Karnataka High Court
Shivaputra S/O Ramappa Jevargi, vs Mehaboob S/O Nazeerahamed Khazi, on 11 September, 2019
Author: K.Natarajan
Bench: K. Natarajan
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
MFA No.103110/2016 (MV)
C/w
MFA No.103111/2016 (MV)
MFA No.103110/2016 (MV)
BETWEEN :
SHRI SHIVAPUTRA
S/O: RAMAPPA JEVARGI,
AGED ABOUT: 58 YEARS,
OCC: SERVICE,
R/O: CTS NO.7769 (PLOT NO.2520)
SECTOR NO.XII,
BEHIND LOVE DALE SCHOOL,
MAHANTESH NAGAR,
BELAGAVI-590016.
... APPELLANT
(BY SRI. Y.LAKSHMIKANT REDDY, ADV.)
AND
1. SHRI MEHABOOB
S/O: NAZEERAHAMED KHAZI,
AGE: MAJOR, OCC: BUSINESS,
R/O: WARD NO.54, UJWAL NAGAR,
BELAGAVI-590016.
2. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LIMITED,
HAVING ITS OFFICE AT
RAMDEV GALLI, BELAGAVI-590016.
... RESPONDENTS
(BY SMT. PREETI SHASHANK, ADV. FOR R-2
R-1 SERVED)
-2-
THIS MFA FILED U/S.173(1) OF THE M.V.ACT, AGAINST THE
JUDGMENT AND AWARD DATED 21.03.2016 PASSED IN MVC
NO.2381/2013 ON THE FILE OF THE VI-ADDL. DISTRICT AND
SESSIONS JUDGE AND MEMBER ADDL. MACT, BELAGAVI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING EHHANCEMENT OF COMPENSATION.
MFA No.103111/2016 (MV)
BETWEEN :
SMT. SUNANDA
S/O: SHIVAPUTRA JEVARGI,
AGED ABOUT 50 YEARS,
OCC: HOUSEWIFE AND TAILORING AND
PICCO FALL (NOW NIL)
R/O; CTS NO.7769 (PLOT NO.2520)
SECTOR NO.XII, BEHIND LOVE DALE SCHOOL,
MAHANTESH NAGAR,
BELAGAVI-591213.
... APPELLANT
(BY SRI Y.LAKSHMIKANT REDDY, ADVOCATE)
AND
1. SHRI MEHABOOB
S/O: NAZEERAHAMED KHAZI,
AGE: MAJOR, OCC: BUSINESS,
R/O: WARD NO.54, UJWAL NAGAR,
BELAGAVI-591213.
2. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LIMITED,
HAVING ITS OFFICE AT
RAMDEV GALLI, BELAGAVI-591213.
... RESPONDENTS
(BY SMT. PREETI SHASHANK, ADV. FOR R-2
SRI S.B.DYAMANNAVAR, ADV. FOR R-1)
THIS MFA FILED U/S.173(1) OF THE M.V.ACT, AGAINST THE
JUDGMENT AND AWARD DATED 21.03.2016 PASSED IN MVC
NO.2382/2013 ON THE FILE OF THE VI-ADDL. DISTRICT AND
SESSIONS JUDGE AND MEMBER ADDL. MACT, BELAGAVI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING EHHANCEMENT OF COMPENSATION.
-3-
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals came up for admission, with the consent of the learned counsel for the parties, the appeals are heard finally.
2. Claimants filed these appeals for enhancement of compensation assailing the judgment and award dated 21.03.2016 passed by the VI- Addl. District and Sessions Judge and Member Additional Motor Accident Claims Tribunal, Belagavi (for short 'the tribunal) in MVC No.2381/2013 and MVC No.2382/2013.
3. Heard the arguments of the learned counsel for both the parties.
4. For the convenience the ranks of the parties before the Tribunal is retained. -4-
5. The claimants in both the appeals are husband and wife filed claim petitions under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act) claiming compensation of Rs.15,00,000/- and Rs.10,00,000/- respectively interalia, contending that on 23.12.2012 at about 3.30 p.m., when both the claimants were proceeding in a car bearing registration No.KA- 27/A-1317 on Gulbarga-Jevargi Road, the respondent No.1 being the driver of the car drove the vehicle in a rash and negligent manner with a high speed and lost the control and dashed to the tree and caused the accident, due to which the claimants sustained grievous injuries like fractures to the petitioners and took treatment for the same in different hospitals for long time and due to the same, suffered from disability. Hence, claimed compensations.
