Karnataka High Court
M/S United India Insurance Company Ltd vs Khaja Pasha on 9 January, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 9th day of January , 2013
Before
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
Miscellaneous First Appeal No.3455/2007 (MV)
BETWEEN:
M/s.United India Insurance
Company Ltd.,
Divisional Office,
VV Sukhani Complex
I Floor, Gandhi Chowk,
Raichur,
Represented by
Divisional Manager. ...Appellant
(By Sri.S.C.Jainar, Advocate)
AND:
1. Khaja Pasha
S/o Hussain Khan
27 years,
Fridge Mechanic,
Cool India Limited,
R/o: Rampurpet
Gangavathi
2. Andanappa
S/o Shankarappa
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Major,
Driver, Lorry No.KA 37 6066
R/o: Uppinabettageri,
Koppal Taluk.
3. Dhanalakshmi
W/o Muniswamy
Major,
Owner Lorry No.KA 37 6066
R/o: Behind Bethal School
Virupapur
Gangavathi ...Respondents
(By Sri.Mahabaleshwar, M/s.MGM Associates, Advocate
for R-1, R-2 served, Sri.S.B.Mukkannappa, Advocate for
R-3 -absent)
This miscellaneous first appeal is filed under
Section 173(1) of the Motor Vehicles Act against the
judgment and award dated 19.12.2006 passed in MVC
No.103/2005 on the file of the Civil Judge (Sr.Dn) &
MACT, Gangavathi, awarding compensation of
`1,70,000/- with costs and future interest @ 9% p.a.
from the date of the petition till deposit.
This appeal coming on for hearing this day, the
Court delivered the following:
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JUDGMENT
This appeal is by the Insurance company challenging the Judgment and award passed by MACT, Gangavathi, in MVC 103/2005 dated 19.12.2006 on the ground that Tribunal could not have fastened the liability on the insurance company since the driver of the offending vehicle was not possessing a valid driving licence.
2. Heard the arguments of Sri.S.C.Jainar, learned counsel appearing for appellant and Sri.Mahabaleshwar Hasnal, learned counsel for R-1. R-2 is served and unrepresented. R-3 is served represented but none appears. Perused the Judgment and award passed by the Tribunal as also records secured from the Tribunal.
3. The contentions of Sri.Jainar is three fold:
(1) There is contributory negligence on the part of driver of motorcycle since it was a head on collision and as :4: such he had also contributed his negligence in causing the accident.
(2) The quantum of compensation awarded towards loss of future income is erroneous since on account of fracture of Metacorpal bone it does not affect the earning capacity of the claimant and as such the compensation requires to be recomputed. (3) The driver of the offending vehicle namely mini lorry did not possess a valid driving licence and as such appellant Insurance Company cannot be made liable to indemnify the claim since there is violation of policy conditions.
4. In support of his submissions he has relied upon the following judgments: (i) Oriental Insurance Company Limited Vs Syed Ibrahim and others reported in 2007 SAR (Civil) 789; (ii) ILR 2011 Kar 3889. :5:
5. Per contra, Sri.Mahabaleswar, learned counsel appearing for respondent No.1 would support the award passed by the Tribunal and submits that Tribunal has taken note of the fact of the definition of Motor Vehicle Act namely section 2(21) into consideration to hold that the mere possession of driving licence to drive LMV would not disentitle the claimant to seek payment of compensation from the insurer and when the unladen weight of the vehicle in question being less than 5,700 kg it would entitle the driver of the vehicle to drive even the goods vehicle also. In support of his submission he relied upon the Judgment of a Co-ordinate Bench of this court in the case of Mohammed Salar and others Vs Syed Ibrahim and others reported in ILR 2005 Kar 2388.
6. Having heard the learned advocates appearing for parties and on perusal of the Judgment and award passed by the Tribunal as also the records secured from :6: the Tribunal, my findings on the three issues or contentions raised by learned counsel appearing for insurance company is as under:
RE: Contributory negligence:
7. It is the specific contention of the claimant that the accident in question occurred on 05.02.2003 on Gangavathi Sindhnoor Main Road at Sri.Ramanagar Village in front of a petrol bunk contending interalia that while he was returning to Gangavathi a mini lorry bearing No.KA 37/6066 driven in a rash and negligent manner by its driver it dashed against Suzuki Motorcycle which was driven by him. Sri.Jainar would rely upon Exhibit P-3 Panchanama to buttress his arguments that it was a head on collision. Said contention deserves to be rejected for the reason that driver of the lorry/van was not examined. Tribunal has also noticed that nothing prevented the appellant herein to summon the driver of the offending vehicle to :7: establish that there was negligence on his part. Even otherwise Exhibit P-3 spot Panchanama prepared by the police would indicate that right side tyre of the van was in the middle of the road and suzuki motorcycle was also lying at about 5 feet from the said vehicle on the left side of the road. Merely because the vehicle was lying on the left side of the road no inference can be drawn that it was head on collision. The very same panchanama also reflects that only the right side of the said motorcycle has been damaged. The noting made by the Inspector in IMV Report Exhibit P-4 reads as under:
1. Head light doom damaged.
2. Right side crash guard damaged.
8. If it was head on collision as contended by Sri.Jainar said motorcycle would not have got damaged only on the right side and obviously whole vehicle would have got damaged. Hence, the contention put forward :8: by the claimant that van had hit on right side of the vehicle probabilises the said theory. As such contention raised by Sri.Jainar cannot be accepted and it stands rejected.
