IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.1440 of 2013 (WC) BETWEEN:
ORIENTAL INSURANCE CO. LTD., SHUBASH NAGAR, HASSAN, NOW BY REGIONAL OFFICE, LEO SHOPPING COMPLEX, 44/45, RESIDENCY ROAD CROSS, BANGALORE-560 025.
REPRESENTED BY ITS DEPUTY MANAGER SRI. BALAKRISHNA K. NAYAK.
… APPELLANT (BY SRI. M. ARUN PONAPPA, ADVOCATE) AND 1. SRI. KUMAR, AGED 30 YEARS, S/O. LATE PUTTASWAMYGOWDA, HYRANE, KATTAYA HOBLI, HASSAN TALUK, HASSAN DISTRICT-573 201.
2. SRI. B. GIRISH, MAJOR, S/O. LATE BELUREGOWDA, NAGANAHALLI, SHANTIGRAMA HOBLI, HASSAN TALUK.
(BY SRI. CHETHAN B., ADV. FOR R-1 SMT. KAVITHA H.C., ADV. FOR R-2) … RESPONDENTS THIS MFA FILED UNDER SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED 22.11.2012 PASSED IN WCA/NF/SR-04/2011 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, HASSAN SUB DIVISION, HASSAN, AWARDING A COMPENSATION OF RS.3,02,285/- WITH INTEREST AT 12% FROM AFTER 30 DAYS OF ACCIDENT TILL DEPOSIT IN COURT.
THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this matter is listed for admission, the same is taken up for final disposal with the consent of learned counsel on both sides.
The Insurance Company has field this appeal raising the following substantial questions of law:
(i) Whether the Commissioner was justified in foisting the liability on the appellant despite pleading and proving that the driver of the vehicle in question did not have a valid driving license?
(ii)Whether the impugned order passed by the Commissioner is contrary to the law laid down in ‘Vishwanath Shetty vs. Vincent Pinto and another’ (ILR 2011 KAR 2827), ‘National Insurance Company vs. Kusum Rai and others’ (2006 ACJ 1336) and ‘Oriental Insurance Company Limited Vs. Angad Kol and others’ (AIR 2009 SC 2151)?
2. I have heard the learned counsel appearing on both sides.
3. The above appeal is preferred against the impugned order dated 22.11.2012 passed by the Labour Officer and Commissioner (Workmen Compensation), Hassan (‘CWC’ for short) in WCA/NF/SR-04/2011, wherein a compensation of Rs.3,02,285/- has been awarded with interest at 12% per annum from one month from the date of accident, to the claimant who suffered injuries during the course of his employment under PW2.
4. The case of the claimant is that he was working as a driver under Respondent No.2 in a mini lorry bearing registration No.KA-13-A-911 and on 05.02.2009, the said mini lorry met with an accident and he suffered accidental injuries during the course of employment.
5. Learned counsel appearing for the appellant would vehemently contend that the claimant was not possessing a valid driving license authorizing him to drive a transport vehicle. On the other hand, the driving license possessed by him was only in respect of an LMV and therefore, he contends that there was no valid and effective driving license at the time of accident and he was not duly licensed and therefore the CWC was not justified in fastening the liability on the appellant to pay the compensation.
6. The learned counsel appearing for respondent No.1 submits that the injured-claimant has sustained injuries during the course of his employment under respondent No.2 while he was driving the mini lorry and he was having a valid driving license at the time of accident and therefore he submits that the impugned order passed by CWC awarding compensation to him is in accordance with law.
7. It is not in dispute that the claimant/Respondent No.1 sustained accidental injuries during the course of employment under respondent No.2. There is no dispute with regard to the employer and employee relationship. However, it is the contention of the learned counsel for the appellant that the claimant was holding a driving license to drive an LMV and not a transport vehicle and therefore, he was not duly licensed at the time of accident. He relied upon the judgment of the Hon’ble Apex Court in the case of Oriental Insurance Company Limited vs. Angad Kol and others reported in AIR 2009 SCC 2151. It is held in the aforesaid judgment that, the distinction between a `light motor vehicle' and a `transport vehicle' is, therefore, evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct license is required to be obtained.
8. The learned counsel also refers to Section 149(2)(a)(ii) of the M.V. Act, 1988 and contends that the Insurer can take such defence in a case where the driver of the offending vehicle is not duly licensed and in such a case, the insurer cannot be held liable to pay compensation.
9. The fact that the claimant was holding a driving license to drive an LMV is not in dispute. According to the learned counsel for the appellant, the claimant was not duly licensed as he was driving a transport vehicle for which he was not authorized to drive the said vehicle. On the other hand, it may be stated that there is no endorsement in the said license, authorizing the claimant to drive a transport vehicle. The Hon’ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited reported in AIR 2017 SCC 663 at para 46 has held as under;
“Para 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.”
10. It is also to be noted that the decision referred by the learned counsel for the appellant in the case of Oriental Insurance Company Limited vs. Angad Kol (supra) has been over ruled by the decision of the Hon’ble Apex Court in Mukund Dewangan’s case. It is not in dispute that the gross weight of the vehicle in question is not more than 7,500 kgs. As such, the contention of the learned counsel for the appellant cannot be accepted.
11. It is contended by the learned counsel for the appellant that the decision rendered in Mukund Dewangan’s case has been referred to a larger bench in the case of M/s. Bajaj Allianz General Insurance Company Limited vs. Rambha Devi and others in Civil Appeal No.841 of 2018. However, the Apex Court in the case of Ashok Sadarangani vs. Union of India reported in (2012) 11 SCC 321 has held that, reference of case to larger bench for decision does not mean that all other proceedings involving the same issues, would remain stayed till decision of larger bench.
12. In view of the decision of the Hon’ble Apex Court rendered in Mukund Dewangan’s case, this appeal lacks merit. Accordingly, I pass the following:
ORDER The appeal is dismissed.
The amount in deposit shall be transmitted to the concerned Court.
snc Sd/- JUDGE