Karnataka High Court
Lachuram S/O Chotudas vs Icici Lombard Motor Insurance Co Ltd on 12 June, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA,
GULBARGA BENCH
DATED THIS THE 12TH DAY OF JUNE, 2014
BEFORE
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
MISCELLANEOUS FIRST APPEAL NO.30213/2008 (MV)
BETWEEN:
Lachuram S/o Chotudas
Age: 41 years, Occupation: Marbel Stone Fitting
R/o Panchamukhi Colony,
Jawaharnagar,
Raichur.
... APPELLANTS
(Shri Basavaraj. R.Math, Advocate)
AND:
1. ICICI Lombard Motor Insurance Company Limited
Through its Branch Manager,
Sindhanur
District: Raichur.
2. T. Raghavendra
S/o T. Timmappa
Age: Major,
Occupation: Owner of Tempo AP-22/v-7375
R/o 11-122/1, chittala mallapur
Gattu mandalam, Taluka: gattu,
District: mehaboob nagar (A.p.)
2
... RESPONDENTS
(Shri C.S. Kalburgi, Advocate, respondent-1
Notice to respondent-2 is held sufficient
Vide order dated. 09.12.2010)
This Miscellaneous First Appeal is filed under Section
173 (1) of Motor Vehicles Act, 1988 against the Judgement and
Award dated 24.05.2008 passed in MVC No. 504/2007 on the
file of the Motor Accident Claims Tribunal and Fast Track
Court-I, Raichur, in the interest of justice.
This appeal coming on for hearing this day, the Court
delivered the following:
JUDGMENT
Heard the learned Counsel for the appellant and the respondent no.1.
2. The appellant was one of the claimants before the Motor Accidents Claims Tribunal (MACT). It was the case of the claimant that on 19.3.2007, when the claimant was riding his motor cycle with a pillion rider, who was the other claimant before the MACT and travelling from Raichur to Alampadu and when they neared the land of one Narsangowda, a goods tempo coming from opposite direction, driven in a rash and negligent manner, had crashed into the motor cycle of the claimants 3 resulting in both of them being thrown off the vehicle and suffering injuries. They were hosptialised and they had to be taken from a hospital at Raichur to a hospital at Hyderabad. The claimant was an inpatient for a period of eight days and had incurred a large expenditure towards medical treatment and other follow up. He was aged about 41 at the time of the accident and was a Stone Fitter and was earning more than Rs.6,000/- per month and therefore, laid a claim for compensation before the MACT.
3. The matter was contested by the insurance company denying that there was any negligence on the part of the tempo and contending that the accident occurred solely on account of the negligence of the claimant himself and the gravity of the injuries sustained or the expenses said to have been incurred were all disputed, including the age, avocation and his earnings and that the liability of the insurer would arise only if there was no violation of the terms of the policy. In the case on hand, it was seen that the goods vehicle which was insured by the 4 respondent - insurer was a goods carrying three wheeler and therefore was a transport vehicle and the driver was holding a licence to drive a Light Motor Vehicle and was therefore not authorised to drive a transport vehicle unless the licence was duly endorsed in that regard and in the absence of a valid licence held by the driver, the indemnity offered by the insurer cannot be invoked and therefore sought to negate the liability. The said contention has been upheld by the Tribunal and though compensation has been awarded in a sum of Rs.1,44,112/- under the several heads, the liability has been fastened on the owner of the vehicle. It is that which is sought to be primarily questioned while also seeking enhancement of compensation.
The learned Counsel for the appellant would seek to draw a distinction between a three wheeler goods vehicle, which is used by the owner himself for his personal use and a three wheeler goods vehicle, which is offered to the public at large on hire. It contended that insofar as the vehicle concerned was a 5 three wheeler auto rickshaw meant for the personal use of the owner and it is so endorsed in the Registration Certificate, which is sought to be produced as additional evidence along with an application before this court. The learned Counsel would further draw attention to a Notification issued under Section 41(4) of the Motor Vehicles Act, 1988 (Hereinafter referred to as 'the MV Act', for brevity), classifying transport and non-transport vehicles and it is specifically pointed out that under the classification of 'transport vehicle' at Serial No.(v), it is mentioned as 'three wheeled vehicle for transport of passenger/goods' whereas in the non-transport vehicle category at Sl.No.(iv), it is mentioned as 'three wheeled vehicles for personal use'. Therefore, the law makers are fully aware of there being two categories of three wheeled vehicles and both the categories cannot be considered as transport vehicles. When that is the position, the insistence that the driver of a three-wheeled vehicle for personal use should also possess a licence with an endorsement to drive a transport vehicle may 6 not be relevant, as it would be necessary only in case the vehicle so registered being a transport vehicle. This distinguishing feature has not been taken into account by the Tribunal, especially in the light of the fact that the registration certificate in respect of the vehicle was not available for the Tribunal's perusal.
