IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.1520 OF 2014 (MV) C/W MFA NO.1519 OF 2014 (MV) IN MFA NO.1520/2014:
BETWEEN BAJAJ ALLAINZ GENERAL INSURANCE COMPANY LTD, GOLDEN HEIGHTS, IV FLOOR, RAJAJINAGAR ENTRANCE, BANGALORE.
REPRESENTED BY ITS ASST. VICE PRESIDENT (LEGAL).
... APPELLANT (BY SMT. H.R. RENUKA, ADVOCATE) AND 1. SHIVANNA, S/O. NANJUNDAPPA, AGED ABOUT 50 YEARS, 2. JAYAMMA, W/O. SHIVANNA, AGED ABOUT 47 YEARS, R/O. NO.163, S.O.S. POST, JAMBUSAVARI DINNE, J.P. NAGAR, 8TH PHASE, BANGALORE-560 076.
3. RAJESH SHARMA, ADULT, NO.12, MFG COMPOUND, OPP. SINDHI HOSPITAL, SAMPANGIRAM NAGAR, BANGALORE-560 027.
... RESPONDENTS (BY SRI. S.R. KHAMROZ KHAN, ADVOCATE FOR R1 & R2 R-3 SERVED) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 02.12.2013 IN M.V.C NO.8918/2007 PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BENGALURU, AWARDING COMPENSATINO FO RS.4,08,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION. IN MFA NO.1519/2014:
BETWEEN BAJAJ ALLAINZ GENERAL INSURANCE COMPANY LTD, GOLDEN HEIGHTS, IV FLOOR, RAJAJINAGAR ENTRANCE, BANGALORE.
REPRESENTED BY ITS ASST. VICE PRESIDENT (LEGAL). (BY SMT. H.R. RENUKA, ADVOCATE) AND 1. SANTOSH, S/O. ASHOK, AGED ABOUT 29 YEARS, NO.85, 11TH MAIN, 3RD CROSS, K.S. LAYOUT, CHANDRANAGAR, BANGALORE-560 078.
... APPELLANT 2. RAJESH SHARMA, ADULT, NO.12, MFG COMPOUND, OPP. SINDHI HOSPITAL, SAMPANGIRAM NAGAR, BANGALORE-560 027.
…. RESPONDENTS THIS MFA FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 02.12.2013 IN M.V.C NO.8917/2007 PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BENGALURU, AWARDING A COMPENSATION OF RS.2,40,000/-.
THESE MFAs COMING ON FOR ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER MFA No.1520/2014 is preferred by the Insurer- Respondent No.1 in MVC No.8918/2007 and MFA No.1519/2014 is preferred by the Insurer-Respondent No.1 in MVC No.8917/2007. Both the appeals are filed challenging the common judgment and award dated 02.12.2013 passed by the III Additional Senior Civil Judge, Motor Accident Claim Tribunal, Bengaluru, wherein Respondents No.1 and 2 before the Tribunal were held jointly and severally liable to pay the compensation to the claimants.
2. I have heard the learned counsel Smt. H.R. Renuka, appearing for the appellant and the learned counsel appearing for Respondents No.1 and 2. Respondent No.3 is served but not represented.
3. The brief facts leading to filing of the above appeals are that, the deceased by name Sri. S. Venkatesh and the injured by name Santosh while traveling on a motor cycle bearing Registration No.KA- 05-HC-9483 on 21.10.2007 at about 3.30 p.m., a luggage auto bearing registration No.KA-01-B-7705 driven by its driver, came in a high speed and in a rash and negligent manner and dashed against the aforesaid motor cycle at G. Nagenahalli-Goravanahalli Road at Madavara, Koratagere Taluk on account of the said accident, Sri. S. Venkatesh died and Santosh suffered serious injuries.
4. The parents of deceased S. Venkatesh filed a claim petition in MVC No.8918/2007 and the injured Santosh filed a claim petition in MVC No.8917/2007. The Tribunal by its common judgment and award dated 29.12.2008 awarded a compensation of Rs.4,08,000/- with interest at 6% per annum in MVC No.8918/2007 and awarded a compensation of Rs.2,40,000/- with interest at 6% per annum in MVC No.8917/2007. The Tribunal held that the respondent No.2-owner and the Insurer are jointly and severally liable to pay the compensation.
5. The appellants/Insurer preferred MFA Nos.4500/2009 and 4516/2009 before this Court questioning the liability fixed on them, contending that the driver of the vehicle in question had license to drive only light motor vehicle (non-transport) and the vehicle involved in the accident is a luggage auto rickshaw, which is a transport vehicle and therefore the insurance Company is to be exonerated from indemnifying the owner of the vehicle.
