Karnataka High Court
United India Insurance Co Ltd vs Honnappa @ Honnanaika on 28 June, 2021
Equivalent citations: AIRONLINE 2021 KAR 2686
Author: H.P.Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2021
R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.6813/2016 (MV)
BETWEEN:
1. UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE, P.B.NO.108,
VENKATESHWARA BUILDING,
B.M.ROAD, HASSAN,
NOW REPRESENTED BY
REGIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
REGIONAL OFFICE, 5TH & 6TH FLOORS,
KRISHI BHAVAN, NRUPATHUNGA ROAD,
BENGALURU-560 001.
... APPELLANT
(BY SRI A.N.KRISHNA SWAMY, ADVOCATE)
AND:
1. HONNAPPA @ HONNANAIKA
S/O BASAVANAIKA,
NOW AGED ABOUT 38 YEARS,
R/O SINGATAGERE PALYA,
JAVAGAL HOBLI,
ARSIKERE TALUK-573 103
2. PRUTHVI NARAYANAN
AGE: MAJOR,
R/O GANGADHARESHWARA NILAYA,
B.M.ROAD, HASSAN-573 201.
... RESPONDENTS
(BY SRI S.V.PRAKASH, ADVOCATE FOR R2;
SMT.D.K.KAMALA, ADVOCATE FOR R1)
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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 09.08.2016
PASSED IN MVC NO.1318/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, MACT, ARASIKERE, AWARDING
COMPENSATION OF Rs.10,89,400/- WITH INTEREST @ 9% P.A.
FROM THE DATE OF PETITION TILL DEPOSIT.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.06.2021 THROUGH 'VIDEO CONFERENCE'
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and award passed in MVC No.1318/2014 dated 09.08.2016 on the file of Senior Civil Judge and JMFC, Arsikere by the Insurance Company questioning the liability.
2. The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.
3. The factual matrix of the case is that the claim petition was filed by the claimant stating that on 17.02.2014 while he was proceeding in his motorcycle near Rangapura Government School, the driver of Canter lorry bearing registration No.KA-13-6866 came from opposite direction in a rash and negligent manner and dashed against the motorcycle, which resulted in grievous injuries to the claimant. The 3 Insurance Company took the defence before the Tribunal that the vehicle involved in the accident is a transport vehicle and the driver had not possessed any valid and effective driving licence to drive a transport vehicle as on the date of the accident. Insurance Company, in order to prove and substantiate its stand, examined the Senior Assistant as RW2 and RTO as RW3. RW3 gave evidence before the Tribunal and produced driving licence extract of the driver. The said driving licence extract was produced by him and marked as Ex.R5. RW3 specifically asserted in his examination-in-chief that the driver was not in possession of the requisite driving licence to drive the transport vehicle. He further stated that no application is filed within 30 days from the date of expiry of the transport driving licence earlier held by him and the lorry which caused the accident is a heavy goods vehicle. According to the said witness, the driver was not entitled to drive the said transport vehicle. The Tribunal relying upon the decision rendered in the case of NATIONAL INSURANCE COMPANY LIMITED V. ANNAPPA IRAPPA NESARIA AND OTHERS, reported in 2008 ACJ 721 SC proceeded to saddle the liability on the Insurance Company. 4 Being aggrieved by the said award, the Insurance Company is before this Court by filing the appeal.
4. Learned counsel appearing for the appellant would vehemently contend that Tribunal committed an error in coming to the conclusion that the transport vehicle could be driven by a person holding the LMV driving licence. The decision relied upon by the Tribunal in respect of facts emanating from the said case and the definition given to a light motor vehicle under the Motor Vehicles Act (for short 'the Act') gives a clear indication that the vehicle could be a transport vehicle or a non-transport vehicle to fall within the category of LMV. The gross-weight of the vehicle has to be looked into while considering whether the vehicle is a light motor vehicle or not. Likewise, while determining whether the vehicle is a light motor vehicle or not, in respect of non-transport vehicle, the unladen weight of the vehicle has to be considered viz., motorcar, road-roller or tractor. The Tribunal was required to have noticed that necessarily the vehicle could be a transport vehicle or a non- transport vehicle depending upon the purpose for which it is registered as per Section 41(4) of the MV Act. The notification issued by the Central Government to classify the transport 5 vehicle and non-transport vehicle could clarify the position. Likewise, the definition of non-transport vehicle as stated under Rule 2(h) of the Central Motor Vehicle Rules would assist to arrive at a conclusion whether the vehicle is a transport vehicle or a non-transport vehicle. The Tribunal was required to have noticed the class, type and category of the vehicle and also should have looked into the decision rendered by the Apex Court subsequently to clarify the position that the driver while driving the transport vehicle is expected to hold persisting transport endorsement in his driving licence. The Tribunal has failed to take note of all these facts while determining the valid and effective driving licence of the driver and committed an error in fastening the liability on the Insurance Company.
