Karnataka High Court
K Rajesh @ Kavalakuntla Rajesh S/O K ... vs S Rafiq S/O Dada Sab on 9 November, 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
DATED THIS THE 09TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
M.F.A.No.23953 OF 2012 (MV)
BETWEEN:
K. RAJESH @ KAVALAKUNTLA RAJESH
S/O K.VENKATESHULU,
AGE: 22 YEARS, OCC: ECE 3RD YEAR STUDENT
CUM PART TIME EMPLOYEE,
R/O. JUNGURAMPALI-VILLAGE, RAYADURGA MANDAL,
PRESENTLY, R/O: SIRUGUPPA ROAD, AVAMBHAVI,
BELLARY TQ. & DIST.
.....APPELLANT
(BY SRI. MANJUNATHA G. PATIL, ADVOCATE)
A N D:
1. S RAFIQ S/O DADA SAB
MUSLIM-MAJOR, DRIVER OF THE AUTO
BEARING REG.NO.AP-02/X-9885
R/O:WARD NO: 5, THIRUMNALKEDI, LALKAMAN
BELLARY.
2. MALYAM JAFFER @ JAFFER S/O M HUSSAIN SAB
OWNER OF THE AUTO BEARING REG.NO.
AP-02/X-9885, R/O: HOUSE NO.2/91,
JUNGURAMPALI, RAYADURGA MANDAL
ANANTHPUR DISTRICT.
2
3. M/S NEW INDIA ASSURANCE CO.LTD.
BY ITS DIVISIONAL MANAGER
BELLARY.
... RESPONDENTS
(R1-NOTICE DISPENSED WITH)
(R2-SERVED)
(BY SRI.R.R.MANE, ADVCOATE FOR R3)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT,1988, AGAINST
THE JUDGMENT AND AWARD DATED 25.04.2012 PASSED IN
MVC NO.1357/2011 ON THE FILE OF MEMBER, MACT-IX,
BELLARY, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal has been preferred by the appellant/claimant challenging the judgment and award passed by Motor Accident Claims Tribunal-IX, Bellary in MVC No.1357 of 2011 dated 25.04.2012.
2. Though the matter is listed for orders, with the consent of the learned counsel appearing for the parties, the appeal is admitted and it is taken up for final hearing and disposed of by this judgment. 3
3. Brief facts of the case as averred in the petition are that, on 14.08.2011 at about 07.30 a.m. petitioner, K.Rajesh, along with other persons were proceeding in an auto rickshaw bearing registration No.AP-02/X-9885 from Junjurampalli to Kalyandurga. When they were within the limits of Raydurga, the driver of the said auto rickshaw drove the same rashly and negligently with high speed and ultimately lost the control over the said auto rickshaw and the said auto turtled to its left side and as a result, the inmates sustained injuries including the appellant/claimant. Immediately they were taken to Community Health Centre Rayadurga and petitioner was shifted to Arunodaya Hospital, Bellary for higher treatment. For having sustained injuries the claim petition was came to be filed under Section 166 of the Motor Vehicles Act.
4. In pursuance of the notice, respondent Nos. 1 and 2 appeared and they have not filed any written 4 statement. Respondent No.3 insurer filed the written statement by denying the contents of the petition, it is further contended, the driver of the auto rickshaw was not holding valid and effective driving licence and as such there is violation of the policy condition and he is not liable to pay any compensation. On these grounds he prayed for dismissal of the petition.
On the basis of the above pleadings the Tribunal framed the following issues:-
"1. Whether petitioner proves that accident was due to rash and negligent driving by the respondent No.1 being the driver of the Autorickshaw bearing Registration No.AP-02/X-9885, which took place on 14.08.2011 at 7.30 a.m. near Junjurampalli village, Rayadurga, as a result petitioner sustained grievous injuries ?
2. Whether respondent No.1 proves that driver of the Auto was not holding valid and effective D.L. to drive such category of vehicle as on the date of accident ?
3. Whether petitioner proves that he is entitled to get compensation, if so is its quantum and from whom ?
4. What Order or Award ?"
In order to prove the case of the petitioner, petitioner got examined himself as PW-1 and also got 5 examined the Doctor has PW-2 and got marked Ex.P1 to P87. On behalf of the respondent/insurer they examined RW-1 and got marked Ex.R1 and R2.
After hearing the parties to the lis the impugned judgment and award came to be passed.
