IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.7324 OF 2011 [MV] C/W MISCELLANEOUS FIRST APPEAL No.8364 OF 2011 MFA No.7324/2011:
BETWEEN Jagadisha Ganigar Aged about 31 years s/o Hanumanthappa Jangavada Village Badami, Bagalkot. ... Appellant [By Sri Pavanachandra Shetty H, Advocate] AND 1. Sukumar Aged about 52 years s/o Gopal, Ullal Village Thokkottu, Mangalore.
2. Reliance General Insurance Co. Ltd., Reliance Centre, 19 Walchand, Hirachand Marg, Ballard Estate Mumbai-400001 Rep: by its Manager. ... Respondents (By Sri K T Gurudevaprasad, Advocate for R1, Sri Ashok Patil, Advocate for R2) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 3.6.2011 passed in MVC No.447/2010 on the file of the Presiding Officer, Fast Track Court, Udupi, partly allowing the claim petition for compensation and seeking enhancement of compensation.
MFA No.8364/2011:
BETWEEN Sri Sukumar, Aged 51 years s/o Gopal, Ullal Village Thokkottu, Mangalore. ... Appellant [By Sri Sri K T Gurudevaprasad, Advocate] AND 1. Jagadisha Ganigar Aged 30 years s/o Hanumanthappa Jangavada Village Badami, Bagalkot Karnataka.
2. Reliance General Insurance Company Ltd., Reliance Centre, 19 Walchand Hirachand Marg, Ballard Estate Mumbay, represented by its Manager. ... Respondents (By Sri Pavanachandra Shetty H, Advocate for R1, Sri D S Sridhar, Advocate for R2) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 3.6.2011 passed in MVC No.447/2010 on the file of the Presiding Officer, Fast Track Court, Udupi, awarding a compensation of Rs.1,63,806/- with interest at 6% p.a. from the date of petition till payment.
These MFAs coming on for admission this day, the Court delivered the following:
JUDGMENT MFA No.7324/2011 is filed by the claimant seeking enhancement of compensation and MFA No.8364/2011 is filed by the owner of the offending vehicle challenging the liability fixed on him by the Tribunal while awarding a total compensation of Rs.1,63,806/- for the injuries sustained by the claimant in a road traffic accident occurred on 23.4.2010 involving a motorcycle bearing Regn. No.KA- 19/X-4778 and a Tata Indica car bearing Regn. No.KA- 19/C-5258.
2. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents in both the matters.
3. It is the case of the claimant that on 23.4.2010 at about 6.30 a.m. while he was riding a Hero Honda motorcycle bearing Regn. No.KA-19/X-4778 from Udupi towards Kundapur side on NH-17 and when he reached a place called Airodi, a Tata Indica car bearing Regn. No.KA- 19/C-5258 came from Kundapur side towards Udupi, driven by its driver in a rash and negligent manner and dashed against his motorcycle, as a result of which, he sustained grievous injuries and he was shifted to hospital, wherein he took treatment as an inpatient for about eight days. It is the further case of the claimant that he was working as a police constable at Pandeshwar Police Station and he was drawing a salary of Rs.12,000/- p.m. and on account of the accidental injuries, he has suffered mental agony, pain and discomfort in life and he has spent sufficient amount for medical expenses. He would require substantial amount for future medical expenses etc.
4. A sum of Rs.16,30,000/- was claimed as compensation by the claimant for the injuries sustained in the aforesaid road traffic accident. The car was insured with the respondent No.2/Insurance Company herein. To substantiate the claim, claimant got examined himself as PW1 and examined two more witnesses as PWs.2 and 3 and got marked Exs.P1 to P22. On behalf of the respondents, two witnesses were examined as RWs.1 and 2 and four documents were marked.
5. The Tribunal after considering the oral and documentary evidence on record was pleased to award a total sum of Rs.1,63,806/- with interest at the rate of 6% p.a. from the date of petition till payment, however, held that the respondent No.1, the owner of the offending vehicle is liable to pay compensation on the ground that the driver of the said vehicle was holding a driving license to drive LMV (NT) whereas the vehicle involved was a transport vehicle.
6. Learned counsel appearing for the appellant/ claimant in MFA No.7324/2011 would contend that the total compensation awarded by the Tribunal is on the lower side and the same is not commensurate with the injuries sustained by the claimant since he has suffered nine fractures, which are evident from the wound certificate and the treatment certificate and other medical evidence on record. He would further contend that the Tribunal has not awarded any amount towards future medical expenses though there is specific evidence given by the doctor in this regard and that the compensation awarded towards pain and suffering is also on the lower side. Accordingly learned counsel seeks to allow the appeal filed by the claimant.
