Karnataka High Court
Sri Hemachandra V vs Smt Hajira on 14 February, 2020
Author: N S Sanjay Gowda
Bench: N.S. Sanjay Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 14TH DAY OF FEBRUARY, 2020
BEFORE
THE HON' BLE MR. JUSTICE N.S. SANJAY GOWDA
M.F.A. No.1900/2017 (MV)
C/W
M.F.A.No.1899/2017, M.F.A.No.2564/2017 AND
M.F.A.No.2565/2017 (MV)
M.F.A. No.1900/2017
BETWEEN:
SRI HEMACHANDRA V
AGED ABOUT 42 YEARS
S/O LATE VENKATARAJU
PROPRIETOR:S.V. DIGGERS
NO.111, GAYATHRI LAYOUT
NEAR GAYATHRI TEMPLE
BASAVANAPURA MAIN ROAD
K.R.PURAM
BENGALURU-560 036.
R/AT NO.107, 7TH CROSS
2ND MAIN, GAYATHRI LAYOUT
BASAVANAPURA MAIN ROAD
K.R.PURAM
BENGALURU-560 036.
...APPELLANT
(BY SRI.GANESH BHAT Y.H., ADV.)
AND:
1. SMT. HAJIRA
AGED ABOUT 51 YEARS
W/O LATE AZAZ PASHA
R/AT NO.321, 3RD CROSS
R.K. HEGDE NAGAR
DR. SHIVARAM KARANTH
2
NAGAR POST
BENGALURU- 560 077.
2. IFFCO-TOKIO GENERAL
INSURANCE COMPANY LIMITED
SRI SHANTHI TOWERS
4TH FLOOR, NO.141, 3RD MAIN
EAST NGEF LAYOUT
KASTURI NAGAR
BENGALURU- 560 043.
...RESPONDENTS
(BY SRI.K.T. GURUDEVA PRASAD, ADV. FOR R1
SRI B PRADEEP, ADV. FOR R2)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST JUDGMENT AND AWARD DATED 29.11.2016 PASSED
IN MVC.NO.839/2015 ON THE FILE OF THE XIX ADDITIONAL
SMALL CAUSE JUDGE, MACT AND XLI ACMM, MACT,
BANGALORE (SCCH-17), AWARDING COMPENSATION OF
RS.15,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
M.F.A.No.1899/2017
BETWEEN:
SRI HEMACHANDRA V
AGED ABOUT 42 YEARS
S/O LATE VENKATARAJU
PROPRIETOR:S.V. DIGGERS
NO.111, GAYATHRI LAYOUT
NEAR GAYATHRI TEMPLE
BASAVANAPURA MAIN ROAD
K.R.PURAM, BENGALURU-560 036.
R/AT NO.107, 7TH CROSS
2ND MAIN, GAYATHRI LAYOUT
BASAVANAPURA MAIN ROAD
K.R.PURAM, BENGALURU-560 036.
...APPELLANT
(BY SRI.GANESH BHAT Y.H., ADV.)
3
AND:
1. SMT. HAJIRA
AGED ABOUT 51 YEARS
W/O. LATE AZAZ PASHA
R/AT NO.321, 3RD CROSS
R.K. HEGDE NAGAR
DR. SHIVARAM KARANTH
NAGAR POST
BENGALURU-560077.
2. KUM. MOUSIN BANU
AGED ABOUT 25 YEARS
D/O. LATE AZAZ PASHA
R/AT NO.321, 3RD CROSS
R.K. HEGDE NAGAR
DR. SHIVARAM KARANTH
NAGAR POST
BENGALURU-560077.
3. MR. SAIF @ SYED PASHA
AGED ABOUT 25 YEARS
S/O. LATE AZAZ PASHA
R/AT NO. 321, 3RD CROSS
R.K. HEGDE NAGAR
DR. SHIVARAM KARANTH
NAGAR POST
BENGALURU-560077.
