Karnataka High Court
The Divisional Manager, The New vs Shabana W/O Basheer Ahamad Sheikh on 19 December, 2018
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
M.F.A. NO.24604/2013 (WC)
BETWEEN
THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY
LIMITED HUBLI REPRESENTED
BY ITS ADMINISTRATIVE OFFICER
THE NEW INDIA ASSURANCE COMP
LTD MOTOR THIRD PARTY CLAIMS
HUB SHRINATH COMPLEX, NEW
COTTON MARKET HUBLI ... APPELLANT
(BY SRI.G.N.RAICHUR, ADV.)
AND
1. SHABANA W/O BASHEER AHAMAD SHEIKH
AGE: 26 YEARS, OCC: HOUSEHOLD
R/O NEW ANANDNAGAR 4TH CROSS
MASZID NEAR OLD HUBLI, HUBLI
2. NAZAMA BEGUM D/O BASHIR AHMAD SHEIKH
AGE 8 YEARS OCC: STUDENT MINOR
3. BIBI AYASHA D/O BASHIR AHMAD SHEIKH
AGE 7 YEARS OCC: STUDENT MINOR
4. MOHAMMAD SADIQUE S/O BASHIR AHMAD SHEIKH
AGE 3 YEARS OCC: STUDENT MINOR
RESPONDENT NOS.2 TO 4 ARE MINORS,
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REP. BY RESPONDENT NO.1 AS NATURAL MOTHER
5. HUSAINBEE W/O GAFAR SAB SHEIKH
AGE 56 YEARS OCC: HOUSEHOLD
R/O NEW ANANDNAGAR OLD HUBLI, HUBLI
6. FATIMA SAYYED
W/O MAZBUDDIN SAYYED
AGE MAJOR
OCC: OWNER OF
VEHICLE NO. KA-19/A-9725
R/O SHABNAM MANZIL
SUBHASHNAGAR KHB COLONY
KESVAPUR KUSUGAL ROAD HUBLI-23
... RESPONDENTS
(BY SRI. DINESH M KULKARNI, ADV. FOR R1 & R5,
R2 TO R4 ARE MINOR REP. BY R1)
THIS MFA IS FILED UNDER SECTION 30(1) OF WC ACT,
1923, AGAINST THE ORDER DATED 24.08.2013 PASSED IN
W.C.N.F NO.55/2012 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMENS COMPENSATION, SUB-
DIVISION-II, HUBLI, AWARDING THE COMPENSATION OF
RS.7,88,240/- WITH INTEREST AT THE RATE OF 12% P.A.,
FROM THE DATE OF PETITION AND SHALL BE DEPOSITED
WITHIN 30 DAYS FROM THE DATE OF THE ORDER.
THIS MFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Assailing the judgment and order dated 24.08.2013 passed by the Labour Officer and Commissioner for Workmen's Compensation, Sub- Division II, Hubballi in WCNF No.55/2012 appellant - insurer is before this Court.
2. I have heard the learned counsels appearing for the parties.
3. It is submitted by the learned counsel for the appellant - insurer that the Commissioner for Workmen's Compensation has committed an error in saddling the liability on the appellant - Insurance Company inspite of the fact that the driver of the said vehicle was not holding valid and effective driving license to drive the hazardous goods. He further submitted that as per the Central Motor Vehicle Rules, in the list of hazardous goods at Sl. No.1656 petroleum crude oil is classified as hazardous goods and as per Rule 9 of the said Rules, the driver carrying the :4: hazardous goods imposed in addition to the transport license must have an endorsement to drive the hazardous goods vehicle. He further submitted that admittedly the driver of the said tanker was not holding the said endorsement. As such, the Insurance Company is not liable to pay any compensation. He further submitted that the Commissioner has committed an error in taking the income of the deceased at Rs.8,000/- per month, without there being any documents. As per the amendment to Section 4, the maximum amount has been stated and the said amount has to be fixed by taking into consideration the facts and circumstances, it is not that Rs.8,000/- has to be fixed in all the cases. He further submitted by drawing the attention of this Court to Section 20 of the Workmen's Compensation Act that the Commissioner who has passed the award is not having any qualifications as contemplated under Section 20 of the Workmen's Compensation Act. He further submitted that as per Section 10 of the :5: Workmen's Compensation Act, before filing the claim petition, the claimant must issue notice of the accident and without being any notice, no claim for compensation shall be entertained.