4. The learned Counsel places reliance on a decision of a learned Single Judge of this court in Bajaj Allianz General Insurance Company Limited vs. Devappa, (2013) Kant.MAC 420 (Kant.) wherein the Insurance company had taken a similar contention to the effect that the driver of an auto rickshaw possessed a driving licence to drive a Light Motor Vehicle and therefore was not authorised to drive an auto rickshaw which was classified as a transport vehicle. With regard to the same, the said decision laid down as follows:
"This ground must necessarily fail as there is no endorsement in the licence issued to the effect that the driver shall drive only a non-transport vehicle. We have to go by the definition in sub-7
section (21) of Section 2 of the Motor Vehicles Act which defines 'light motor vehicle' as under:
'Light motor vehicle' 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.' This would show that basically a light motor vehicle is a transport vehicle and once the RTO grants licence to drive LMV without any endorsement, it is deemed to be licence to drive a LMV and other types of vehicles like Auto rickshaw coming within that definition. In this view, the ground urged by the insurance company fails and consequently the appeals filed by it, i.e., M.F.A. Nos. 32033/2009 and 32035/2009 are dismissed."
Therefore, it is pointed out that in the said decision, the vehicle involved was indeed a transport vehicle and yet this court has held that there is no illegality in the driver possessing a licence to drive a Light Motor Vehicle, also driving a transport auto rickshaw. When that is the position, the present 8 appellant stand on a better footing when there is no indication whether the vehicle concerned was a transport vehicle. It is only shown as 'Goods Carriage-LMV' in the Certificate of Registration. Hence, it cannot be contended that there was a breach of the policy conditions, which absolved the insurance company of its liability and therefore contends that the finding of the Tribunal in so far as absolving the Insurance Company of its liability be set aside and also canvasses a case for enhancement of compensation.
5. While the learned Counsel for the respondent would firstly point out that a 'goods carriage' is defined under sub- section 14 of Section 2 of the MV Act as any motor vehicle constructed or adapted for use solely for the carriage of goods. In the instant case on hand, there is no dispute that the vehicle involved was a goods carriage vehicle and secondly, the 'transport vehicle' as defined under sub-section 47 of Section 2 includes a goods carriage vehicle. Therefore, the contention that it is a goods carriage vehicle meant for the personal use of 9 the owner, by itself, would not render the need for drivers to carry a licence with an endorsement that he was authorised to drive a transport vehicle and that the driver need not possess a licence for driving a transport vehicle, is not tenable. Therefore, the law does not make any distinction between a goods carriage vehicle either for personal use or for the use of the public. The argument that there can be a three wheeled transport vehicle for public use and a three wheeled transport vehicle for private use and the latter being treated as a non- transport vehicle, when it is for personal use, is a distinction that is pressed into service without any basis. If it is a goods carriage vehicle, it automatically would be construed as a transport vehicle and a driver, possessing an endorsement to drive a transport vehicle, would be licensed to drive. In this regard, he would further submit that prior to the amendment in the year 2001, under Section 10, the form of driving licence contained different classes of vehicle, which the holder of a licence would be enabled to drive and significantly, the 10 'transport vehicle' did not find a place and it is only by an amendment dated 14.11.1994 that such class of vehicles has been specifically mentioned. From the date of such incorporation every driver who is a driver of a transport vehicle would have to hold a licence duly endorsed to drive a transport vehicle. Admittedly, the driver in the present case did not hold a licence to drive a transport vehicle and hence to claim that it was the vehicle involved for personal use and therefore should be construed as a non-transport vehicle is not tenable. Insofar as the claim for enhancement is concerned, the learned Counsel would submit that the Tribunal has been extremely generous in granting compensation under the several heads and in any event, it is enforceable against the owner of the vehicle and therefore, would submit that the appeal be dismissed.
In so far as the quantum of compensation is concerned, the learned counsel for the appellant would point out that the appellant was a stone fitter, which is a highly skilled labour and 11 the Tribunal having taken only Rs.3,000/- as the income is on the lower side and having regard to the period of the accident, the minimum that could have been taken of even a menial labourer would be nothing less than between Rs.4,000/- to Rs.4,500/-, which has been generally awarded during that period. Further, it is pointed out that the appellant had suffered a fracture of the femur of the left leg and therefore is burdened with a disability that shall plague in through his life and hence the Tribunal ought to have awarded a reasonable amount of compensation towards loss of amenities, which the Tribunal has ignored and therefore seeks enhancement of compensation under the several heads apart from the above.
