Karnataka High Court
Sri Noor Hussain @ Irfan vs Bajaj Allianz General Insurance Co. Ltd on 7 October, 2015
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF OCTOBER, 2015
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
MISCELLANEOUS FIRST APPEAL NO.5525 OF 2012
C/W
MISCELLANEOUS FIRST APPEAL NO.2174/2012 (MV)
MFA NO.5525 OF 2012
BETWEEN:
SRI NOOR HUSSAIN @ IRFAN
S/O ABDUL RAHIM
AGED ABOUT 26 YEARS
NO.1175/4, THRIVENI ROAD,
2ND CROSS, KN EXTENTION
YESHWANTHPUR
BENGALURU - 22 ... APPELLANT
(BY SRI.PRATHEEP K C, ADV.)
AND:
1. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD
NO.203, 2ND FLOOR, SOUNDARYA SAMPIGE
COMMERCIAL COMPLEX, 2ND MAIN
8TH CROSS, SAMPIGE ROAD
BANGALORE
2. SRI KRISHNA REDDY B
NO.434, 6TH CROSS, 1ST MAIN
YESHWANTHPUR
BANGALORE-560022 ... RESPONDENTS
(BY SRI. O MAHESH, ADV. FOR R1)
2
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:15.12.2011 PASSED IN MVC
NO.5661/2009 ON THE FILE OF THE 8TH ADDITIONAL JUDGE,
MEMBER, MACT-5, COURT OF SMALL CAUSES, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
MFA NO.2174 OF 2012
BETWEEN:
THE MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LIMITED, NO. 203 2ND FLOOR
SOUNDRYA SAMPIGE COMMERCIAL
COMPLEX IIND MAIN 8TH CROSS
SAMPIGE ROAD BANGALORE-03
BY BAJAJ ALLIANZ GENERAL INSURANCE CO LTD
REGIONAL OFFICE NO.31, GROUND FLOOR,
T.B.R.TOWERS, 1ST CROSS,
NEW MISSION ROAD,
BANGALORE - 560 024 ... APPELLANT
(BY SRI. O MAHESH, ADV.)
AND
1. NOOR HUSSAIN @ IRFAN
S/O ABDUL RAHIM
AGED ABOUT 26 YEARS
NO.1175/4, THRIVENI ROAD,
2ND CROSS, KN EXTENTION
YESHWANTHPUR
BENGALURU - 22
2. KRISHNA REDDY B
MAJOR NO. 434 6TH CROSS,
3
1ST MAIN, YASHWANTHPUR
BANGALORE- 560 022 ... RESPONDENTS
(BY SRI.K C PRATHEEP, ADV. FOR R1)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:15.12.2011 PASSED IN MVC
NO.5661/2009 ON THE FILE OF VIII ADDITIONAL JUDGE, COURT
OF SMALL CAUSES, MEMBER, MACT-V, BANGALORE, AWARDING
A COMPENSATION OF RS.82,000/- WITH INTEREST @ 6% P.A.
(EXCEPT FUTURE MEDICAL EXPENSES) FROM THE DATE OF
PETITION TILL DEPOSIT.
THESE APPEALS COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY AFTER HAVING HEARD AND RESERVED
FOR JUDGMENT ON 12.11.2014, THE COURT MADE THE
FOLLOWING:
JUDGMENT
Misc. First Appeal No.2174/2012 is filed by the Insurance Company seeking to absolve its liability on the ground that there is contributory negligence on the part of the claimant and also that the driver of the insured vehicle had no valid and effective driving licence.
2. Misc. First Appeal No.5661/2009 is filed by the claimant seeking enhancement in the compensation awarded by the claims tribunal at Rs.82,000/-.
4
3. The learned counsel for the Insurance Company contends that the vehicle involved in the accident and insured with the appellant is canter bearing Registration No.KA 04 B 2554 which has dashed against the motor cycle by which the claimant was traveling, thereby the claimant fell down and sustained grievous injuries. It is contended that the claimant was traveling in a high speed and therefore there is contributory negligence on his part. The vehicle involved in the accident is a medium goods vehicle but the driver was authorized to drive only light motor vehicle non transport and LMV transport and as per Ex.R5 `B' extract of the vehicle the offending vehicle is a medium goods vehicle. The driver has not obtained upgraded licence and therefore he was not authorized to drive medium goods vehicle. Hence he prays that insurance company is not liable to make good the compensation amount.
4. The learned counsel for the claimant submits that the Tribunal has failed to award adequate compensation commensurate to the injuries sustained by the claimant. The 5 claimant suffered 90% hearing loss. The tribunal has failed to properly assess the monthly income taking into consideration the claimant being a mechanic. The claims tribunal has committed an error in assessing Rs.4,000/- per month, which is on the lower side. Hence he seeks for enhancement of the compensation.
5. I have heard the learned counsel for the parties. The points that arise for determination are:
(a) Whether the insurance company is right in contending that the driver of the vehicle was not having effective driving licence to drive the offending vehicle?
(b) Whether the compensation awarded by the claims tribunal needs to be enhanced to bring it to the realm of `reasonable compensation'?
