IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL M.F.A.No.10366/2013 C/W M.F.A.NO.10365/2013 (MV) IN MFA No.10366/2013 BETWEEN:
Kalamma, W/o.Manjegowda, Aged about 36 years, R/o. D.Chikkonahalli (Chikkagondanahalli), Dindaguru Post, Kasaba Hobli, Channarayapatna Taluk.
Hassan – 573 201. …Appellant (By Sri.Girish B Baladare, Advocate) AND:
1. The Manager Bajaj Allianz Gen.Ins.Co., Ltd., Pune.
Represented by The Branch Manager, Bajaj Allianz Gen.Insu.Co., Ltd., Sri.Hari Complex, Seetha Vilasa Road, Mysore - 24.
2. Nagappa, S/o. Lakkannagowda, Aged about 35 years, R/o. Gadde Rameshwara Extension, Channarayapatna Town, Hassan - 573 201 3. Manjunatha, Major, S/o.Srinivasa, R/o. Nuggehalli Town, Channarayapatna Taluk, Hassan - 572 101 …Respondents (By Smt H.R.Renuka, Advocate for R1;
Sri. R.Shashidara, Advocate for R2 and R3) This Miscellaneous First Appeal is filed Under Section 173(1) of MV Act against the judgment and award dated 22.04.2013 passed in MVC No.668/2012 on the file of the Presiding Officer, Fast Track Court, Channarayapatna, allowing the claim petition for compensation and seeking enhancement of compensation.
IN MFA No.10365/2013 BETWEEN:
C.R.Praveen Kumar S/o Ramakrishna Aged about 20 years, R/o D.Chikkonahalli, (Chikkagondanahalli), Dindaguru Post, Kasaba Hobli, Channarayapatna Taluk, Hassan – 573 201. …Appellant (By Sri.Girish B.Baladare, Advocate) AND:
1. The Manager Bajaj Allianz Gen.Ins.Co., Ltd., Pune.
Represented by The Branch Manager, Bajaj Allianz Gen.Insu.Co., Ltd., Sri.Hari Complex, Seetha Vilasa Road, Mysore - 24.
2. Nagappa, S/o. Lakkannagowda, Aged about 35 years, R/o. Gadde Rameshwara Extension, Channarayapatna Town, Hassan - 573 201 3. Manjunatha, Major, S/o.Srinivasa, R/o. Nuggehalli Town, Channarayapatna Taluk, Hassan - 572 101 …Respondents (By Smt H.R.Renuka, Advocate for R1;
Sri. R.Shashidara, Advocate for R2 and R3) This Miscellaneous First Appeal is filed Under Section 173(1) of MV Act against the judgment and award dated 22.04.2013 passed in MVC No.669/2012 on the file of the Presiding Officer, Fast Track Court, Channarayapatna, allowing the claim petition for compensation and seeking enhancement of compensation.
These appeals coming on for Admission this day, Court delivered the following:-
JUDGMENT These two appeals have been filed by the appellants-claimants by assailing the judgment and award dated 22.04.2013 passed by Fast Track Court, Channarayapatna in MVC Nos.668/2012 and 669/2012 respectively.
2. Heard. Appeals are admitted and with the consent of learned counsel for both the parties, they are taken up for final disposal.
3. For the purpose of convenience, the parties are referred to as they are referred to before the Tribunal.
4. The brief facts of the case are that on 28.10.2011 about 02.30 p.m., petitioners were standing by the side of the road and were talking with their friends near Kalkare village and at that time, ape auto bearing registration No.KA-13-A-7620 came in a rash and negligent manner and dashed against the petitioners and as a result of the same, they sustained injuries and immediately they were shifted to Government hospital, Channarayapatna and Hemavathi hospital, Hassan and took treatment there as in-patient and having suffered disability and injuries, claim petition came to be filed. In pursuance of notice, the respondents appeared. Respondent Nos.1 and 2 filed their separate written statements and respondent No.3 adopted the written statement filed by respondent No.1.
5. Respondent No.1 filed written statement by denying the contentions of the petition. He further contended that the petitioners were coming in TVS XL in high speed in a rash and negligent manner and as a result of the same, the accident has taken place. It is further contended that as on the date of accident the said vehicle was insured with respondent No.2 and driver was holding valid and effective driving license. Hence, it is the respondent No.2 who has to pay the compensation. On these grounds, he prayed for dismissal of the said petition. Respondent No.2 also filed separate written statement by admitting the fact that said vehicle was insured with them and their liability is subject to terms and conditions of the policy. He further contended that the driver of the ape auto was not holding valid and effective driving license at the time of accident and as such, he is not liable to pay any compensation and prayed for dismissal of the said petition.