4. Learned counsel for the appellant further submitted that the interest which has been awarded is also not correct. The said claim petition has been filed by the claimant during 2012 and the accident has taken place on 26.12.2010. He further submitted by relying upon the decision in the case of V. Kishan Rao vs. Nikhil Super Speciality Hospital and another reported in 2011 Kant. MAC 556 (SC), when a judgment is rendered by ignoring the provisions of the statute, then under such circumstances, it is the statute which will prevail over the said decisions. He further submitted that in the case of New India Assurance Company Limited, the said aspect has not been kept into view while delivering the said decision. As such, the said decision is not applicable to the :6: present facts of the case on hand. On these grounds, he prayed to allow the appeal.
5. Per contra, learned counsel appearing on behalf of the respondents - claimants vehemently argued and submitted that though Rule 9 of the Central Motor Vehicles Rules, 1989 and Section 14 of the Motor Vehicles Act, 1988, it stipulates that the driver who is driving must have a driving licence to drive the hazardous vehicle. But as on the date of the accident, the said tanker was an empty tanker and the said provision of law is not applicable to the present facts of the case on hand. He further submitted that when the accident occurred, there was no petroleum product in the tanker. Under the said circumstances, the contention of the insurer cannot be acceptable. In order to substantiate his argument, he relied upon the decision in the case of New India Assurance Company Limited vs. Velumurugan reported in 2016 ACJ 475. He further submitted that the appellant - insurer has :7: not taken up any defence or filed objections stating that no notice has been issued and no qualifications are there to the Commissioner. For the first time in the appeal, said contentions have been raised. He further submitted that the said petition has been filed within two years, as contemplated under Section 10 of the Workmen's Compensation Act and as such, he is entitled to the interest as ordered by the Commissioner. On these grounds, he prayed to dismiss the appeal as devoid of merits.
6. Further, the learned counsel for the respondents relied upon the decision in the case of Renu and Smt.Menaka vs. the Oriental Insurance Company Limited and MR.L.Tulsi Prasad reported in 2014 ILR KAR 2592. He further relied upon the decision in the case of The Managing Director, VRL Logistics Limited vs. Devendra @ Devappa in M.F.A. No.101486/2017 c/w M.F.A. Crob. No.100016/2018 dated 13.06.2018.
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7. On the above submissions, the substantial question of law which arises for the consideration of this Court is:
"Whether the appellant - insurer is liable to pay the compensation as contended by him that the driver of the offending vehicle was not having a licence to drive the vehicle which carried hazardous goods and driving such vehicle in contravention of the Motor Vehicles Act and Rules absorb his liability?"
8. I have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and I have perused the records.
9. The first and foremost contention taken up by the learned counsel for the appellant are that the Commissioner who passed the order, was not qualified to take up the said case. As such, the award passed by the Commissioner is not sustainable in law. For the :9: purpose of brevity, I quote Section 20 of the Employees' Compensation Act, 1923 which reads as under:
"20. Appointment of Commissioners.- (1) The State Government may, by notification in the Official Gazette, appoint any person to be a Commissioner for Workmen's Compensation for such (x x x x x) area as may be specified in the notification.
[(2) Where more than one Commissioner has been appointed for any (x x x x x) area, the State Government may, by general or special order, regulate the distribution of business between them.] [(3)] Any Commissioner may, for the purpose of deciding any matter referred to him for decision under this Act, choose one or more persons possessing special knowledge of any matter relevant to the matter under inquiry to assist him in holding the inquiry.