-5-
6. In pursuance to the notice, the respondent No.1- owner of the vehicle though appeared through the counsel but not chosen to file any statement of objections. The respondent No.2- Insurer also appeared through the counsel and filed statement of objections by admitting the issuance of insurance policy, however taken the contention if any liability the same shall be subject to the terms and conditions of the policy if the driver of the offending vehicle was holding valid and effective driving license as on the date of the accident and further denied the age, income, occupation as false and prayed for dismissal of the claim petitions.
7. Based on the rival pleadings, the tribunal framed the following issues;
(1) Whether petitioner proves that on 23.12.2012 at about 3.30 p.m., when petitioner was proceeding from Gulbarga to Jevargi, near Radio Station, Gulbarga, due to rash and -6- negligent driving of TATA Indica Car bearing registration No.KA-27/A- 1317, by its driver dashed to the road side tree causing the accident which is resulted in sustaining the injuries? (2) Whether the petitioner is entitled for compensation? If so how much? And from whom?
(3) What order or award? 8. To substantiate their contention, the
petitioners Nos.1 and 2 themselves examined as PW.1 and PW.2 and also examined one doctor as PW.3 and got marked 32 documents as Exs.P1 to P.32. On behalf of respondent-Insurance Company Administrative officer examined as RW.1 and got marked two documents as Exs.R1 and R2. After considering the evidence on record, the Tribunal answered the issue No.1 in both the petitions in the affirmative and issue No.2 partly affirmative and allowed the petitions in part by awarding the compensation of -7- Rs.4,10,000/- and Rs.5,20,000/- together with interest @ 9% under the various heads as under; IN MVC No.2381/2013 Pain and sufferings Rs.50,000/- Loss of future happiness and Rs.50,000/- amenities Loss of income during the Rs.2,27,632/- treatment period Incidental charges Rs.28,000/-
Medical Expenses Rs.44,368/-
Future medical expenses Rs.10,000/-
Total Rs.4,10,000/-
IN MVC No.2382/2013
Pain and sufferings Rs.60,000/-
Loss of future happiness and Rs.1,00,000/- amenities Loss of income during the Rs.32,500/- treatment period Incidental charges Rs.35,000/- -8-
Medical Expenses Rs.59,700/-
Loss of future income Rs.2,02,800/-
Future medical expenses Rs.30,000/-
Total Rs.5,20,000/-
9. Assailing the judgment and award passed by the tribunal on quantum of compensation and absolved the insurer, the claimants are before this Court by filing the appeals. However, the owner of the vehicle not filed any appeal.
10. The learned counsel for the claimants strenuously contended that though the tribunal assessed the liability and quantum of compensation but wrongly absolved the Insurance Company even though the driver of the vehicle was holding the driving license and he does not require to obtain any transport endorsement for carrying passengers in the transport vehicle as per the judgment of the -9- Hon'ble Supreme Court in the case of Mukund Dewangan Vs. Oriental Insurance Co. Ltd., reported in (2017) 14 SCC 663, wherein it is held that there is no specific endorsement of transport is required for the driver to drive the vehicle if a person who is holding LMV license non-transport, the judgment is covered by the Hon'ble Supreme Court. Further, contended that the award of compensation passed by the tribunal is very meager even though the claimants suffered serious injuries and took treatment more than four months and took leave more than 8 ½ months but the tribunal has awarded meager amount even though the claimant in MFA No.103110/2013 has suffered from 35% disability to the limb, the tribunal has not considered and awarded any amount for the loss of earning capacity and awarded under the various heads is very meager. -10- Hence, prayed for enhancing the same. Likewise, in the connected MFA No.103111/2016, the counsel also taken the similar contention that the tribunal awarded the loss of future income only at Rs.2,20,000/- even though the claimant suffered 60% disability and loss of future happiness, pain and suffering were also very meager. Hence, prayed for enhancing the same.
