Karnataka High Court
M/S. Icici Lombard Gen. Ins. Co. Ltd. vs Janabai W/O Ningappa Padolkar on 22 November, 2017
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
MISCELLANEOUS FIRST APPEAL NO.24132 of 2009
c/w MISCELLANEOUS FIRST APPEAL CROB NO.750 OF 2010(MV)
IN MFA NO24132 OF 2009
BETWEEN
THE MANAGER,
M/S. ICICI LOMBARD GEN. INS. CO. LTD.
HAVING ITS OFFICE AT HERO HONDA
SHOW ROM BUILDING, III FLOOR
GOKUL ROAD, HUBBALLI
... APPELLANT
(By Sri NAGARAJ C KOLLOORI, ADV.)
AND
1. JANABAI W/O NINGAPPA PADOLKAR
30 YRS, OCCU: HOUSEHOLD WORK
R/O BADACHI, ATHANI-TQ, BELGAUM DIST.
2. SHASHIKANT SHANKAR PAWAR
OCC:BUSINESS, R/O DESARATTI
ATHANI-TQ, DIST. BELGAUM
... RESPONDENTS
(By Sri SANJAY S KATAGERI, ADV. FOR R1
R.2 SERVED.)
THIS MFA IS FILED U/S.173(1) OF M.V.ACT, AGAINST
THE JUDGMENT AND AWARD DATED: 25-06-2009, PASSED IN
MVC NO.1294/2007, ON THE FILE OF THE MEMBER, ADDL.
MACT & CIVIL JUDGE (SR.DN) ATHANI, AWARDING
COMPENSATION 2,39,960/- ALONG WITH INTEREST AT THE
RATE OF 7.5% P.A. FROM THE DATE OF PETITION TILL ITS
REALIZATION.
2
IN MFA.CROB NO.750 OF 2010
BETWEEN
JANABI W/O NINGAPPA PADOLKAR
AGE 34 YEARS, OCC HOUSEHOLD AND COOLIE
R/O BADACHI, TQ ATHANI DIST BELGAUM
... CROSS OBJECTOR
(By Sri SANJAY S KATAGERI, ADV.)
AND
1. SHASHIKANT S/O SHANKAR PAWAR,
AGE MAJOR, OCC BUSINESS,
R/O DESARATTI
TQ ATHANI DIST BELGAUM
2. THE MANAGER
ICICI LOMBARD GENERAL
INS CO LTD., HERO HONDA
SHOW ROOM BUILDING
3RD FLOOR, GOKUL ROAD, HUBLI
... RESPONDENTS
(By Sri NAGARAJ C. KOLLORI, ADV. FOR R2. R1-SD)
THIS MFA.CROB IS FILED U/O.41 RULE 22 R/W. SEC.173
OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD
DTD:25-06-2009 PASSED IN MVC NO.1294/2007 ON THE FILE
OF THE CIVIL JUDGE(SR.DN) AND MEMBER, ADDL. MACT,
ATHANI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
MFA AND MFA CROB COMING ON FOR HEARING THIS
DAY, THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
Miscellaneous First Appeal 24132 of 2009 has been preferred by the appellant-insurer and Miscellaneous First 3 Appeal Cross objection 750 of 2010 has been preferred by the cross objector-claimant assailing the judgment and award dated 25th June 2009 passed by the Civil Judge(Senior Division) and Addl. Motor Accident Claims Tribunal, Athani, in MVC No.1294 of 2007.
2. Heard the learned counsel appearing for the parties.
3. Brief facts of the case are that on 23.04.2007 at about 12.30 hours, the petitioner and others were standing by the side of Athani-Bijapur road near new KEB Office at Athatni waiting for a bus. At that time, a mini goods vehicle bearing registration No.KA-23/9782 came form Bijapur side rashly and negligently and dashed to the petitioner and others who were waiting for the bus. As a result of the same, the petitioner sustained grievous injuries. Immediately she was shifted to Dr. Chougala hospital, Athani, wherein she was admitted from 23.04.2007 to 2.5.2007 and has undergone operation and a steel rod has been inserted in her right leg and has spent huge amount. It is further contended that the petitioner was hale and healthy and she 4 was earning Rs.5,000/- per month by doing household work and by attending coolie work and because of the injuries, now she is unable to work as before and there is permanent disability. As such a claim petition was filed under Section 166 of the Motor Vehicles Act 1988 before the Tribunal.
In pursuance of notice, the respondents appeared through their counsel and filed their objections.
Respondent No.1 by denying the contents of the petition, further contended that the said vehicle has been insured with respondent No.2 and the driver was holding valid and effective driving licence and as such the insurer is liable to pay the compensation. On these grounds he prayed for dismissal of the petition.
Respondent No.2 filed objections. By denying the contents of the petition, he further contended that the liability of the respondent is subject to the terms and conditions of the policy. He further contended that the said vehicle was not having valid and effective driving licence and as such there is breach of condition of the policy 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 she sustained injuries in the motor vehicle accident which took place on 23.4.2007 at 12.30 hours on Athani-Bijapur road, near New KEB 5 Office at Athani due to the rash and negligent driving of the goods vehicle bearing No.KA-23/9782 by its driver?
