IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY 2019 PRESENT THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR MISCELLANEOUS FIRST APPEAL NO.5380 OF 2013 (MV) BETWEEN:
1. G.PUTTASWAMY S/O LATE GURUMALLAPPA, AGED ABOUT 51 YEARS, 2. P. DHARSHITA D/O G. PUTTASWAMY, AGED ABOUT 20 YEARS, 3. P. DHARSHAN S/O G. PUTTASWAMY, AGED ABOUT 20 YEARS, ALL ARE RESIDING AT NO.5096, SRI "DHARSHAN" NILAYA, HOUSING BOARD, CAUVERY EXTENSION, NANJANGUD TOWN, MYSORE DISTRICT – 570 028 (BY SRI.V.N.MADHAVA REDDY, ADV.) ... APPELLANTS AND:
1. MOHAMMED SHANAWAZ PASHA AGED ABOUT 29 YEARS, S/O MOHAMMED SHARIULLA, R/O J.C PURA VILLAGE, ARASIKERE TALUK, HASSAN DISTRICT – 583 125 AND ALSO AT AND G.P HOLDER C/O FATHIMABI W/O. WAZEER AHMED, AGED ABOUT 36 YEARS, NO.786, MASJID MOHALLA, HULLAHALLI VILLAGE, NANJANGUD TALUK – 570 028 MYSORE DIST.
2. NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, RAMASWAMY CIRCLE, CHAMARAJAPURAM, MYSORE - 24 3. SMT. FATHIMA BI AGED ABOUT 36 YEARS, W/O UZEER AHAMED, NO.786, MAJID MOHALLA, HULLAHALLI VILLAGE, NANJANGUD TALUK – 570 028 ... RESPONDENTS (BY SRI.A.N.KRISHNA SWAMY, ADV. FOR R2; R - 3 IS SERVED;
NOTICE TO R1 – DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.03.2013 PASSED IN MVC NO.1195/2009 ON THE FILE OF THE PRESIDING OFFICER, C/C FAST TRACK COURT-5, MEMBER, ADDITIONAL MACT, MYSORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, ACTING CHIEF JUSTICE DELIVERED THE FOLLOWING:
J U D G M E N T The claimants have preferred claim petition before the Motor Accident Claims Tribunal at Mysore for having lost the breadwinner in the road traffic accident that took place on 29th July 2009. The Tribunal, by its judgment and award dated 30th March 2013 passed in MVC No.1195 of 2009 awarded compensation of Rs.17,09,000/- fastening the liability on the owner for the reason that the driver was not in possession of valid driving licence. There is a finding that the driver was in possession of permanent driving licence to drive light motor vehicle for which there should be an endorsement to drive transport vehicle. In this regard, the learned counsel appearing for the appellant relies upon the judgment of the Hon'ble Supreme Court in the case of MUKUND DEWANGAN v. ORIENTAL INSURANCE COMPANY LIMITED reported in 2016(4) SCC 298 and refers to the observations made by the Hon'ble Supreme Court at paragraphs 43, 44 and 46 of the judgment wherein it is held that, 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. The same is extracted hereinbelow:
“43. Section 10(2) (a) to (j) lays down the classes of vehicles to be driven not a specific kind of motor vehicles in that class. If a vehicle falls into any of the categories, a licence holder holding licence to drive the class of vehicle can drive all vehicles of that particular class. No separate endorsement is to be obtained nor provided, if the vehicle falls in any of the particular classes of section 10(2). This Court has rightly observed in Nagashetty (supra) that in case submission to the contrary is accepted, then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle it by itself does not mean that driver ceased to have valid driving licence. In our considered opinion, even if such a vehicle is treated as transport vehicle of the light motor vehicle class, legal position would not change and driver would still have a valid driving licence to drive transport vehicle of light motor vehicle class, whether it is a transport vehicle or a private car/tractor attached with trolley or used for carrying goods in the form of transport vehicle.
44. In Natwar Parikh & Co. Ltd. v. State of Karnataka & Ors. (2005) 7 SCC 364, this Court was concerned with the taxation under the Karnataka Motor Vehicles Taxation Act, 1957 and question arose whether the tractor along with trailer for transporting goods was to constitute distinct category of goods carrier which requires permission under Section 2(14) of the Motor Vehicles Act, 1957 and absence thereof would render it liable to tax under Section 3(2). This court held that the tractor when attached with the trailer carrying goods, would become a transport vehicle for the purpose of taxation. This Court has discussed the question thus:
"Section 2(28) is a comprehensive definition of the words "motor vehicle". Although a "trailer" is separately defined in Section 2(46) to mean any vehicle drawn or intended to be drawn by a motor vehicle, it is still included in the definition of the words "motor vehicle" under Section 2(28). Similarly, the word “tractor” is defined in Section 2(44) to mean a motor vehicle which is not itself constructed to carry any load. Therefore, the words "motor vehicle" have been defined in the comprehensive sense by the legislature. Therefore, we have to read the words "motor vehicle" in the broadest possible sense keeping in mind that the Act has been enacted in order to keep control over motor vehicles, transport vehicles, etc. A combined reading of the aforestated definitions under Section 2, reproduced hereinabove, shows that the definition of "motor vehicle" includes any mechanically propelled vehicle apt for use upon roads irrespective of the source of power and it includes a trailer. Therefore, even though a trailer is drawn by a motor vehicle, it by itself is a motor vehicle, the tractor-trailer would constitute a "goods carriage" under Section 2(14) and consequently, a "transport vehicle"
under Section 2(47). The test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods, it can be stated that it is adapted for the carriage of goods. Applying the above test, we are of the view that the tractor-trailer in the present case falls under Section 2(14) as a "goods carriage” and consequently, it falls under the definition of “transport vehicle” under Section 2(47) of the MV Act, 1988.”
There is no dispute with the aforesaid proposition, that tractor if drawing a trailer with goods would constitute goods carrier and consequently would be a transport vehicle. The aforesaid discussion was with respect to taxation and not with respect to the competence of driver holding light motor vehicle licence to drive the tractor attached with trailer/trolley carrying goods. The driver had the competence to drive such a vehicle, tractor with a trailer carrying goods being of light motor vehicle category transport vehicle which is the question involved in the instant case.
In the light of the discussions made, the Hon’ble Supreme Court, at paragraph 46(iv) of the judgment, held thus:
“46. (i) to (iii) xxx xxx xxx (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.”
2. As per the decision of the Hon'ble Supreme Court in the case of MUKUND DEWANGAN (supra), production of transport endorsement is dispensed with. In the light of the above judgment of the Hon'ble Supreme Court, the liability is fastened on the insurer. The second respondent-insurer is directed to satisfy the award. With this observation, appeal is partly allowed.
Sd/-
ACTING CHIEF JUSTICE Sd/- JUDGE lnn