Karnataka High Court
Divisional Manager vs Mrs. Tulasamma W/O Late Nagappa ... on 11 August, 2017
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11th DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
MFA No.31509/2011 (MV)
Between:
Divisional Manager
National Insurance Company Ltd.,
Bilgundi Complex, Station Road
Gulbarga
... Appellant
(By Sri Sanjay M. Joshi, Advocate)
And:
1. Mrs. Tulasamma W/o Late
Nagappa Kanakatte
Age: 26 years, Occ: Agriculture
2. Kum. Aishwarya D/o Late
Nagappa Kanakatte
Age: 3 years, Occ: Nil
3. Shri Kallappa S/o Hanmantappa
Kanakatte, Age: 60 years
Occ: Agriculture
4. Smt. Sheshamma W/o Kallappa
Kanakatte, Age: 54 years
Occ: Agriculture
2
All R/o Dubalgundi
Tq: Humnabad, Dist: Bidar
5. Sri Siddappa S/o Anthappa Ganga
Age: 52 years, Occ: Agriculturist
Owner of Tractor No.KA-32/315
R/o Dubalgundi, Tq: Humnabad
... Respondents
(By Smt Neeva M. Chimkod, Advocate for R-1,
R-3 & R-4, R-2 minor Represented by R-1
Sri. S. S. Kumman, Advocate for R-5)
This Miscellaneous First Appeal is filed under
Section 173 (1) of the Motor Vehicle Act, against the
judgement and award dated: 30.12.2010 passed in MVC
NO. 102/2009 on the file of the Senior Civil Judge &
Addl. M.A.C.T at Basavakalyan (Camp at Humnabad),
partly allowing the claim petition and awarding
compensation of Rs.6,47,000/- with interest at 6% per
annum.
This appeal having been heard and reserved for
judgment on 12.7.2017, coming on for pronouncement
of judgment this day, the Court pronounced the
following:-
JUDGMENT
The present appeal has been preferred by the appellant/Insurance Company by assailing the judgment and award passed by Senior Civil Judge and 3 Additional MACT, Basavakalyana (Camp at Humnabad) in MVC No.102/2009 dated 30.12.2010.
2. The brief facts of the case are that on 25.1.2009 Nagappa was returning from garden land after attending the agriculture labour work, and when he was proceeding by walk on a kacha road near Yellamma temple in Dubalgundi village, at about 3.00 p.m. Tractor bearing registration No.KA-32/315 along with trally No.KA-32/316 came rashly and negligently from behind and dashed to the said Nagappa. As a result of the same, he sustained grievous injuries and immediately he was shifted to Bidar Hospital. But the hospital authorities declared him as dead. For having lost the bread earner, claimant No.1- the wife, claimant No.2- daughter, claimants No.3 and 4- the parents of the deceased Nagappa claimed the compensation.
3. On service of notice respondent No.1 has not appeared before the Court and as such he was placed 4 exparte. Respondent No.2 appeared and filed his written statement by denying the contents of the petition. He further contended that the accident occurred due to the negligence of the deceased himself while crossing the road. He further contended that respondent No.1 has violated the terms and conditions of the policy by authorising the driver to drive the said tractor who was not holding the valid and effective driving licence and as such he prays for dismissal of the petition.
4. On the basis of the said pleadings, the Tribunal framed the following issues:
1. Whether the petitioners prove that, Nagappa S/o Kallappa Kankatte died in the motor vehicle accident that occurred on 25.01.2009 at 3.00 p.m. near Godess Yallamma Temple at Village Dubalgundi within the limits of Hallikhed - B.P.S. on account of rash and negligent driving of Tractor bearing registration No.KA-32/315 and Trally No.316 by its driver as alleged?5
2. Whether the petitioners are entitled for the compensation? If so, what is the quantum and from whom?
3. What order or award?
5. In order to prove the case of the petitioners, the wife of the deceased was examined as PW1 and she has also got examined one more witness as PW2 and got marked Exs.P1 to P16 and the respondent did not adduced any evidence. While answering the issues, the Tribunal awarded the compensation of Rs.6,47,000/- with interest at 6% per annum.
6. The main grounds urged by the learned counsel for the appellant is that, the driver of the tractor and trailer was not having any effective driving licence to drive a tractor trailer and was only having a driving licence to drive a light motor vehicle. In that light, fixing the liability on the Insurance Company is against the conditions of the policy and also there is a clear 6 violation of the provisions of Motor Vehicles Act (herein after called as 'M.V.Act' in short). He further contended that by referring to Sections 3, 5, 10, 11 and 15 of the MV Act, though the tractor and the trailer comes within the definition of light motor vehicle, but it is a heavy goods vehicle and it has to be seen that the light motor vehicle with reference to transport and non-transport. In order to substantiate his argument, he has relied upon a decision of National Insurance Company Limited Vs. Swaran Singh and others reported in 2004 ACJ 1. He has further contended that, the light motor vehicle can be driven, but the policy conditions will not allow the driver to drive the tractor-trailer and as such the Insurance Company is not liable to pay any compensation to the petitioners. On these grounds he prayed for allowing the appeal and prays to exonerate from fastening the liability on the Insurance Company and owner may be made liable.
