IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6th DAY OF DECEMBER, 2017 BEFORE THE HON’BLE Mr. JUSTICE L.NARAYANA SWAMY M.F.A.NO.7074/2016 (MV) BETWEEN:
THE ORIENTAL INSURANCE CO. LTD, EXTENSION OFFICE AT VAKKALIGARA SANGHA, OPP: KSRTC BUS STAND, MADHUGIRI, MADHUGIRI TALUK, TUMKUR DISTRICT.
NOW REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, 4TH FLOOR, 44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE-560025. … APPELLANT (BY SMT. HARINI SHIVANANDA, ADV.) AND:
1. SRI. NARESH BABU N.
24 YEARS, S/O. NAGARAJU, R/A OBALAPURA VILLAGE, RANGASAMUDRA POST, PAVAGADA TALUK, TUMKUR DIST, PIN-561 202.
2. SRI. C.V. JAYANTH, 42 YEARS, S/O. VENKATARAMANAPPA, THIRUMALA MEDICAL STORES, ARASEKERE ROAD, LINGADAHALLI POST, PAVAGADA TQ-561 202.
… RESPONDENTS (BY SRI. PATEL D. KAREGOWDA ADV. FOR R-1;
SRI. C. MOHD. SUBHANULLA SHARIEF ADV. FOR R-2) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:15.07.2016 PASSED IN MVC NO.170/2014 ON THE FILE OF THE ITINARY SENIOR CIVIL JUDGE & MACT, PAVAGADA, PRINCIPAL SENIOR CIVIL JUDGE, MADHUGIRI, (SITTING AT PAVAGADA), AWARDING COMPENSATION OF RS.2,58,033/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
THIS APPEAL COMING ON FOR DICTACTING JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appeal by the insurer challenging the judgment and award dated 15.7.2016 in MVC No. 170/2014 passed by the MACT, Pavagada. The Tribunal has awarded a compensation of Rs.2,58,033/- with 6% interest.
2. Heard, 3. Learned counsel for the appellant contends that the claimant has violated provisions of the Motor Vehicles Act, 1988 and Karnataka Motor Vehicle Rules, 1989 in not wearing the helmet and also not having a valid licence to drive the vehicle on public road. She contends that the doctor P.W.2, who has examined the claimant has not assessed the disability in a proper perspective. Relying on a decision of the apex court in the case of Raj Kumar v. Ajay Kumar, reported in (2011) 1 SCC 343, she contends that the quantum of compensation awarded is also on the higher side. She submitted that claimant/P.W.1 in his examination-in-chief has admitted that he was not wearing the helmet. In this regard, she referred to Section 129 of The Motor Vehicles Act, 1988 and Rule 230 of the Karnataka Motor Vehicles Rules, 1989, hereinafter referred respectively as the ‘Act’ and ‘Rules’.
4. Section 129 of The Motor Vehicles Act, 1988 reads as under;
129. Wearing of protective headgear…… Every person driving or riding (otherwise than in a side car, on a motor cycle of any class or description) shall, while in a public place, wear (protective headgear conforming to the standards of Bureau of Indian Standards):
Provided that the provisions of this section shall not apply to a person who is a Sikh, if he is, while driving or riding on the motor cycle, in a public place, wearing a turban: Provided further that the State Government may, by such rules, provide for such exceptions as it may think fit.
Explanation:-“Protective headgear” means a helmet which-
a) by virtue of its shape, material and construction, could reasonably be expected to afford to the person driving or riding on a motor cycle a degree of protection from injury in the event of an accident; and b) is securely fastened to the head of the wearer by means of straps or other fastenings provided on the headgear.
5. The learned counsel for the claimant supports the judgment and award passed by the Tribunal and contends that in the instant case the accident is not in dispute and also the injuries suffered by him. In the circumstances, the claimant cannot be deprived from getting the compensation. Learned counsel contends that non-production of a valid driving licence is not a defence available to the insurance company. Hence, he prays to dismiss the appeal.
6. The first enactment relating to motor vehicles in India was the Indian Motor Vehicles Act, 1914, which was subsequently replaced by the Motor Vehicles Act, 1939. The said Act of 1939 had been amended several times. Thereafter, consolidated Act came into force in the year 1988 i.e. The Motor Vehicles Act, 1988.
