Karnataka High Court
Bajaj Allianz General Insurance Co Ltd vs Sachin @ Sachin Arken on 12 June, 2019
Bench: B.V.Nagarathna, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JUNE, 2019
PRESENT
THE HON'BLE MRS. JUSTICE B. V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
MISCELLANEOUS FIRST APPEAL NO.1160 OF 2013 (MV)
ALONG WITH
MISCELLANEOUS FIRST APPEAL CROSS OBJECTION NO.105 OF 2013 (MV)
IN M.F.A. NO.1160 OF 2013 (MV):
BETWEEN:
BAJAJ ALLIANZ GENERAL INSURANCE CO., LTD.
# 31, GROUND FLOOR,
TBR TOWER, I CROSS,
NEW MISSION ROAD,
ADJACENT OF JAIN COLLEGE,
BANGALORE.
... APPELLANT
(BY SRI A.N. KRISHNASWAMY, ADV.)
AND:
1. SACHIN @ SACHIN ARKEN
S/O. RAMANNA @ RAMANNA ARKEN,
AGED ABOUT 28 YEARS,
RESIDENT OF LIC 1ST MAIN,
BASAVESHWARA NAGARA,
BANGALORE.
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2. MAHALINGAPPA
S/O. NARASIMHAPPA,
MAJOR,
RESIDENT OF KARIKERE
GUDIBANDE MANDAL,
MADAKASIRA TALUK,
ANANTHAPURA DISTRICT,
A.P.
... RESPONDENTS
(BY SRI GOPALA KRISHNAMURTHY C., ADV., FOR
SRI NAGARAJAPPA S.H. FOR R-1;
SRI S. YATHIRAJ, ADV., FOR R-2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST
THE JUDGMENT AND AWARD DATED 29-11-2012 PASSED IN
M.V.C. NO.434 OF 2011 ON THE FILE OF SENIOR CIVIL
JUDGE AND ADDITIONAL M.A.C.T., SIRA, AWARDING A
COMPENSATION OF Rs.6,11,747/- WITH INTEREST AT THE
RATE OF 6% P.A. FROM THE DATE OF PETITION TILL
REALISATION.
IN M.F.A. CROB. NO.105 OF 2013 (MV):
BETWEEN:
SACHIN @ SACHIN ARKEN
S/O. RAMANNA @ RAMANNA ARKEN,
AGED ABOUT 28 YEARS,
RESIDING AT LIC 1ST MAIN,
BASAVESHWARA NAGARA,
BENGALURU,
NOW RESIDING AT JYOTHI NAGAR,
SIRA TOWN.
...CROSS OBJECTOR
(BY SRI GOPALA KRISHNAMURTHY C., ADV., FOR
SRI NAGARAJAPPA S.H.)
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AND:
1. SRI MAHALINGAPPA
S/O. NARASIMHAPPA,
AGED MAJOR,
RESIDING AT KARIKERE,
GUDI BANDE MANDAL,
MADAKASHIRA TALUK,
ANANTHAPURA DISTRICT,
ANDHRA PRADESH.
2. BAJAJ ALLIANZ GENERAL INSURANCE CO., LTD.
NO.31, GROUND FLOOR,
TBR TOWERS, 1ST FLOOR,
NEW MISSION ROAD,
NEXT TO BANGALORE STOCK EXCHANGE,
BANGALORE.
... RESPONDENTS
(BY SRI A.N. KRISHNASWAMY, ADV., FOR R-2)
THIS MISCELLANEOUS FIRST APPEAL CROSS
OBJECTION IN M.F.A. NO.1160 OF 2013 IS FILED UNDER
ORDER 41 RULE 22 OF THE C.P.C., READ WITH SECTION
173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT
AND AWARD DATED 29-11-2012 PASSED IN M.V.C. NO.434
OF 2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
ADDITIONAL M.A.C.T., SIRA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MISCELLANEOUS FIRST APPEAL ALONG WITH
MISCELLANEOUS FIRST APPEAL CROSS OBJECTION COMING
ON FOR ADMISSION, THIS DAY, NAGARATHNA, J.,
DELIVERED THE FOLLOWING:
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JUDGMENT
Though the appeal and cross-objection are listed for admission, with the consent of learned counsel on both sides, they are heard finally.