5. The main grounds urged by the learned counsel for the appellant are that the compensation awarded under the various heads is on the lower side. He further contended that though the Doctor who has been examined has deposed that the appellant/claimant has sustained a permanent disability to the extent of 14% to the whole body, but the Tribunal has taken it on the lower side at 10% and has awarded the compensation on the lower side. He further contended that the fracture to ribs and other aspects have not been considered and no amount has been awarded for discomfort and amenities in the life. On these grounds he prayed for enhancement of compensation. He further 6 contended that the Tribunal erred in fixing the liability on respondent Nos.1 and 2. Though the driver of the auto rickshaw was having a driving licence to drive LMV(NT) and the same was renewed for a period of five years from 10.05.2011 to 09.05.2016, by ignoring the same the Tribunal has fixed the liability on respondent No.1. He further contended that in view of the decision of the Hon'ble Apex Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited reported in AIR 2017 SC 3668, the insurer is liable to pay the compensation. On these grounds he prayed for allowing the appeal by setting-aside the impugned order and by fixing the liability on respondent No.3/insurer.
6. The learned counsel appearing on behalf of respondent vehemently argued by justifying the judgment and award, he further contended that the compensation awarded under various heads is on the higher side. Even, the appellant/claimant has sustained 7 fracture of ribs, but the said fracture is not going to attribute disability. He further contended that the Tribunal has awarded an amount of Rs.1,97,200/- the said award is on the higher side, including the future amenities and other incidental charges. He further contended that though the driving licence has been produced to show that the driver of the auto rickshaw was having valid and effective driving licence to drive the light motor vehicles non-transport, but he was not having any licence to drive the transport vehicle and as such the Tribunal has rightly fastened the liability on respondent No.1 and prayed for dismissal of the appeal as it is devoid of merits.
7. The accident is not in dispute so also the involvement of the offending vehicle insured with the respondent insurance company.
8. As could be seen from the judgment and award passed by the Tribunal the appellant/claimant 8 has sustained multiple fracture of ribs in the right chest and the other injuries mentioned in Ex.P5. The Tribunal after taking into consideration the evidence of PW-2 and the injuries, by assessing the disability to the extent of 10% has awarded the compensation of Rs.97,200/- for loss of future income and amenities and it has also awarded an amount of Rs.35,000/- towards pain and suffering and Rs.35,000/- towards medical expenses and Rs.3,000/- towards attendant charges, Rs.3,000/- towards nourishment and other incidental charges and Rs.9,000/- loss of earning during the treatment period, an amount of Rs.5,000/- and Rs.10,000/- has been awarded towards loss of amenities and loss of future marriage prospects. By going through the judgment and award, the injuries suffered by the appellant/claimant it appears the compensation awarded by the Tribunal is just and proper and it does not require any interference and it also does not require any enhancement. 9
9. The second contention taken up by the learned counsel for the appellant is that the driver of the offending vehicle was having valid and effective driving licence to drive the light motor vehicle non- transport, but he was not having any driving licence to drive the transport vehicle.
10. Keeping in view the said fact the Tribunal has fastened the liability on respondent No.1. As could be seen from the records it is an admitted fact that the licence which has been issued in the name of respondent No.1 driver it has been got renewed for LMV (NT) from 10.05.2011 to 09.05.2016 and it was in currency as on the date of accident. The only point whether he is permitted to drive the transport vehicle, which has been lapsed on 21.12.1993. Though the said licence which is for the transport vehicle has not been renewed and has been lapsed on 21.12.1998, but in view of the decision of the Hon'ble Apex Court in the 10 case of Mukund Dewangan vs. Oriental Insurance Company Limited reported in AIR 2017 SC 3668, in the said decision at paragraph 45 and 46, wherein it is held as under:-
"45. Transport vehicle has been defined in section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab, a motor cab, contract carriage, and stage carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can 11 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" 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 12 which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:
(i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
(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 13 section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."
11. By going through the said judgment it makes very clear that, if a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It is also further observed, if a person has been given a licence to drive a particular type of vehicle he cannot be said to have no licence for driving another type of vehicle which is of the same category, but of different type.
14
12. Keeping in view the ratio laid down by the Hon'ble Apex Court I am of the considered opinion that the judgment and award passed by the Tribunal fastening the liability on respondent Nos.1 and 2 is not justifiable. In view of the decision quoted supra the respondent No.3 insurer is liable to pay the compensation as the policy was in currency as on the date of accident and there is no breach of conditions of the policy.
13. Keeping in view the law laid down by the Hon'ble Apex Court and the discussion as held by me above the observation of the Tribunal that the driver of the auto rickshaw must possess an endorsement to drive the transport vehicle is not considered to be correct and the same is set-aside. Accordingly the impugned judgment and order is modified to the extent of the fixing of the liability on respondent No.2/owner is set-aside and it is hereby made it clear that the 15 respondent No.3/ insurance company is liable to pay the compensation awarded by the Tribunal with up-to- date interest in accordance with law. Accordingly the appeal is allowed in part.
Registry is directed to draw the award accordingly.
Sd/-
JUDGE RHR/-