[(4)] Every Commissioner shall be deemed to be a public servant within the meaning of the Indian Penal Code, 1860 (45 of 1860)": 10 :
10. Though several qualifications have been stated in the above said Section, but as could be seen from the award and the objections which have been filed before the Commissioner, no such defence has been taken up by the appellant insurer by specifically contending that the said Commissioner is not having any qualification and he is incompetent to pass such order.
11. Be that as it may. The accident took place during 2010. Case was decided on 24.08.2013. Thereafter, appeal is pending before this Court for more than five years. It is beneficial legislation, if the matter is remanded on technical grounds, the very purpose of the act defeats. It is also well established principles of law that the technicalities should be kept to bear minimum. Under the said facts and circumstances, the said contention raised by the learned counsel for the appellant is not sustainable in law. : 11 :
12. The second contention which has been raised is that the respondents - claimants have not issued any notice as contemplated under Section 10 and as such, no claim for compensation shall be entertained by the Commissioner. For the purpose of brevity, I quote Section 10 of the Workmen's Compensation Act which reads as under:
10. Notice and claim.- (1) [No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within [two years] of the occurrence of the accident or, in case of death, within [two years] from the date of death:] Provided that, where the accident is the contracting of a disease in respect of which the provisions of sub- section (2) of section 3 are applicable, the accident shall be deemed to have occurred on the first of the days during which the workman was continuously : 12 : absent from work in consequence of the disablement caused by the disease:
[Provided further that in case of partial disablement due to the contracting of any such disease and which does not force the workman to absent himself from work, the period of two years shall be counted from the day the workman gives notice of the disablement to his employer:
Provided further that if a workman who, having been employed in an employment for a continuous period, specified under sub- section (2) of section 3 in respect of that employment, ceases to be so employed and develops symptoms of an occupational disease peculiar to that employment within two years of the cessation of employment, the accident shall be deemed to have occurred on the day on which the symptoms were first detected:] [Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the [entertainment of a claim]--
(a) if the claim is [preferred] in respect of the death of a workman resulting from an : 13 : accident which occurred on the premises of the employer, or at any place where the workman at the time of the accident was working under the control of the employer or of any person employed by him, and the workman died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the premises or place where the accident occurred, or
(b) if the employer [or any one of several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured [employee] was employed] had knowledge of the accident from any other source at or about the time when it occurred]:
Provided further, that the Commissioner may [entertain] and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been [preferred], in due time as provided in this sub- section, if he is satisfied that the failure so to give the notice or [prefer] : 14 : the claim, as the case may be, was due to sufficient cause.
(2) Every such notice shall give the name and address of the person injured and shall state in ordinary language the cause of the injury and the date on which the accident happened, and shall be served on the employer or upon [any one of] several employers, or upon any person [ x x x x x ] responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed.
[(3) The State Government may require that any prescribed class of
employers shall maintain at their premises at which workman are employed a notice- book, in the prescribed form, which shall be readily accessible at all reasonable times to any injured [employee] employed on the premises and to any person acting bona fide on his behalf.
(4) A notice under this section may be served by delivering it at, or sending it by : 15 : registered post addressed to, the residence or any office or place of business of the person on whom it is to be served, or, where a notice-
book is maintained, by entry in the notice- book.]
13. It is submitted by the learned counsel for the appellant - insurer that when a statutory bar is there under Section 10, even though the said objection has not been raised in his objections, he can contend by relying upon the said Section and he can convince the argument in this behalf.
14. Learned counsel for the respondents submitted that the Workmen's Compensation Act is a beneficial legislation and only on technical ground the petition cannot be dismissed. He further submitted that only to prove the case under the said Act, the claimant has to prove that there was a relationship of an employer and the employee and during the course of employment the alleged accident has taken place. These two aspects have been proved before the Commissioner : 16 : and on the basis of the said fact, the Commissioner has awarded the compensation.