6. On the basis of the above, Tribunal framed the following common issues for consideration:
ISSUES 1. Whether the Petitioner proves that on 28.10.2011 at about 2.30 p.m when she and her son were standing by the side of the road and talking with the friends of her son, near Kalkere Village, she met with an accident due to actionable negligence on the part of the driver of auto bearing No.KA-13-A-7620 and that she sustained injuries in the said
prove her case, examined herself as PW1 and one more witness as PW2 and got marked documents as Exs.P1 to P32.
8. In MVC No.669/2012, petitioner in the said petition got examined himself as PW1 and one more witness as PW2 and got marked documents as Exs.P1 to 69. After hearing both the parties to the lis, impugned judgment and order came to be passed. Assailing the said judgment and award, claimants are before this court.
9. The main grounds urged by the learned counsel for the appellants are that though Ex.P4 clearly indicates that the petitioner in MVC No.668/2012 has sustained a fracture of both rami of right pubic bone and two other simple injuries in the accident and has suffered permanent disability to the extent of 7% to her left lower limb, the Tribunal has not awarded any compensation for loss of future income. He further contended that taking into consideration the injuries, the compensation awarded under the head pain and suffering, loss of income and loss of amenities are on the lower side. He further contended that the Tribunal has also not awarded any compensation towards food, traveling and nourishment and the total compensation awarded is on the lower side.
10. Referring MVC No.669/2012, it is contended that petitioner has sustained fracture of right femur and he was working as a helper in JCB and the income taken at the rate of Rs.4,500/- p.m., is on the lower side. He further contended that though Doctor has specifically stated that the permanent disability to his right lower limb is 27%, the Tribunal has taken permanent disability at 9% to whole body and has awarded compensation for loss of future earnings which is on the lower side and even compensation awarded on other heads is also on the lower side. It is contended that no compensation has been awarded for loss of income during laid up period and food, nourishment and traveling charges. Even the compensation awarded under the head loss of amenities and medical expenses are on the lower side. It is also his case, admittedly, the driver of the ape auto was holding a driving license to drive auto rickshaw (non transport) and the Tribunal has come to a wrong conclusion by holding that the driver was not having a driving license to drive the goods auto rickshaw. Because of that, the liability has been fastened on respondent No.2-Owner. He further contended that in view of 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, the liability has to be fixed on the Insurance Company since the driver was having a driving license, the license was in respect of auto rickshaw vehicle (non transport) but he can drive the transport vehicle in view of the above decision. On these grounds he prays for allowing the appeal by fastening the liability on the respondent insurer.
11. Per contra, learned counsel appearing on behalf of respondent No.2-owner vehemently argued and contended that the Tribunal after considering the fact that the claimants have sustained only single fracture and taking into consideration the notional income at the rate of Rs.4,500/- p.m., has rightly awarded the compensation on various heads. He further contends that in view of the decision of the Apex Court the liability which has been fastened on respondent- Owner is not correct and Insurance Company is liable to pay the compensation. On these grounds he prays for dismissal of the said appeal.
12. As could be seen from judgment and award passed by the Tribunal in MVC No.668/2012, the appellant-claimant has sustained the fracture of both rami of right pubic bone and two other simple injuries and she was also admitted in the hospital from 28.10.2011 to 05.11.2011. Though she got examined the doctor as PW2 before the Tribunal, he has deposed that the claimant has sustained disability to the extent of 7%, but the Tribunal has observed that fracture is united and petitioner has not undergone any surgery and she has also not reported any complaint about the injuries and the said injury is to the left lower limb, it cannot have a bearing on the future earning capacity of the appellant and as such, the loss of future earning has not been granted. The reasons assigned by the Tribunal appears to be justifiable. As could be seen from the judgment and award, compensation under other heads appear to be on the lower side. The Tribunal taking into consideration the income of the appellant- claimant at the rate of Rs.4,500/-, has awarded the compensation under various heads as under:
Sl.No. Description Amount (in Rs.)
