IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL No.2537 of 2018 (MV) BETWEEN :
THE NATIONAL INSURANCE CO. LTD., NO.144, 2ND FLOOR SUBHARAM COMPLEX M.G.ROAD, BENGALURU – 560 001. …APPELLANT (BY SRI.A.N.KRISHNASWAMY, ADVOCATE) AND:
1. SMT.R.BHARATHI W/O.G.SRINIVASA REDDY AGED ABOUT 50 YEARS 2. SRI.G.SRINIVASA REDDY S/O.LATE VENKATARAVANAPPA AGED ABOUT 60 YEARS BOTH ARE R/AT. NO.21, 3RD CROSS TANK BUND ROAD CHINTAMANI TOWN CHIKKABALLAPUR DITRICT - 563125.
3. SRI.N.SUBRAMANI S/O.NARAYANAPPA, MAJOR R/O.NO.176/5, 29/7 GULAPPA COMPOUND GARUDACHARPALYA MAHADEVAPURA POST BENGALURU – 560 048. ...RESPONDENTS (BY SRI.GOPALAKRISHNA.N. ADVOCATE FOR R-1 AND R-2, SRI.M.SUBRAMANYA, ADVOCATE FOR R-3.) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF M V ACT 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 27.01.2018 PASSED BY THE MACT, BENGALURU, IN MVC NO.4548/2016 AND TO PASS SUCH OTHER ORDER OR ORDERS AS THIS HON’BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, ETC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The Insurance Company has preferred this appeal assailing the judgment and award dated 27.01.2018 passed in MVC No.4548/2016 by the Motor Accident Claims Tribunal, Bengaluru (hereinafter referred to as ‘the Tribunal’, for the sake of brevity).
3. For the sake of convenience, parties herein shall be referred to in terms of their status and ranking before the Tribunal.
4. The respondents – claimants being the parents of Kumari Priyanka filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) seeking compensation on account of death of their daughter – Priyanka in a road traffic accident that occurred on 08.08.2016. According to the claimants on the said date at about 7.10 p.m. when Priyanka was proceeding on Honda Activa motor cycle bearing No.KA- 40-V-7185 as a pillion rider along with her sister – Deepika who was riding the motor cycle by observing all traffic rules on Bengaluru – Chintamani road, when they were near Konganahalli Gate, Chintamani Taluk, Chikkaballapur District, at that time, the driver of Tata Zip vehicle bearing registration No.KA-01-AD-4580 drove the same in a rash and negligent manner with high speed so as to endanger human life and dashed against the said Honda Activa vehicle from the left side without showing any indication. As a result, rider as well as pillion rider fell down and they sustained grievous injuries. Priyanka sustained grievous injuries. She was taken to Government Hospital, Chintamani and during the course of treatment, she died at about 8.30 p.m. on the same day. It is contended that Priyanka was hale and healthy, aged about 24 years and was working as a Project Engineer in Wipro Company and drawing monthly salary of Rs.30,912/- and that she had stable job and very good career and her death had resulted in mental agony and untold misery for the claimants. They filed the claim petition seeking compensation on various heads. They further averred that that Chinthamani Police registered a case in Crime No.293/2015 against the driver of the Tata zip vehicle for the offence punishable under Sections 279, 337 and 304-A of Indian Penal Code against the driver of the vehicle and that the owner and insurer of the offending vehicle were liable jointly and severally to pay the compensation.
5. In response to the notice issued by the Tribunal, respondent Nos.1 and 2 appeared through their respective counsel and filed their statement of objections. The first respondent contended that the allegations in the claim petition were not proved and he denied the age, avocation and remuneration of the deceased and that the compensation claimed was exorbitant. He further stated that in the event any liability was fastened on the driver, then he would be indemnified by the second respondent – Insurer as the offending vehicle was insured by the second respondent. He sought for dismissal of the claim petition.
6. The second respondent – Insurance Company also denied the material averments of the claim petition and contended that the driver of the offending vehicle did not possess a valid and effective driving licence to drive the vehicle and therefore, any liability to be fastened on the insured would be subject to the terms and conditions of the policy. The Insurer also sought for dismissal of the claim petition by contending that the compensation sought was exorbitant and excessive.
7. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:-
1. Whether the petitioners prove that Kum.Priyanka D/o.G.Srinivasana Reddy died due to injuries sustained by her in an accident occurred on 08.08.2015 at about 7.15 p.m. near Konganahalli Village Gate, Chintamani Taluk, Chikkaballapura District, arising due to rash and negligent driving of driver of Tata Ace Zip bearing reg.No.KA-01-AD- 4580?
2. Whether the petitioners are entitled for compensation? If so, how much and from whom?
3. What order or award?
8. In order to substantiate their case, the parents of the deceased – Priyanka let in both oral and documentary evidence. The mother of the deceased led her evidence as PW.1. The sister of the deceased, rider of the motorcycle and eye witness to the accident led her evidence as PW.2 and another witness - B.Arjun Shetty, led his evidence as PW.3. The claimants produced twenty seven documents which are marked as Ex.P1 to P27. While the respondent No.2 examined the RTO Officer, Chikkaballapura as RW.1 and two documents were marked on his behalf as Exs.R1 and R2 and respondent No.1 examined its Deputy Manager as RW.2 and got marked Exs.R3 to R5. Considering the aforesaid evidence on record, the Tribunal answered issue No.1 in the affirmative, issue No.2 partly in the affirmative and awarded compensation of Rs.37,80,000/- with interest at the rate of 9% per annum from the date of claim petition till realization and directed the owner and insurer to jointly and severally satisfy the award. Being aggrieved by the judgment and award of the Tribunal, the Insurance Company has preferred this appeal.
9. We have heard Sri.A.N.Krishnaswamy, learned counsel for the Insurance Company and Sri.Gopalakrishna.N, learned counsel for respondent Nos.1 and 2 and perused the material on record.
10. Appellant’s counsel made a two - fold submission, firstly, he contended that the direction to the insurer to satisfy the award is illegal as there is breach of the terms and conditions of the policy inasmuch as the driver of the offending vehicle was not duly licenced and as there was no transport endorsement on his licence. That the offending vehicle is a transport vehicle and there was a need to have transport endorsement on the said vehicle as per Section 10 of the Act. Therefore, the Insurance Company is not liable to satisfy the award. He next contended that the Tribunal has awarded a huge compensation of Rs.37,80,000/- with interest at the rate of 9% per annum. Normally, this Court as well as the Tribunal would award interest at the rate of only 6% per annum and therefore, in the instant case this Court may lower the rate of interest to only 6% per annum by allowing the appeal filed by the Insurance Company.
11. Per contra, learned counsel for the respondent No.1 – claimants supported the impugned judgment and award of the Tribunal and contended that in view of the latest dictum of the Hon’ble Supreme Court in the case of MUKUND DEWANGAN v. ORIENTAL INSURANCE COMPANY LIMITED - (2017) 14 SCC 663, the absence of an endorsement on the licence to drive a transport vehicle would not amount to a breach of the terms and conditions of the policy and that in such an event, the Insurance Company cannot accept its liability to satisfy the award. Therefore, the judgment of the Tribunal on the aspect of liability be fastened jointly and severally on the owner as well as the insurer in the instant case would not call for any interference. He next submitted that since the deceased – Priyanka was not married, the Tribunal has deducted 50% of the earnings of the deceased towards personal expenses and granted interest at the rate of 9% per annum which is also just and proper, having regard to the facts of the present case and same would not call for any interference in this appeal. He contended that the there is no merit in the appeal and same may be dismissed.
12. Having heard the learned counsel for the respective parties, the following points would arise for our consideration:-
1. Whether the Tribunal was right in fastening the liability jointly and severally on the owner as well as the insurer of the offending vehicle. In other words, whether the Insurance Company had to be exonerated of its liability to satisfy the award?
2. Whether the Tribunal was right in awarding interest at the rate of 9% per annum on the compensation awarded to the respondents – claimants?
3. What order?
13. The fact that Priyanka died in a road traffic accident that occurred on 8.8.2016 at about 7.10 p.m. when she was proceeding on a Honda Active motorcycle bearing No.KA-40-V-7185 as a pillion rider, when the said vehicle was being driven by her sister – Deepika at Bengaluru – Chintamani road, at that time, the driver of the Tata vehicle bearing No.KA-01-AD-4580, drove the said vehicle in a rash and negligent manner and dashed against the motorcycle, on which Priyanka was proceeding as a pillion rider has been established. Thus, there is no controversy with regard to the negligence on the part of the driver of the Tata Zip vehicle.
