IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.6342 OF 2014 [MV] BETWEEN MR. FAYAZ S/O. LATE ABDUL SALAM SAB, AGED ABOUT 60 YEARS, R/AT BUDIKOTE VILLAGE, BUDIKOTE POST, BANGARPET TALUK, KOLAR DISTRICT-563 114. ... APPELLANT [BY SRI. SURESH M., ADVOCATE] AND 1. SRINIVASAPPA @ SEENAPPA, S/O. VENKATARAVANAPPA, AGED 50 YEARS, R/AT BUDIKOTE VILLAGE, BUDIKOTE POST, BANGARPET TALUK, KOLAR DISTRICT-563 114.
2. THE MANAGER, UNITED INDIA INSURANCE CO LTD., REGIONAL OFFICE, NO.25, 2ND FLOOR SHANKARANARAYANA BUILDING, M.G. ROAD, BANGALORE-560 001. ... RESPONDENTS [BY SRI. M. ANANDA, ADVOCATE FOR R1.
SRI. RAVISH BENNI, ADVOCATE FOR R2] * * * THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.04.2013 PASSED IN MVC NO.1989/2011 ON THE FILE OF THE CHIEF JUDGE, MACT, COURT OF SMALL CAUSES, BENGALURU, AWARDING COMPENSATION OF Rs.2,30,703/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS MFA COMING ON FOR FINAL HEARING, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is preferred by the owner/respondent No.1 before the Tribunal, challenging the Judgment and Award dated 17.04.2013 passed in M.V.C. No.1989/2011, on the file of the Principal Motor Accident Claims Tribunal and Chief Judge, Court of Small Causes [‘Tribunal’ for brevity] at Bengaluru.
2. I have heard the learned counsel appearing for the appellant and the learned counsel representing the Insurance Company/respondent No.2.
3. A claim petition was filed by the claimant before the Tribunal, seeking total compensation of Rs.15,00,000/- for the injuries sustained by him in a road traffic accident, which occurred on 03.01.2011 at about 12.00 noon.
4. It is the case of the claimant that on 03.01.2011 at about 12.00 noon, when he was proceeding by walk with his wife in order to go to their field and when he reached near Hanumanagunte Kere Katta, near Budikote in Bangapet Taluk, at that time, a tractor bearing reg. No.KA-08/T-2480, driven by its driver came in a rash and negligent manner and dashed against him, as a result of which he sustained grievous injuries. It is stated that he was immediately shifted to R.L.Jalappa Hospital, Kolar, wherein he was treated as an inpatient. Due to the accident, he suffered fracture of right tibia upper 1/3rd, fracture of fibula, facture of right femur, etc. He underwent surgeries, fixation with IMIL nail for right femur, skin grafting was done and closed reduction and above knee cast was applied. It is the further case of the claimant that he was aged about 55 years, he was an agriculturist and also doing milk vending business and earning a sum of Rs.15,000/- p.m. and due to the accident, he has suffered disability to the extent of 50% to the right lower limb which comes to 25% to the whole body as per the evidence of doctor.
Before the Tribunal, the claimant got examined himself as P.W.1 and the doctor as P.W.2. He got marked Exs.P1 to 14. On behalf of the Insurance Company, R.W.1 was examined and Exs.R1 and 2 i.e., Policy copy and DL particulars were marked.
The Tribunal considering the evidence and material on record, awarded a total compensation of Rs.2,30,703/- with interest at the rate of 6% p.a. from the date of the petition till the date of realization under the following heads:
Rs.
Head of Compensation Amount in
However, the Tribunal held that the owner of the tractor alone is liable to pay the aforesaid compensation.
5. It is the contention of the learned counsel for the appellant/owner of the tractor bearing reg. No.KA-08/T-2480, which was involved in the accident that the Tribunal has erred in placing him ex-parte and he would submit that the Tribunal has held that the driver of the tractor had no valid and effective driving licence. However, the driving licence marked in evidence as Ex.R2 goes to show that the driver of the vehicle in question was possessing valid and effective driving licence and the driver was authorized to drive LMV [NT]. He would submit that the Tribunal has committed an error in coming to the conclusion that since there is no special endorsement authorizing the driver to drive the tractor and therefore, erred in fixing the liability on the owner i.e., the appellant herein. He would rely on the Judgment of the Hon’ble Supreme Court reported in AIR 2017 SUPREME COURT 3668 in the case of MUKUND DEWANGAN VS.
INSURANCE COMPANY LIMITED. He would further submit that there was no opportunity for him to defend before the Tribunal as he was placed ex-parte and therefore, contends that the Judgment and Award passed by the Tribunal be modified absolving the liability fixed on him and the liability be fixed on respondent No.2/Insurance Company.
