Karnataka High Court
The Divisional Manager vs Dilleppa S/O Kenchappa Hittalmani on 31 July, 2017
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 31ST DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
MFA NO.23299/2010 C/W
MFA NOS.23300, 23302, 21426, 21427, 21428 OF 2010 &
MFA NO.21429 OF 2010 (MV)
MFA NO.23299/2010:
BETWEEN
THE DIVISIONAL MANAGER
NATIONAL INSU.COM.LTD
SUJATHA COMPLEX, P B ROAD, HUBLI
DHARWAD
... APPELLANT
(BY SRI. RAJASHEKHAR S ARANI, ADV.)
AND
1. DILLEPPA S/O KENCHAPPA HITTALMANI
41 YRS, OCC:FOOD GRAIN & SEEDS BUSINESS
R/O KALKOL VILLAGE, RANIBENNUR-TQ
DIST. HAVERI
2. ABDUL KHADARSAB GUDUNAYAKA
S/O MAKTUMSAB, OCC: BUSINESS
R/O TUPPAD KURAHATTI, NAVALGUND-TQ
DIST. DHARWAD
... RESPONDENTS
(RESPONDENT NO.1 ACKNOWLEDGMENT NOT YET RECEIVED
AND RESPONDENT NO.2 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLE ACT 1988, AGAINST THE JUDGMENT AND
AWARD DATED: 13-04-2010 PASSED IN MVC NO.264/2007 ON THE
FILE OF THE FAST TRACK JUDGE, RANEBENNUR, AWARDING
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THE COMPENSATION OF RS.1,31,849/- WITH INTEREST AT THE
RATE OF 6% P.A. FROM THE DATE OF PETITION TILL ITS
DEPOSIT.
MFA NO.23300/2010:
BETWEEN
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
SUJATA COMPLEX, P. B. ROAD, HUBLI.
... APPELLANT
(BY SRI. RAJASHEKHAR S ARANI, ADV.)
AND
1. SMT. RENUKA W/O DILLEPPA HITTALMANI
AGE: 35 YEARS, OCC: ANIMAL HUSBANDARY &
AGRICULTURE, R/O KALKOL VILLAGE,
RANEBENNUR, TQ. & DIST. HAVERI.
2. ABDUL KHADARSAB GUDUNAYAKA S/O MAKTUMSAB
AGE: MAJOR, OCC: BUSINESS,
R/O TUPPAD KURAHATTI, TQ. NAVALGUND,
DIST. DHARWAD.
... RESPONDENTS
(RESPONDENT NO.1 ACKNOWLEDGMENT NOT YET RECEIVED
AND RESPONDENT NO.2 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MCV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 13.04.2010
PASSED IN MVC NO.265/2007 ON THE FILE OF THE FAST TRACK
JUDGE, RANEBENNUR, AWARDING THE COMPENSATION OF
RS.1,04,000/- WITH INTEREST AT THE RATE OF 6% PER ANNUM
FROM THE DATE OF PETITION TILL ITS DEPOSIT.
MFA NO.23302/2010:
BETWEEN
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
SUJATA COMPLEX, P. B. ROAD, HUBLI.
... APPELLANT
(BY SRI. RAJASHEKHAR S ARANI, ADV.)
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AND
1. KUMARI. DIVYA D/O DILLEPPA HITTALMANI,
AGE: 15 YEARS, OCC: STUDENT,
MINOR, REP. BY FATHER
DILLEPPA S/O KENCHAPPA HITTALMANI,
AGE: 41 YEARS, OCC: AGRICULTURE,
FOOD GRAIN BUSINESS, R/O KALKOL VILLAGE,
RANEBENNUR, TQ. & DIST. HAVERI.
2. ABDUL KHADARSAB GUDUNAYAKA S/O MAKTUMSAB
AGE: MAJOR, OCC: BUSINESS,
R/O TUPPAD KURAHATTI, TQ. NAVALGUND,
DIST. DHARWAD.
