IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.646/2015 [MV] BETWEEN :
1. SMT.MUTTAMMA W/O LATE RANGEGOWDA, AGED ABOUT 52 YEARS 2. JAGADEESHA S/O LATE RANGEGOWDA, AGED ABOUT 35 YEARS 3. NAGESH S/O LATE RANGEGOWDA, AGED ABOUT 34 YEARS ALL ARE R/AT DHARAMAPURI VILLAGE, KASABA HOBLI, ALURU TALUK, HASSAN DISTRICT-573201 ...APPELLANTS (BY SRI G.V.NARASIMHAMURTHY, ADV.) AND :
1. RAMEGOWDA S/O RANGEGOWDA, AGED ABOUT 69 YEARS, R/AT DHARAMAPURI VILLAGE, KASABA HOBLI, ALURU TALUK, HASSAN DISTRICT-573201 2. THE MANAGER THE CHOLAMANDALAM GENERAL INSURANCE COMPANY LIMITED, CENTRAL OFFICE, DOREHOUSE, 2ND FLOOR, N S C ROAD, CHENNAI-600001.
REP. BY THE BRANCH MANAGER CHOLAMANDALAM GENERAL INSURANCE COMPANY LIMITED, HASSAN-573201. …RESPONDENTS (BY SRI O.MAHESH, ADV. FOR R-2; R-1 SERVED UNREPRESENTED.) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 02.04.2013 PASSED IN MVC NO.210/2011 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimants being wife and children of one Rangegowda who died in a road traffic accident which occurred on 15.06.2010 are before this Court, being not satisfied with the quantum of compensation awarded under the impugned judgment and award dated 02.04.2013 passed in MVC No.210/2011 on the file of the Additional Senior Civil Judge, Additional MACT, Hassan (hereinafter referred to as 'the Tribunal' for short).
2. The claimants filed claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the death of Rangegowda. It is stated that on 15.06.2010, while the deceased was walking towards his house, a goods auto bearing registration No.KA-46/980 came in a rash and negligent manner and dashed against Rangegowda, as a result of which, he sustained fatal injuries and succumbed to the same. It is stated that the deceased was doing milk vending business and was earning Rs.8,000/- p.m. and he was the only bread earner of the family. Hence sought for compensation of Rs.15,00,000/-.
3. Upon service of notice, the Insurance Company appeared before the Tribunal and filed its objections denying the claim petition averments and also contended that the driver of the offending vehicle had no valid and effective driving license as on the date of accident and further contended that the liability is subject to terms and conditions of the policy.
4. The claimant No.1 got examined herself as P.W.1 and claimant No.2 got examined himself as P.W.2 apart from marking the documents as Ex.P1 to Ex.P15. On behalf of the respondent/Insurance Company, an officer of the Company was examined as R.W.1 and respondent No.1 was examined as R.W.2 and got marked the documents as Ex.R1 and Ex.R2.
5. The Tribunal, on consideration of the material on record, assessing the income of the deceased at Rs.5,000/- p.m. awarded total compensation of Rs.5,40,000/- and saddled the liability on respondent No.1. Aggrieved by the same, the claimants are before this Court seeking enhancement of compensation and also questioning saddling the liability on respondent No.1.
6. Heard the learned counsel for the appellants and learned counsel for the second respondent/Insurance Company. Perused the appeal papers.
7. Learned counsel for the appellants would submit that the income of the deceased taken by the Tribunal for determination of compensation at Rs.5,000/- p.m. is on the lower side. The Tribunal ought to have taken minimum income of Rs.5,500/- p.m. Further, he submits that the compensation awarded under conventional heads is also on the lower side, whereas the claimants are entitled for a sum of Rs.70,000/- under the said head. Learned counsel for the appellants also contends that saddling liability on respondent No.1 is not proper. He submits that the driver of the offending vehicle had LMV licence, but transport endorsement was not there and relied upon the decision of the Hon'ble Supreme Court in MUKUND DEWANGAN v/s ORIENTAL INSURANCE COMPANY LIMITED reported in (2017) 14 SCC 663 in support of his contention. Thus prays for allowing the appeal.
8. Per contra, learned counsel appearing for the respondent/Insurance Company submits that the compensation awarded by the Tribunal is just and proper and submits that the driver of the offending vehicle had only LMV licence, but there was no transport endorsement. He submits that the decision of the Hon'ble Supreme Court in MUKUND DEWANGAN is per incurium and the same is referred to larger Bench. Therefore, it is not open for the appellants to rely upon the said decision.