Per contra, learned counsel appearing for respondent No.2/Insurance Company vehemently contended that the owner has failed to appear before the Tribunal in spite of service of notice on him and therefore, he was placed ex- parte. He would contend that the driver of the tractor had no valid and effective driving licence, since he was authorized to drive LMV [NT] and he had no authorization to drive the tractor as there was no special endorsement in the driving licence authorizing him to drive the tractor. He would submit that a special endorsement is required from the Regional Transport Office and unless and until such endorsement is given, a person holding a driving licence to drive Light Motor Vehicle [‘LMV’ for brevity] is not entitled to drive a tractor and therefore, he submits that the Tribunal was right in fastening the liability on the owner of the vehicle as the owner of the tractor had committed breach of the insurance policy conditions by permitting such a person, without a valid driving licence to drive the tractor. He submits that the Judgment and Award passed by the Tribunal is just and proper and does not call for any interference.
6. It is the case of the claimant that he sustained injuries in a road traffic accident which occurred on 03.01.2011 at about 12.00 noon on Hanumanagunte Kere Katta near Budikote, in Bangarpet Taluk, on account of rash and negligent driving of the tractor bearing reg. No.KA-08/T- 2480 by its driver.
7. Considering the evidence and material on record, the Tribunal Awarded a total compensation of Rs.2,30,703/- with interest at the rate of 6% p.a. from the date of the petition till the date of realization. The Tribunal has further ordered that respondent No.1 i.e., the owner of the vehicle in question to deposit the Award amount.
8. It is to be noted that as far as the quantum of compensation, there is no appeal preferred by the claimant and therefore, it has to be held that the quantum of compensation awarded by the Tribunal has become final.
9. In so far as the liability to pay the compensation is concerned, the Tribunal has observed that the tractor was insured with respondent No.2 by issuing an insurance policy marked as Ex.R1. The contention of the Insurance Company is that according to Ex.R2 i.e., DL particulars, the driver of the tractor which caused the accident had no valid and effective driving licence.
10. The Tribunal has fastened the liability on the owner only on the ground that there was no special endorsement authorizing the driver of the said tractor to drive such a vehicle as the driving licence is for driving LMV [NT]. Ex.R1-Insurance Policy copy would also disclose that there is no endorsement with regard to HTV [Heavy Traffic Vehicle]. It is the contention of the learned counsel for the Insurance Company that the owner of the vehicle has remained ex-parte and he has not led any evidence to show that the driver of the tractor in question was possessing a valid driving licence. He would contend that on the basis of Ex.R2 namely DL particulars marked through the evidence of R.W.1, now the liability cannot be shifted on the Insurance Company.
11. I have perused the DL particulars. The same is produced and marked by the insurer. However, it is not clear as to the validity of the driving licence as on the date of accident. If the driving licence had been produced before the Tribunal, then the Court would have been in a position to see whether such driving licence was valid at the time of the accident. However, it is made clear that in view of the Judgment reported in the case of MUKUND DEWANGAN VS. INSURANCE COMPANY LIMITED [supra] the Tribunal is not right in holding that merely because there is no special endorsement authorizing the driver to drive the tractor the owner of the vehicle is liable to pay the compensation. In the aforesaid Judgment, the Hon’ble Supreme Court has held that ‘light motor vehicle’ as defined in Section 2(21) of the Motor Vehicles Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of light vehicle by virtue of Amended Act 54/1994. Further that, a transport vehicle and omnibus, 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, 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 licence is required to drive a transport vehicle of light motor vehicle class as enumerated above.
12. Considering the fact that the driving licence was not at all produced by the owner of the vehicle as he was placed exparte, I am of the view that an opportunity has to be given to the owner of the vehicle to produce the driving licence so as to establish his case and to absolve his liability and for that purpose, the matter is required to be remanded back to the Tribunal.
13. The Insurance Company is entitled to contest the matter to that extent. Accordingly, I pass the following:
ORDER The appeal is allowed. The Judgment and Award dated 17.04.2013 passed in M.V.C. No.1989/2011 by the Principal Motor Accident Claims Tribunal and Chief Judge, Court of Small Causes at Bengaluru in so far as fixing the liability on respondent No.1/owner before the Tribunal is hereby set aside. The matter is remanded back to the Tribunal permitting the owner to come on record and to lead fresh evidence. In that event, the Insurance Company shall be given sufficient opportunity to contest the case.
It is made clear that the evidence already on record shall remain intact. The Tribunal shall record additional evidence and dispose off the case as expeditiously as possible in accordance with law.
The parties are directed to appear before the Tribunal on or before 28.02.2019.
The amount in deposit shall be transmitted to the Tribunal. The Office is directed to return the Lower Court Record forthwith.
Sd/- JUDGE.
Ksm*