IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.2659/2013 (MV) BETWEEN:
SRI AMARNARAYAN B V S/O VENKATARAMANAPPA AGED ABOUT 47 YEARS POSTMASTER UPPARA COLONY GOURIBIDANUR TOWN BANGALORE.
...APPELLANT (BY SRI.N R RANGEGOWDA, ADV. FOR SRI C GANGARAJU, ADV.) AND:
1. IFFCO-TOKIO GENERAL INSURANCE CO. LTD., BY ITS MANAGER STRATEGIL BUSINESS UNIT 3RD FLOOR, 3RD BLOCK KSCMS BUILDING CUNNINGHAM ROAD BANGALORE -52.
2. NANJI REDDY MAJOR S/O NARASIMHA REDDY NO.16/73, SANJEEVARAYANIPALLI ANANTHAPUR, CHILAMATUR ANDHRA PRADESH-515001.
(BY SRI. B PRADEEP, ADV. FOR R1 R2- SERVED & UNREPRESENTED) …RESPONDENTS THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.02.2012 PASSED IN MVC NO.85/2010 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimant is in appeal, being aggrieved by saddling of liability on the second respondent/owner and also on the quantum of compensation awarded under the judgment and award dated 22.02.2012 in MVC No.85/2010 on the file of the Principal Motor Accident Claims Tribunal and Chief Judge, Court of Small Causes at Bangalore (hereinafter referred to as 'the Tribunal' for short).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries sustained by the claimant in a road traffic accident. It is stated that on 01.12.2009, when the claimant was proceeding in a motorcycle bearing registration No.KA-40/J-1031, a Truck bearing registration No.AP-02/Y-0208 came from opposite direction in a rash and negligent manner and dashed against the motorcycle of the claimant. As a result, the claimant fell down and sustained grievous injuries. Immediately, he was shifted to Government Hospital at Gouribidanur and thereafter he was shifted to M.S.Ramaiah Hospital at Bangalore, where he took treatment as inpatient for 58 days. He underwent number of surgeries. It is stated that the claimant was working as Postmaster and was earning Rs.20,000/-
p.m. He was aged about 47 years as on the date of accident.
3. On issuance of notice, the first respondent appeared and filed its statement whereas the second respondent remained absent and was placed ex-parte. The first respondent/insurer in its written statement denied the claim petition averments and also occurrence of the accident. Further it stated that there was no negligence on the part of the driver of the Truck and also stated that the driver of the truck had no valid and effective driving licence.
4. The claimant got examined himself as P.W.1 and also examined the doctor as P.W.2 apart from marking the documents as Ex.P1 to Ex.P21. The respondents examined one witness as R.W.1 and got marked the documents as Ex.R1 to Ex.R3 on their behalf.
5. The Tribunal, based on the material on record awarded total compensation of Rs.8,04,661/- with interest at the rate of 6% p.a. from the date of petition till the date of realization, on the following heads:
1. Injury, pain and sufferings :: Rs.1,00,000/-
2. Medical expenses :: Rs.3,96,681/-
3. Attendant charges :: Rs. 40,500/-
4. Conveyance charges :: Rs. 8,000/-
5. Loss of earnings during the period of treatment :: Rs. 81,000/-
6. Food and nourishment :: Rs. 10,000/-
7. Loss of earnings on account of disability :: Rs.1,68,480/-
Total Rs.8,04,661/-
Further, the Tribunal saddled the liability on the second respondent/owner of the offending vehicle on the ground that the driver of the offending vehicle had no valid and effective driving licence as on the date of accident to drive the offending Truck bearing registration No.AP-02/Y-0208. The claimant, being aggrieved by saddling the liability on the second respondent/owner and praying for enhancement of compensation is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for the respondent/insurer. Perused the material on record.
7. Learned counsel for the appellant would submit that the Tribunal committed an error in absolving the insurer from its liability on the ground that the driver of the offending vehicle had no valid and effective driving licence as on the date of accident is wholly erroneous and perverse. It is his submission that the vehicle in question is not a lorry, but it is a Bolero Maxi i.e., light motor vehicle goods carrier. The driver of the offending vehicle had licence to drive LMV (NT). The insurance policy/Ex.R3 indicates that the vehicle in question was less than 7500 Kgs., which means it is a light motor vehicle. In view of the decision of the Hon'ble Apex Court in the case of MUKUND DEWANGAN V/S ORIENTAL INSURANCE COMPANY LIMITED reported in (2017) 14 SCC 663 the insurer would be liable to indemnify the owner, as the driver of the offending vehicle was possessing LMV (NT) licence. Further, with regard to quantum of compensation, learned counsel submits that the Tribunal has failed to award any compensation on the head of loss of amenities and future medical expenses. Thus, prays for allowing the appeal.