... RESPONDENTS
(RESPONDENT NO.1 ACKNOWLEDGMENT NOT YET RECEIVED
AND RESPONDENT NO.2 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MCV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 13.04.2010
PASSED IN MVC NO.267/2007 ON THE FILE OF THE FAST TRACK
JUDGE, RANEBENNUR, AWARDING THE COMPENSATION OF
RS.78,000/- WITH INTEREST AT THE RATE OF 6% PER ANNUM
FROM THE DATE OF PETITION TILL ITS DEPOSIT.
MFA NO.21426/2010:
BETWEEN
THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LTD.
SUJATHA COMPLEX, OPP. P.B.ROAD, HUBLI.
... APPELLANT
(BY SRI. RAJASHEKHAR S ARANI, ADV.)
AND
1. NARAYANA @ NARAYANAPPA S/O NAGAPPA
KARNOOL @ BAJANTRI,
AGE: 53 YEARS, OCC: BARBER,
R/O: BYADAGI, TAL: BYADAGI AND ANOTHER
2. ABDUL KHADARSAB S/OP MAKTUMSAB GUDUNAYKAR
AGE: MAJOR, OCC: BUSINESS,
R/O: TUPPAD KURAHATTI,
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TQ: NAVALGUND, DIST: DHARWAD.
... RESPONDENTS
(BY SRI. M H PATIL, ADV. FOR R1,
R2 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
1988, AGAINST THE JUDGMENT AND AWARD DATED:01-12-2009
PASSED IN MVC NO.538/2006 ON THE FILE OF THE CIVIL JUDGE
(SR.DN) AND MEMBER, ADDL. MACT, BYADAGI, AWARDING
THE COMPENSATION OF RS.1,64,400/- WITH INTEREST AT THE
RATE OF 6% P.A., FROM THE DATE OF PETITION TILL
REALISATION.
MFA NO.21427/2010:
BETWEEN
THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LTD.
SUJATHA COMPLEX, OPP.P.B.ROAD, HUBLI
... APPELLANT
(BY SRI. RAJASHEKHAR S ARANI, ADV.)
AND
1. PARASHURAM S/O GOVINDAPPA KARNOORL,
AGE: 39 YEARS, OCC: BARBER,
R/O: BYADAGI, TAL: BYADAGI
2. ABDUL KHADARSAB S/O MAKTUMSAB GUDUNAYAKAR
AGE: MAJOR OCC: BUSINESS,
R/O: TUPPAD KURAHATTI, TQ: NAVALGUND,
DIST: DHARWAD.
... RESPONDENTS
(BY SRI. M H PATIL, ADV. FOR R1,
R2 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED:01.12.2009
PASSED IN MVC.NO.539/2006, ON THE FILE OF THE CIVIL
JUDGE (SR.DN.) & AMACT, I.T.COURT, BYADGI, AWARDING THE
COMPENSATION OF RS.1,70,800/- WITH INTEREST AT THE RATE
OF 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF
DEPOSIT.
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MFA NO.21428/2010:
BETWEEN
THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LTD
SUJATA COMPLEX, OPP. P.B.ROAD, HUBLI
... APPELLANT
(BY SRI. RAJASHEKHAR S ARANI, ADV.)
AND
1. CHANNABASAPPA CHANAPPA KOTAGI
AGE: 47 YEARS, OCC: SERVICE & AGRICULTUR
R/O BYADGI
2. ABDUL KHADARSAB S/O MAKTUMSAB GUDUNAYAKAR
AGE: MAJOR, OCC: BUSINESS
R/O TUPPAD KURAHATTI TQ: NAVALGUND
DIST: DHARWAD
... RESPONDENTS
(BY SRI. M H PATIL, ADV. FOR R1,
R2 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED:01.12.2009
PASSED IN MVC.NO.540/2006, ON THE FILE OF THE CIVIL
JUDGE (SR.DN.) & AMACT, I.T.COURT, BYADGI, AWARDING THE
COMPENSATION OF RS.5,000/- WITH INTEREST AT THE RATE
OF 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF
DEPOSIT.