2. Whether the petitioner proves that she sustained permanent physical disability?
3. Whether the petitioner is entitle for compensation? If so, for how much amount and from whom?
4. What order or award?
In order to prove her case, the petitioner examined herself as PW-1 and also got examined the Doctor C.V. Shettar as PW-2 and got marked documents as per Exs.P-1 to P-22. On behalf of the respondents, with consent, respondent No.1 produced and got marked the documents as Exs.D3 to D5 and respondent No.2 produced and got marked the documents as Exs.D1 and D2.
After hearing the parties to the lis, the impugned judgment and award was passed. Assailing the same, both the insurer and the claimant are before this Court.
4. The main grounds urged by the learned counsel for the insurer is that the Tribunal has erred in fixing the liability on the appellant-insurer though the driver of the mini door goods vehicle was not holding valid and effective driving licence at the time of the accident. The Tribunal has 6 fastened the liability on the appellant-insurer. The same is not sustainable in law. He further contended that the disability certificate which has been produced indicates that the doctor has assessed the disability of the claimant at 42% to the lower limb. Without proper consideration of the fact, the Tribunal has taken the disability at 28% and has awarded the compensation on the higher side. He further contended that the impugned judgment and award which has been passed is erroneous and the same is liable to be set aside.
5. The learned counsel appearing on behalf of the cross-objector-claimant vehemently argued by contending that the Tribunal has taken the disability at 28% and has assessed the compensation but the income which has been taken is on the lower side. He further contended that the accident has taken place on 23.04.2007, during 2007, the notional income of Rs.4,000/- is the yard stick which used to be adapted even in settlement of cases before the Lok Adalat. The Tribunal has taken the notional income at Rs.3,000/- per month and has awarded the compensation 7 on the lower side. On these grounds, he prayed for allowing the cross objection by enhancing the compensation.
6. The accident is not in dispute so also the involvement of the offending vehicle insured with the insure.
7. As could be seen form the judgment and award of the Tribunal, respondent No.2-insurer has contended that the driver of the offending vehicle was not holding valid and effective driving licence as on the date of the accident and as such there is breach of conditions of the policy and he is not liable to pay any compensation. But the Tribunal after considering the fact that the policy was in force and there is contractual liability, held that the insurer has to pay the compensation and has accordingly fastened the liability on the insurer. During the course of argument learned counsel for the respondent vehemently argued and contended drawing my attention to Ex.D-3 that the driver of the offending vehicle was holding valid and effective driving licence to drive the LMV(non-transport) and the same is valid from 05.03.2007 to 30.04.2022. When the driver of the offending vehicle is having valid and effective driving licence 8 to drive LMV(non-transport), he is also competent to drive LMV transport. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Limited reported in AIR 2017 Supreme Court 3668 wherein at paragraphs 45 and 46, it has 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 9 Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994.
46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" 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 10 class also and the expression in Section 10(2)(e) of the Act 'Transport Vehicle' would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:
(i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light 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 11 in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for 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."
8. By going through the above said decision, it is 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. By going through Ex.D-3 it clearly indicates that the driver was holding valid driving licence to drive LMC(non-transport) and it was in currency from 05.03.2007 to 30.04.2022. 12
9. Keeping in view Ex.D-3 and the ratio laid down in the decision quoted supra, the contentions raised by the learned counsel for the appellant-insurer does not stand to reason and the same is liable to be rejected.
10. The learned counsel for the cross objector contended that the compensation awarded on various heads is on the lower side and the learned counsel for the appellant-insurer contended that the compensation awarded is on the higher side. As could be seen from the judgment and award the claimant has sustained fracture of tibia with inter locking nail and fracture of distal end of fibula fixed with rush nail. The Doctor who has been examined has issued the disability certificate by assessing the disability to an extent of 42%. The Tribunal after taking the disability to an extent of 28% and notional income at Rs.3,000/- per month has awarded compensation as under:
Rs.
1. Loss of amenities of life, happiness, frustration 15,000/-
2. Conveyance, attendant charges, food and Nourishment 5,000/-
3. Pain, shcok, suffering and fractures 15,000/-
4. Loss of future earning due to disability 1,61,280/-
5. Loss of earning during treatment 3,000/-
6. Loss of expectation of life 10,000/-13
7. Medical expenses 30,680/-
------------------
Total 2,39,960/-
-------------------
11. Though under the normal circumstances, the compensation awarded appears to be on the lower side, the evidence and other records which have been produced indicate that the claimant has sustained fracture of tibia and fibula but the doctor has assessed the disability to an extent of 42% which appears to be on the higher side. Even the Tribunal has not kept in view the guide lines issued by the Hon'ble Apex Court. If the disability to a particular limb is 42%, then 1/3rd has to be taken. But the Tribunal has taken 28% and has assessed the compensation on the various heads as mentioned above. In that light, I feel that even by reducing the disability and by increasing the income, if the compensation is reassessed, it comes to the same figures. In that light, I feel that both the cross-objector- claimant and the appellant insurer have not made out any case either to reduce or enhance the compensation.
In the light of the above said discussion, both the appeal and the cross objection are devoid of merit and the 14 same are liable to be dismissed. Accordingly, MFA No.24132 of 2009 and MFA Cross objection No.750 of 2010 are dismissed.
Registry is directed to draw the award accordingly and send back the records to the concerned Tribunal and shall also transfer the amount in deposit to the Tribunal concerned forthwith.
Sd/-
JUDGE Kmv