4. KUM. NAGMA BANU
AGED ABOUT 19 YEARS
D/O. LATE AZAZ PASHA
R/AT NO.321, 3RD CROSS
R.K. HEGDE NAGAR
DR. SHIVARAM KARANTH
NAGAR POST
BENGALURU- 560077.
5. KUM. RUKSAR
AGED ABOUT 17 YEARS
D/O. LATE AZAZ PASHA
SINCE MINOR, REP. BY
4
HER MOTHER & NEXT FRIEND:
SMT. HAJIRA
R/AT NO. 321, 3RD CROSS
R.K. HEGDE NAGAR
DR. SHIVARAM KARANTH
NAGAR POST
BENGALURU-560077.
6. KUM. MUSKAN BANU
AGED ABOUT 14 YEARS
D/O. LATE AZAZ PASHA
SINCE MINOR, REP. BY
HER MOTHER & NEXT FRIEND:
SMT. HAJIRA
R/AT NO.321, 3RD CROSS
R.K.HEGDE NAGAR
DR. SHIVARAM KARANTH
NAGAR POST
BENGALURU-560077.
7. IFFCO-TOKIO GENERAL
INSURANCE COMPANY LIMITED
SRI. SHANTHI TOWERS
4TH FLOOR, NO.141, 3RD MAIN
EAST NGEF LAYOUT
KASTURI NAGAR
BENGALURU-560043.
...RESPONDENTS
BY SRI.K.T. GURUDEVA PRASAD, ADV. FOR R1 TO R6
SRI B PRADEEP, ADV. FOR R7)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST JUDGMENT AND AWARD DATED 29.11.2016 PASSED
IN MVC.NO.932/2015 ON THE FILE OF THE XIX ADDITIONAL
SMALL CAUSE JUDGE, MACT AND XLI ACMM, MACT,
BANGALORE (SCCH-17), AWARDING COMPENSATION OF
RS.10,17,016/- WITH INTEREST @ 9% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
5
M.F.A.No.2564/2017
BETWEEN:
SMT. HAJIRA
W/O LATE AZAZ PASHA
AGED ABOUT 52 YEARS
R/AT NO.321, 3RD CROSS
R.K. HEGDE NAGAR
DR. SHIVARAM KARANTH
NAGAR POST
BENGALURU- 560 077.
...APPELLANT
(BY SRI.K.T. GURUDEVA PRASAD, ADV.)
AND:
1. IFFCO TOKIO GEN.INSU.CO.LTD.,
SRI SHANTHI TOWERS
4TH FLOOR, NO.141, 3RD MAIN
EAST NGEF LAYOUT
KASTURI NAGAR
BENGALURU- 560 043
BY ITS MANAGER.
2. SRI HEMACHANDRA V
MAJOR
PROP. S.V. DIGGERS
NO.111, GAYATHRI LAYOUT
NEAR GAYATHRI TEMPLE
BASAVANAPURA MAIN ROAD
K.R.PURAM
BENGALURU-560 036.
...RESPONDENTS
(BY SRI B PRADEEP, ADV. FOR R1
SRI.GANESH BHAT Y.H., ADV. FOR R2)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST JUDGMENT AND AWARD DATED 29.11.2016 PASSED
IN MVC.NO.839/2015 ON THE FILE OF THE XIX ADDITIONAL
SMALL CAUSE JUDGE, AND XLI ACMM, MACT, BANGALORE,
(SCCH-17), PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
6
M.F.A.No.2565/2017
BETWEEN:
1. SMT. HAJIRA
W/O LATE AZAZ PASHA
AGED ABOUT 52 YEARS
2. KUM. MOUSIN BANU
D/O. LATE AZAZ PASHA
AGED ABOUT 26 YEARS
3. MR. SAIF @ SAYED PASHA
S/O. LATE AZAZ PASHA
AGED ABOUT 26 YEARS
4. KUM. NAGMA BANU
D/O. LATE AZAZ PASHA
AGED ABOUT 20 YEARS
5. KUM. RUKSAR
D/O. LATE AZAZ PASHA
AGED ABOUT 18 YEARS
6. KUM. MUSKAN BANU
D/O LATE AZAZ PASHA
AGED ABOUT 15 YEARS
ALL ARE R/AT NO.321
3RD CROSS, R.K. HEGDENAGAR
DR. SHIVARAM KARANTH
NAGAR POST
BENGALURU-560077.