2. Miscellaneous First Appeal No.1160 of 2013 is filed by the appellant-insurance company, while Miscellaneous First Appeal Cross-Objection No.105 of 2013 is filed by the injured-claimant, being aggrieved by the judgment and award dated 29-11-2012 passed in M.V.C. No.434 of 2011 by the Court of Senior Civil Judge and Additional Motor Accident Claims Tribunal (hereinafter referred to as 'Tribunal', for the sake of convenience) at Sira.
3. For the sake of convenience, parties shall be referred to in terms of their status before the Tribunal.
4. The injured-claimant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation in respect of injuries sustained by him in a road traffic accident. According to the claimant, 5 on 7-8-2010, he was proceeding to Hubli in his Maruthi car bearing Registration No.KA-22/M-9950 when he was near Hanuman Petrol Bunk on National Highway-4 at Sira, at that time, a tractor-trailer bearing Registration No.KA-13/T-4956- 57 came in a rash and negligent manner on the wrong side from the opposite direction endangering human life and collided with the Maruthi car of the claimant. Injuries being sustained by the claimant, he was shifted to C.H.C. Hospital at Sira and after preliminary treatment, he was taken to Sparsha Hospital, Bengaluru, where he took treatment as an in-patient for one month and spent Rs.2,00,000/-. Thereon, he took follow up treatment. He contended that he was working as an Engineer at National Highway Authority of India and earning salary of Rs.25,000/- per month. Because of the accidental injuries, it is not possible for him to carry on his duties in a normal way and now, he has to take the help of a walker. He sought compensation on various heads by alleging negligence on the driver of the tractor-trailer. 6
5. In response to the notice issued by the Tribunal, respondent Nos.1 and 2 appeared through their counsel and filed their written statements and denied the material averments of the claim petition. Respondent No.1, owner of the tractor-trailer, contended that respondent No.2-insurance company would have to indemnify the claim in the instant case. That the driver of the tractor-trailer had a valid and effective Driving Licence and the insurance Policy was in force. Respondent No.2-insurance company, however, contended that the driver of the tractor was not having a valid permit to ply on the road and that, he could ply only at Andhra Pradesh, but at the time of accident, the tractor- trailer was plying in Sira in Karnataka State and that, there was violation of the policy conditions. Therefore, insurance company is not liable to indemnify the liability of respondent No.1. Hence, insurance company sought for dismissal of the claim petition.
6. On the basis of rival pleadings, the Tribunal framed the following issues:
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1. "Whether the petitioner proves that, on
07.08.2010, at about 4.00 p.m., near Hanuman Petrol Bunk, on Hiriyur - Tumkur N.H.4, accident happened due to rash and negligent driving of driver of the Tractor - Trailer bearing Reg.No.KA.13.T.4956-57 and petitioner sustained injuries in the said accident?
2. Whether the petitioner is entitled for compensation? If so, at what rate, and from whom?
3. What order or decree?"
7. In support of his case, claimant examined himself as P.W.1, while Dr. B.N. Nagaraju was examined as P.W.2 Claimant produced eleven documents which were marked as Exs.P.1 to P.11. Thereafter, the Court Commissioner marked Exs.P.12 to P.14. Respondent-insurance company examined R.W.1 and produced three documents which were marked as Exs.R.1 to R.3.8
8. On the basis of evidence on record, the Tribunal answered issue No.1 in the affirmative and awarded compensation of Rs.6,11,747/- with interest at the rate of 6% per annum from the date of claim petition till realisation.
Being aggrieved by fastening of liability on the insurer, the insurance company has preferred Miscellaneous First Appeal No.1160 of 2013 and Miscellaneous First Appeal Cross Objection No.105 of 2013 has been filed by the injured-
claimant seeking enhancement of compensation.
9. We have heard learned counsel for the insurance company as well learned counsel for the injured-claimant;
perused the material on record and also certified copy of the documents furnished during the course of submissions.
10. Learned counsel for the insurance company contended that the driver of the tractor-trailer was holding a licence to drive a light motor vehicle. That the tractor-trailer is not a light motor vehicle, it is a transport vehicle and there is no transport endorsement. The licence has been issued for a period of 20 years, i.e. from 10-9-2001 to 9-9-2021, but it 9 was a licence for non-transport vehicle. That the Tribunal has not appreciated the said aspect of the matter and has directed the insurer to satisfy the award. He further fairly submitted that he has not pressed the point regarding there being no permit for the vehicle in the State of Karnataka.
He contended that the Tribunal ought to have dismissed the claim petition against the insurance company. Hence, appeal is filed by the insurance company and liability may be fastened on the owner of the vehicle on account of there being violation of the term of the policy.
