - XII, AT BALLARI,
AWARDING THE COMPENSATION OF RS.2,76,000/- WITH
INTEREST AT THE RATE OF 7% P.A. FROM THE DATE OF
PETITION TILL DATE OF ITS REALIZATION.
M.F.A.No.103858/2016
BETWEEN:
SRI.T. JAMBAIAH
S/O. T. HANUMANTHAPPA,
AGE: 37 YEARS, OCC: BELADAR,
R/O: NEAR SLV TEMPLE,
PATEL NAGAR, BALLARI,
TQ & DIST: BALLARI-583101.
... APPELLANT
(BY SRI.HANUMANTHAREDDY SAHUKAR, ADVOCATE)
AND
1. SRI. JUNJAPPA S/O NINGAPPA,
AGE: 30 YEARS,
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OCC: DRIVER OF TATA ACE
AUTO NO.KA-35/A-851,
R/O: KITTNUR VILLAGE,
TQ: H.B. HALLI,
DIST: BALLARI-583224.
2. SRI. B. NAGARAJ S/O. HULUGAPPA,
AGE: 42 YEARS,
OCC: OWNER OF TATA ACE
NO.KA-35/A-851,
R/O: ANANTHASHAYANA GUDI,
PANDURANGA COLONY,
9TH WARD, HOSAPETE,
DIST: BALLARI-583201.
3. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE COMPANY LTD.,
NEAR RADHIKA TALKIES ROAD,
BALLARI, DIST: BALLARI-583101.
... RESPONDENTS
(BY SRI. S. S. KOLIWAD, ADVOCATE FOR R-3;
R-1 & R-2 NOTICE DISPENSED)
THIS MFA IS FILED U/S 173(1) OF MOTOR VEHICLE ACT
1988, AGAINST THE JUDGMENT AND AWARD DATED
19.10.2015 PASSED IN MVC NO.1028/2014 ON THE FILE OF
THE MOTOR ACCIDENT CLAIMS TRIBUNAL-XII, AT BALLARI,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
M.F.A.No.100865/2016 has been preferred by the appellant-insurer and M.F.A.No.103858/2016 has been preferred by the appellant-claimant by assailing the 4 judgment passed by the M.A.C.T.-XII, Ballari in M.V.C.No.1028/2014 dated 19.10.2015.
2. Heard the appellant and respondents in both the appeals. Both the appeals are admitted. With the consent of the learned counsel appearing for the parties, these appeals are taken up for final disposal.
3. Brief facts of the case are that on 12.02.2014, the appellant-claimant, T. Jambaiah was proceeding in an autorikshaw bearing registration No. KA-35/B-1272 from Lokappanahola to Nandibande village to attend a festival. At that time, a Tata ACE goods auto bearing registration No.KA- 35/A-851 came in a rash and negligent manner and dashed to the auto in which the appellant-claimant was proceeding. As a result, the appellant-claimant sustained injuries and he was admitted in Government Hospital at Hosapete. He took treatment in the said hospital for having sustained injuries in the above said accident and thereafter he filed a claim petition, under section 166 of the Motor Vehicles Act, claiming compensation. He further contended that he was working as Beladar (mason) and was earning Rs.9,000/- per 5 month. For having sustained injuries in the accident, now he is unable to work. On these grounds, he filed claim petition claiming compensation.
4. In pursuance of service of notice, respondent No.1 and 2 appeared before the Tribunal and respondent No.1 filed his written statement. Respondent No.3 also filed his written statement by denying the contents of the petition. He contended that there is a contributory negligence on the part of the drivers of both the vehicles, and the driver of the said Tata ACE goods auto was not holding a valid and effective driving licence as on the date of the accident and as such, there is a breach of policy conditions. Hence, the respondent-insurer is not liable to pay any compensation. On these grounds, he prayed for dismissal of the said petition.
5. On the basis of the above pleadings, the tribunal framed the following:-
ISSUES
1. Whether petitioner proves that, he has sustained bodily injuries in RTA that was 6 occurred on 12.2.14 at about 5.30 p.m. on S.H.25 road near Durgamma temple Hospet taluk, within the jurisdiction of Mariyammanahalli police station, due to rash and negligent driving of Tata Ace Goods Auto bearing Reg. No.KA-35/A-851 by the first respondent?
2. Whether the 3rd respondent proves that the first respondent was having valid and effective driving licence as on the date of accident?
3. Whether 3rd respondent proves that, the alleged accident was the result of contributory and composite negligence of two vehicles bearing Reg.No.KA-35/A-851 Tata Ace Goods Auto driven by the first respondent and KA-35/B/1272 Auto driven by its driver?
4. Whether petitioner is entitled for compensation as prayed for?
5. What order or an award?
6. In order to prove his case, petitioner himself got examined as P.W.1 and got examined a doctor as P.W.2. and 7 also got marked the documents as per Ex.P-1 to Ex.P-12.
The respondents have not led any defence evidence.
7. After hearing the parties to the lis, the impugned judgment and award was passed. Assailing the same, appellant-insurer as well as the appellant-claimant are before this court.
8. The main grounds urged by the learned counsel for the appellant-insurer are that, the records produced clearly indicate that the driver of Tata ACE goods auto, which is involved in the accident, was having licence to drive LMV (non-transport) and he did not possess valid and effective driving licence to drive LMV (transport), and as such, fastening the liability on the appellant-insurer is not justifiable. He further contended that the said vehicle is a goods carrying vehicle and as such, an endorsement is required to drive such a vehicle. On these grounds, he prayed for allowing his appeal by setting aside the impugned judgment and award.
