Karnataka High Court
Suresh S/O Bhimashi @ Bhimappa Nimbal vs Ashok S/O Gyanuba Badavane Anr on 28 February, 2019
Author: S.G.Pandit
Bench: S.G.Pandit
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF FEBRUARY 2019
BEFORE
THE HON'BLE MR. JUSTICE S.G.PANDIT
MFA NO.32299 OF 2011
C/W
MFA NO.32298/2011 (MV)
IN MFA NO.32299/2011
BETWEEN:
SURESH
S/O BHIMASHI @ BHIMAPPA NIMBAL
AGE: 30 YEARS, OCC: MESTRI, NOW NIL
R/O ALLAPUR STREET, SINDAGI ROAD
BIJAPUR, TQ. & DIST. BIJAPUR
... APPELLANT
(BY SRI BABU H. METAGUDDA, ADVOCATE)
AND:
1. ASHOK S/O GYANUBA BADAVANE
AGE: 47 YEARS, OCC: BUSINESS
R/O H.NO.8, WARD NO.2
BAGAYAT STREET
CHANDA BOUDI ROAD, BIJAPUR
2. THE BRANCH MANAGER
IFFCO-TOKIO GENERAL INSURANCE CO. LTD.
BRANCH OFFICE, 12/A
BHAVANI ARCADES, 3RD FLOOR
NEAR OLD BUS-STAND
2
OPP: BASAVA VANA
NEAR COTTON MARKET, HUBLI
... RESPONDENTS
(SMT. PREETI PATIL MELKUNDI, ADV. FOR R2;
R1 - SERVED BUT UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MV ACT, AGAINST THE JUDGMENT AND AWARD DATED
01.08.2011 PASSED IN MVC NO.1853/2009 ON THE FILE
OF THE M.A.C.T. AND FAST TRACK COURT-I/II AT
BIJAPUR. WHEREIN, PARTLY ALLOWING THE PATITION
AND SEEKING FOR ENHANCEMENT OF COMPENSATION.
IN MFA NO.32298/2011
BETWEEN:
PRAKASH
S/O DINESH INGOLE @ PARANNAWAR
AGE: 30 YEARS, OCC: MESTRI, NOW NIL
R/O ALLAPUR STREET, BIJAPUR
TQ. & DIST. BIJAPUR
... APPELLANT
(BY SRI BABU H. METAGUDDA, ADVOCATE)
AND:
1. ASHOK S/O GYANUBA BADAVANE
AGE: 47 YEARS, OCC: BUSINESS
R/O H.NO.8, WARD NO.2
BAGAYAT STREET
CHANDA BOUDI ROAD, BIJAPUR
2. THE BRANCH MANAGER
IFFCO-TOKIO GENERAL INSURANCE CO. LTD.
BRANCH OFFICE, 12/A
BHAVANI ARCADES, 3RD FLOOR
NEAR OLD BUS-STAND
3
OPP: BASAVA VANA
NEAR COTTON MARKET, HUBLI
... RESPONDENTS
(SMT. PREETI PATIL MELKUNDI, ADV. FOR R2;
R1 - SERVED BUT UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MV ACT, AGAINST THE JUDGMENT AND AWARD DATED
01.08.2011 PASSED IN MVC NO.1854/2009 ON THE FILE
OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL AND FAST
TRACK COURT-I/II, BIJAPUR, PARTLY ALLOWING THE
CLAIM PETITION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT
The claimants are before this Court, assailing the saddling of liability on the owner and also not being satisfied with the quantum of compensation awarded under judgment and award dated 01.08.2011 in MVC Nos.1854 and 1853 of 2009 on the file of Motor Accident Claims Tribunal and Fast Track Court-I/II, Bijapur.
2. The claimants filed claim petitions under Section 166 of the Motor Vehicles Act, claiming compensation for the injuries suffered by them in a road 4 traffic accident occurred on 08.09.2009. It is stated that on 08.09.2009, while the claimants were travelling on motorcycle bearing Reg. No.KA-28-U-4087, a three wheeler LGV Goods Carrier (van) Piaggio Ape vehicle bearing Reg. No.KA-28-A-7664 came from the opposite direction in a rash and negligent manner and dashed to the motorcycle, due to which the claimants sustained injuries. It is stated that prior to the accident, the claimants were earning more than Rs.8,000/- per month by doing goundi work and they have suffered fractures.