15. Learned counsel for the respondents further submitted that accident has taken long back and the claimants were illiterate. They have not kept the records properly. As such, it is very difficult to get such documents. If the said issue, if it could have been raised, it could have been meted out.
16. I have also carefully and cautiously gone through the said Sections.
17. Though the said Section uses the word 'shall be entertained', but when already the petition has been heard and decided by the Commissioner and no such specific contention have been taken before the Commissioner, for the first time now the new contentions have been raised before this Court after lapse of more than 08 years after the accident. Under the said facts and circumstances, only on technical : 17 : ground the petition cannot be dismissed that too after the long delay. Even the submission made by respondents appears to be justifiable. In that light also, the contention is not acceptable in law.
18. It is the contention of the learned counsel for the appellant - insurer that the driver of the vehicle was not holding valid and effective driving licence to drive the hazardous vehicle which was carrying the petroleum product. It is not in dispute that the said tanker is carrying petroleum product and it is also not in dispute that the driver must have an endorsement in the driving licence to drive the hazardous goods.
19. For the purpose of brevity, I quote Section 14 of the Motor Vehicles Act and also Rule 9 of the Central Motor Vehicles Rules, 1989 which reads as under:
14. Currency of licences to drive motor vehicles.-- (1) A learner's licence issued under this Act shall, subject to the other provisions of this Act, be effective for a period : 18 : of six months from the date of issue of the licence.
(2) A driving licence issued or renewed under this Act shall,--
(a) in the case of a licence to drive a transport vehicle, be effective for a period of three years: 1[***] 2[Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus; and]
(b) in the case of any other licence,--
(i) if the person obtaining the licence, either originally or on renewal thereof, has not attained the age of 3[fifty years] on the date of issue or, as the case may be, renewal thereof,-- 3[fifty years] on the date of issue or, as the case may be, renewal thereof,--"
(A) be effective for a period of twenty years from the date of such issue or renewal;
or : 19 : (B) until the date on which such person attains the age of 3[fifty years], whichever is earlier;
[(ii) if the person referred to in sub- clause (i), has attained the age of fifty years on the date of issue or as the case may be, renewal thereof, be effective, on payment of such fee as may be prescribed, for a period of five years from the date of such issue or renewal:] Provided that every driving licence shall, notwithstanding its expiry under this sub-section continue to be effective for a period of thirty days from such expiry." Rule 9 of the Central Motor Vehicles Rules:
[9. Educational qualifications for drivers of goods carriages carrying dangerous or hazardous goods: 2[(1) One year from the date of commencement of Central Motor Vehicle (Amendment) Rules, 1993, any person driving a goods carriage carrying goods of dangerous or hazardous nature to human life share, in addition to being the holder of a driving licence to drive a transport vehicle, also have the ability to read and write at : 20 : least one Indian language out of those specified in the VIII Schedule of the Constitution and English and also possess a certificate of having successful), passed a course consisting of following syllabus and periodicity connected with the transport of such goods:
Period of training 3 days
Place of training At any institute
recognised by the
State Government
Syllabus
A. Defencive driving
Questionnaire Duration of training
Cause of accidents for A and B - 1st and
Accidents statistics 2nd day
Driver's personal
fitness
Car condition
Braking distance
Highway driving
Road /Pedestrian
crossing
Railway crossing
Adapting to weather
Head on collision
Rear end collision
Night driving
Films and discussion
B. Advance Driving skills and Training
(i) Discussion
Before starting -Check list
-
Outside/below/near/
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vehicle
-Product side
-Inside vehicle
During driving -Correct speed /gear
-Signalling
-Lane control
-Overtaking/giving
side
-Speed limit/safe
distance
-Driving on slopes
Before stopping -Safe stopping place,
signalling, road width,
condition
After stopping -preventing vehicle
movement
-wheel clocks
-vehicle attendance
Night driving
(ii) Field test -1 driver at a time
training
C. Product safety -UN classification
Duration
UN Panel -Hazchem Code of
training
-Toxicity, for (C)
Flammability, third
day
other definitions
Product information -Tremcards
-CIS/MSDS
-Importance of
temperature
pressure, level
-Explosive limits
-Knowledge about
equipment
Emergency -Communication
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procedure
-Spillage handling
-Use of PPE
-Fire-fighting
-First aid
-Toxic release control
-Protection of wells,
rivers, lakes,
etc.
