IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV M.F.A. No.9877/2010 (MV) Between:
Purandara Sharma, S/o Late A.S. Venkatadasappa, Aged about 52 years, R/at No.209, 10th ‘B’ Cross, J P Nagar 1st Phase, 29th Main, Bangalore – 560 078. ... Appellant (By Sri R. Chandrashekar, Advocate) And:
1. T.H. Narayana, S/o T.H. Hanumantharayappa, Major, No.237, 5th Block, 6th Cross, Rajajinagar, Bangalore.
2. The New India Assurance Co. Ltd., No.47, Gopal Complex, 2nd Floor, Bazaar Street, Yeshwanthapura, Bangalore – 22, Rep. by its Manager. ... Respondents (By Sri N. Gopala Krishna, Advocate for R-1; Sri M.P. Srikanth, Advocate for R-2) This MFA is filed under Section 173(1) of MV Act, against the judgment and award dated 21.04.2010 passed in MVC No.1335/2008 on the file of IX Additional Senior Civil Judge, Member, MACT-7, Court of Small Causes, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for orders this day, the Court delivered the following:
J U D G M E N T The claimant being aggrieved by the judgment and award dated 21.4.2010 in MVC.No.1335/2008, has filed the appeal challenging the order imposing liability on the owner of the vehicle and has also sought for enhancement of compensation awarded by the Tribunal.
2. The parties are referred to as per their ranks before the Tribunal.
3. The relevant facts that are made out in the claim petition is that, on 1.2.2008 at about 8.30 p.m., when the petitioner, as a pedestrian was crossing the road i.e., 46th Cross, Jayanagara, a Tempo Traveler bearing registration No.KA-02-C-8828 being driven in a rash and negligent manner, dashed against the petitioner and the petitioner is said to have sustained grievous injuries. The petitioner has taken medical treatment and contends that despite having taken medical treatment, he suffers from disability.
4. The claim petition came to be filed and after evidence by both sides, the Tribunal has disposed of the claim petition by dismissing the claim as against the insurer and allowing the claim petition in part as regards the compensation sought for and has awarded compensation of Rs.1,81,000/- with interest at 6% per annum from the date of the petition till realization. The liability to satisfy the award has been fastened on the owner of the vehicle. The Tribunal while taking note of the fact that the driver had a driving licence for driving a motor cab has observed that the vehicle was a maxi cab having a seating capacity of 12+1 passengers and that the driving licence that has been taken for a motor cab implies that the driving licence is one with respect to a vehicle having seating capacity of 6+1 passengers and hence has recorded a finding that the licence possessed by the driver was not an effective driving licence authorizing the petitioner to drive Maxi Cab.
5. The Tribunal relies upon Ex.R-5, a Motor Vehicle Taxation Card which indicates seating capacity of 12 +1 passengers and also refers to the class of the vehicle as Maxi cab. The Tribunal has come to the conclusion that definition of Maxi Cab under Section 2(22) and Motor cab under Section 2(25) of the Motor Vehicles Act, 1988 is clear and distinct. The Tribunal has held that the Maxi Cab refers to a motor vehicle having seating capacity of 12 passengers. The Tribunal holds that the licence that has been obtained was not an effective licence. The Tribunal also refers to Ex.R.3, a Permit, which also refers to the seating capacity of 12+1 and refers to the vehicle as Tourist Maxi. The Tribunal has taken note of Ex.R-6 which is an extract containing driving licence particulars and there is a reference that the badge that had been obtained by the driver was with respect to driving of a Motor Cab as defined under Section 2(25) of the Motor Vehicles Act.
6. The petitioner has assailed the order also as regards grant of compensation stating that no compensation has been awarded under the head of loss of earning during the laid up period. The petitioner states that the examination of the doctor PW.2 brings out the fact that the petitioner as on the date of filing of affidavit on 13.5.2009 was suffering from pain at the site of fracture which would aggravate at night time, while walking, running and climbing stairs and was having difficulty in squatting. The evidence of Dr.Naveen Kumar also brings out the extent of disability which has been assessed as per the guidelines, at 27% to the left lower limb and disability to the total body is assessed at 9%. The petitioner states that this aspect of the matter has not been looked into by the Tribunal and a consolidated amount ought to have been awarded taking note of the said disability as pointed out by the Doctor.
7. In so far as the non-awarding of compensation for the loss of earning during laid up period, the petitioner has relied on the certificate at Ex.P.10 which is issued by the employer of the petitioner i.e., HAL which states that the petitioner had availed leave for the period between 1.2.2008 to 11.3.2008 and the said certificate further stipulates that the petitioner was not sanctioned special leave nor was given any financial benefit by HAL during such period. The petitioner relies on Ex.P.9 - salary certificate, which indicates that the petitioner was earning a gross salary of Rs.28,164/- per month. Hence it is contended that for the loss of earning during laid up period, compensation ought to have been awarded.