3. After service of notice, respondent No.2 - insurance company appeared before the Tribunal and filed its objection, denying that the accident took place due to the rash and negligent driving of three wheeler vehicle bearing No.KA-28-A-7664. Further, it is contended that the driver of the offending vehicle was 5 not holding effective driving licence as on the date of accident.
4. The Tribunal on assessing the material on record both oral and documentary, held that the driver of the offending vehicle had no valid and effective driving licence to drive the vehicle and saddled the liability on the owner of the offending vehicle and awarded a total compensation of Rs.67,000/- to the claimant in MVC No.1854/2009 and Rs.52,000/- to the claimant in MVC No.1853/2009 along with interest at the rate of 6% p.a. Being aggrieved by the same, the claimants are before this Court, challenging the finding of saddling the liability on the owner of the offending vehicle and also seeking enhancement of compensation.
5. Heard the learned counsel for the appellant/claimant and learned counsel for respondent No.2 - insurance company in both the appeals. 6
6. Learned counsel for the appellant/claimant in both the appeals submits that the Tribunal committed an error in fastening the liability on the owner of the offending vehicle without looking into the fact that the driver of the offending vehicle had LMV liclence to drive non-transport vehicle i.e., LMV - auto rickshaw). Further, in support of his contention, the learned counsel relies on the judgment of the Hon'ble Supreme Court in Mukund Dewangan v. Oriental Insurance Co. Ltd. reported in (2017) 14 SCC 663. The learned counsel also submits that the compensation awarded towards loss of future earning by taking only Rs.3,000/- per month as income of both the claimants is on the lower side and he submits that they were earning more than Rs.5,000/- per month and the Tribunal ought to have taken Rs.5,000/- per month as their income. He further submits that the compensation awarded on the other heads is also on the lower side and prays for enhancement of the same. 7
7. Per contra, learned counsel for respondent No.2 - insurance company submits that the driver of the offending vehicle had no valid and effective driving licence as on the date of the accident. The driver had only LMV licence to drive non-transport vehicle, whereas the vehicle involved in the accident is commercial transport vehicle. Therefore, the Tribunal has saddled the liability on the owner. Further, she submits that the decision in the case of Mukund Dewangan (supra) is per incuriam, as the decision has not taken note of various provisions of the Motor Vehicles Act, particularly, Sections 3, 4(2), 8 to 10 and 13, other various relevant Sections of the Motor Vehicles Act, notifications issued under the Motor Vehicles Act and Rules, which are relevant. Further, she submits that the Tribunal has granted just compensation and the claimants are not entitled for enhanced compensation on other heads.
8
8. The Hon'ble Supreme Court in the case of Mukund Dewangan (supra) at para No.46 held as under:
"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 9 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 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 10 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 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 11 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."
9. From the above decision, it is clear that the person who is holder of LMV (non-transport) vehicle also could drive LMV transport vehicles.
10. The learned counsel for the respondent No.2- insurance company has argued that the decision in the case of Mukund Dewangan (supra), as it not dealt with all the relevant provisions of Motor Vehicles Act would make a see of difference. Hence, she submits that the said judgment would not be applicable to the present appeals. It is seen that, the same argument that the judgment in Mukund Dewangan's case (supra) is per 12 incuriam is made before the Hon'ble Supreme Court in Civil Appeal No.841/2018. The Hon'ble Supreme Court taking note of the submissions has referred the Mukund Dewangan's case (supra) to three Judges Bench, whereas Mukund Dewangan's case (supra) is also by three Judges Bench of the Hon'ble Supreme Court. The Hon'ble Supreme Court has made it clear that the submission of the insurance company that the judgment in Mukund Dewangan's case (supra) is per incuriam and it has not dealt with all the relevant provisions of the Motor Vehicles Act is to be considered by the three Judges Bench of the Hon'ble Supreme Court.