6. This Hon’ble Court by its judgment dated 08.04.2013 allowed both the appeals and remanded both MVC Nos.8918 and 8917 of 2007 to the Tribunal with a direction to afford an opportunity to both the claimants as well as the respondents to adduce evidence with regard to the license issued to the driver of the vehicle in question as per Ex.R-3 and also to permit the claimants to cross-examine RW-2 and give a finding afresh with regard to the liability of the Insurance Company to indemnify the owner of the vehicle.
7. This Court made it clear that the matter requires to be remanded for a limited purpose with regard to the said license and therefore the judgment and award passed by the Tribunal in so far as quantum of compensation has attained finality.
8. The Tribunal after the remand of the case held that Respondents No.1 and 2 before the Tribunal are jointly and severally liable to pay compensation as per the judgment and award passed on 29.12.2008.
9. Learned counsel for the appellant would contend that the vehicle involved in the accident is a three wheeler goods vehicle (transport vehicle) and the driving license possessed by the driver of the insured vehicle is for a light motor vehicle “both transport and non-transport”. Hence, he was not authorized to drive the three wheeler auto by holding Driving License to drive LMV transport vehicle. It is further contended that the driver of the vehicle in question was not possessing a valid and proper Driving License to drive a specific class of vehicle and therefore, it is submitted that the Tribunal was not justified in passing the judgment directing the appellant-Insurance Company to pay the compensation.
10. The Tribunal after remand of the matter, summoned RW-2 and he was cross-examined by the claimants with regard to the question of liability. The Tribunal considering the evidence of RW-2 has observed that the driver was having valid driving license to drive light motor goods vehicle and laden weight of auto rickshaw three wheeler is less than 7500 kgs. The Tribunal considering the various decisions rendered by this Court has come to the conclusion that the offending vehicle falls within the definition of light motor vehicle and since the driver of the offending vehicle had driving license to drive light motor vehicle, transport as well as non-transport, he had valid Driving License to drive the same on the date of accident.
11. The Hon’ble Supreme Court in the case of Mukund Devangan Vs. Oriental Insurance Company Limited reported in AIR 2017 SCC 663 at para 14 has held as under;
“Para-14 - The definition of ‘light motor vehicle’ makes it clear that for 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 kgs. ‘Gross vehicle weight’ has been defined in section 2(15). The motor car or tractor or road roller, the unladen weight of any of which does not exceed 7500 kgs. as defined in section 2(48) of the Act, are also the light motor vehicle. No change has been made by Amendment Act of 54/94 in the provisions contained in sections 2(21) and 10(2)(d) relating to the light motor vehicle. The definition of ‘light motor vehicle’ has to be given full effect to and it has to be read with section 10(2)(d) which makes it abundantly clear that ‘light motor vehicle’ is also a ‘transport vehicle’, the gross vehicle weight or unladen weight of which does not exceed 7500 kgs. as specified in the provision. Thus, a driver is issued a licence as per the class of vehicle i.e. light motor vehicle, transport vehicle or omnibus or another vehicle of other categories as per gross vehicle weight or unladen weight as specified in section 2(21) of the Act. The provision of section 3 of the Act requires that a person in order to drive a ‘transport vehicle’ must have authorization. Once a licence is issued to drive light motor vehicle, it would also mean specific authorization to drive a transport vehicle or omnibus, the gross vehicle weight or motor car, road roller or tractor, the unladen weight of which, as the case may be, does not exceed 7500 kg. The insertion of ‘transport vehicle’ category in section 10(2)(e) has no effect of obliterating the already defined category of transport vehicles of the class of light motor vehicle. A distinction is made in the Act of heavy goods vehicle, heavy passenger motor vehicle, medium goods vehicle and medium passenger motor vehicle on the basis of ‘gross vehicle weight’ or ‘unladen weight’ for heavy passenger motor vehicle, heavy goods vehicle, the weight, as the case may be, exceed 12000 kg. Medium goods vehicle shall mean any goods carriage other than a light motor vehicle or a heavy goods vehicle; whereas ‘medium passenger motor vehicle’ means any public service vehicle or private service vehicle or educational institution bus other than a motorcycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle.
Thus, the newly incorporated expression ‘transport vehicle’ in section 10(2)(e) would include only the vehicles of the category as defined in section 2(16) - heavy goods vehicle, section 2(17) - heavy passenger motor vehicle, section 2(23) – medium goods vehicle and section 2(24) medium passenger motor vehicle, and would not include the ‘light motor vehicle’ which means transport vehicle also of the weight specified in Section 2(21).
Further at Para 46, the Hon’ble Apex Court 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 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 aforesaid decision of the Hon’ble Apex Court, I am of the view that the judgment and award passed by the Tribunal holding Respondents No.1 and 2 before the Tribunal jointly and severally liable to pay the compensation, does not suffer from any infirmity.
13. Accordingly, both the appeals are dismissed.
The amount in deposit before this Court shall be transmitted to the Tribunal.
Sd/- JUDGE snc