11. Per contra, learned counsel for the injured-
claimant contended that the tractor-trailer is a light motor vehicle as per Section 2(21) of the Act. That the driver of the said vehicle possessed licence to drive a tractor-trailer unit. Having regard to judgment of the Hon'ble Supreme Court, in the case of MUKUND DEWANGAN v. ORIENTAL INSURANCE COMPANY LIMITED reported in AIR 2017 SC 3368, driver of the offending vehicle was duly licenced to drive the said vehicle. Therefore, the Tribunal has rightly 10 fastened the liability on the insurance company. There is no merit in the appeal filed by the insurer. He further submitted that award of compensation on the heads of 'pain and suffering', 'loss of income during treatment period', 'reckoning of percentage of disability' and absence of any compensation awarded for future medical expenses, has made the claimant to file Cross-Objection. Therefore, compensation may be enhanced.
12. By way of reply, learned counsel for the respondent-insurance company contended that award of compensation of Rs.6,11,747/- having regard to the nature of the injuries sustained by the claimant does not call for interference in this appeal. He submitted that award of compensation on various heads would not call for any interference and there is no merit in the cross-objection and same may be dismissed.
13. Having heard learned counsel for the parties, the points that arise for our consideration are:11
i. Whether the driver of the offending vehicle possessed a valid and duly effective Driving Licence to drive the vehicle on the fateful day?
ii. Whether the claimant is entitled for enhancement of compensation?
iii. If yes, what award or order?
14. The fact that the claimant sustained injuries on 7-8-2010 when he was traveling in a Maruti car bearing Registration No.KA-22/M-9950 and the car was hit by the tractor-trailer bearing Registration No.KA-13/T-4956-57 on Tumkur-Hiriyur road near Sira has been established. The controversy is with regard to liability being fastened on the insurance company to indemnify the owner of the offending vehicle.
15. In this regard, learned counsel for the appellant-
insurer contended that the driver of the tractor-trailer was not duly licenced to drive the vehicle. That the tractor-trailer is a transport vehicle, but the driver possessed a licence 12 which was for a non-transport vehicle. Therefore, the insurer was not liable to satisfy the award as there was breach in the terms and conditions of the policy.
16. Per contra, learned counsel for the respondent cross-objector has placed reliance on the decision of the Hon'ble Supreme Court in the case of MUKUND DEWANGAN, in support of his submission, while drawing our attention to Ex.R.3-document which has been produced and marked at the instance of the insurance company. On perusal of certified copy of Ex.R.3, it is noted that the driver of the vehicle possessed a licence to drive Light Motor Vehicle TT unit (N/T) with effect from 10-9-2001 valid up to 9-9-2021. The accident occurred on 7-8-2010. While interpreting Section 2(21) of the Act, in light of Section 10 of the Act which has been amended with effect from 14-11-1994, the Hon'ble Supreme Court has held that a tractor is a Light Motor Vehicle and a driver holding licence to drive a Light Motor Vehicle can drive all vehicles of that class including the Transport Vehicle and no separate endorsement 13 is required to drive such a Transport Vehicle. In this regard, the Hon'ble Supreme Court has noted that the expression 'transport vehicle' has been incorporated in Section 10 of the Act with effect from 14-11-1994 which is in substitution of 'medium goods vehicle', 'medium motor passenger vehicle', 'heavy goods vehicle' and 'heavy passenger motor vehicle while a "light motor vehicle is a class by itself". That the expression 'transport vehicle' is distinct from 'light motor vehicle' which is defined in Section 2(21) of the Act, to mean a transport vehicle or omnibus the gross-weight of the vehicle either of which or a motor car or a tractor or a road- roller the unladen weight of any of which, does not exceed 7500 kilograms. While considering the same, the Hon'ble Supreme Court has placed reliance on an earlier judgment of the Hon'ble Supreme Court in the case of NAGASHETTY v. UNITED INDIA INSURANCE CO. LTD. AND OTHERS reported in (2001) 8 SCC 56, wherein it has been held as under:
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"12. The policy is for a tractor. The "effective driving licence" is thus for a tractor. The restriction on a learner driving the tractor when used for transporting goods shows that the policy itself contemplates that the tractor could be used for carriage of goods. The tractor by itself could not carry goods. The goods would be carried in a trailer attached to it. That is why the extra premium for a trailer. The restriction placed on a person holding a learner's licence i.e., not to drive when goods are being carried is not there for a permanent licence-holder. Thus a permanent licence-holder having an effective/valid licence to drive a tractor can drive even when the tractor is used for carrying goods. When the policy itself so permits, the High Court was wrong in coming to the conclusion that a person having a valid driving licence to drive a tractor would become disqualified to drive the tractor if a trailer was attached to it."