11. Per contra, learned counsel appearing for the Insurer though supported the judgment and award passed by the tribunal however the learned counsel unable to dispute the judgment of the Hon'ble Supreme Court in the case of Mukund Dewangan, the driver of the vehicle is not required to hold the transport endorsement for driving the commercial vehicle even though the driver holding the driving license for LMV is entitle to drive the commercial vehicle. Therefore, the learned counsel -11- contended that the award of compensation in respect of quantum, the tribunal has rightly assessed the disability and the first appellant who is Bank Manager, worked for three years after the accident and he has received the salary increment also. Hence, there is no loss of income due to the earning capacity. Therefore, the tribunal awarded only income during the laid up period, pain and suffering, future happiness by granted by the tribunal is sufficient. Likewise, the learned counsel also contended that even in the connected appeal No.103111/2016, the claimant though suffered 60% disability to the limb but the tribunal has rightly considered 20% to the whole body. However, the tribunal awarded Rs.1,00,000/- towards loss of future happiness and amenities which is exorbitant and it requires for reduction and remaining incidental charges and other -12- heads are more than sufficient. Hence, prayed for dismissal of the appeals.
12. Upon hearing the learned counsel appearing for both the parties and on perusal of the records, the points that arise for my consideration;
(a) Whether the tribunal is not justified in fastening the liability on the owner of the vehicle and absolved the insurer for not holding transport endorsement?
(b) Whether the claimants are
entitled for compensation in
both the appeals?
(c) What order?
13. The claimants have established the factum of accident dated 23.12.2012 at about 03:30 p.m., that occurred on Gulbarga-Jevargi road due to the rash and negligent driving by the driver of the car bearing registration No.KA- 27/A-1317 and the police also registered the -13- case against the driver of the car and also filed charge sheet at Ex.P5. The driver of the vehicle pleaded guilty and convicted for the charges leveled against him. Ex.P8, wound certificate and Ex.P18, disability certificate goes to show that both of them have sustained grievous injuries in the accident. The controversy is with regard to the fastening the liability on the owner of the vehicle by absolving the insurer. Ex.R2, the driving license wherein the driver of the vehicle was holding LMV driving license but he was drove the vehicle which is transport vehicle carrying the passengers. Therefore, the tribunal has held the driver of the vehicle requires transport endorsement to drive the transport vehicle carrying the passengers. Therefore, absolved the liability on the insurer due to the violation of the terms and conditions of the policy. In this regard, the judgment of the -14- Hon'ble Supreme Court in the case of Mukund Dewangan Vs. Oriental Insurance Co. Ltd., reported in (2017) 14 SCC 663, at para Nos.43 to 46 has held;
[43] Section 10(2) (a) to (j) lays down the classes of vehicles to be driven not a specif ic kind of motor vehicles in that class. If a vehicle f alls into any of the categories, a licence holder holding licence to drive the class of vehicle can drive all vehicles of that particular class. No separ ate endorsement is to be obtained nor provided, if the vehicle f alls in any of the particular classes of section 10(2). This Court has rightly observed in Nagashetty that in case submission to the contrary is 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 tr ailer is added either to a tractor or to a motor vehicle it by itself does not mean that driver ceased to have valid driving licence. In our considered opinion, even if such a vehicle is treated as transport vehicle of the light motor vehicle class, legal -15- position would not change and driver would still have a valid driving licence to drive transport vehicle of light motor vehicle class, whether it is a transport vehicle or a private car/tractor attached with trolley or used f or carrying goods in the form of transport vehicle. The ultimate conclusion in Nagashetty is correct, however, f or the reasons as explained by us.
[44] In Natwar Parikh & Co. Ltd. v. State of Karnataka & Ors., 2005 7 SCC 364, this Court was concerned with the taxation under the Karnatak a Motor Vehicles Taxation Act, 1957 and question arose whether the tractor along with trailer f or transporting goods was to constitute distinct category of goods carrier which requires permission under Section 2(14) of the Motor Vehicles Act, 1957 and absence thereof would render it liable to tax under Section 3(2). This court held that the tractor when attached with the trailer carrying goods, would become a tr ansport vehicle f or the purpose of taxation. This Court has discussed the question thus: "Section 2(28) is a comprehensive def inition of the words "motor vehicle". Although a "tr ailer" is separ ately def ined in Section 2(46) to mean any vehicle drawn or intended to be drawn by a motor vehicle, it is still included in the def inition of the words "motor vehicle" under Section -16- 2(28). Similarly, the word "tr actor" is def ined in Section 2(44) to mean a motor vehicle which is not itself constructed to carry any load.