5. Learned counsel also in his arguments would vehemently contend that it is not in dispute that the vehicle involved in the accident is a transport vehicle and Ex.R5-the driving licence is clear that he was not having the driving licence to drive the transport vehicle. The vehicle involved in the accident is not a light motor vehicle and hence, the principle laid down in MUKUND DEWANGAN v. ORIENTAL INSURANCE 6 CO.LTD., reported in (2017) 14 SCC 663 is not applicable to the case on hand. Learned counsel brought to the notice of this Court Ex.R6 with regard to laden and unladen weight. If both laden and unladen weight taken together, it would come to 10,700 kgs. The Court also has to take note of the gross- weight of the vehicle. Ex.R7 - goods carriage permit is also clear regarding gross-weight of the vehicle. Under the circumstances, the Tribunal ought not to have fastened the liability on the Insurance Company.
6. Learned counsel also brought to the notice of this Court the definition under Sections 2(14), 2(16), 2(21) and 2(48) of the MV Act with regard to the goods carriage, light motor vehicle and unladen weight of the vehicle and vehemently contend that if unladen weight is below 7500 kgs, then only the principle laid down in MUKUND DEWANGAN's case is applicable to the case on hand in order to come to the conclusion that the vehicle is a light motor vehicle. If the vehicle is not a light motor vehicle, then the principle laid down in MUKUND DEWANGAN's case would not be applicable.
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7. Per contra, learned counsel for the respondent/owner would vehemently contend that the 'B' extract produced before the Court is very clear that the unladen weight is 6950 kgs, which comes within the measure of 7500 kgs and hence, the principle laid down in MUKUND DEWANGAN's case is aptly applicable to the case on hand. However, he fairly contends that the interest awarded by the Tribunal at the rate of 9% per annum is on little higher side and the same requires to be reconsidered.
8. Learned counsel appearing for respondent No.1 i.e., claimant would vehemently contend that the Court has to consider the unladen weight while coming to the conclusion with regard to a light motor vehicle. The vehicle involved in the accident is light goods vehicle whereas the heavy goods vehicle is above the weight of 12000 kgs. Section 2(16) of the MV Act defines with regard to the heavy goods vehicle. Hence, the very contention of the Insurance Company that the Insurance Company is not liable to pay the compensation cannot be accepted.
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9. In reply to the arguments of respondent Nos.1 and 2, learned counsel appearing for the Insurance Company would vehemently contend that the Court has to take note of the gross-weight of the vehicle i.e., laden and unladen weight, which measures more than 7500 kgs. Hence, the contention of learned counsel for respondent Nos.1 and 2, cannot be accepted.
10. Learned counsel appearing for the claimant in reply to the arguments of the learned counsel for the Insurance Company would submit that the driver was holding the driving licence to drive LMV, HtV and PSV i.e., public service vehicle. Under the circumstances, the Company is liable to pay the compensation.
11. Having heard the learned counsel for the respective parties and also on perusal of both oral and documentary evidence available on record, the points that would arise for the consideration of this Court are:-
1. Whether the Tribunal has committed an error in fastening the liability on the Insurance Company in coming to the conclusion that LGV is a light motor vehicle and whether it requires interference of this Court ?9
2. Whether the Tribunal has committed an error in awarding an interest at the rate of 9% instead of 6% per annum ?
3. What order ?
Point No.1 :-
12. Having heard the arguments of the learned counsel appearing for the Insurance Company, owner and claimants, this Court has to examine both the oral and documentary evidence available on record. Learned counsel appearing for the appellant/Insurance Company in his arguments brought to the notice of this Court Ex.R2 - the extract of the driving licence dated 03.06.2015. The accident had taken place on 17.02.2014 and the driver of the vehicle was holding the driving licence validity (transport) till 27.07.2011 and the driving licence validity (non transport) till 25.9.2016. On perusal of Ex.R2, it is not in dispute that he was having the driving licence in respect of LMV from 26.9.1996 and transport from 29.1.1999 and PSVBUS from 29.01.1999 and licence was renewed periodically. The main contention of the Insurance Company is that as on the date of the accident, he was not holding the transport driving licence to drive the vehicle in question.
