Karnataka High Court
Altaf S/O. Allabaksha Killedar vs Ashok S/O. Gangappa Kolur on 17 November, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
M.F.A.NO.102434/2015 (MV)
BETWEEN:
ALTAF S/O. ALLABAKSHA KILLEDAR,
AGE: 28 YEARS,
OCC: EX MASON (GOUNDI WORK),
R/O. KADARAMANDALAGI,
TQ: BYADGI, DIST": HAVERI
... APPELLANT
(BY SRI.HANUMANTHAREDDY SAHUKAR, ADVOCATE)
AND
1. ASHOK S/O. GANGAPPA KOLUR,
AGE: 35 YEARS,
OCC: AGRICULTURE & OWNER OF
THE AUTO RICKSHAW KA-27/ 3989
R/O. KADARAMANDALAGI,
TQ: BYADGI, DIST: HAVERI.
2. THE NEW INDIA ASSURANCE CO., LTD.,
GUPTA BUILDING, ASHOKA CIRCLE,
RANEBENNUR, DIST: HAVERI
3. MARIYAPPA
S/O. BHARAMAPPA KELAGIMATH,
AGE: MAJOR, OCC: BUSINESS
R/O. SUNAKALBIDARI
TQ: RANEBENNUR, DIST: HAVERI.
... RESPONDENTS
(BY SRI. R S ARANI, ADVOCATE FOR R-2;
R-1 AND R-2 DISPENSED WITH NOTICE)
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THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES
ACT, 1988, AGAINST THE JUDGMENT AND AWARD
DATED:06.01.2015, PASSED IN MVC.NO.370/2007 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL
M.A.C.T., ITINERARY COURT, BYADGI PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR BEING SPOKEN TO THIS
DAY, THE COURT, DELIVERED THE FOLLOWING:
Heard the learned counsels on memo filed for being
spoken. Though after hearing the learned counsel for the
parties, the judgment was dictated in the open Court on
10.11.2017 before the judgment was corrected and signed,
the learned counsel for the appellant-claimant filed a memo
for being spoken to and as such, the case is taken up for
further hearing on this day i.e. 17.11.2017. During the
course of arguments, the learned counsel submitted that he
has not brought some material facts to the notice of the
Court and as such, it may be further heard. Accordingly,
now it is heard. On this day the following judgment is
passed.
JUDGMENT
The present appeal is preferred by the appellant- claimant by assailing the judgment and award passed by the 3 Senior Civil Judge and Additional M.A.C.T., Itinerary Court, Byadagi in MVC No. 370/2007 dated 06.01.2015.
2. Heard the learned counsel for the parties. Appeal is admitted. With the consent of the learned counsel for the parties, appeal is taken up for final disposal.
3. Brief facts of the case are that on 31.12.2006 at about 4.30 p.m., the petitioner and his relatives were going in auto bearing registration No. KA-27/3989 from Ranebennur to Kadaramandalagi. At that time, the driver of the said auto drove the same rashly and negligently and when they came near the garden lands, the driver of the auto tried to overtake another auto bearing registration No.KA- 27/9040 and caused the accident. Due to the said impact, the appellant-claimant sustained injuries and immediately he was shifted to S.M. Mudri hospital, Ranebennur and there he took treatment for two months. For having sustained injuries, he filed a claim petition claiming compensation.
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4. In response to the notice, respondent No.1-the owner of the offending vehicle entered his appearance and filed objections by denying the contents of the petition. He further contended that the said auto was insured with respondent No.2 and as such, respondent No.2 is liable to pay the compensation and hence, he prayed for dismissal of the petition.
5. Respondent No.2 appeared before the tribunal and filed his objections denying the contents of the claim petition. He further contended that there is a delay of 3 days in lodging the complaint and the driver of the auto did not possess valid and effective driving licence as on the date of the accident. He further contended that the driver of the auto was not having fitness certificate to drive the said auto and prayed for dismissal of the claim petition.
6. On the basis of the above pleadings, the tribunal framed the following:
ISSUES
1. Whether petitioner proves that the accident in question was occurred on 31.12.2006 at 5 about 04.30 PM on Ranebennur -
Kadaramandalagi road, near Savantige flower land, due to rash and negligent driving of the vehicle autoriskshaw bearing No. KA-27/3989 by its driver?
2. Whether the respondent proves their discharge from the liability for the grounds urged in their written statement?
3. Whether the petitioner is entitled to claim compensation as prayed for? If so, from whom and at what rate?
4. What order or award?
7. In order to prove the case of the petitioner, petitioner got examined himself as P.W.1 and got examined the doctor as P.W.2 and got marked documents as per Ex.P- 1 to Ex.P-12. On behalf the respondents, respondents got examined four witnesses as R.W.1 to R.W.4 and got marked documents as per Ex.R-1 to R-4.
8. After hearing the parties to the lis, the tribunal passed the impugned judgment and award. For having dissatisfied with the award of the tribunal, the appellant- claimant is before this Court.