APPELLANT NO.6 IS MINOR R/BY
THEIR MOTHER SMT. HAJIRA
...APPELLANTS
(BY SRI.K.T. GURUDEVA PRASAD, ADV.)
7
AND:
1. IFFCO TOKIO GEN.INSU.CO.LTD.,
SRI SHANTHI TOWERS
4TH FLOOR, NO.141, 3RD MAIN
EAST NGEF LAYOUT
KASTURI NAGAR
BENGALURU- 560 043
BY ITS MANAGER.
2. MR. HEMACHANDRA V
MAJOR
PROP. S.V. DIGGERS
NO.111, GAYATHRI LAYOUT
NEAR GAYATHRI TEMPLE
BASAVANAPURA MAIN ROAD
K.R.PURAM
BENGALURU-560 036.
...RESPONDENTS
(BY SRI B PRADEEP, ADV. FOR R1
SRI.GANESH BHAT Y.H., ADV. FOR R2)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST JUDGMENT AND AWARD DATED 29.11.2016 PASSED
IN MVC.NO.932/2015 ON THE FILE OF THE XIX ADDITIONAL
SMALL CAUSE JUDGE, AND MACT AND XLI ACMM,
BANGALORE, (SCCH-17), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THESE M.F.A.s ARE COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
8
JUDGMENT
Being aggrieved by the award of compensation vide judgment and award dated 29.11.2016 passed in MVC Nos.839 and 932/2015 on the file of Motor Accidents Claims Tribunal, Bengaluru, the claimants are in appeal seeking enhancement of compensation and the owner of the vehicle is in appeal seeking to set aside the impugned Judgment and Award.
2. The Tribunal has awarded compensation of a sum of Rs.15,000/- in MVC No.839/2015 and a sum of Rs.10,17,016/- in MVC No.932/2015.
3. The owner of the offending vehicle as well as the claimants have preferred these appeals.
4. The facts are not in serious dispute that when the claimants were traveling in an auto rickshaw bearing Reg.No.KA-05/A-9381, at that time, an LMV JCB vehicle bearing Reg.No.KA 53/M -4986 came in high 9 speed, rash and negligent manner, lost control over the vehicle and collided with the auto rickshaw, which resulted in injuries to the claimant in MVC No.839 and death of Azaz Pasha. This resulted in filing of two claim petitions before the Tribunal. The Tribunal on consideration of evidence adduced before it came to the conclusion that the accident had occurred in the manner stated in the claim petitions and awarded the following sums :-
MVC No.839/2015:
Global compensation of Rs.15,000/- MVC No.932/2015:
a. Loss of Dependency Rs.7,97,016/- b. Loss of consortium Rs.1,00,000/- c. Loss of love and affection, deprivation, protection and social security to the family Rs.1,00,000/- d. Funeral Expenses and transportation of dead body Rs. 20,000/-
-----------------------
Total Rs.10,17,016/-
-----------------------10
5. Insofar as the liability was concerned, the Tribunal proceeded to take the view that the offending vehicle was a construction equipment vehicle and the driver of the said vehicle did not possess the licence to drive the vehicle of a specified class and therefore, proceeded to exonerate the Insurance Company of all its liability.
