Karnataka High Court
Paravva @ Parvatevva W/O. ... vs Shambhulingappa S/O. Doddabasappa ... on 28 November, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28TH DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
M.F.A.NO.24093/2013 (MV)
BETWEEN:
1. PARAVVA @ PARVATEVVA
W/O. SHIVAPUTRAPPA KULKARNI
AGE: 43 YEARS,
OCC: ANIMAL HUSBANDARY
& MILK VENDING,
R/O. MALLUR VILLAGE,
TQ: BYADGI, DIST: HAVERI.
... APPELLANT
(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE)
AND
1. SHAMBHULINGAPPA
S/O. DODDABASAPPA KULKARNI,
AGE: 50 YEARS,
OCC: AGRICULTURE & BUSINESS,
OWNER OF THE VEHICLE BEARING
REG. NO. KA 27/A-7355,
R/O. MALUR, TQ: BYADAGI,
DIST: HAVERI
2. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
SUJATHA COMPLEX,
OPP. TO P B ROAD, HUBLI.
... RESPONDENTS
(By SRI. CHANDRASHEKHAR P PATIL, ADV., FOR R1; SRI.
LAXMAN B. MANNODDAR, ADV., FOR R2 )
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THIS MFA IS FILED U/S 173(1) OF MV ACT 1988,
AGAINST THE JUDGMENT AND AWARD DATED:09-07-2013
PASSED IN MVC NO.111/2012 ON THE FILE OF SENIOR CIVIL
JUDGE AND MEMBER, ADDL. M.A.C.T., BYADAGI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal has been preferred by the appellant-claimant assailing the judgment and award passed by the Senior Civil Judge and Additional MACT, Byadagi in MVC No. 111/2012 dated 09.07.2013.
2. Heard. The appeal is admitted and with the consent of the learned counsel for the parties, it is taken up for final disposal.
3. Brief facts of the case are that on 03.09.2011 at 2.15 p.m., petitioner, Smt. Paravva, was watching her cattle by standing on the left side of the road and at that time, an auto-rikshaw bearing registration No.KA-27/A-7355 came rashly and negligently and dashed against her. As a result, she sustained grievous injuries. Immediately, she was taken to government hospital, Byadagi and then she was shifted to 3 S.S. Hospital, Davangere. There she took treatment and got operated for the injuries sustained in the said accident. It is further contended that the petitioner was hale and health and was earning Rs.10,000/- per month by doing animal husbandry and milk vending business. For having sustained injuries and having incurred medical expenses, she filed a claim petition.
4. In pursuance of the notice, respondents appeared before the Tribunal. However the 1st respondent did not file his written statement. Respondent No.2 filed his written statement by denying the contents of the petition it is further contended that the driver of the offending vehicle was not holding valid and effective driving licence and there is breach of policy condition and as such, he is not liable to pay any compensation. On these grounds, he prayed for dismissal of the claim petition.
5. On the basis of the above pleadings, the Tribunal framed the following:-
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ISSUES
1. Whether the petitioner proves that he sustained injuries in the accident occurred on 3-09-2011 as stated in the petition?
2. Whether R2 proves that the driver had not valid and effective D.L. at the time of the accident?
3. Whether the petitioner is entitled for compensation? If so, what is the amount of compensation and from whom?
4. What order or award?
6. In order to prove her case, the petitioner got examined herself as P.W.1 and got examined Dr.U.R. Ullal as P.W.2. and got marked documents as per Ex.P1 to Ex.P15. Respondent No.2 got examined two witnesses as R.W.1 and R.W.2 and got marked documents as per Ex.R1 and R2.
7. After hearing the parties to the lis, the impugned judgment and award came to be passed. Assailing the same, the appellant-claimant is before this Court. 5
8. The accident in question, so also involvement of the offending vehicle, insured with the respondent No.2- insurer is not in disputed.
9. The main grounds urged by the learned counsel appearing for the appellant-claimant are that the compensation awarded by the Tribunal is on the lower side and the same is liable to be enhanced. It is further contended that the liability fastened on the respondent No.-1 owner is not correct and justifiable. He further contended that in view of the decision of the Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Ltd., reported in AIR 2017 SC 3668, the insurance company is liable to pay the compensation. On these grounds he prayed for allowing the appeal.
10. Per contra, the learned counsel appearing for the respondent No.2-insurer has vehemently argued and contended that, though the driver of the offending vehicle was holding licence to drive LMV (non-transport) but he was not authorized to drive transport vehicle and as such, the liability fixed on the respondent No.1 is justifiable. He 6 further contended that the RTO who came to be examined as R.W.1 has categorically deposed that the said driver was not authorized to drive the transport vehicle and as such, the tribunal has fastened the liability on the respondent No.1. He further contended that the compensation awarded is just and proper and there is no question of enhancement of the compensation.