7. Learned counsel appearing for the appellant/ owner of the vehicle in MFA No.8364/2011 would contend that the Tribunal has erred in fixing the liability on the owner of the vehicle though the driver of the offending vehicle was possessing a valid and effective driving license. In this regard, he places reliance on the judgment of the Hon’ble Apex Court in the case of ‘Mukund Dewangan –vs- Oriental Insurance Co. Ltd’. reported in 2017 ACJ 2011 and contends that no separate endorsement is required in the driving license in respect of a transport vehicle since the driver of the offending vehicle was holding LMV license, which is valid and effective, to drive the vehicle involved in the accident. Accordingly, learned counsel submits that the liability may be fixed on the respondent No.2/ Insurance Company since the vehicle in question was insured with respondent No.2.
8. The fact that the claimant has met with an accident involving the Tata Indica car bearing Regn. No.KA-19/C- 5258, which was insured with respondent No.2 is not in dispute. It is also not in dispute that the claimant sustained injuries in the said accident. The wound certificate – Ex.P3 as well as Ex.P9 – treatment certificate and Ex.P6 – discharge summary are the documents relied upon by the claimant to prove the injuries sustained by him and the period of treatment taken by him in the hospital. Perusal of wound certificate at Ex.P3 goes to show that the claimant sustained as many as six injuries as hereunder:
1. Fracture radius (L/3rd (Rt) forearm.
2. Fracture ulna (L3rd) (Rt) forearm.
3. Fracture ulnar styloid (Rt) wrist.
4. Communitted fracture lower end of radius (Rt) wrist.
5. Fracture 2nd, 3rd, 4th and 5th metacarpal (Rt) hand.
6. Chip fracture progimal phalynx (Rt) great toe.
9. The Tribunal considering the aforesaid injuries and fracture suffered by the claimant has awarded a sum of Rs.50,000/- towards pain and sufferings, which is on the lower side and the same is enhanced to Rs.90,000/-.
10. PW2 – Orthopedic Surgeon, who has treated the claimant, has deposed that the implants inserted to the right hand of the claimant have to be removed and he has to spend about Rs.20,000/-. It is stated that the surgeries could be in the Government Hospital on free of cost. Considering the nature of injuries and the evidence of PW2, it is just and proper to award a sum of Rs.10,000/- towards future medical expenses.
11. The Tribunal has awarded a sum of Rs.25,000/- towards discomfort and loss of amenities and the same is enhanced to Rs.50,000/- under the said head.
12. Insofar as the loss of future income is concerned, the Tribunal has rightly held that the claimant was working as Police Constable and he is getting salary as there was no reduction in his salary. The compensation awarded under other heads are just and reasonable. Hence, the claimant is entitled for an additional sum of Rs.75,000/- over and above the compensation awarded by the Tribunal.
13. The Tribunal has come to the conclusion that the driver of the offending car in question was not holding a valid and effective driving license at the time of accident since the vehicle involved in the accident was a taxi, a transport vehicle, whereas the driver of the said vehicle was holding driving license to drive LMV (NT). Hence, the liability was fixed on the owner of the vehicle, thereby absolving the Insurance Company from paying the compensation. However, the Hon’ble Apex Court in the case of Mukund Dewangan –vs- Oriental Insurance Co. Ltd. reported in 2017 ACJ 2011 has held at paras-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 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 authorized 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 goods in the said vehicle. It is what is intended by the provision of the Act and the Amendment Act 54 of 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.
14. In view of the settled position of law, the findings recorded by the Tribunal holding the owner liable to pay the compensation and thereby absolving the Insurance Company is not proper.
For the foregoing reasons, I pass the following: ORDER MFA No.7324/2011 filed by the claimant is allowed in part.
MFA No.8364/2011 filed by the owner of the vehicle is allowed.
The judgment and award dated 3.6.2011 passed in MVC No.447/2010 on the file of the Presiding Officer, Fast Track Court, Udupi, is hereby modified.
Appellant in MFA No.7324/2011 is entitled for an additional compensation of Rs.75,000/- in addition to what has been awarded by the Tribunal with interest at 6% p.a. from the date of petition till realization.
The respondent No.2/Insurance Company is liable to pay the compensation.
The total compensation amount with interest at 6% p.a. shall be deposited before the Tribunal within a period of four weeks from the date of receipt of copy of this judgment The amount deposited by the appellant in MFA No.8364/2011 before this Court and before the Tribunal, if any, shall be refunded to him.
The claimant shall be entitled to withdraw the amount deposited by the Insurance Company.
Sd/-
JUDGE Bkm