8. Learned counsel appearing for the insurer however states that it is clear that the Doctor who had examined the petitioner had not been examined and it comes out from the cross examination of PW.2 that the person who had examined the petitioner was a different Doctor. Learned counsel for the insurer also states that the reliance placed by the appellant on the case of Mukund Dewangan Vs. Oriental Insurance Company Limited [AIR 2017 SC 3668] for the fastening of liability on the insurer, must not be accepted as the matter is referred to a larger Bench by the Hon’ble Supreme Court in Civil Appeal No.841/2018 dated 3.5.2018 [M/s. Bajaj Alliance General Insurance Co. Ltd. Vs. Rambha Devi and others]. The counsel for the insurer further submits that the contentions raised by the claimant are devoid of merits.
9. Heard learned counsel for both the parties.
10. The points that arise for consideration are as follows:
(1) Whether the Tribunal has erred in fastening the liability on the owner of the vehicle by holding that the driver did not have effect driving license?
(2) Whether the appellant is entitled for award of compensation under the heads of ‘disability’ and ‘loss of earning during laid up period’?
11. It is to be noted that it is not in dispute that the driver had a licence to drive a light motor vehicle as per the licence produced and marked as Ex.R-4. The weight of the vehicle is also not in dispute and Ex.R.5 clearly records that the registered laden weight was 3490 kilograms. The Hon’ble Supreme Court in the case of Mukund Devangan referred to supra while considering the very same contention has at para 46, observed that if the vehicle falls within the same class of vehicles, no separate endorsement as such, is required to drive such vehicles subject to the stipulation of weight of the vehicle. It is further observed that light motor vehicle would include a transport vehicle also and that a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It is further observed that a transport vehicle could be a light motor vehicle where the gross vehicle weight of which does not exceed 7500 kilograms and no separate endorsement as regards the licence is required to drive a transport vehicle of light motor vehicle class.
12. In the present case, there is no dispute that the registered laden weight of the vehicle is 3490 kilograms. If that is so, in the light of the judgment of the Supreme Court, no separate endorsement as such is required to the authorized to drive in spite of vehicle belonging to the class of Maxi Cab.
13. As the liability is as on date is the law as laid down in Mukund Devangan’s case, the law laid down in Mukund Devangan’s case would be applicable. Mere Pendency of a reference to a Larger Bench, does not mean that all other proceedings involving same issue would remain stayed till a decision was rendered in the reference. The reference made in the case of M/s. Bajaj Alliance General Insurance Co. Ltd., (supra) need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field. Accordingly, the finding of the Tribunal that separate endorsement was necessary for the driver to drive a Maxi Cab is not a correct finding. Accordingly, the imposition of liability on the owner on the ground that the driver did not have an effective driving licence and excluding liability on the insurer, is set aside in part. The liability of the owner as well as the insurer is held to be joint and several.
Re-Point No.2:
14. In so far as the compensation under the head of disability is concerned, it is to be noted that PW.2 has led in evidence and has stated that assessment of disability of one Purandara Sharma (claimant) who visited the Hospital on 23.10.2009 was done and that the petitioner was also examined by one Dr.Ravishnakar.D., Orthopaedician. Merely because PW.2 himself had not examined the patient, would be no ground to discredit the evidence as regards the disability as stated by PW.2, who has spoken from the records. In so far as the nature of disability is concerned, the Doctor has stated that the petitioner finds it difficult to walk, run, climb stairs and also to squat. It is further stated by PW.2 that he has examined the petitioner clinically along with Dr.Ravishankar and an assessment of disability has been made as per the prevalent guidelines. Taking note of the disability as has been observed, it is appropriate to award a sum of Rs.35,000/- under the head of disability.
15. As regards the loss of income for the laid up period, there is no dispute as per Ex.P.10 that he had availed leave from 1.2.2008 to 11.3.2008. Ex.P.9 is the salary certificate which reveals that the petitioner was earning Rs.28,164/- per month. Accordingly, for the period between 1.2.2008 and 11.3.2008 claimant will be entitled to award of compensation of Rs.37,552/- (938.8 x 40 days).
16. Accordingly, the appeal is allowed. The portion of the award relating to imposition of liability on the owner alone is set aside. In so far as enhancement of compensation is concerned, the enhanced amount of Rs.72,552/- is to be borne by the insurer with interest at of 6% per annum from the date of filing of the petition till the date of deposit. The enhanced amount, on deposit, is permitted to be withdrawn by the petitioner.
In light of the insurance policy which is a contract of indemnity, the insurer is to bear the liability arising out of the claim petition.
Sd/- JUDGE RS/* ct:mhp