RE: Quantum of Compensation:
9. The Tribunal in the instant case without any discussion with regard to medical evidence available on record and without any scrutiny of medical records has proceeded to accept the claim made by the claimant and has proceeded to assess the compensation payable to claimant and on account of no reasons forthcoming from the award the said finding of the Tribunal cannot be sustained even for a minute and it is liable to be set aside. Scrutiny of the plea as well as evidence with regard to loss of future income when examined on the basis of records available it would emerge that claimant contended that he was working as a mechanic, repairing refrigerator and was working as such in Cool India :9: Limited, Ganagavthi. On account of the accident in question he sustained fracture of 4th and 5th Metacorpal Bones of the right hand. There was lacerated wound over the right side of the eye and also abrasion below the right eye. As evidenced from the wound certificate Exhibit P-5 and x-ray reports as per Exhibit P-6 to P-8 it would also fortify the fact that said injuries were sustained by the claimant. The doctor who has issued disability certificate Exhibit P-9 has been examined as PW-2, the evidence of doctor is cryptic without details. He only states that he has issued disability certificate by assessing the disability at 25%. He does not state as to whether it is particular limb disability or whole body disability. Disability certificate at Exhibit P-9 would indicate that there is malunion of the fracture and the doctor has opined that patient would feel pain while doing work. On account of the fracture of Metacorpal bones to the right hand by no stretch of imagination it can be construed that claimant would have been unable : 10 : to discharge his duties as a refrigerator mechanic. Said injury though may not come in the way of petitioner discharging his normal work or his earning capacity it would definitely have some impact on his day to day work and as such it cannot be construed that disability as assessed which has occasioned on account of the injuries sustained would be whole body disability. Hence there cannot be any award towards loss of future earning. In that view of the matter, I am of the considered view that the compensation to be awarded to the claimant requires to be recomputed by taking into consideration that claimant had suffered only fracture of 4th and 5th metacorpal bones and the disability has not affected his earning capacity as opined by the doctor. The compensation is re-determined as under:
1. Pain and Suffering ` 20,000=00
2. Disability ` 25,000=00
3. Food, nourishment & Conveyance ` 5,000=00 : 11 :
4. Medical Expenses ` 5,000=00
5. Loss of amenities ` 15,000=00
6. Loss of earning capacity for two months ` 6,000=00
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TOTAL ` 76,000=00
============
10. Thus, in all claimant would be entitled to `76,000/- which would also carry interest @ 6% p.a. from the date of petition till date of realisation.
RE: Liability:
11. Before the Tribunal the insurance company has raised a specific contention at paragraph 3 of its statement of objection that driver of the lorry/van which was goods vehicle was not having valid driving licence to drive the vehicle involved in the accident. Both the claimant as well as respondent insurance company have produced the driving licence of the driver of the : 12 : offending vehicle namely lorry which came to be marked as Exhibit P-11 and R-2 and it would indicate that said licence was issued on 22.09.2001 by the licensing authority, Koppal District, Koppal and applicant therein namely driver of the offending vehicle who had been arrayed as first respondent before the Tribunal had been authorised to drive light motor vehicle (LMV).
Registration certificate of the lorry bearing No.KA 37/ 6066 has been produced by the petitioner-claimant and marked it as Exhibit P-13. The unladen weight of the vehicle is 1059 kg and goods vehicle weight is 5,300 kgs. Tribunal having noticed the contention of insurance company has not framed any issue in this regard and has in a casual manner without discussing the plea raised in this regard has proceeded to hold that in view of Exhibit R-2 issued by the RTO authorities, respondent No.1 was holding driving licence to drive the LMV and as such it has to indemnify the claim. As to whether the said driving licence entitles the first : 13 : respondent therein to drive the goods vehicle in question or not is not at all considered. Though Sri.Hasnal would contend in view of the definition found under Motor Vehicles Act Section 2(21) it encompasses all vehicle of unladen weight which is less than 7,500 kgs and as such insurance company cannot contend that it need not indemnify the claimant or the owner when examined it can be noticed that issue regarding as to whether mere possession of a licence to drive LMV would also authorise the licencee to drive light goods vehicle or not has been considered by the Apex Court in the case of Oriental Insurance Company Ltd., Vs Angadkol and others reported in 2009 ACJ 1411 and also in the matter of National Insurance Company Ltd., Vs Kusum Rai and others reported in 2006 ACJ 1336 and it has been held in case of licence to drive LMV without any endorsement to drive transport vehicle the insured would be entitled to take statutory defence under section 149 to contest the claim against it and if : 14 : the licence to drive transport vehicle requires an endorsement to that effect under section 3 of the Motor Vehicles Act claimant is not entitled to recover the compensation from the insured, since it amounts to violation of the terms of policy and violation of the provisions of Motor Vehicles Act. After following the Judgments of the Apex Court Co-ordinate Bench of this court in the case of United India Insurance Company Limited, Rep. by its Regional Manager Vs N.Prakash and anr reported in ILR 2011 KAR 3889 has held as under:
"9. In the light of the submissions made by both the Counsel, the points that arise for consideration are:
(1) Whether the licence to drive light motor vehicle without endorsement of authorisation to drive transport light motor vehicle as contemplated under Section 3 of the Motor Vehicles Act would disentitle the claimant to recover the compensation from the insurer?: 15 :
(2) In case such an endorsement is necessary, whether the insurer is liable to pay and recover?