Theref ore, the words "motor vehicle"
have been def ined in the comprehensive sense by the
legislature. Theref ore, we have to read the words "motor vehicle" in the broadest possible sense keeping in mind that the Act has been enacted in order to keep control over motor vehicles, transport vehicles, etc. A combined reading of the af orestated def initions under Section 2, reproduced hereinabove, shows that the def inition of "motor vehicle"
includes any mechanically propelled vehicle apt f or use upon roads irrespective of the source of power and it includes a trailer. Theref ore, even though a trailer is drawn by a motor vehicle, it by itself is a motor vehicle, the tractor-tr ailer would constitute a "goods carriage" under Section 2(14) and consequently, a "transport vehicle" under Section 2(47). The test to be applied in such a case is whether the vehicle is proposed to be used f or transporting goods f rom one place to another. When a vehicle is so altered or prepared that it becomes apt f or use f or transporting goods, it can be stated that it is adapted f or the carriage of goods. Applying the above test, we are of the view that the tr actor-trailer in the present case f alls under Section -17- 2(14) as a "goods carriage" and consequently, it f alls under the def inition of "transport vehicle" under Section 2(47) of the MV Act, 1988."
There is no dispute with the af oresaid proposition, that tractor if drawing a trailer with goods would constitute goods carrier and consequently would be a transport vehicle. The af oresaid discussion was with respect to taxation and not with respect to the competence of driver holding light motor vehicle licence to drive the tractor attached with trailer/trolley carrying goods. The driver had the competence to drive such a vehicle, tractor with a trailer carrying goods being of light motor vehicle category transport vehicle which is the question involved in the instant case.
Theref ore, the decision renders no help with the cause espoused by the insurer.
[45] Transport vehicle has been def ined 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 def ined in section 2(35) to mean any motor vehicle used or ad apted to be used f or the carriage of passengers f or hire or reward and includes a maxicab, a motor cab, contract carriage, and stage carriage. Goods carriage which is also a transport vehicle is def ined in section 2(14) to mean a motor -18- vehicle constructed or adapted f or use solely f or the carriage of goods, or any motor vehicle not so constructed or ad apted when used f or the carriage of goods. It was rightly submitted that a person holding licence to drive light motor vehicle registered f or private use, who is driving a similar vehicle which is registered or insured, f or the purpose of carrying passengers f or 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 f or private use as well as f or carrying passengers f or hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the f act whether it is used f or a private purpose or f or purpose of hire or reward or f or carrying the goods in the said vehicle. It is wh at 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 f all in the same class of vehicles, no separ ate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle -19- 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 def inition 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 other wise the forms never intended to exclude transport vehicles f rom the category of 'light motor vehicles' and f or 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 f ortif ied by the syllabus and rules which we have discussed. Thus we answer the questions which are ref erred to us thus: (i) 'Light motor vehicle' as def ined 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 f rom the def inition of the light motor vehicle by virtue of Amendment Act No.54/1994. (ii) A -20- 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 separ ate endorsement on the licence is required to drive a tr ansport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid af ter Amendment Act 54/1994 and 28.3.2001 in the f orm. (iii) The eff ect 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 af oresaid 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 -21- 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 f or 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 eff ect.