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9. The main grounds urged by the learned counsel for the appellant-claimant are that the doctor who came to be examined before the tribunal has specifically deposed about the disability to the extent of 25%, but the tribunal has taken 6% and awarded compensation on the lower side. He further contended that the compensation awarded under the head of loss of amenities, pain and sufferings and other incidental charges is on the lower side. He further contended that the driver of the offending vehicle was having a valid and effective driving licence to drive the vehicle in question and respondent No.2 is liable to pay the compensation and as such, he prayed to fasten the liability on the respondent No.2 - insurer. In order to substantiate his contentions, he further contended by relying upon the decision of the Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Ltd., and others reported in AIR 2017 SC 3668 that the driver of the offending vehicle was holding licence to drive LMV (non-transport), under such circumstances, he can drive the auto which is considered to be a LMV and as such liability ought to have been fixed on 7 the respondent No.2 - insurance company. After filing the memo, he submitted by bringing to the notice that LMV (non-transport) car was in currency and as such, the insurer is liable to pay the compensation. On these grounds, he prayed for allowing the appeal by enhancing the compensation and to fasten the liability on respondent No.2.
10. Per contra, the learned counsel appearing for respondent No.2- insurer vehemently argued and contended that the compensation awarded by the tribunal by taking into consideration the fracture of ribs is just and proper. He further contended that there are no grounds made out by the appellant-claimant for enhancement of compensation. He further contended that the respondents have got examined two witnesses to substantiate the fact that the driver of the auto was not holding valid and effective driving licence and the records also clearly indicates the fact that the said driving licence was expired on 18.03.2006 and it was not renewed thereafter. Under the said facts and circumstances, the tribunal after considering all the facts came to a right conclusion that the driver of the auto was not holding a valid 8 and effective driving licence to drive the autorikshaw and as such, fixed the liability on respondent No.1-owner of the autorikshaw. On these grounds he prayed for dismissal of the appeal.
11. The accident in question, so also involvement of the vehicle insured with respondent-insurer, is not in dispute.
12. As could be seen from the judgment and award passed by the tribunal, the appellant-claimant sustained the following injuries:-
1. Swelling around left side of chest
2. Tenderness over 7th, 8th and 9th ribs X-ray shows the fracture of 6, 7 and 8th ribs
13. Even the documents which were produced clearly indicates the fact that the appellant-claimant sustained fracture of 6th, 7th and 8th ribs and no other external injury or fracture. Under such circumstances, the tribunal awarded the compensation on the following heads, as mentioned below:-
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1. For pain and suffering Rs. 20,000/-
2. Medical expenses Rs. 800/-
3. Conveyance, diet, extra Rs. 4,000/-
nourishment charges food and attendant charges
4. Loss of income during the laid Rs. 6,000/-
up period
5. Loss of future earning capacity Rs. 58,000/-
on account of permanent
physical disability
6. Loss of amenities and enjoyment Rs. 5,000/-
of life
Total Rs. 94,120/-
14. By taking into consideration the injuries and the evidence of the doctor, P.W.2, it indicates that the disability assessed by the tribunal appears to be on the higher side and the tribunal in the absence of material by taking notional income of Rs.4,500/- per month has assessed the loss of future earnings. It appears to be on the higher side. In the light of the above facts and circumstances, the compensation which was awarded by the tribunal appears to be just and proper, but as the injured was admitted in hospital for a period of 7 days and during that period, he might have suffered with pain and suffering and he might have incurred some expenses for diet, attendant charges, 10 nourishment, other incidental charges, and the compensation awarded by the tribunal appears to be on the lower side. In that light, if an additional amount of Rs.10,000/- as against Rs.20,000/- towards pain and sufferings, Rs.6,000/- as against Rs.4,000/- towards conveyance, diet, extra nourishment charges, food and attendant charges, and Rs. 9,000/- as against Rs.6,000/- towards loss of income during the laid up period is awarded, then it will meet the ends of justice. In the light of the above discussions, the appellant-claimant is entitled to additional compensation of Rs. 25,000/- with interest at the rate of 6% per annum.
15. The second contention of the appellant-claimant is that the driver of the offending vehicle was holding a valid and effective driving licence to drive the vehicle in question and as such, fastening of liability on respondent No.1- owner of the auto is not just and proper. As could be seen from the judgment and other records, it clearly indicates that respondents have produced Ex.R-6 the driving licence of the driver of autorikshaw bearing registration No. KA-27/3989 11 and it shows that the driver was having a licence to drive LMV (non-transport) Car, which was valid from 25.11.2002 to 24.11.2022 and it further clarifies that the driver was also having licence to drive LMV transport PSV Cab vehicle, which was valid from 19.03.2003 to 18.03.2006, which came to be expired as on the date of the accident and was not renewed subsequent to 18.03.2006 within the statutory period of 30 days.