7. A specific ground that is taken by the insurance company is that the rider of the vehicle was not having a valid driving licence and secondly he was not wearing a helmet. In the evidence of the claimant, he has admitted that “ I was not wearing helmet. If I was wearing the helmet, head injuries could be avoided”.
8. The Government of Karnataka issued rules called “ Karnataka Motor Vehicles (Amendment) Rules 2015 published in Official Gazette No. SARIE 80 SAEPA 2015, Bengaluru dated 31.12.2015, which reads as follows;
Every person while driving or riding (both for rider and pillion rider) a motor cycle of any type i.e., to say motor cycles, scooters and mopeds irrespective of brake horse power of the vehicle within the limits of Karnataka State shall wear protective headgear.
Rule 230 of the Karnataka Motor Vehicles Rules, 1989 reads as follows;
1. Every person while driving a motor-cycle of any type that is to say motor-cycles, scooters and mopeds irrespective of the brake horse power of the vehicle within the limits of Bangalore Metropolitan Region Development Authority (BMRDA) and City Corporation Limits of Mysore, Mangalore, Belgaum, Hubli-Dharwad and Gulbarga shall wear protective headgear of such quality as will reduce head injuries to riders of two-wheelers resulting from head impacts.
2. A protective headgear referred to in sub-rule (1) should be one which has been approved by the (Bureau of Indian Standards, Standard No.IS 4151:1993) 3. Each protective headgear shall be permanently and legibly labeled, in a manner such that the lable or labels can be easily read without removing padding or any other permanent part with the following:
(a) Manufacture’s name or identification;
(b) Size, (c) Month and year of manufacture;
(d) The mark of Indian Standard Institute.
4. The headgear shall have minimum three adhesive type retro-reflective red colour stripes on the back of the headgear which will illuminate during the night. The stripes should be of the size of 2 cm x 13 cm and affixed horizontally to the headgear.
9. As per the Karnataka Motor Vehicles (Amendment) Rules, 2015, dated 31.12.2015, it is compulsory to wear protective head gear till 2015 and thereafter it applies to the pillion rider throughout the State within the limits of the Karnataka State. Section 129 of the Motor Vehicles Act, 1988 which makes mandatory that every person driving or riding ( otherwise than in a side car, on a motor cycle of any class or description) shall, while on a public place, wear protective headgear conforming to the standards of Bureau of Indian Standards. As per this provision, wearing headgear shall be in conformity with specified headgear as is provided in Section 129 of the Act, and Rule 230 of the Rules, 1989 w.e.f 2015.
10. The object of wearing headgear is to prevent head injuries in the road traffic accident. Though a person suffers grievous injuries, crush injuries or amputation etc, chances of survival is more when compared to injuries to the head. As per the Notification issued by the Government of Karnataka in No.SARJE.103.SAEPA 2015, Bangalore, dated 21.9.2015 “ the road accident scenario in Karnataka causes a great concern. More than 10,000 persons die every year due to road traffic accidents. While fatal accidents cause loss of invaluable human life, all accidents cause pain, grief and misery as well as economic loss. The increasing number of accidents, loss of lives and resources necessitated the State Government to frame policy on Road Safety.”
11. As per clause 6.3 of the Notification dated 21.9.2015 issued by the Government of Karnataka, it is compulsory for the drivers to wear seat belts and wear helmets as per statutory rules. Despite provisions to wear headgear and seat belts, we could see number of people do not comply with Section 129 of the Act, and Rule 230(I) of the Rules, 1989. When a person fails to take care to follow the law, if he/she suffers injury/causality in the accident, he/she is disentitled for compensation as it is a penal action and the insurer cannot be deprived of the said benefit.
12. There is a considerable force in the submission of the learned counsel for the appellant, that the person who disregards the law relating to wearing helmet and seat belt, he/she cannot approach the court for relief of compensation. A person who respects law is entitled to seek equity in the eye of law. The claimant in the instant case admits that he was not wearing head gear and if he was wearing helmet head injuries could be avoided. Under these circumstances, it is held that non- compliance of Section 129 of the Act, and Rule 230(I) of the Rules is fatal to the claimant to claim compensation.