11. The arguments canvassed by the learned counsel for the insurance company is not available before this Court as the Mukund Dewangan's case (supra) holds the field as on this day. Therefore, by following the decision in the case of Mukund 13 Dewangan (supra), I hold that the Tribunal committed an error in fastening the liability on the owner of the offending vehicle. Thus, the liability is fastened on the insurance company and insurance company is liable to pay the compensation.
MFA No.32299/2011 (MVC No.1853/2009)
12. The Tribunal has taken only Rs.3,000/- per month as income of the appellant. The accident is of the year 2009. The Tribunal committed an error in taking only Rs.3,000/- per month as income of the injured claimant. This Court and Lok Adalaths while settling the claims arising out of the motor vehicle accidents of the year 2009, in the absence of any material to indicate the exact income, would normally take Rs.5,000/- per month as notional income for determining the compensation. In the case on hand also, in the absence of any material, it would be appropriate to take Rs.5,000/- per month as notional 14 income of the appellant. The Tribunal taking note of the evidence, disability certificate and wound certificate has taken 6% total body disability, which is just and proper.
13. Thereby, the appellant/claimant would be entitled for modified compensation towards loss of future earning as under:
Rs.5,000 x 12 x 17 x 6% = Rs.61,200/-.
14. The compensation awarded by the Tribunal on the other conventional heads is also on the lower side. Hence, the compensation awarded towards pain and suffering is enhanced to Rs.15,000/- from Rs.7,000/-. The compensation of Rs.3,000/- awarded towards loss of amenities is enhanced to Rs.10,000/-. The compensation of Rs.2,000/- awarded towards loss of earning during treatment laid up period is enhanced to Rs.5,000/-. The compensation of Rs.3,000/- awarded by the Tribunal towards Medical expenses, Attendant charges and Spl. diet is enhanced to 15 Rs.15,000/-. Thus, in all the appellant would be entitled for total compensation of Rs.45,000/- on conventional heads.
15. Thereby, in all the appellant/claimant would be entitled for total compensation of Rs.1,06,200/- as against Rs.52,000/- awarded by the Tribunal. Thus, the appellant would be entitled for enhanced compensation of Rs.54,200/- along with interest as ordered by the Tribunal.
MFA No.32298/2011 (MVC No.1854/2009)
16. The Tribunal has taken only Rs.3,000/- per month as income of the appellant. The accident is of the year 2009. The Tribunal committed an error in taking only Rs.3,000/- per month as income of the injured claimant. This Court and Lok Adalaths while settling the claims arising out of the motor vehicle accidents of the year 2009, in the absence of any 16 material to indicate the exact income, would normally take Rs.5,000/- per month as notional income for determining the compensation. In the case on hand also, in the absence of any material, it would be appropriate to take Rs.5,000/- per month as notional income of the appellant. The Tribunal taking note of the evidence, disability certificate and wound certificate has taken 7% total body disability, which is just and proper.
17. Thereby, the appellant/claimant would be entitled for modified compensation towards loss of future earning as under:
Rs.5,000 x 12 x 17 x 7% = Rs.71,400/-.
18. The compensation awarded by the Tribunal on the other conventional heads is also on the lower side. Hence, the compensation awarded towards pain and suffering is enhanced to Rs.20,000/- from Rs.7,000/-. The compensation of Rs.4,000/- awarded towards loss of amenities is enhanced to Rs.15,000/-. 17 The compensation of Rs.2,000/- awarded towards loss earning during treatment period is enhanced to Rs.5,000/-. The compensation of Rs.13,000/- awarded by the Tribunal towards Medical expenses, Attendant charges and Spl. diet is enhanced to Rs.15,000/-. Thus, in all the appellant would be entitled for total compensation of Rs.55,000/- on conventional heads.
19. Thereby, in all the appellant/claimant would be entitled for total compensation of Rs.1,26,400/- as against Rs.67,000/- awarded by the Tribunal. Thus, the appellant would be entitled for enhanced compensation of Rs.59,400/- along with interest as ordered by the Tribunal.
Accordingly, both the appeals are partly allowed.
Sd/-
JUDGE LG