IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.7190 OF 2015 (MV) BETWEEN SMT. ASHA SHENOY, WIFE OF BLAKRISHNA SHENOY, AGED ABOUT 49 YEARS, RESIDING AT DWARAKA, ANANTHANAGAR, 2ND CROSS, MANIPAL, UDUPI TALUK-576 104.
... APPELLANT (BY MISS. ANNU BHARADWAJ FOR SRI.HARIKRISHNA S. HOLLA, ADVOCATES) AND 1. MR. ANGARA, AGED ABOUT 57 YEARS, SON OF KAMAPPA, RESIDING AT KARADIKHAN ESTATE, SANGAMESHWARA POST, CHIKAMAGALUR DIST.
2. THE NATIONAL INSURANCE COMPANY LTD., REP. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, I FLOOR, SHANKAR BUILDING MOSQUE ROAD, PB NO.97, UDUPI.
... RESPONDENTS (BY SRI.C.M. POONACHA, ADV. FOR LEXPLEXUS ADVOCATES FOR R2; SRI. SRIKANTH N.V. FOR SRI. B.S. SACHIN, ADVOCATES FOR R1) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.05.2015 PASSED IN MVC NO.832/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & ADDITIONAL MACT, UDUPI, AN AWARDING COMPENSATION OF RS.43,000/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL ACTUAL DEPOSIT.
THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, the same is taken up for final disposal with the consent of learned counsel on both sides.
I have heard the learned counsel appearing on both sides.
This appeal has been preferred challenging the judgment and award dated 15.05.2015 passed in MVC No.834/2013 on the file of the Addl. MACT, Prl. Senior Civil Judge, Udupi, wherein the Tribunal has awarded a total compensation of Rs.43,000/- to the claimant- respondent No.1 herein and fastened the liability on the appellant-owner of the offending vehicle.
2. The facts of the case are that on 28.03.2013 at about 2.30 p.m., when the claimant was traveling in a bus from Udupi to Koppa side and when the said bus reached near Durga Kalyanamantapa, at that time, one tempo bearing registration No.KA-20-A- 5475 driven by its driver in a rash and negligent manner came from Hiriadka side and dashed against the bus, on account of which, the bus fell into the road side gutter and the inmates of the bus sustained grievous injuries.
3. The case of the claimant – Respondent No.1 is that he suffered fracture of left 6th rib and also sustained injuries on the temporal region of scalp due to the accident and he took treatment as an inpatient from 29.03.2013 to 02.04.2013 at A.V. Baliga Memorial Hospital and he took further treatment at KMC Hospital.
4. The Tribunal after considering the oral and documentary evidence on record, awarded a total compensation of Rs.43,000/- with interest at 8% from the date of petition till the date of deposit.
5. The Tribunal exonerated the Insurer from paying the compensation and saddled the liability on the appellant – owner of the offending tempo on the ground that the driver of the said tempo was not having a valid driving license to drive a transport vehicle since the license he was holding to drive a transport vehicle had expired long back.
6. The learned counsel for the appellant by placing reliance on the decision of the Hon’ble Apex Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited reported in AIR 2017 SC 3668 contended that the driver of the offending vehicle was holding a license to drive an LMV (NT) at the time of accident and no separate endorsement is required to drive a transport vehicle since the gross/ unladen weight of the vehicle in question was below 7500 kgs. Accordingly, he seeks to allow the appeal.
7. Per contra, the learned counsel appearing for Respondent No.2 vehemently contended that the Tribunal has rightly exonerated the liability of the Insurer, since, at the time of accident, the DL possessed by the driver of the offending vehicle to drive a transport vehicle had been expired. Accordingly, he seeks to dismiss the appeal.
8. It is not disputed that the driver of the offending vehicle namely goods tempo was possessing a driving license to drive an LMV (NT) at the time of accident. Ex.R4 i.e., B-Extract of the goods tempo bearing registration No.KA-20-A-5475 goes to show that the unladen weight of the said vehicle was 2,180 kgs, which is obviously less than 7500 kgs.
9. It is also brought to the notice of this Court that in MFA No.6044/2015 filed by the claimants, this Court rejected the said appeal holding that the compensation awarded by the Tribunal was just and appropriate and does not warrant interference.
10. The learned counsel for respondent No.2 would contend that in the said order, it has been observed that the owner of the claimant has failed to prove the fact that the owner of the offending vehicle was possessing a valid and effective driving license.
11. The Hon’ble Apex Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited reported in AIR 2017 SC 3668, at para 46 has held under :
“Para 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 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.
(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.”
12. In view of the decision of the Hon’ble Apex Court in Mukund Dewangan’s case as noted supra, the Insurer is liable to pay the compensation. Accordingly, I pass the following :
ORDER The appeal is allowed.
The order passed by the Tribunal exonerating the 2nd respondent to pay the compensation and fastening the liability on the Insurer/Appellant is hereby set aside.
Respondents No.1 and 2 before the Tribunal are held jointly and severally liable to pay the compensation.
Respondent No.2-Insurance Company is directed to deposit the entire amount within four weeks from the date of the receipt of the copy of this judgment.
The appellant shall be entitled to the statutory deposit. Registry is directed to return the same to the appellant.
In view of disposal of the appeal, I.A.No.1/2019 do not survive for consideration and the same is disposed off.
Sd/- JUDGE snc