13. Initially, Rule 230 of the Rules was mandatory for the road users to wear protective headgears and it was applicable to Bengalore Metropolitan Regional Development Authority and City Corporation Limits of Mysore, Mangalore, Belgaum, Hubli-Dharwad and Gulbarga. In the instant case, the injured is from Pavagada Taluk of Tumkur District which was not coming within the City Corporation Limits. Under these circumstances, the provisions of Section 230 of The Karnataka Motor Vehicles Rules 1989, and Amendment of sub-rule (1) of the said Rules was not applicable. It is made clear that w.e.f. 31.12.2015 there was no exception from wearing protective headgear irrespective of place, throughout the Karnataka State whether it is Corporation or District or Taluk or Village. Every person should wear helmet, otherwise it is violation of the above provisions for which they are liable to pay penalty. In addition, they shall not seek any compensation in the court of law.
14. The second ground urged by the appellant is in respect of non-production of driving licence. It is the case of the claimant who suffered injury that he was riding his vehicle following the rules and regulations, which is mandatory, but in addition to that one should possess the licence while using the vehicle on public road. Section 3 of the Motor Vehicle Act, is with regard to the necessity for driving licence which is extracted hereunder;
(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle and no person shall so drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under sub- section (2) of section 75 unless his driving licence specifically entitles him so to do.
(2) The conditions subject to which sub- section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.”
Sub-section (2) of Section 2 of The Motor Vehicles Act, 1988 “driving licence” means the licence issued by a competent authority under Chapter II authorizing the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description.
15. By reading of Section 3 and sub-section(2) of Section 10 of the Act, it is clear that a person in order to be competent to drive the vehicle, he must have driving licence issued by the competent authority. Though the claimant states that he was having a licence to drive the vehicle, he had not produced and marked it in evidence. Though it is a specific ground taken in the appeal, at least the claimant might have produced it before this court. An inference shall have to be drawn that he was not having a valid driving licence to drive a vehicle in the public road in contravention of Section 3 of the Motor Vehicles Act which also again disentitles the claimant from claiming compensation.
16. In view of the discussions made above, it is made clear that Section 129 of the Act mandates that one should wear protective headgear i.e. helmet. Wearing helmet is not something like carrying on the head but it shall be as provided under sub-rule (2) of Rule 230 of the Rules which means a protective headgear approved by the Bureau of Indian Standards, Standard No.IS 4151:1993. Sub-rule (3) of 230 provides as under;
Each protective headgear shall be permanently and legibly labeled in a manner such that the label or labels can be easily read without removing padding or any other permanent part with the following:
(a) Manufacture’s name or identification;
(b) Size, (c) Month and year of manufacture;
(d) The mark of Indian Standard Institute.
Section 129 of the Act provides explanation for headgear means a helmet which – (a) by virtue of its shape, material and construction, could reasonably be expected to afford to the person driving or riding on a motor cycle a degree of protection from injury in the event of an accident; and (b) is securely fastened to the head of the wearer by means of straps or other fastenings provided on the headgear.
17. It is the duty of the traffic police to see and ensure that the riders or pillion riders should wear helmet under Section 129 of the Motor Vehicles Act.
18. Before parting with this matter it is proper to observe that the claims Tribunals while dealing with claims for compensation shall have to record a finding as to rider or a pillion rider wearing a helmet of a required standard in case of two wheeler and occupants of the car wearing seat belts in order to be entitled for compensation. If it is found that there is violation in not wearing proper headgear or seat belts, such claimants should be denied compensation.
19. In the instant case the accident has occurred on 11.05.2014 and the place of accident is a village. Hence he was exempted from wearing helmet but because he had no valid driving licence to drive his vehicle, he is not entitled to compensation.
20. In the result, this appeal is allowed. The Judgment and award of the Tribunal is set aside. The insurance company and also the owner are not liable to pay any compensation. The claim petition is accordingly dismissed. The amount in deposit shall be refunded.
Sd/-
JUDGE Msu