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9. Per contra, the learned counsel appearing for the respondent-claimant vehemently argued and contended that the said driver of the Tata ACE goods vehicle was having licence to drive LMV (non-transport) and it was valid from 26.12.2006 to 25.12.2026. In view of the decision of the Hon'ble Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Ltd and others reported in AIR 2017 SC 3668 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, and as such the fastening of the liability on the appellant- insurer is justifiable. He further contended that the compensation awarded by the tribunal is on the lower side, and the tribunal has not considered the proper income and no compensation has been awarded under the head of loss of income during the laid up period. He further contended that the compensation awarded under the head of pain and 9 sufferings and loss of amenities is on the lower side. On these grounds, he prayed for dismissal of the appeal preferred by the appellant-insurer and allowing his appeal by enhancing the compensation amount.
10. The accident in question as well as involvement of the vehicle, which is insured with the appellant-insurer is not in dispute.
11. As could be seen from the judgment and award passed by the tribunal, though the appellant-insurer had taken up a contention that the driver of the Tata ACE goods vehicle was not holding valid and effective driving licence to drive LMV (transport) and though issue No.2 was framed, without there being any detailed discussion in what circumstances the appellant-insurer is liable to pay the compensation, the tribunal answered the said issue in negative and fixed the liability on the respondents 1 to 3 jointly and severally and ultimately directed appellant- insurer to pay the compensation.
12. As could be seen from the records made available, admittedly the driver of the Tata ACE vehicle was 10 having valid and effective driving licence to drive LMV (non- transport) and it was valid from 26.12.2006 to 25.12.2026 but he was not having any endorsement to drive LMV (transport). When he is having valid driving licence to drive LMV (non-transport) and it was in currency, he cannot be said that he is incompetent to drive the LMV (transport) vehicle and in decision quoted supra it is held that he cannot be said that he has no licene. In the case of Mukund Dewangan (supra), the Hon'ble Apex Court in 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 11 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 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"12
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 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 13 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.
(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 14 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. On going through the above principles laid down by the Hon'ble Apex Court, it is clear that if a person has been given licence to drive a particular type of vehicle, he cannot be said that he has no licence to drive another type of vehicle which of the same category but of a different type. When admittedly the driver of the Tata ACE vehicle is having a valid and effective driving licence to drive LMV (non- transport) then under such circumstances, he is also entitled to drive LMV (transport), without there being any endorsement. Keeping in view the above facts and circumstances, the contention of the learned counsel for the appellant-insurer does not stand to any reason and the appeal preferred by the appellant-insurer is devoid on merits and the same is liable to be dismissed.
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14. It is the contention of the appellant-claimant that the compensation awarded is on the lower side. As could be seen from the judgment and award of the tribunal, the tribunal after considering the injuries sustained and after considering the evidence of P.W.2 to the effect that the appellant-claimant has suffered 32% of permanent disability, and after taking notional income at Rs.5,000/- has awarded the compensation on the following heads:-
1 For the injuries pain and sufferings Rs. 30,000/-
2 Towards medical expenditure Rs. 1,30,000/-
3 Loss of future income Rs. 96,000/-
4 For the loss of future amenities of life Rs. 20,000/-
Total Rs. 2,76,000/-
15. However, in the normal circumstances, the compensation awarded appears to be justifiable but while taking the notional income, the tribunal ought to have kept into view the year of the accident and the wages prevailing at that time. Admittedly, the accident took place in the year 2014 and during that period the notional income Rs.7,000/-16
to 7,500/- is the yard stick which is used to be adopted even in settlement cases before the Lok- Adalath. If the income of the appellant-claimant is taken at Rs.7,000/- by applying multiplier '16' and by taking disability to the whole body to the extent of 10%, if the compensation is re-assessed, then under such circumstances, the appellant-claimant is entitled to Rs.1,34,400/- [(Rs.7000 x 10%) x 12 x 16 = 1,34,400/- towards loss of future income. As could be seen from the judgment and award of the tribunal, there is no compensation awarded under the head of loss of income during the laid up period. In that light, the appellant- claimant is entitled to Rs.21,000/-. The compensation awarded by the tribunal under the head of pain and sufferings is extended to Rs.40,000/- as against Rs. 30,000/- and compensation awarded under the head of loss of amenities is extended to Rs.30,000/- as against Rs.20,000/-. Keeping in view the above said facts and circumstances, the appellant-claimant is entitled to total compensation as mentioned below:-
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1 For the injuries pain and sufferings Rs. 40,000/-
2 Towards medical expenditure Rs. 1,30,000/-
3 Loss of future income Rs. 1,34,400/-
4 For the loss of future amenities of life Rs. 30,000/-
5. Loss of income during the laid up Rs. 21,000/-
period Total Rs. 3,55,400/-
16. Keeping in view of the above said facts and circumstances, the appellant-claimant is entitled to the total compensation of Rs.3,55,400/- and after deducting the compensation awarded by the tribunal to the extent of Rs.2,76,000/-, the appellant-claimant is entitled for additional compensation of Rs.79,400/- with interest @ 6% per annum.
17. Accordingly, M.F.A.No. 103858/2016 preferred by the appellant-claimant is partly allowed and the judgment and award passed by the M.A.C.T.- XII, Ballari in MVC No. 1028/2014 dated 19.10.2015 is modified as indicated above.
18. MFA No. 100865/2016 preferred by the appellant-insurer is dismissed.
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19. The amount in deposit made by the appellant- insurer may be transmitted, forthwith, to the jurisdictional tribunal for disbursement of the same in accordance with law.
20. Registry is directed to draw award accordingly and send back the records.
Sd/-
JUDGE yan