14. The first controversy raised by the Insurance Company in this case is with regard to its liability to satisfy the award. It is the contention of the Insurance Company that the driver of the offending vehicle in the instant case did not have a transport endorsement. Ex.R2 is the copy of the driving licence which has been produced by the Insurance Company to contend that there was breach of the terms and conditions of the insurance policy and hence, the insurer had to be exonerated from its liability. In this regard, it is noted that the offending vehicle namely, Tata Zip vehicle bearing No.KA-01-AD-4580 is a light motor vehicle. The expression “light motor vehicle” has been defined in Section 2(21) of the Act and the same reads as under:-
“2(21). “light motor vehicle” means 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 (7,500) kilograms.”
15. With regard to the necessity of there being a transport endorsement on the licence of the driver who is qualified to drive a light motor vehicle, the controversy has been set at rest by the latest dictum of the Hon’ble Supreme Court in the case of Mukund Dewangan. In the said case, the Hon’ble Supreme Court has held that a ‘light motor vehicle’, defined in Section 2(21) of the Act, would be either a transport vehicle or a non-transport vehicle and that if a driver of a light motor vehicle is duly licenced to drive such a vehicle, then it is not necessary also to have an endorsement in the nature of a transport endorsement on the said driving licence to drive such a light motor vehicle which is a transport vehicle.
16. The relevant paragraphs of the said judgment reads as under:-
“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 maxi cab, 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 the goods in the said vehicle. It is what is intended by the provision of the Act, and Amendment Act 54 of 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 vehicle 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.
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 Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 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 roadroller, “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 roadroller, 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 of 1994 and 28-3-2001 in the form.
60.3. The effect of the amendment made by virtue of Act 54 of 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 vehicles, 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.
17. In the said case, the Hon’ble Supreme Court has observed that by virtue of the amendment to the Act by Act 54 of 1994 with effect from 14.11.1994 onwards the expression ‘transport vehicle’ in Section 10(2) (e) of the Act, is substituted to what was earlier “medium goods vehicle’, ‘medium passenger motor vehicle’, ‘heavy goods vehicle’ and ‘heavy passenger motor vehicle’ and that the expression ‘light motor vehicle’ continues under Section 10(2) (d) of the Act. Thus, there is exclusion of the light motor vehicle used for transport purposes from the expression ’transport vehicle’ which is inserted by virtue of the amendment under Section 10(2) (e) of the Act. In the circumstances, it was held that if a driver possesses a licence and is duly licenced to drive a light motor vehicle, which is a non-transport vehicle, then he is also qualified to drive light motor vehicle, which is a transport vehicle and it is not necessary to have an additional endorsement on the driving licence.
18. In the circumstances, while applying the aforesaid dictum to the instant case, it is held that although the offending vehicle in question is a light motor vehicle belonging to the transport category, even in the absence of there being an endorsement i.e., transport endorsement on the driving licence of the offender, the same would not amount to breach of the terms and conditions of the insurance policy.
19. In the circumstances, the Tribunal was justified in directing the owner and insurer of the offending vehicle to jointly and severally satisfy the award. Thus, point No.1 is answered against the insurer and in favour of the respondent – claimants.
20. This takes us to the next point with regard to rate of interest on the compensation of Rs.37,80,000/- granted by the Tribunal.
21. We find some considerable force in the argument of the learned counsel for the insurer inasmuch as specific reasons assigned by the Tribunal as to why 9% of interest per annum was awarded in the instant case. Normally, this Court as well as the Tribunal would award interest only at the rate of 6% per annum on the compensation awarded in the cases arising under the Act. Therefore, rate of interest is scaled down to 6% per annum. Thus, compensation of Rs.37,80,000/- shall carry interest at the rate of 6% per annum and not 9% as awarded by the Tribunal. Accordingly, point No.2 is answered in favour of the appellant – insurer.
22. In the result, the appeal is allowed in part. The appellant –Insurer to deposit the entire amount with up-to-date interest at the rate of 6% per annum from the date of claim petition till realization within a period of four weeks from the date of receipt of certified copy of this judgment, excluding the amount already deposited.
23. Parties to bear their respective costs.
24. The amount in deposit to be transmitted to the concerned Tribunal.
Sd/- JUDGE Sd/- JUDGE VMB