9. The accident is of the year 2010. The Tribunal has taken the monthly income of the deceased at Rs.5,000/-. But, the claimants have not produced any document nor any material to indicate the exact income of the deceased. In the absence of any material to indicate the exact income of the deceased, the Tribunal has to determine the income of the deceased notionally. The claimants have produced Ex.P12 to Ex.P15 RTCs to show that the deceased was owning landed property and growing jower and potato crops. But the same would not indicate the income derived from those crops. In the absence of any proof of income, the Tribunal has reckoned the notional income at Rs.5,000/- p.m. which is on the lower side. This Court and Lok Adalaths, while settling the accident claims of the year 2010 would normally take notional income at Rs.5,500/- p.m. Therefore, in the instant case, it is appropriate to take Rs.5,500/- p.m. as notional income of the deceased to determine loss of dependency. The compensation awarded under conventional heads is also on the lower side. The claimants would be entitled for a sum of Rs.70,000/- towards conventional heads as per the decision of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680.
10. Ex.R2 is the driving license extract, which indicates that the driver of the offending vehicle had licence to drive light motor vehicles but without transport endorsement. In the case of MUKUND DEWANGAN v/s ORIENTAL INSURANCE COMPANY LIMITED reported in (2017) 14 SCC 663 the Hon'ble Supreme Court has held at paragraphs 17, 58, 59 and 60 as follows:
17. The definition of “light motor vehicle” makes it clear that for a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kgs. “Gross vehicle weight” has been defined in Section 2(15). The motor car or tractor or road roller, the unladen weight of any of which does not exceed 7500 kg as defined in Section 2(48) of the Act, are also the light motor vehicle. No change has been made by Amendment Act of 54/94 in the provisions contained in Sections 2(21) and 10(2) (d) relating to the light motor vehicle. The definition of “light motor vehicle” has to be given full effect to and it has to be read with Section 10(2)(d) which makes it abundantly clear that “light motor vehicle” is also a “transport vehicle”, the gross vehicle weight or unladen weight of which does not exceed 7500 kg as specified in the provision. Thus, a driver is issued a licence as per the class of vehicle i.e. light motor vehicle, transport vehicle or omnibus or another vehicle of other categories as per gross vehicle weight or unladen weight as specified in Section 2(21) of the Act. The provision of Section 3 of the Act requires that a person in order to drive a “transport vehicle” must have authorization. Once a licence is issued to drive light motor vehicle, it would also mean specific authorization to drive a transport vehicle or omnibus, the gross vehicle weight or motor car, road roller or tractor, the unladen weight of which, as the case may be, does not exceed 7500 kg. The insertion of ‘transport vehicle’ category in Section 10(2)(e) has no effect of obliterating the already defined category of transport vehicles of the class of light motor vehicle. A distinction is made in the Act of heavy goods vehicle, heavy passenger motor vehicle, medium goods vehicle and medium passenger motor vehicle on the basis of ‘gross vehicle weight’ or ‘unladen weight’ for heavy passenger motor vehicle, heavy goods vehicle, the weight, as the case may be, exceed 12000 kg. Medium goods vehicle shall mean any goods carriage other than a light motor vehicle or a heavy goods vehicle; whereas ‘medium passenger motor vehicle’ means any public service vehicle or private service vehicle or educational institution bus other than a motorcycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle.
58. 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.
59. 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 1989 Rules, 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 Sections 10(2)(e) to (h) and our conclusion is fortified by the syllabus and Rules which we have discussed.
60.Thus, we answer the questions which are referred to us thus:
60.1. ‘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.
60.2. 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.
60.3. The effect of the amendment made by virtue of Act 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.
60.4. 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.”
11. In view of the above decision, it is not open for the Insurance Company to contend that the driver of the offending vehicle had no licence at all. The submission of the learned counsel for the Insurance Company that the decision of MUKUND DEWANGAN is per incurium and the same is referred to larger bench has to be canvassed before the Hon'ble Supreme Court and not before this Court. Even though the decision of MUKUND DEWANGAN is referred to larger bench, there is no stay to the said judgment. As on this date, the law laid down in the said decision holds the field. Hence, the Insurance Company is liable to pay the compensation. Thus, the claimants would be entitled to modified compensation as follows:
Loss of dependency (5500 – 1/3 x 12 x 13) :: Rs.5,72,052 Conventional head :: Rs. 70,000 Total :: Rs.6,42,052 13. The second respondent/insurer is liable to indemnify the first respondent/owner. Hence, the liability is saddled on the second respondent/insurer. The claimants would be entitled to enhanced modified compensation of Rs.6,42,052/- with interest at the rate of 6% p.a. as awarded by the Tribunal.
14. Accordingly, the appeal is allowed in part. The impugned judgment and award dated 02.04.2013 passed in MVC No.210/2011 on the file of the Additional Senior Civil Judge, Additional MACT, Hassan is hereby modified and the claimants are entitled to enhanced modified compensation of Rs.6,42,052/- with interest at the rate of 6% p.a., as against Rs.5,40,000/- awarded by the Tribunal.
Sd/- JUDGE mpk/-* CT:bms