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7. Per contra, the learned counsel for the respondent-owner vehemently argued and contended that as per Section 2(21), the light motor vehicle also includes the tractor and what is a heavy goods vehicle has been defined under Section 2(16) of the MV Act. If that were to be taken into consideration the driver of the tractor was having valid and effective driving licence and in that light the Tribunal has rightly fixed the liability on the Insurance Company. He further contended that under Section 10 of the MV Act a licence is granted to drive a specific categories of Motor Vehicles, but a person having a valid driving licence to drive a particular category of vehicle does not became disable to drive that vehicle, merely because a trailer is added to the said vehicle. In order to substantiate the said contention, he has relied upon the decision in the case of Nagashetty Vs. United India Insurance Co. Ltd., reported in ILR 2001-KAR 4169. He further contends that the appellant has not made out any good grounds 8 so as to interfere with the order of the trial Court. The order of the trial Court deserves to be confirmed.
8. Admittedly, in the present case, except challenging the liability, the insurance company has not challenged the quantum of compensation awarded to the respondents-claimants and as such I am not going to deal with the said aspect in detail.
9. The main contention of the learned counsel for the appellant is that, the Tribunal was not justified in fixing the liability on appellant when the driver of the tractor was not having effective driving licence to drive the tractor along with the trailer and there is no endorsement to that effect.
10. As could be seen from the verdict of the Hon'ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Co. Ltd., reported in (2016) 4 SCC 298, in the said decision it has discussed in detail 9 the provisions of the M.V. Act with reference to the issuance of the licence and the effect of provisions of Section 2(47), 10 and 2(21) and 2(48) etc. The said decision was also referred to the Hon'ble Larger Bench of the Apex Court and the same was came to be confirmed and it is reported in 2017 SCC OnLine SC
788. In the above decision quoted supra, at paragraph 42, the Hon'ble Apex Court has discussed as mentioned below which reads as under:
42: In Oriental Insurance Co. Ltd. Vs. Zaharulnisha this Court has referred to the decision in National Insurance Co. Ltd. Vs. Swaran Singh to the effect that if a person has been given a licence for 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 a different type. As for example when a person is granted a licence for driving a light motor vehicle he can drive either a car or a jeep and it is not necessary that he must have driving licence both for car and jeep 10 separately. This Court has laid down that since the driver was having licence to drive heavy motor vehicle but at the time of accident was driving a scooter which is a totally different class of vehicle, the act was held to be in violation of Section 10(2) of the MV Act."
11. As could be seen from the ratio laid down by the Hon'ble Apex Court, if a driver of the vehicle is having a light motor vehicle licence, then he cannot be said to have no licence for driving another type of vehicle which is of the same category, but of a different type. Section 2(21) of the Motor Vehicles Act reads as under:
2(21): "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms.
12. The above Section is very clear that the tractor is also considered to be a light motor vehicle. It is the 11 specific contention of the learned counsel for the appellant that the tractor was attached to the trailer and under the said circumstances if a driver is having Light Motor Vehicle licence, he cannot drive a tractor attached with trailer. But, in the decision of the Hon'ble Apex Court in the case of Nagashetty Vs. United India Insurance Co. Ltd., it has been held that under Section 10 a licence is granted to drive the specific categories of the motor vehicles, but a person having a valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle.
13. Even the said proposition of law has also been upheld by the Division Bench of this Court in the case of Neela and Nellawwa W/o Balappa, Chikaladinni and Others Vs. the Divisional Manager, Oriental Insurance Co. Ltd., Belgaum, in MFA No.101004/2014 c/w MFA No.100821/2014. When 12 already the said proposition of law has been settled by the Hon'ble Apex Court as well as by the Division Bench of this Court, holding that endorsement is not required to drive such type of vehicle and taking into consideration the above said facts and circumstances, the liability fixed on the appellant Insurance Company by the tribunal appears to be just and proper, when Ex.P-16 the notified copy of driving licence has been produced and the same was in currency which fact is not in dispute. Though while deciding the case the Tribunal has not discussed the said aspects in detail, but ultimately the point boils to this much that when a driver of the tractor was having a valid driving licence to drive the light motor vehicle and the tractor also comes within the definition of light motor vehicles and merely because it has attached with the trailer it will not disable the driver to drive such vehicle attached with the trailer. Under such circumstances, the contention of the learned counsel for the appellant does not stand to 13 any reason and the same is not acceptable and the same is rejected. Under the above said facts and law, this appeal is devoid of merits.
Hence, I pass the following ORDER Appeal dismissed.
Amount in deposit be transferred to Jurisdictional Tribunal forthwith.
Sd/-
JUDGE AP*