10. To appreciate the contentions, it is proper to refer to Section 2 Clause (21) the definition of "light motor vehicle", which 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".
11. In this case, it is not in dispute that, the driver of the offending vehicle did possess the licence to drive light motor vehicle. However, it has come in the evidence that, the offending vehicle was transport vehicle. Section 3 of M.V.Act reads as under:
"3. Necessity for driving licence - (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising : 16 : him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under sub-Section(2) of Section 75 unless his driving licence specifically entitles him so to do.
(2) The conditions subject to which sub-
Section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government".
Section 3 contemplates that, no person shall drive motor vehicle in public unless he holds effective driving licence and no person shall drive transport vehicle other than motor cab or motor cycle hired for his own use or rented under any scheme made under sub-Section (2) of Section 75 unless his driving licence specifically entitles him so to do.
12. Reading of provisions of Section 3 contemplates that, no person is authorised to : 17 : drive motor vehicle without licence. Secondly, if a person is holding licence to drive, to drive transport vehicle, such licence must bear an endorsement as `transport vehicle'. Section 3 distinguishes the licence to drive a vehicle and licence to drive a transport vehicle. In case of transport vehicle, law requires authorisation as contemplated under Section 3 of the Act.
13. It is not in dispute in this case that, such an endorsement is not made either on the licence of driving the offending vehicle nor separately authorised the driver of the offending vehicle to drive transport vehicle. It is also necessary to mention that the duration of licence in case of transport vehicle is three years and in case of other licence, it is 20 years. Transport vehicle is defined under Section 2(47) of M.V.Act, which means "a public service vehicle, a goods carriage, an educational institution bus or private service vehicle".
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14. In case of transport vehicle, the risk of third party goods or life is involved. Periodic check might be necessary to renew the licence. It is in this context the validity of licence or period of licence is fixed at 3 years and in other cases, it is 20 years. Reading of this provision and the duration of the licence makes it clear that, every licencee who drive light motor vehicle is not automatically authorised to drive the transport vehicle unless he is so authorised in law.
15. Hence, as far as point No.1 is concerned, merely because there is a licence to drive light motor vehicle, it does not authorise a person to drive light motor transport vehicle. The transport vehicle requires further authorisation as contemplated under Section 3 of the Act".
12. In the instant case as seen from the licence Exhibit P-11 and R-2 it has been issued subsequent to 28.03.2001 i.e., amendment to Central Motor Vehicle Rules, 1988 in which Form No.6 has been brought into : 19 : effect from 28.03.2001 and since the licence in question has been issued subsequent to the said date i.e., on 22.09.2001 the necessity of incorporating the endorsement was mandatory and as such the appellant insurance company in the instant case was fully justified in contending that it would not indemnify the claimant or the owner. As such, I am of the considered view that the Judgment in Prakash case referred to supra would apply in all force to the facts on hand rather than the Judgment in the case of Sri.Syed Ibrahim and others relied upon by learned counsel appearing for first respondent-claimant.
In the result and for the reasons aforesaid following order is passed:
ORDER
1. Appeal is hereby allowed.
2. Judgment and award passed by the Tribunal, MACT Gangavathi in MVC 103/2005 dated 19.12.2006 is : 20 : modified to the extent of reducing the compensation by way of re-computation and awarding a total compensation of `76,000/- (Rupees Seventy Six Thousand Only) which will carry interest @ 6% p.a. from the date of petition till date of payment or deposit whichever is earlier.
3. In so far as liability fixed on the appellant- insurance company is concerned same is hereby set aside and claimant would be entitled to recover the compensation from the owner of the offending vehicle (lorry bearing No.KA-37/6066) namely third respondent herein.
4. No costs.
Registry to draw the award accordingly. Amount in deposit is ordered to be paid to the appellant-insurance company on proper identification.
: 21 :Appeal having been disposed of on merits I.A.I/2008 does not survive for consideration. It stands rejected.
SD/-
JUDGE SBN