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13. Learned counsel also brought to the notice of this Court Ex.R5 - the history sheet of drivers discloses that the the LMV driving licence was issued on 26.9.1996 and its validity is from 26.9.1996 to 25.9.2016. Hence, it is clear that the driver was holding the LMV driving licence as on the date of the accident and he was authorized to drive the HtV vehicle with effect from 29.1.1999. He was also holding the PSV Badge with effect from 29.1.1999 and the transport DL was renewed from 29.1.2002 to 28.1.2005 and then from 28.7.2008 to 27.7.2011 and so also renewed from 22.7.2015 to 21.7.2018. Hence, the driver was not holding the driving licence of transport vehicle at the time of the accident.
14. Learned counsel also brought to the notice of this Court the 'B' Register Extract at Ex.R6 in respect of the vehicle. On perusal of Ex.R6, it is clear that the vehicle involved in the accident is LGV i.e., light goods vehicle and the unladen weight of the vehicle is 3750 kgs and registered laden weight is 6950 kgs. Learned counsel appearing for the appellant would vehemently contend that if both the unladen and registered laden weight is taken together, the vehicle would measure 11 10,700 kgs and hence, the Company is not liable to pay the compensation and the principle laid down in MUKUND DEWANGAN's case is not applicable to the case on hand to fasten the liability on the Insurance Company.
15. Learned counsel, in support of his arguments, brought to the notice of this Court Section 2(15) of the MV Act, wherein it defines the "gross vehicle weight", which means in respect of any vehicle the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle. Learned counsel would vehemently contend that even if the gross vehicle weight is taken, the MUKUND DEWANGAN's case is not applicable.
16. Learned counsel also brought to the notice of this Court Section 2(21) of the MV Act, wherein it defines the "light goods 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 7500 kilograms. Learned counsel appearing for the claimant would refer to Section 2(16) of the MV Act, wherein it defines the "heavy goods vehicle", which means any goods 12 carriage the gross vehicle weight of which, or a tractor or a road- roller the unladen weight of either of which, exceeds 12,000 kilograms. Learned counsel would also vehemently contend that the vehicle in question measures less than 12,000 kilograms. Learned counsel also brought to the notice of this Court Section 2(48) of the MV Act, wherein it defines the "unladen weight", which means the weight of a vehicle or trailer including all equipment ordinarily used with the vehicle or trailer when working, but excluding the weight of a driver or attendant; and where alternative parts or bodies are used the unladen weight of the vehicle means the weight of the vehicle with the heaviest such alternative part or body.
17. Having considered the definitions under Sections 2(15), 2(16), 2(21) and 2(48) of the MV Act, no where in the Act, it is envisaged that the Court has to consider both the unladen weight and registered laden weight while determining the liability, as contended by the Insurance Company. No doubt, in Ex.R6, it discloses the unladen weight of the vehicle as 3750 kgs and registered laden weight as 6950 kgs. If the unladen weight and registered laden weight are taken individually, the 13 vehicle would measure less than 7500 kgs. If both the measures are taken together, as contended by the Insurance Company, the weight of the vehicle would exceed more than 7500 kgs. As this Court has held supra by defining Section 2(16) of the MV Act, the "gross vehicle weight" means the total weight of the vehicle. Hence, the very contention of the learned counsel for the Insurance Company that both measures are to be taken into consideration for assessing the nature of the vehicle, cannot be accepted and the Court has to take note of the unladen weight as defined under Section 2(48) of the MV Act.
18. The Apex Court in MUKUND DEWANGAN's case discussed all the provisions of Sections 2(21), 2(15) and 2(48) (as amended by Amendment Act 54 of 1994) and also in respect of the licence to drive a light motor vehicle, when the light motor vehicle includes the licence to drive the transport vehicle and so also discussed as to what is a light motor vehicle and whether it includes the transport vehicle. Insofar as the "light motor vehicle", it is held that it would include the transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48) of the MV Act. A transport vehicle and 14 omnibus, the gross vehicle weight of either of which does not exceed 7500 kgs would be a light motor vehicle and also motor car or tractor or road-roller, "unladen weight" of which does not exceed 7500 kgs. It is further held that the holder of a driving licence to drive class of "light motor vehicle" as provided in Section 10(2)(d) of the MV Act is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kgs or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kgs. The Apex Court also in detail discussed Section 10(2)(e) (as amended by Amendment Act 54 of 1994) of the MV Act regarding insertion of expression "transport vehicle". It is further held that it does not exclude the transport vehicle from the purview of Sections 10(2)(d) and 2(41) of the MV Act i.e., light motor vehicle.