In view of the judgment of the Hon'ble Supreme Court in the Mukund Dewangan's case, the tribunal is not correct in fastening the liability on the owner which calls for interference of this case and the liability is fastened on the insurer. Hence, I answer point No.1 in favour of the claimant and against the insurer.-22-
14. As regards the computation of income in MFA No.103111/2016, admittedly the claimant is bank manager and as per the wound certificate he has suffered fracture of tibia and fibula for left leg and he was admitted to the hospital for almost a month and he has suffered the pain and agony. Considering the same the tribunal has awarded 50% disability towards pain and sufferings. Hence, I am of the view that Rs.50,000/- awarded by the tribunal is sufficient. As regards to the loss of future happiness the tribunal has awarded Rs.50,000/- based upon the disability certificate issued by the doctor, PW.3, the claimant being the Manager of the bank and as per the wound certificate the disability certificate, the tribunal awarded Rs.50,000/- towards loss of future happiness. Hence, I am of the view the said amount cannot be said to be either exorbitant or -23- in-sufficient which is adequate compensation and does not calls for any interference. As regards to the medical expenses a sum of Rs.44,368/- has been awarded based upon the documents which does not calls for any interference. The tribunal has awarded a sum of Rs.28,000/- towards incidental charges considering the treatment as well as attendant, food, nourishment etc, and there is no other evidence placed on record to enhance the same. Therefore, a sum of Rs.44,368/- awarded by the tribunal is retained. As regards to the loss of income during the treatment period a sum of Rs.2,27,632/- is awarded considering the treatment for four months but the document at Ex.P17, shows the claimant has applied or filed leave for 8 and ½ months during the period of treatment as well as bed rest. The claimant said to be Bank Manager and earning Rs.56,908/- -24- per month but the tribunal awarded only loss of income for four months which is not correct even though the claimant applied for earned leave and there must be loss of pay or he could have lost the salary surrender leave encashment. Therefore, the tribunal ought to have awarded the loss of income during the leave period of 8 and ½ months instead of awarding only for four months. Though the tribunal considered there is no loss of future earning capacity and there is no loss of income as the claimant received the annual increment regularly without any obstruction. Therefore, I am of the view, the claimant is entitled for only for loss of income during the period of treatment and leave filed for 8 and ½ months as per Ex.P29 and hence the compensation towards loss of income during the period of treatment would be Rs.56,908 x 8½ = Rs.4,83,718/-. -25- Therefore, I propose to award a sum of Rs.4,83,718/- instead of Rs.2,27,632/- awarded by the tribunal. As regard to the future medical expenses a sum of Rs.10,000/- has been awarded and the same is held sufficient. The claimant is entitled for the re-assessed compensation as under;
Pain and sufferings Rs.50,000/- Loss of future happiness and Rs.50,000/- amenities Loss of income during the Rs.4,83,718/- treatment period Incidental charges Rs.28,000/-
Medical Expenses Rs.44,368/-
Future medical expenses Rs.10,000/-
Total Rs.6,66,086/-
15. As regards the compensation in MFA
No.103111/2016, the claimant is said to be doing tailoring and house wife and there is no document produced to show she was doing tailoring. Therefore, the tribunal has considered Rs.6,500/- as notional income for the unskilled -26- labour, in my view, the amount considered by the tribunal towards the income of the claimant is sufficient. It is seen from the medical records, the claimant is suffering from 50% disability towards the limb but the tribunal considered 20% towards the whole body. Normally, this Court is used to consider 1/3 r d of the disability towards the whole body. Here, the tribunal considered more than 1/3 r d and by taking income of Rs.6,500/- x 13 x 100 x 12 and awarded compensation at Rs.2,02,800/- towards loss of future income and therefore, it does not does not calls for any interference. As regards the pain and sufferings the tribunal has awarded Rs.60,000/- for two fractures, in my opinion, the said amount is sufficient. Regarding loss of future happiness and amenities a sum of Rs.1,00,000/- has been awarded by the tribunal and the counsel for -27- respondent submits that the same may requires reduction whereas the counsel for the appellant requested for enhancement.
16. By looking to the injuries sustained by the claimant on the fibula and established the same the tribunal has awarded Rs.1,00,000/- towards future happiness which cannot be said to be exorbitant or meager. Therefore, the same does not call for any interference. As regards the income during the treatment period a sum of Rs.32,500/- has been awarded, Rs.35,000/- towards incidental charges, Rs.59,700/- towards medical expenses and Rs.30,000/- towards future medical expenses, in my view, the said award amounts are adequate and do not call for any further enhancement.
17. In view of the same, both the appeals are allowed in part.-28-
18. The claimant in MFA No.103110/2016 is entitled for enhancement of compensation at Rs.6,66,086/- with interest @ 9% awarded by the tribunal from the date of petition till realization in another appeal the quantum of compensation is not disturbed. As regards the interest though the insurance company not filed any appeal by challenging the award of interest. By looking to the circumstance of the case, the rate of interest is reduced to 6% instead of 9% awarded by the tribunal.
The insurance company is directed to deposit the amount in both the appeals within four weeks from the date of receipt of copy of this order.
Sd/-
JUDGE msr