IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY 2019 BEFORE THE HON’BLE Mr.JUSTICE BELLUNKE A.S.
Miscellaneous First Appeal No.6948 of 2013 (MV) BETWEEN:
KISHAN LAL CHOUDHURI S/O SRI VIJAYA VARMA AGED ABOUT 31 YEARS RESIDENT OF NO.8, ROSHAN PLACE APT, KATRIGUPPE BSK 3RD PHASE BENGALURU – 85. ... APPELLANT (BY SRI K.V.NAIK, ADVOCATE FOR SHRIPAD V SHASTRI, ADVOCATE) AND:
1. K.VISWANATH M/s.VIJAYA ENTERPRISES NO.816, 80 FEET ROAD KORAMANGALA 8TH BLOCK BENGALURU-560 034 2. THE ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED NO.89, 4TH FLOOR, SVR COMPLEX HOSUR ROAD, MADIWALA BENGALURU-560 068 BY ITS MANAGER ... RESPONDENTS (BY SRI. RAGHAVENDRA K.P., ADVOCATE FOR R-1 SRI. H.N. KESHAVA PRASHANTH, ADVOCATE FOR R-2) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.06.2012 PASSED IN MVC NO.7950/2011 ON THE FILE OF THE 21ST ADDITIONAL SMALL CAUSES JUDGE, 19TH ACM, COURT OF SMALL CAUSES, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
This appeal coming on for hearing this day, the Court delivered the following:
JUDGMENT Heard the learned counsel on both sides.
2. The appeal is filed against the judgment and award passed by the M.A.C.T. XXI Additional Small Causes Judge and XIX ACMM, Court of Small Causes (SCCH-23), Bengaluru in M.V.C.No.7950 of 2011 dated 06.06.2013, questioning the legality and correctness of the award so far as it relates to the fastening of the liability on the owner of the vehicle is concerned. The award as part of compensation payable is not questioned.
3. It is submitted that the Tribunal fastened liability on the owner of the vehicle only on the ground that the driver of the offending vehicle had only light motor vehicle driving license and the vehicle involved in the accident is transport vehicle and therefore, the liability on the insured is exonerated. It is submitted by the learned counsel that the finding of the Tribunal in the above said petition would not survive for consideration and the same is liable to be set aside.
4. Learned counsel for the respondents relied on a decision of the Apex Court reported in AIR 2017 SC 3668 (MUKUND DEWANGAN Vs. ORIENTAL INS.CO.LTD.), wherein it is 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 59 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 60 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.
5. The said decision of law is not disputed by the Insurance Comp any and cannot be disputed too.
Therefore, having regard to the aforesaid decision of law laid down by the Hon’ble Supreme Court, the finding of the Tribunal that the award in question is to be satisfied by the owner of the vehicle and not the insurer is liable to be set aside. Apart from that, no other ground is taken to hold that there was violation of policy conditions by the driver and owner of the vehicle in question. Hence, for the above reasons, I pass the following:
ORDER i) The appeal filed by the appellant is allowed.
ii) The judgment and award dated 06.06.2013 in lM.V.C.No.7950 of 2011 passed by the M.A.C.T., XXI Additional Small Causes Judge and XIX ACMM, Court of Small Causes (SCCH-23), Bengaluru so far as dismissing the petition against Respondent No.2 is set aside.
iii) The award amount determined by the Tribunal shall be deposited by Respondent No.2-
Insurance Company within six weeks from the date of this order along with accrued interest.
The petitioner is said to be a literate person working as a Manager in Metro Corporation. Hence, no order is made with regard to the deposit of the award amount in Fixed Deposit.
(Sd/-) JUDGE DH