IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.1835 OF 2013 [MV] BETWEEN Manager National Insurance Co. Ltd., Divisional Office, Melgiri Plaza MCC `B’ Block, Dental College Road, Davangere, Now represented by its Regional Manager National Insurance Co. Ltd., Regional Office, Subharam Complex, 144, M G Road Bangalore-560 001. ... Appellant [By Sri A N Krishnaswamy, Advocate] AND 1. Mohammed Arif P S/o Pyaru Sab Now aged about 24 years I Main, I Cross, Behind Durgambika High School Jalinagar, Davangere.
2. H R Syed Arifulla s/o Rafeeq Ahmed Now aged about 25 years r/a #331/1, 11th Cross Devaraj Urs Layout `B’ Block, Davangere.
3. Showkat Ali s/o Mohammed Khan, Major # 331/1, 11th Cross, Devaraj Urs Layout, `B’ Block Davangere. ... Respondents This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 27.10.2012 passed in MVC No.269/2011 on the file of the Principal Senior Civil Judge, MACT-4, Davanagere, awarding a compensation of Rs.45,000/- with interest @ 6% p.a. from the date of petition till realization.
This MFA coming on for admission this day, the Court delivered the following:
JUDGMENT This appeal is preferred by the Insurance Company challenging the liability fastened on it by the Tribunal in MVC No.269/2011 while passing the award of Rs.45,000/- with interest at 6% p.a. for the injuries sustained by respondent No.1 in a road traffic accident occurred on 9.11.2010 involving a TATA Ace vehicle bearing Regn. No.KA-17-B-1183.
2. I have heard the learned counsel appearing for the appellant.
3. It is the case of the injured/claimant that on 9.11.2010, while he was playing cricket in the Primary School playground, near swimming pool of Devraj Urs Lay out ‘C’ Block, Davangere, at about 5.30 p.m., the driver of TATA Ace vehicle bearing Regn. No.KA-17-B-1183 drove the same in a rash and negligent manner and dashed against him, on account of which, he fell and sustained injuries and he was shifted to C G Hospital, Davangere and admitted as an inpatient from 9.11.2010 to 16.11.2010. Further, that he was a student of second B.A. and he suffered permanent disability of 10 to 15% to left shoulder, 15 to 20% to right wrist and 10% to the chest.
4. Considering the evidence and material on record, the Tribunal awarded a total compensation of Rs.45,000/- with interest at 6% p.a. from the date of petition till its realization. The liability was fixed on the appellant/insurer of the vehicle.
5. Learned counsel appearing for the appellant contended that the vehicle involved in the accident is a transport vehicle and driver of the said vehicle had driving license to drive only LMV (NT), therefore, the Tribunal was not proper in fixing the liability on the Insurance Company since there is violation of policy condition as the driver was not authorized to drive the transport vehicle. Accordingly, he seeks to set aside the judgment and award and allow the appeal.
6. The question involved in this appeal is no more res-integra as 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.
7. Even in the present case, it is not disputed that GVW (gross vehicle weight) of the vehicle in question is less than 7500 kgs. Therefore, the contention of the learned counsel for the appellant that a separate endorsement in the license is required for driving the vehicle involved in the accident cannot be accepted. In view of the settled position of law, there is no merit in the present appeal and the same is hereby dismissed.
The amount in deposit shall be transmitted to the Tribunal.
Sd/- JUDGE Bkm