6. My answers to the above points are as follows:
Point No.1 - In the affirmative
Point No.2 - In the negative
6
7. The accident in question is not in dispute. The
insurance company contends that there is contributory
negligence on the part of the claimant which has resulted in the accident. Except suggesting in the evidence of PW-1, the insurance company has not substantiated the said contention. Mere contention without being substantiated by supporting materials, the said contention that there is contributory negligence cannot be upheld.
8. The second contention of the learned counsel for the insurance company is that the driver of the offending vehicle did not possess valid driving licence. The vehicle involved in the accident is a light motor goods vehicle. Admittedly, the driver had a driving licence entitling him to drive LMV transport with RLW of 7500 kg. The unladden weight of the offending vehicle was 5,490 kg. as per Ex.R5. Therefore, the driver was not having licence to drive medium goods vehicle but he was having licence to drive transport vehicle with unladden weight of 7500 kgs. Considering this, the claims tribunal proceeded to hold that the offending vehicle falls within the said unladden weight, 7 though it has been termed as MGV and the driver of the said vehicle has skill to drive the said vehicle. Therefore, the liability is fastened on the insurance company.
9. In this regard, the learned counsel for the claimant has placed reliance on the decision of the Hon'ble Supreme Court in Kulwant Singh & Ors. Vs., Oriental Insurance Company Ltd., (Civil Appeal Nos.9929-30/2014) in which decision S Iyyapan vs., United India Insurance Company Ltd., & another reported in (2013)7 SCC 62 and National Insurance Company Ltd., vs., Annappa Irappa Nesaria Alias Nesearagi & others, reported in (2008) 3 SCC 464 was referred to. In Annappa Irappa Nesaria (supra), the Hon'ble Supreme Court referring to the provisions of Section 2(21) and (23) of the Motor Vehicles Act, 1988, which are definitions of `light motor vehicle' and `medium goods vehicle' respectively and the rules prescribing the forms for the licence, i.e.Rule 14 and Form No.4. It was concluded thus:
"20. Form what has been noticed hereinbefore, it is evident that "transport vehicle" has now been substituted for "medium goods vehicle" and "heavy goods vehicle". The light motor vehicle continued, at 8 the relevant point of time to cover both "light passenger carriage vehicle" and "light goods carriage vehicle". A driver who had a valid licence to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well".
10. In S Iyyapan case (supra) the question involved was whether the driver who had a licence to drive `light motor vehicle' could drive `light motor vehicle' used as a commercial vehicle, without obtaining endorsement to drive a commercial vehicle. It was held by the Hon'ble Supreme Court that in such a case, the Insurance Company could not disown its liability.
11. This Court in M F A No.30903/2009 (M/s. National Insurance Company Limited vs., Nagamma & others) DD 2.8.2014 had an occasion to deal with similar situation and held that a driver holding a licence to drive a light motor vehicle is not enabled to drive a `transport vehicle' without a specific endorsement to that effect on the form of licence.
12. In another case in Mohammed @ Mohd.Haneef vs., Mallayya @ Mallappaj & another reported in ILR 2015 KAR 2064, 9 this Court has also dealt with similar question and has held as follows in Para-21 of the judgment which reads as follows:
"21. So from the aforesaid discussion of the provisions of Section 2(21) of the Act and amendment to the Central Motor Vehicle Rules, which came into effect from 28.3.2001, it is necessary for a person who drive a light motor vehicle for (commercial) transport must have a specific licence in this regard. As could be seen from the provisions of Section 3 of the Act, it is provided no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle. Therefore, if a person has authority to drive the commercial transport vehicle, he must have a licence as contemplated under the Rules amended, which came into effect from 28.3.2001. If he does not have such a licence, there would be contravention of the Act. He does not have competency to drive such vehicle and thereby there would be breach of conditions of the policy, for which the insurer has to be exempted from the liability. It is only the Apex Court, which has got authority to direct the insurer by exercising powers under Article 142 of the 10 Constitution and such powers are not available to this Court or any other courts."
13. Therefore, I am of the view that the driver of the offending vehicle had no effective driving licence and therefore the insurance company cannot be fastened with liability.
14. In the appeal filed by the claimant, he has sought for enhancement. The period spent as an inpatient in the hospital is not proved by producing materials. The doctor who has been examined as PW-2 is not a treated doctor and he has stated in the cross-examination that claimant has not taken treatment for loss of hearing. Out of the two discharge summaries, one disclosed claimant has been treated for accidental injuries but the other was for alcohol dependence syndrome. Therefore, the claims tribunal is right in assessing the compensation and I am not inclined to interfere with the same. The Point No.2 is accordingly answered.
15. In the result, the appeal filed by the insurance company, M F A No.2174/2012 is entitled to be allowed. Accordingly it is allowed. The liability is fastened on the owner 11 of the vehicle to pay the compensation awarded. The appeal filed by the claimant in M F A No.5525/2012 is rejected. Amount in deposit is ordered to be returned to Insurance Company.
Sd/-
JUDGE akd