13. Though under normal circumstances the compensation awarded under the above heads appears to be justifiable, but at the time of awarding compensation, the wages prevailing at the time of accident and other factors are to be taken into consideration. Admittedly, the accident has occurred in the year 2011 and during that particular period, even in the absence of any material, the notional income of Rs.6,000/- needs to be adopted. Accordingly, the re- assessed compensation to the appellant is as under:
Sl.No. Description Amount (in Rs.)
14. After deducting the compensation awarded by the Tribunal, to the extent of Rs.69,000/-, the appellant-claimant is entitled to additional compensation of Rs.52,000/- with 6% interest per annum.
15. As could be seen by judgment and award in MVC No.669/2012 the appellant-claimant has suffered a fracture of right femur and other four simple injuries. The doctor came to be examined as PW2, he has deposed that the appellant has suffered 27% of permanent disability to his right lower limb and the said fracture has been united. The Tribunal has assessed permanent disability of 9% to the whole body. After taking into consideration the notional income at the rate of 4,500/-, after applying the multiplier of 18 and taking the disability at 9%, the Tribunal has awarded 87,480/- under the head loss of future income, the Tribunal has
3 Loss of future income 87,480-00 4 Loss of amenities 10,000-00 5 Future medical expenses 10,000-00 Total 1,97,480-00 16. Though under normal circumstances, the said compensation appears to be justifiable, but the Tribunal has taken the income on lower side. In the absence of any documents, Tribunal ought to have taken the prevailing wages during that period. Even during the said period Rs.6,000/- p.m., is the yardstick even in settlement of cases in Lokadalath. In that light by taking into consideration the notional income of Rs.6,000/- p.m., re-assessed compensation under the head loss of future income would be 6,000 x 12 x 18 x 9% amounting to Rs.1,16,640/-.
17. The Tribunal has not awarded any compensation under the head of loss of income during laid up period and food, nourishment and other incidental charges. In that light, the amount of Rs.18,000/- is awarded towards the loss of income during laid up period and Rs.5,000/- for food, nourishment, transportation and other incidental charges. Accordingly, the re-assessed compensation to the appellant is as under :
18. Thus, after deducting the compensation awarded by the Tribunal, the appellant-claimant is entitled for an additional compensation of Rs.92,160/- with 6% interest per annum.
19. It is the specific contention of the learned counsel for the appellants that admittedly, the policy issued by the respondent-Insurance Company is valid and it was in currency but only because of the reason that the respondent No.3-driver was holding only a license to drive auto rickshaw (NT) and that the said driving license was issued on 07.01.2008 and the driver of the offending vehicle was not holding effective driving license to drive a particular category of vehicle at particular point of time, the liability has been fixed on the owner of the vehicle. It is the specific contention of the learned counsel for the appellants that in view of the decision in the case of Mukund Dewangan vs. Oriental Insurance Company Limited reported in AIR 2017 SC 3668 the insurer is liable to pay compensation. It has been observed at paragraph Nos.45 and 46 as under:
“ 45. Transport vehicle has been defined in section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab, a motor cab, contract carriage, and stage carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994.
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.”
20. As could be seen from the decision of the Apex Court as quoted Supra, if a person has been given license to drive particular type of vehicle, he cannot be said to have no license for driving another type of vehicle which is of the same category. As could be seen from Ex-R4, the driver of the offending vehicle was holding license to drive auto rickshaw (NT) and when that being the case, he can also drive the offending vehicle and under the said circumstances, the liability which has been fixed on respondent No.2 herein, the owner is not justifiable and same is liable to be set aside. Keeping in view the above facts and circumstances, Insurance Company has been fastened the liability to pay compensation.
ORDER i) Appeals are partly allowed.
ii) The appellant is entitled to additional compensation of Rs.52,000/- with 6% interest per annum and the judgment and award dated 22.04.2013 in MVC No.668/2012 passed by Fast Track Court, Channarayapatna is modified as indicated above by fastening the liability on the Insurance Company-respondent No.2 herein.
iii) The appellant is entitled to additional compensation Rs.92,160/- with 6% interest per annum and the judgment and award dated 22.04.2013 in MVC.No.669/2012 passed by Fast Track Court, Channarayapatna is modified as indicated above by fastening the liability on Insurance Company-respondent No.2 herein.
The Insurance Company is directed to deposit the award amount within a period of six weeks from the date of receipt of the certified copy of this judgment.
Registry to draw award accordingly and send back the records forthwith.
The release of deposit amount and disbursement of the enhanced compensation shall be made in terms of the award of the Tribunal.
Sd/- JUDGE dn/-