6. Learned counsel for the offending vehicle/owner contended that the construction equipment vehicle as defined under Rule 2(ca) of the Central Motor Vehicles Rules, 1989 will have to be considered as a non-
transport vehicle, having regard to the unladden weight of the vehicle and if the driver possesses the requisite class of licence it will have to be held that the Insurance Company is liable. He also submitted that in view of the judgment in MUKUND DEWANGAN Vs. ORIENTAL INSURANCE COMPANY LIMITED reported in AIR 2017 SC 3668 the Insurance Company in this case would be 11 liable, since the unladden weight was less than 7,500 kgs and thereby the driver was competent to drive the said vehicle.
7. On the other hand, the learned counsel for the Insurance Company contended that the compensation awarded cannot be found fault with and sought for dismissal of the appeals.
8. Learned counsel for the claimants contended that the compensation awarded was on the lower side and was required to be enhanced.
9. I have considered the submission of the learned counsel for the parties and perused the material on record.
10. It is not in dispute that the accident occurred due to a collision between a Construction equipment vehicle and an autorickshaw. The contention raised is that to 12 drive the Construction equipment vehicle, the driver/owner should possess a special licence.
11. Learned counsel for the Insurance Company contends that under Section 10(j) of the Motor Vehicles Act, 1988, the licence should contain an endorsement which enables to drive a motor vehicle of a specified description. According to him, since there is no endorsement in the licence of the driver of the offending vehicle regarding permission to drive the construction equipment vehicle, the liability of the Insurance Company has rightly been absolved.
12. Rule 2 (ca) of the Central Motor Vehicles Rules, 1989 reads thus :-
"Rule 2(ca) : "Construction equipment vehicle means rubber tyred, (including pneumatic tyred), rubber padded or steel drum wheel mounted, self propelled, excavator, loader, backhoe, compactor roller, dumper, motor grader, mobile crane, dozer, fort lift truck, self-loading concrete mixer or any 13 other construction equipment vehicle or combination thereof designed for off-highway operations in mining, industrial undertaking, irrigation and general construction but modified and manufactured with "on or off" or "on and off"
highway capabilities.
Explanation:- A Construction equipment vehicle shall be a non-transport vehicle the driving on the road of which is incidental to the main off- highway function and for a short duration at a speed not exceeding 50 kms per hour, but such vehicle does not include other purely off-highway construction equipment vehicle designed and adopted for use in any enclosed premises, factory or mine other than road network, not equipped to travel on public roads on their own power."
13. The explanation appended to Rule 2(ca) clearly states that a construction equipment vehicle shall be a non-transport vehicle, the driving on the road of which is incidental to the main off-highway function and for a short duration at a speed not exceeding 50 kilometers per hour. In view of this explanation the construction 14 equipment vehicle will have to be considered as non- transport vehicle.
14. In the instant case, admittedly the unladden weight is 7,465 kgs and therefore, any person who possesses licence to drive an light motor vehicle would also be competent to drive the said vehicle.
15. The main function of a construction equipment vehicle is to aid any construction activity indusputably the said vehicle for that purpose will have to be transported to the place of construction and it will have to therefore be used on the public roads. It is for this reason that the rule categorically says that it is a non- transport vehicle. In view of the same, and having regard to the decision of the Apex Court in MUKUND DEWANGAN Vs. ORIENTAL INSURANCE COMPANY LIMITED reported in AIR 2017 SUPREME COURT 3668 it will have to be held that the driver of vehicle should possess a valid and effective licence to drive the 15 construction equipment vehicle. Thus as a consequence, the Insurance Company will have to be saddled with the liability of the compensation.
16. As far as the appeal seeking for enhancement by the claimants is concerned, I find that even if the amounts are re-calculated for enhancement of compensation, the compensation awarded would be more or less the same. Having regard to the totality of the circumstances, I am of the view, that the compensation awarded by the Tribunal is just and proper and does not call of interference.
17. Accordingly, the appeal filed by the owner is allowed and it is hereby ordered that the insurance company would be liable to satisfy the award passed by the Tribunal. The appeals filed by the claimants are dismissed.
16
The amount in deposit by the owner shall be refunded to the owner.
Sd/-
JUDGE NG* CT:bms