MFA NO.21429/2010:
BETWEEN
THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LTD
SUJATA COMPLEX, OPP. P.B.ROAD, HUBLI
... APPELLANT
(BY SRI. RAJASHEKHAR S ARANI, ADV.)
AND
1. KUM SHRUTI CHANNABASAPPA KOTAGI
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AGE: 16 YEARS, OCC: STUDENT SINCE MINOR
REPRESENTED BY NATURAL FATHER
M/G. CHANNABASAPPA S/O CHANAPPA KOTAGI
AGE:50 YEARS OCC: SERVICE R/O BYADGI
2. ABDUL KHADARSAB S/O MAKTUMSAB GUDUNAYAKAR
AGE: MAJOR, OCC: BUSINESS
R/O TUPPAD KURAHATTI TQ: NAVALGUND
DIST: DHARWAD
... RESPONDENTS
(BY SRI. M H PATIL, ADV. FOR R1,
R2 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED:01.12.2009
PASSED IN MVC.NO.541/2006, ON THE FILE OF THE CIVIL
JUDGE (SR.DN.) & AMACT, I.T.COURT, BYADGI, AWARDING THE
COMPENSATION OF RS.82,100/- WITH INTEREST AT THE RATE
OF 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF
DEPOSIT.
THESE MFAs. COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA Nos.23299, 23300 and 23302 of 2010 are preferred by the appellant - Insurance Company challenging the liability fastened on it to pay the compensation and also the quantum of compensation awarded in the impugned judgment and award dated 13.04.2010 in MVC Nos.264, 265 and 267 of 2007 passed by the Fast Track Judge, Ranebennur (hereinafter referred to as 'Tribunal' for short) respectively.
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2. MFA Nos.21426, 21427, 21428 and 21429 of 2010 are also preferred by the appellant Insurance Company challenging the liability fastened on it to pay the compensation and also the quantum of compensation awarded in the impugned judgment and award dated 01.12.2009 in MVC Nos.538, 539, 540 and 541 of 2006 passed by the Civil Judge (Sr. Dn.) & AMACT., I.T. Court, Byadgi (hereinafter referred to as 'Tribunal' for short) respectively.
3. For the sake of convenience, the parties are referred to as per their status before the Tribunal.
4. The briefs facts of the case are, on 23.05.2006 at about 10:00 p.m., the petitioners boarded the trax bearing registration No.KA-25/B-4097 to go to their native place at Ranebennur, as an authorized passengers. The driver of the said trax drove the vehicle in a rash and negligent manner without following the traffic rules and regulations and when it came near Kadaramandalagi cross, the driver of the said vehicle lost control over the vehicle and toppled down at the side of the road and caused grievous injuries. After the accident, petitioners were :8: shifted to the Government Hospital, Ranebennur. The petitioners also took treatment at Bapuji Hospital, Davanagere and also with private doctors and thereby they have spent Rs.30,000/- each. The accident is occurred solely on part of the trax driver. On the basis of the grievous injuries suffered by them in the accident, the petitioners filed claim petitions before the Tribunal.
5. After service of notice, the respondent No.1 did not appear and he was placed ex parte. On being served the notice, respondent No.2 appeared through his counsel and filed objections and contested the claim petitions.
6. Based on the pleadings of the parties, the Tribunal framed as many as six issues.
7. In order to prove the cases, petitioners examined four witnesses as P.Ws.1 to 4 and got marked the documents at Exs.P-1 to P-59. On behalf of the respondent, R.W.1 was examined and got marked the documents at Exs.R-1 and R-2.
8. On evaluation of the oral and documentary evidence on record, the Tribunal came to the conclusion and awarded a :9: sum of Rs.1,31,849/-in MVC No.264/2007, Rs.1,04,000/- in MVC No.265/2007, Rs.78,000/- in MVC No.267/2007, Rs.1,64,400/- in MVC No.538/2006, Rs.1,70,800/- in MVC No.539/2006, Rs.5,000/- in MVC No.540/2006 and Rs.82,100/- in MVC No.541/2006 respectively, with interest at 6% per annum from the date of petition till realization in all the cases.