6. In the light of the above contentions, the Registration Certificate, which is produced along with an application seeking to adduce additional evidence, is accepted and the application is allowed. The document is taken on record as it is not a disputed document and which is relevant to consider the case put forward by the appellant. The class of vehicle as 12 indicated is a goods carriage Light Motor Vehicle. There is no indication as to whether it is for personal use or whether it is classified as a non-transport vehicle. However, the learned Counsel for the appellant has drawn attention to the notification aforesaid dated 5.11.2004 specifying the types of motor vehicles. The claim of the appellant is that the vehicle in question was a three wheeler vehicle designed for goods carriage, but for personal use and could possibly be grouped under the non-transport vehicle. However, it is also to be noticed that in so far as the classification under the transport vehicles is concerned, there is reference to a three wheeled vehicle for transport of passenger or goods. There is no such sub-classification under Column No.2 namely, non-transport vehicles and it merely mentions that a three-wheeled vehicle for personal use. There is a possibility of a three-wheeled vehicle designed to carry goods also being used for personal use. This cannot be ruled out and in the absence of a certificate of registration, the interpretation of the classification is thrown 13 wide open. Hence, it cannot be said that the registration certificate was in respect of a transport vehicle and therefore, the decision of this court in Devappa, supra, which has taken an extreme view that even if the vehicle was a transport vehicle and the driver held only a licence in respect of a Light Motor Vehicle, there was no irregularity or illegality, would certainly aid the appellant, who stands on a better footing in claiming that there is no indication and that the vehicle in question was a transport vehicle. Therefore, it is only by reference to the definition of the goods carriage and transport vehicle that the learned Counsel for the respondent seeks to contend that there can be no doubt as to a three-wheeled goods carriage vehicle being a transport vehicle and the absence of any such indication in the Certificate of Registration is immaterial cannot be readily accepted. The requirement of such endorsement is necessary when in respect of a licence, as pointed out by the learned Counsel for the respondent himself, requires a specific endorsement for driving a transport vehicle. The registration 14 certificate of a transport vehicle should correspondingly have an endorsement that it is a transport vehicle and therefore to contend that the moment a vehicle is designed for carrying goods, it automatically becomes a transport vehicle and it should be construed as one is not consistent with the table that is referred to and the notification issued dated 5.11.2004, wherein there is a possibility of a three-wheeled vehicle designed for carrying goods also being used for personal use and which is considered as a non-transport vehicle and especially in such circumstance, it becomes all the more necessary for the authorities to endorse in the certificate of registration that though it is a three-wheeled vehicle meant for carrying goods endorsed in the Certificate of Registration that it is a transport vehicle. In the absence of the same, the benefit of doubt would go in favour of the appellant.
Accordingly, the finding of the Tribunal that the driver possessed only a licence to drive a Light Motor Vehicle and hence could not drive a goods carriage vehicle, cannot be 15 accepted. In any case, the Tribunal did not have the benefit of a copy of the Certificate of Registration of the vehicle which is only produced before this court. Therefore, the finding of the Tribunal to that extent is set aside and the liability fastened is made joint and several against the insurance company as well.
Insofar as the claim for enhancement is concerned, as rightly pointed out by the learned counsel for the appellant, in the absence of any proof of income, of even a menial labourer during the period the accident had taken place, the notional income being taken as Rs.4,000/- to Rs.4,500/- is tenable and the income shall be at Rs.4,000/- for the purpose of computing the loss of earning capacity and if Rs.4,000/- is adopted as the income, and applying the multiplier '14', though the Tribunal has adopted the multiplier '15', the appellant is entitled to additional compensation of Rs.26,400/-. Insofar as the head of compensation namely, loss of amenities, the Tribunal has not considered the same at all and as rightly pointed out by the learned Counsel for the appellant, having regard to the nature of 16 avocation, the fracture and disability he has suffered would certainly be for life and the appellant would be entitled to some nominal compensation. Therefore, the appellant is held entitled to Rs.15,000/- as loss of amenities. The appellant is thus entitled to additional compensation of Rs.41,400/- which shall carry interest at 6% per annum from the date of claim petition till the date of payment.
Sd/-
JUDGE nv