IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE MISCELLANEOUS FIRST APPEAL NO.1895 OF 2011 (MV) BETWEEN:
1. S.H.SUSHEELA W/O LATE D R BASAVARAJU AGE 30 YEARS 2. KUM.LAVANYA D/O LATE D R BASAVARAJU AGE 6 YEARS 3. KUM.NAYANA D/O LATE D R BASAVARAJU AGED 4 ½ YEARS 4. RUDRAPPA S/O CHANNABASAPPA AGED 67 YEARS ALL ARE R/O DUMEANAHALLI, KASABA HOBLI ARASIKERE TALUK AND DISTRICT HASSAN THE APPELLANTS 2 AND 3 ARE MINORS, REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER S.H.SUSHEELA APPELLANT NO.1 ...APPELLANTS (BY SRI.BASAVARAJ KAREDDY, ADV.) AND:
1. SOMASHETTY S/O LATE THIMMASHETTY AGED ABOUT 47 YEARS R/O GANDHINAGAR EXTENSION MADALU VILLAGE, KANAKATTE HOBLI ARSIKERE TALUK 2. THE DIVISIONAL MANAGER BAJAJ ALLIANZ GENERAL INSURANCE CO LTD., G.E. PLAZA, AIR PORT ROAD, YERWADA PUNE - 411 006 ...RESPONDENTS (BY SRI.P B RAJU, ADV. FOR R2; R1 IS SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:23.11.2010 PASSED IN MVC NO.110/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, & JMFC, MEMBER, MACT, ARASIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Claim petition filed seeking compensation for the accidental death of the breadwinner of the family in the road traffic accident that took place on 05th May 2009, came to be allowed by the Motor Accident Claims Tribunal, Arasikere by its order dated 23rd November 2010 passed in MVC No.110 of 2009.
2. The learned counsel appearing for the appellant submits that while awarding the compensation, the Tribunal fastened the liability on the owner on the ground of non- production of valid driving licence to drive transport vehicle. On the ground of possessing the driving licence, the learned counsel relying upon the judgment of the Hon'ble Supreme Court in the case of MUKUND DEWANGAN v. ORIENTAL INSURANCE COMPANY LIMITED reported in 2016(4) SCC 298 submits that possessing of driving licence to drive light motor vehicle is sufficient to drive Light Motor transport vehicle also. His second submission is that the Tribunal has assessed the income at Rs.150/- per day which is on the lower side. Hence, it is submitted to fasten the liability on the insurer and also seeks enhancement in the Compensation.
2. Per contra, the learned counsel for the respondent- insurer supports the order of the Tribunal and submits to dismiss the appeal and submits that the liability is fastened on the owner on the ground of non-possession of valid and effective driving licence.
3. Heard the learned counsel for the parties. The Hon'ble Supreme Court in the case of MUKUND DEWANGAN (supra) has observed thus:
“43. Section 10(2) (a) to (j) lays down the classes of vehicles to be driven not a specific kind of motor vehicles in that class. If a vehicle falls into any of the categories, a licence holder holding licence to drive the class of vehicle can drive all vehicles of that particular class. No separate endorsement is to be obtained nor provided, if the vehicle falls in any of the particular classes of section 10(2). This Court has rightly observed in Nagashetty (supra) that in case submission to the contrary is accepted, then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle it by itself does not mean that driver ceased to have valid driving licence. In our considered opinion, even if such a vehicle is treated as transport vehicle of the light motor vehicle class, legal position would not change and driver would still have a valid driving licence to drive transport vehicle of light motor vehicle class, whether it is a transport vehicle or a private car/tractor attached with trolley or used for carrying goods in the form of transport vehicle.
44. In Natwar Parikh & Co. Ltd. v. State of Karnataka & Ors. (2005) 7 SCC 364, this Court was concerned with the taxation under the Karnataka Motor Vehicles Taxation Act, 1957 and question arose whether the tractor along with trailer for transporting goods was to constitute distinct category of goods carrier which requires permission under Section 2(14) of the Motor Vehicles Act, 1957 and absence thereof would render it liable to tax under Section 3(2). This court held that the tractor when attached with the trailer carrying goods, would become a transport vehicle for the purpose of taxation. This Court has discussed the question thus:
"Section 2(28) is a comprehensive definition of the words "motor vehicle". Although a "trailer" is separately defined in Section 2(46) to mean any vehicle drawn or intended to be drawn by a motor vehicle, it is still included in the definition of the words "motor vehicle" under Section 2(28). Similarly, the word “tractor” is defined in Section 2(44) to mean a motor vehicle which is not itself constructed to carry any load. Therefore, the words "motor vehicle" have been defined in the comprehensive sense by the legislature. Therefore, we have to read the words "motor vehicle" in the broadest possible sense keeping in mind that the Act has been enacted in order to keep control over motor vehicles, transport vehicles, etc. A combined reading of the aforestated definitions under Section 2, reproduced hereinabove, shows that the definition of "motor vehicle" includes any mechanically propelled vehicle apt for use upon roads irrespective of the source of power and it includes a trailer. Therefore, even though a trailer is drawn by a motor vehicle, it by itself is a motor vehicle, the tractor-trailer would constitute a "goods carriage" under Section 2(14) and consequently, a "transport vehicle" under Section 2(47). The test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods, it can be stated that it is adapted for the carriage of goods. Applying the above test, we are of the view that the tractor- trailer in the present case falls under Section 2(14) as a "goods carriage” and consequently, it falls under the definition of “transport vehicle” under Section 2(47) of the MV Act, 1988.”
There is no dispute with the aforesaid proposition, that tractor if drawing a trailer with goods would constitute goods carrier and consequently would be a transport vehicle. The aforesaid discussion was with respect to taxation and not with respect to the competence of driver holding light motor vehicle licence to drive the tractor attached with trailer/trolley carrying goods. The driver had the competence to drive such a vehicle, tractor with a trailer carrying goods being of light motor vehicle category transport vehicle which is the question involved in the instant case.
4. In the light of the discussions made, the Hon’ble Supreme Court, at paragraph 46(iv) of the judgment, held thus:
“46. (i) to (iii) xxx xxx xxx (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.”
5. In the light of the above judgment of the Hon'ble Supreme Court, the liability is to be fastened on the insurer. Accordingly it is fastened. Insurer is directed to satisfy the award within a period of eight weeks.
6. As regards the submission of the learned counsel for the appellants regarding assessing the income at Rs.150/- per day is concerned, in the cases where no documentary proof is produced, the notional income is to be assessed on the basis of number of dependents, place of residence, cost of living, etc. In the instant case the dependents are four in number, of which the claimants No.2 and 3 are minors and were aged 4 and 2½ years at the time of accident. By taking note of the size of the family, it is to be presumed that the deceased should have earned decent income to feed the family and by taking note of the same, the income of the deceased is to be taken at Rs.5,500/- per month. The same is taken to award compensation under the head loss of dependency. Accordingly, the calculation would be Rs.5,500/- x 12 x 15 x ¾ comes to Rs.7,42,500/-, the same is awarded as against Rs.5,40,000/- awarded by the Tribunal under the head loss of dependency. As per the judgment of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI reported in 2017 SCC ONLINE SC 1270, under conventional heads, all put together Rs.70,000/- is awarded. Further, the amount of Rs.10,000/- awarded by the Tribunal towards love and affection is retained. In total, the compensation would be Rs.8,22,500/- as against Rs.5,65,000/- awarded by the Tribunal which shall carry interest as awarded by the Tribunal. Appeal is partly allowed.
Sd/-
ACTING CHIEF JUSTICE lnn