9. Learned counsel for the parties submit that the issue involved in the present cases except MFA No.21427/2010, have already been elaborately discussed by the Hon'ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited in Civil Appeal No.5826/2011 decided on 03.07.2017 and the same is squarely applicable to the facts and circumstances of the present cases on hand, wherein it is held as follows:
"1. In the reference, the main question involved is whether a driver who is having a licence to drive 'light motor vehicle' and is driving 'transport vehicle' of that class is required additionally to obtain an endorsement to drive a transport vehicle?
xxxxx : 10 :
42. In Nagashetty (supra), the vehicle involved was a tractor which was used for carrying goods. The goods were carried in a trailer attached to it. It was held that if a driver was holding an effective licence to drive a tractor, he could validly drive the tractor attached to a trailer. The contention that it was a transport vehicle, as the tractor was attached to a trailer and as such the driver was not holding a valid licence, was rejected. This Court has laid down thus.
9. Relying on these definitions, Mr. S.C. Sharda submitted that admittedly the trailer was filled with stones. He submitted that once a trailer was attached to the tractor the tractor became a transport vehicle as it was used for carriage of goods. He submitted that Section 10(2) of the Motor Vehicles Act provides for grant of licences to drive specific types of vehicles. He submitted that the driver only had a licence to drive a tractor. He submitted that the driver did not have a licence to drive a transport vehicle. He submitted that therefore it could not be said that the driver had an effective and valid driving licence to drive a goods carriage or a transport vehicle. He submitted that thus the driver did not have a valid driving licence to drive the type of vehicle he was driving. He submitted that as : 11 : the driver did not have a valid driving licence to drive a transport vehicle, the Insurance Company could not be made liable. He submitted that the High Court was right in so holding.
10. We are unable to accept the submissions of Mr S.C. Sharda. It is an admitted fact that the driver had a valid and effective licence to drive a tractor. Undoubtedly under Section 10, a licence is granted to drive specific categories of motor vehicles. The question is whether merely because a trailer was attached to the tractor and the tractor was used for carrying goods, the licence to drive a tractor becomes ineffective. If the argument of Mr S.C. Sharda is to be accepted, then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make that tractor or motor vehicle a : 12 : transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid driving licence to drive a tractor or a motor vehicle, he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words, a person having a valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle.
11. In this case we find that the Insurance Company, when issuing the insurance policy, had also so understood. The insurance policy has been issued for a tractor. In this insurance policy, an additional premium of Rs.12 has been taken for a trailer. Therefore the insurance policy covers not just the tractor but also a trailer attached to the tractor. The insurance policy provides as follows for the "persons or classes of persons entitled to drive":
"Persons or classes of persons entitled to drive.-Any person including insured provided that the person driving holds an effective driving licence at the time of the : 13 : accident and is not disqualified from holding or obtaining such a licence:
Provided also that the person holding an effective learner's licence may also drive the vehicle when not used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989, limitations as to use."
12. The policy is for a tractor. The "effective driving licence" is thus for a tractor. The restriction on a learner driving the tractor when used for transporting goods shows that the policy itself contemplates that the tractor could be used for carriage of goods. The tractor by itself could not carry goods. The goods would be carried in a trailer attached to it. That is why the extra premium for a trailer. The restriction placed on a person holding a learner's licence i.e. not to drive when goods are being carried is not there for a permanent licence-holder. Thus a permanent licence-holder having an effective/valid licence to drive a tractor can drive even when the tractor is used for carrying goods. When the policy itself so permits, the High Court was wrong in coming : 14 : to the conclusion that a person having a valid driving licence to drive a tractor would become disqualified to drive the tractor if a trailer was attached to it."