16. In the memo filed by the appellant-claimant for being spoken to, the learned counsel for the appellant- claimant has contended that in view of the decision of the Hon'ble Apex Court in the case of Mukund Dewangan v Oriental Insurance Company Ltd reported in AIR 2017 SC 3668, the driver of the auto rikshaw though not holding driving licence to drive auto rikshaw but he was holding the driving licence to drive the LMV (non-transport) and the said licence was valid from 25.11.2002 to 24.11.2022 and as such, in view of the ratio laid down in the decision of the Hon'ble Apex Court in the above said judgment, the insurer is liable to pay compensation.
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17. When the matter was heard on 10.11.2017, at that time, it was not brought to the notice of this court about the existence of driving licence by the driver to drive LMV (non-trasnport) and the said licence was valid from 25.11.2002 to 24.11.2022. In that light, this court came to the conclusion that there was no licence to drive the offending vehicle and since the offending vehicle was auto rikshaw and as such the liability was fixed on the respondent No.1-owner of the vehicle by the tribunal. Keeping that aspect into consideration, the same was upheld.
18. However, now the learned counsel for the appellant-claimant further argued by drawing my attention to Section 2(21) of the M.V. Act that what is definition of "light motor vehicle" and also by referring to section 2(26) of the M.V.Act that what is "motor car". He also referred to section 15 of the M.V. Act and contended that the driver of the auto rikshaw has not renewed the licence within the stipulated time under the said Act and as such, he was not holding valid and effective driving licence to drive the auto 13 but he was holding licence to drive LMV (non-transport) car and it was in currency as such liability ought to have been fixed on the insurer. He further contended that the vehicle involved in the accident is an auto rikshaw and it will fall within the definition of light motor vehicle, in that view of the matter, the driver was holding driving licence and the decision of the Hon'ble Apex Court has clarified that he can drive any type of light motor vehicle. In that light the liability fixed on the owner of the auto-rikshaw is not justifiable. On these grounds, he prayed for allowing the appeal.
19. I have also heard the learned counsel for the insurer. He has argued and contended that the transport authorities are separately giving licence to auto rikshaw and other type of vehicles. In that view of the matter, under the said facts and circumstances, the said auto comes within the different class of vehicle and as such, the decision of the Hon'ble Apex Court is not applicable to the present facts of the case on hand. He further argued that the said vehicle does not fall within the definition of motor car. In that light also the said licence will not authorize the driver to drive 14 auto riskshaw. He prayed for dismissal of the appeal by holding that the decision of the tribunal is justifiable.
20. The Hon'ble Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Ltd., and others reported in AIR 2017 SC 3668, at para No. 46 has held as under:
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 15 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 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 16 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.
(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 17 of such class without any endorsement to that effect."
21. By closely reading paragraph No.46 of the above cited judgment of the Hon'ble Apex Court it clearly makes out that the driver must 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.
22. When that aspect is taken into consideration and if we read section 10 of the M.V. Act, the said section specify seven classes of vehicles. For the purpose of brevity I quote section 10 of the M.V. Act which reads as under:-
"10. Form and contents of licences to drive . - (1) Every learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.18
(2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of eth following classes, namely : -
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
2[(e) transport vehicle;]
(i) road-roller;
(j) motor vehicle of a specified description."
23. Nowhere in the said section, motor car or cab has been considered to be a separate class. The only class which has been stated in the section is motorcycle without gear, motorcycle with gear, invalid carriage, light motor vehicle, transport vehicle, road roller and motor vehicle of a specified description. It does not say to indicate that auto rikshaw is a separate class. By reading the section 10 of the Act along with decision of the Hon'ble Apex Court, it falls within the definition of light motor vehicle as defined under section 2(21) of the Act because of the reason, the unladen weight of the vehicle is less than 7500 kg. Keeping in view the above said aspect into the matter and by applying the 19 principles laid down by the Hon'ble Apex Court in the decision of Mukund Dewangan (Supra), it indicates that the driver of the offending vehicle was having driving licence to drive auto rikshaw as well as light motor vehicle as per Ex.R- 6 and it was in currency from 25.11.2002 to 24.11.2022. Though he did not get renewed the licence in respect of auto- rikshaw, which was issued separately and was expired on 31.12.2006, but the licence in respect of LMV (non- transport) car was in currency till 24.11.2022. When he was having licence to drive light motor vehicle, then under such circumstances, he can also drive auto rikshaw, which falls within the definition of light motor vehicle. In this behalf, the observation of the tribunal that the driver of the auto rikshaw was not holding any driving licence, the same was expired on 31.12.2006, is not sustainable in law and as such, the same is liable to be set aside.
24. Keeping in view the above said facts and circumstances, the appeal is partly allowed and the judgment and award passed in MVC No. 370/2007 is modified as indicated above. It is further clarified that the 20 fastening of the liability has been re-fixed on the respondent No.2-insurer. The respondent-insurer is directed to deposit the compensation awarded by the tribunal as well as the additional compensation awarded by this court with up to date interest within a period of six weeks from the date of receipt of certified copy of this order.
25. Registry is directed to draw the award accordingly.
Sd/-
JUDGE yan