8. Per contra, learned counsel for the respondent/ insurer submits that the Tribunal rightly saddled the liability on the second respondent/owner of the offending Truck since the driver of the said vehicle had no valid and effective driving licence to drive the transport vehicle as on the date of accident. Further he submits that the compensation awarded by the Tribunal itself is on the higher side and the claimant would not be entitled for enhancement of compensation. Further, learned counsel would submit that the claimant has not placed on record any material to indicate that he had taken treatment for the last 10 years for the injuries sustained in the accident in question. Thus, prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and on perusal of the material on record including the lower court records the following points would arise for consideration:
(i) Whether the Tribunal is justified in absolving the insurer’s liability and saddling the liability on the second respondent/owner?
(ii) Whether the claimant would be entitled for enhanced compensation?
10. Answer to the above points would be in the negative and affirmative respectively for the following reasons:
The accident that had taken place on 01.12.2009 involving the motorcycle bearing registration No.KA-40/J-1031 and a Truck bearing registration No.AP-02/Y-0208 and the accidental injuries sustained by the claimant are not in dispute in this appeal. The claimant is in appeal, being aggrieved by saddling liability on the second respondent/owner of the offending vehicle and praying for enhancement of compensation. The insurer has placed on record Ex.R2/driving licence extract of the driver of the offending vehicle and Ex.R3/insurance policy. Ex.R3 indicates that the policy was issued to Bolero Maxi of which, gross weight was less than 7500 Kgs, which means the offending vehicle was a light motor vehicle.
11. Light Motor Vehicle is defined under Section 2(21) of the Motor Vehicles Act which reads as follows:
“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”.
In the instant case also since the gross weight of the vehicle is less than 7500 Kgs, the vehicle in respect of which, the insurance policy is issued would be a light motor vehicle. Ex.R2/driving licence extract would establish that the driver of the offending vehicle was possessing LMV (NT) licence w.e.f. 22.08.2008 to 21.08.2028. The accident had taken place on 01.12.2009. As on the date of accident, the driver of the offending vehicle was possessing LMV (NT) licence. The Hon'ble Apex Court in the case of MUKUND DEWANGAN (supra) at paragraphs 60.1 to 60.4 has held as follows:
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 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.
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 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.
60.3. The effect of the amendment made by virtue of Act 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.
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.”
12. A reading of the above portion of the judgment would indicate that the driver who possesses LMV (NT) licence can also drive LMV (Transport) vehicles of the same category. Hence, in the facts and circumstances of the case and in view of the above decision, I am of the view that the insurer is liable to indemnify the second respondent/owner. Therefore, the liability fastened on the second respondent/owner is shifted to the first respondent/insurer which shall deposit the compensation amount to be decided in this appeal, within a period of 8 weeks from today, before the Tribunal.
13. With regard to quantum of compensation, learned counsel for the appellant submits that the Tribunal has failed to award any compensation on the heads loss of amenities and future medical expenses. The claimant has suffered fracture of femur and fracture of right ulna. P.W.2/doctor is examined in support of his case. The claimant was inpatient for a period of 58 days for treatment for the injuries sustained in the accident in question. Thus, looking to the injuries sustained and treatment taken, I am of the view that the claimant would be entitled for a sum of Rs.25,000/- towards loss of amenities. Leaned counsel for the appellant states that the Tribunal has failed to award any compensation on the head of future medical expenses. But the claimant has not placed on record any material to establish that he had undergone treatment during the period between 2010 and 2019, till the date of hearing this appeal. In the absence of any material for having taken treatment during the above mentioned period, the claimant would not be entitled for any compensation on the head of future medical expenses.
14. Accordingly, the appeal is allowed in part. The liability fastened on the second respondent/owner of the offending vehicle is shifted to first respondent/insurer. The claimant would be entitled for enhanced compensation of Rs.25,000/- with interest at the rate of 6% p.a. on the head of loss of amenities. Thus, the judgment and award dated 22.02.2012 in MVC No.85/2010 on the file of the Principal Motor Accident Claims Tribunal and Chief Judge, Court of Small Causes at Bangalore is modified to the above extent. The claimant is entitled for enhanced compensation of Rs.25,000/-.
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JUDGE mpk/-* CT:bms