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46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.03.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) of the provisions of section 10(2)(d), Rule 8 of the Rules 1989, other provisions and also the forms which are in the tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of 'light motor vehicles' and for light motor vehicle, the validity periodof such licence hold good and apply for the transport vehicle of such class also and the expression in section 10(2)(e) of the Act 'Transport Vehicle' would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy : 15 : passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the question which are referred to us thus:
(i) Light motor vehicle' as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/199.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of 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 : 16 : separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.03.2001 in the form.
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.ef.
14.11.1994 while substituting clauses (e) to
(h) of section 10(2)which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(hj) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview 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 : 17 : class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."
10. Learned counsel for the appellant submits that the appeal in MFA No.21427/2010, challenged the judgment and award dated 01.12.2009 in MVC No.539/2006, wherein the Tribunal has awarded compensation of Rs.1,70,800/- with interest at 6% per annum from the date of petition till realization. Learned counsel for the appellant contended that the Tribunal has erred in holding the multiplier at 18 and awarded Rs.1,45,800/- towards future loss of income. He further contended that as per Sarla Verma and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121, the Tribunal would have adopted the multiplier at 16 instead of 18, which is just and proper and prayed to set aside the impugned judgment and award passed by the Tribunal.
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11. Per contra, learned counsel for the respondent No.1 in MFA No.21427/2010 supported the impugned judgment and award passed by the Tribunal and prayed for dismissal of the appeal.
12. Heard the learned counsel for the appellant and the learned counsel for the respondents in all the cases. Perused the impugned judgment and award passed by the Tribunal and the documents produced and also the judgment of the Hon'ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited in Civil Appeal No.5826/2011 decided on 03.07.2017.
13. In view of the submission made by the learned counsel appearing for the parties and on considering the observations made in Mukund Dewangan's case, referred supra, the appeals, except MFA No.21427/2010, do not survive for consideration and the same require to be dismissed.
14. With regard to the issue relating to multiplier in MFA No.21427/2010 is concerned, as per the Sarla Verma case, : 19 : referred supra, the Tribunal would have taken the multiplier at 16 and not 18. However, other heads are concerned, Rs.20,000/- towards pain and suffering, Rs.3,000/- towards medical expenses and Rs.2,000/- towards food and nourishment and also convenience charges are just and reasonable and does not call for any interference. Accordingly, adopting the correct multiplier at 16, as per the Sarla Verma case, referred supra, the future loss of income is worked out to as follows:
Rs.54,000/- X 16 X 15% = Rs.1,29,600/-
Therefore, the respondent No.1 is entitled to compensation as follows:
Sl.
Heads Amount
No.
1 Pain and suffering Rs.20,000/-
2 Medical expenses Rs.3,000/-
3 Food and nourishment and also Rs.2,000/-
convenience charges
4 Future loss of income Rs.1,29,600/-
Total Rs.1,54,600/-
15. Whereas, the question regarding
modification/reduction of the compensation in all other cases are concerned, the amount awarded by the Tribunal being just and reasonable, the same does not call for interference.: 20 :
16. In the result, I proceed to pass the following:
ORDER
(i) MFA Nos.23299, 23300, 23302, 21426, 21428 and 21429 of 2010 are hereby dismissed.
(ii) MFA No.21427/2010 is hereby allowed in part.
(iii) The judgment and award dated 01.12.2009 in MVC No.539/2006 passed by the Civil Judge (Sr. Dn.) & AMACT, I.T. Court, Byadgi is hereby modified.
(iv) The respondent No.1 in MFA No.21427/2010 is entitled to a sum of Rs.1,54,600/- instead of Rs.1,70,800/- with interest at 6% per annum from the date of filing of petition, till realization of the award amount.
(v) The appellant - Insurance Company is liable to pay the compensation awarded by the Tribunal.
(vi) The rest of the judgments and award passed by the Tribunal in all other cases shall remain in tact.: 21 :
The amount in deposit, if any, shall be transferred to the concerned Tribunal forthwith.
Sd/-
JUDGE Rsh