-Use of protective
equipment
-Knowledge about
valves, etc.]
(2) The holder of a driving licence possessing the minimum educational qualification or the certificate referred to in sub-rule (1), shall make an application in writing on a plain paper along with his driving licence and the relevant certificate to the licensing authority in whose jurisdiction he resides for making necessary entries in his driving licence and if the driving licence is in Form 7 the application shall be accompanied by the fee as is referred to in Sl. No. 8 of the Table to rule 32 (3) The licensing authority, on receipt of the application referred to in sub-rule (2), shall make an endorsement in the driving : 23 : licence of the applicant to the effect that he is authorised to drive a goods carriage carrying goods of dangerous or hazardous nature to human life.
(4) A licensing authority other than the original licensing authority making any such endorsement shall communicate the fact to the original licensing authority.]
20. On going through Section 14 of the M.V. Act, it clearly goes to show that in case of license to drive a transport vehicle carrying goods of dangerous or hazardous nature an endorsement must be made and it will be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus.
21. The main purpose of this Rule is that if a person who is driving the hazardous vehicle, he must have a knowledge about the driving of said vehicle and in the event if it met with accident, then under such : 24 : circumstance what steps are to be taken in this behalf is one of the main object for inserting the said provision. Though it is the contention of the learned counsel for the respondent that when the accident occurred, there was no petroleum products in the tanker and it was an empty tanker but the said Section 14(2)(a) of the Act clearly states that the driver of such vehicle must have a special endorsement to drive the said hazards vehicle. Court cannot insert the word empty in the said Section to give different meaning.
22. Be that as it may. Even if the letter and spirit of the said provision is seen, it has been inserted with a clear object. Under such circumstances, merely because at the time of accident, the said vehicle was empty and there was no petroleum product in the tanker cannot be acceptable. Taking into consideration of the decision of the Hon'ble Apex Court in the case of V. Kishan Rao vs. Nikhil Super Speciality Hospital and another reported in 2011 Kant. MAC 556 (SC), : 25 : when a judgment is rendered by ignoring the provisions of the statute, then under such circumstances, it is the statute which will prevail over the said decisions. Under such circumstances by going through the said Provision the statue itself very clear in this behalf.
23. Under the said circumstances, with all due respect, the decision quoted by respondent in the case of New India Assurance Company Limited is not acceptable to the present case on hand. In this behalf appellant/insurer has made out a case.
24. At this juncture, the learned counsel for the respondent vehemently argued and submits that appellant/insurer has not led any evidence to prove the said contention. But, as could be seen from the records the driving license has been produced at A-8 and the said license admittedly does not contain any endorsement to drive the hazardous vehicle. Under the said facts and circumstances, the said contention of the : 26 : respondent/claimant that the said things have not be proved is not acceptable. But, However, in view of the decision of the Hon'ble Apex Court in the case of National Insurance Company v/s Swarna Singh and others(2004) in para No.105 , it has been observed as under;
The summary of our findings to the various issues as raised in these petitions are as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under : 27 : Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their : 28 : liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of : 29 : "fundamental breach" to allow defences available to the insured under section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on : 30 : the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for : 31 : the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.
(xi) The provisions contained in sub- section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be : 32 : taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.
25. In the said paragraph, it has been observed that even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act. : 33 : In that light it is not a fundamental breach, so as to avoid payment.
In that light, insurer is liable to pay the compensation. In the event he pays, he can recover the said amount from the owner of the vehicle by filing execution case.
In that light of discussions held by me above, the appeal is allowed in part as observed.
Sd/-
JUDGE Rsh: para 1 to 17 HMB: para 18 to end