11. As could be seen from the judgment and award, the respondent - insurer has taken up the contention that the driver of the offending vehicle was not holding valid and effective driving licence as on the date of the accident. In order to substantiate the said fact, it got examined R.W.1. R.W.1, in his evidence, has deposed that the driver of the offending vehicle was holding licence to drive LMV (non- transport ) and he cannot drive auto-ikshaw as he was not holding licence to drive auto-rikshaw cab, and as such liability cannot be fixed on the insurer.
12. It is an admitted fact that the driver of the offending vehicle was holding valid and effective driving licence to drive LMV (non-transport) and it was in currency 7 from 10.05.2010 to 09.05.2030 and admittedly the accident is of the year 2011. The Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Ltd., and others, reported in AIR 2017 SC 3668 at para No. 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 section 2(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 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 8 well as for carrying passengers for hire or reward. When a driver is authorised 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 provision 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 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 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 9 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 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.
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(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 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."
13. By going through the ratio laid down in the above decision it makes it clear that if the driver of the offending vehicle is holding licence to drive non-transport vehicle, then he can also drive a passenger vehicle or 11 transport vehicle without there being any endorsement to drive the transport vehicle. In the light of the discussions and the ratio laid down in the decision quoted supra, the driver of the offending vehicle was holding licence to drive LMV (non-transport) and it was in currency. In that light, fastening of the liability on respondent No.1- the owner of the offending vehicle is not sustainable in law and the same is liable to be set aside and the respondent No.2-insurer is liable to pay the compensation.
14. The second contention taken up by the learned counsel appearing for the appellant-claimant is that the compensation awarded is on the lower side. As could be seen from the judgment and award, the claimant sustained injuries to her left knee joint, fracture of humerus bond and hamatorus on the left calf muscles, fracture of mid shaft of left humerus. In order to prove the same, she got produced Ex.P5, the wound certificate and got examined the doctor as P.W.2, who issued the disability certificate as per Ex.P8. In his evidence, he deposed that the appellant-claimant was unable to walk for long time and she complaints of stiffness 12 in the left hip and right shoulder which is leading to difficulty for squatting and sitting. On the basis of the said facts and circumstances, he assessed the permanent disability to the extent of 30% with respect to her right arm region and the Tribunal after taking into consideration and by taking the disability to the extent of 15%, awarded total compensation Rs.1,45,600/- under following heads.
1. For pain and suffering Rs. 30,000/-
2. Medical expenses, Diet, Nourishment Rs. 20,000/-
& Attendant chages
3. Loss of income during the laid-up Rs. 10,000/-
period
4. Loss of future income on account of Rs. 75,600/-
permanent Physical Disability
5. Loss of Amenities and Enjoyment of Rs. 10,000/-
Life Total Rs. 1,45,600/-
15. Though under the normal circumstances the compensation awarded by the Tribunal is justifiable, but when P.W.2 is not a doctor who treated the appellant- claimant and he assessed the disability to the extent of 30% in respect of right arm region, then under such 13 circumstances, the Tribunal ought to have taken the disability to the extent of 1/3rd of it. In that light, the Tribunal has to take the disability to the extent of 10%. However, the tribunal has taken the notional income of Rs.3,000/- per month but the year of the accident is of the year 2011 and during that period, the notional income of Rs.6,000/- is the yardstick which used to be adopted in the settlement of cases before the Lok Adalath. If that were to be taken and compensation is re-assessed, then the appellant- claimant is entitled to an amount of Rs.1,00,800/- (6000 x 12 x 14 x 10% = 1,00,800) towards loss of future income.
16. The compensation which was awarded under the other heads appears to be on the lower side. In that light, the appellant-claimant is entitled to compensation of Rs.40,000/- towards pain and sufferings, Rs.18,000/- towards loss of income during the laid off period, Rs.30,000/- towards loss of amenities and discomfort and enjoyment of life. Insofar as medical expenses is concerned, same is kept intact. In the light of the above discussions, the appellant-claimant is entitled to the total compensation of 14 Rs. 2,08,800/- as against Rs.1,45,600/- awarded by the tribunal.
17. Since the tribunal has already awarded compensation of Rs.1,45,600/-, after deducting the same, the appellant-claimant is entitled to additional compensation of Rs. 63,200/- with interest @ 7% per annum.
18. Accordingly, appeal is allowed and the judgment and award passed in MVC No. 111/2012 dated 09.07.2013 by the Senior Civil Judge and Additional M.A.C.T., Byadagi is modified as indicated above.
19. The respondent No.2- insurer is directed to deposit the compensation awarded by the Tribunal and additional compensation awarded by this Court within a period of six weeks from the date of receipt of the certified copy of this order.
20. Registry is directed to draw the award accordingly.
Sd/-
JUDGE yan