Thereafter, at paragraph No.43, it has been opined as under:
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"43. Section 10(2) (a) to (j) lays down the classes of vehicles to be driven not a specific kind of motor vehicles in that class. If a vehicle falls 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 separate endorsement is to be obtained nor provided, if the vehicle falls in any of the particular classes of section 10(2). This Court has rightly observed in Nagashetty (AIR 2001 SC 3356) (supra) 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 trailer 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 position would not change and driver would still have a valid driving licence to drive transport vehicle of light 16 motor vehicle class, whether it is a transport vehicle or a private car/tractor attached with trolley or used for carrying goods in the form of transport vehicle. The ultimate conclusion in Nagashetty (AIR 2001 SC 3356) (supra) is correct, however, for the reasons as explained by us."
Further discussing on the merit of the expression 'transport vehicle', the Hon'ble Supreme Court at paragraph Nos.45 and 46 has observed 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 section2(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 17 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 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 authorized 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 provisions 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 18 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 as 28.03.2001. 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 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 19 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 "unladed 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 20 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 28.03.2001 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 21 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."
17. In view of the same, it is held that, in the instant case the driver of the offending vehicle was duly licenced to drive the vehicle in question. This is clear on perusal of Ex.R.3. There was an insurance policy issued in respect of the said vehicle. Therefore, the insurer is liable to satisfy the award. Point No.1 is accordingly answered in favour of the claimant and against the insurance company.
18. This takes us to the next point which is on the quantum of compensation awarded by the Tribunal. It is 22 noted that the claimant sustained two fractures on the right femur and right tibia. P.W.2-Doctor was examined in the matter. He had deposed that there was 83% disability and even though earlier it was noted that there was only 66% disability to the particular limb, consequently the whole body disability was assessed by the Tribunal at 20%. The notional monthly income of the claimant was assessed at Rs.10,000/-. Compensation on the various heads awarded by the Tribunal was to the extent of Rs.6,11,747/- in the following manner:
Compensation Heads awarded by the Tribunal (in Rs.) Pain and agony 30,000.00 In-patient charges 1,200.00 Medical expenses 1,42,547.00 Loss of income during 30,000.00 treatment period 4,08,000.00 Disability 6,11,747.00 Total 23
19. On perusal of the same, we note that on the head of 'pain and agony', the award of compensation is a little less. Similarly, no compensation has been awarded towards 'incidental charges' as the claimant was an inpatient in the hospital. The award of compensation towards 'medical expenses' is just and proper. We also find that in the absence of the author of Ex.P.7 being examined in the matter, the assessment of notional income at Rs.10,000/- per month is just and proper. Similarly, the whole body disability is assessed at 20% which is correct. The compensation is awarded towards 'disability' and not towards loss of future earning capacity which is at Rs.4,08,000/-.
20. Of course, learned counsel for the insurer contended that the said award is on the higher side, we, however, retain the same, since no compensation is awarded towards 'loss of amenities'. A sum of Rs.25,000/- is awarded towards 'future medical expenses'. On the head of 'disability', a sum of Rs.4,08,000/- has been awarded. It is in substance awarded for loss of future earning capacity and 24 not disability. As such, there has been no award towards loss of amenities. A sum of Rs.30,000/- is awarded towards 'loss of amenities'. A sum of Rs.10,000/- is awarded towards 'incidental charges'. As the amount awarded under the head 'pain and agony' is little less, a further sum of Rs.10,000/- is awarded under the said head. Thus, the enhanced compensation is Rs.75,000/-. The same shall also carry interest at the rate of 6% per annum from the date of claim petition till realisation. Since a nominal amount is being paid towards future medical expenses, interest shall be paid thereon. In the circumstances, Miscellaneous First Appeal No.1160 of 2013 is dismissed. Miscellaneous First Appeal Cross-Objection No.150 of 2013 is allowed-in-part.
21. The amount in deposit shall be transmitted to the Tribunal.
22. The insurance company shall deposit the compensation with up to date interest within a period of four weeks from the date of receipt of a certified copy of this judgment.
25Parties to bear their respective costs.
Sd/-
JUDGE Sd/-
JUDGE kvk/hnm