19. The Apex Court further held that reading Section 10 read with Sections 2(21), 2(15) and 2(48) (as amended by the Amendment Act 54 of 1994) of the MV Act, 1988, the Court has to interpret a provision so as to give it full effect, it intends, and motivated philosophy of the relevant provision cannot be ignored or overlooked. It is further held that the object of the 15 Amendment Act, itself made it clear that the amendment was to simplify the procedures, faced with the situation of increase in different kinds of vehicles, and it nowhere intended to invalidate licences held before the amendment had been made.
20. Having considered the principles laid down in the decision referred supra and also taking note of the factual aspects of the case on hand and the documents, particularly, Ex.R6, it is clear that the definition of a "light motor vehicle"
makes it clear that for a transport vehicle or omnibus, the gross vehicle weight of either of which or motor car or tractor or road- roller, the unladen weight of any of which, does not exceed 7500 kgs. The "gross vehicle weight" has been defined under Section 2(15) of the MV Act. In the case on hand, the vehicle involved in the accident is also a "light goods vehicle" and the driver was holding the driving licence to drive the "light motor vehicle" but not holding the transport endorsement, cannot be a ground to exonerate the liability of the Insurance Company.
21. The Apex Court also in SANT LAL v. RAJESH AND OTHERS reported in (2017) 8 SCC 590 followed the decision of MUKUND DEWANGAN's case. The driver having licence to drive 16 light motor vehicle can drive such a transport vehicle of LMV class and there is no necessity to obtain separate endorsement, since the tractor attached with the trolley was transport vehicle of the category of light motor vehicle. Hence, there was no breach of the conditions of the policy.
22. In view of the discussion made above and also keeping in view of the principles laid down in MUKUND DEWANGAN's case, the very contention of the learned counsel appearing for the Insurance Company cannot be accepted. The very contention that both unladen weight and registered laden weight has to be taken together in measuring the gross weight of the vehicle cannot be accepted. The definition under Sections 2(15), 2(16), 2(21) and 2(48) of the MV Act has been discussed in the decision of MUKUND DEWANGAN's case. Hence, I am of the opinion that the judgment of MUKUND DEWANGAN's case is aptly applicable to the case on hand.
23. This Court also would like to refer to the decision of the Apex Court in KULWANT SINGH AND OTHERS V. ORIENTAL INSURANCE COMPANY LIMITED reported in (2015) 1 SCC (Cri) 860, wherein with regard to the validity of 17 the driving licence is concerned held that driving light goods vehicle on a valid licence of light motor vehicle, whether same is breach of conditions of insurance policy, the High Court granted recovery rights to respondent Insurance Company holding breach of policy conditions observing that a light motor vehicle cannot be equated with light goods vehicle. The Apex Court reiterated, a driver having valid licence to drive a light motor vehicle was authorized at the relevant time to drive a light goods vehicle as well. Further, the Insurance Company cannot disown its liability merely because there was no endorsement to drive a light commercial/goods vehicle in otherwise valid driving licence to drive light motor vehicle. The Apex Court, in the said case, taking note of the fact that the said vehicle involved in the accident was light goods vehicle as in the case on hand also held that there was no breach of any condition of the insurance policy. In view of the principles laid down in the judgments referred supra, the contention of the learned counsel appearing for the Insurance Company that the Insurance Company is not liable to pay the compensation cannot be accepted. Accordingly, I answer point No.1 in the negative.
18Point No.2:-
24. Insofar as the interest is concerned, the Tribunal awarded interest at the rate of 9% per annum. The judgment and award in question has been delivered in the year 2016. In view of the interest of the Nationalized Bank, the interest awarded by the Tribunal appears to be on higher side.
25. Learned counsel appearing for the owner also submits that the Tribunal has awarded an exorbitant interest and the same requires an interference of this Court.
26. Learned counsel appearing for the claimant would submit that taking note of the fact that the accident is of the year 2014, the Tribunal has rightly awarded the interest at the rate of 9% per annum.
27. Having considered the submissions of the respective counsel, and as I have already pointed out that the interest of the Nationalized Banks has been reduced, this Court is of the view that the rate of interest awarded by the Tribunal is to be reduced to 6% per annum, as contended by the Insurance Company. Accordingly, the rate of interest imposed by the 19 Tribunal at 9% is reduced to 6% per annum from the date of petition till realization. Hence, I answer point No.2 in the affirmative.
28. In view of the discussion made above, I pass the following:-
ORDER The appeal is allowed in part modifying the Judgment and Award by reducing the rate of interest awarded by the Tribunal from 9% to 6% per annum from the date of petition till realization and rest of the Award is confirmed.
Sd/-
JUDGE PYR