IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.4663/2014 c/w MISCELLANEOUS FIRST APPEAL NO.4417/2014 IN M.F.A.No.4663/2014 BETWEEN:
1. Sri. Chandrashekar S/o late Mruthyunjaya, aged about 49 Years.
2. Smt. Renukamma W/o Chandrashekar, aged about 41 Years.
Both are residing at Sugganahalli Village, Kasaba Hobli, Ramanagara Taluk & District. ... Appellants (By Sri. Gopal Krishna N, Advocate) AND:
1. Sri. Krishna Murthy S/o Shankarappa, major in age, Sugganahalli Village, Kasaba Hobli, Ramanagara Taluk & District.
2. United India Insurance Company Ltd., No.471/1, V.D.Chandru Building, 3rd Cross, Anjaneya Temple Road, K.R.Puram Layout, Opp:Syndicate Bank, Bangalore-560036.
Rep: by its Manager. ... Respondents (By Sri. O Mahesh, Advocate for R-2 Notice to R1 D/W) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the judgment and award dated: 10.3.2014 passed in MVC No.05/2013 on the file of the Senior Civil Judge & J.M.F.C. & MACT, Channapattana, Ramanagar District, partly allowing the claim petition for compensation and seeking enhancement of compensation and etc.
IN M.F.A.No.4417/2014 BETWEEN:
The Branch Manager, United India Insurance Company Limited., No.471/1, V.C.Chandru Building, 3rd Cross, Anjaneya Temple Road, K R Puram Layout, Opp: Syndicate Bank, Bangalore 560 036.
By Regional Manager, United India Insurance Co. Ltd., 5th Floor, Krishi Bhavan, Nrupathunga Road, Hudson Circle, By It’s Manager ... Appellant (By Sri. O Mahesh, Advocate) AND:
1. Chandrashekar, Aged 49 Years, S/o. Late Mruthyunjaya, 2. Smt. Renukamma, Aged 41 Years, W/o Chandrashekhar, Both are R/a. Sugganahalli Village, Kasaba Hobli, Ramanagara Taluk & District-571 511 3. Krishna Murthy, Major, S/o. Shankrappa, Sugganahalli Village, Kasaba Hobli, Ramanagara Taluk & District-571 511 ... Respondents (By Sri. S Raju & Assts for R1 & R2) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the judgment and award dated: 10.3.2014 passed in MVC No.05/2013 on the file of the Senior Civil Judge & J.M.F.C, MACT, Channapattana, Ramanagar District, awarding compensation of Rs.5,96,000/- with interest @ 6% P.A from the date of petition till date of deposit and etc.
These Appeals coming on for Admission, this day, the Court delivered the following:
J U D G M E N T M.F.A.No.4663/2014 is filed by the claimants seeking enhancement of compensation and M.F.A.No.4417/2014 is filed by the insurance company challenging the liability as well as quantum of compensation awarded by the Tribunal in M.V.C.No.05/2013 on the file of the Court of Senior Civil Judge & J.M.F.C & MACT, Channapattana.
2. The brief facts leading to the filing of these appeals are that the deceased namely Bharath and his friends were travelling in TATA Indica Car bearing Reg.No.KA-03-C-837 on 09.11.2012 at about 11:00 PM.
The said car met with an accident due to the rash and negligent driving by its driver, near Kenchanaguppe Gate on B.M.Road. On account of the said accident three persons by name Kiran, Lohith and Bhyrappa succumbed to the injuries at the spot and Bharath died on the way to NIMHANS hospital. The claimants being the parents of the deceased Bharath, filed a claim petition seeking a total compensation of Rs.15 lakhs for the death of Bharath.
3. Before the Tribunal, the mother of the deceased was examined as P.W.1 and exhibits P-1 to 10 were marked. The claim petition was resisted by the insurance company. R.W.1, an officer of the company was examined and exhibits R-1 to 3 were marked on behalf of the respondents.
4. The Tribunal, after considering the oral and documentary evidence on record awarded a total compensation of Rs.5,96,000/- with interest at 6% p.a., under the following heads:
Heads Amount in rupees Towards transportation of the body, Funeral expenses and obsequies 10,000.00 Loss of dependency 5,76,000.00 Loss of estate 10,000.00 Total 5,96,000.00 5. Sri. Gopal Krishna.N, learned counsel appearing for the claimants contends that the deceased was a bachelor aged about 18 years, he was running a hotel business and having an income of Rs.9,000/- per month. To prove the income of the deceased and to show that he was running a hotel, exhibit.P8-Licence has been produced. He would contend that ignoring the same, the Tribunal has computed the compensation by taking the income of the deceased as Rs.4,500/- per month. He would further contend that the multiplier adopted is also not in accordance with law as it is on the lower side. It is his further submission that the total compensation awarded under different heads are on the lower side and accordingly, seeks to enhance the compensation by modifying the judgment and award passed by the Tribunal.
6. Sri. O. Mahesh, learned counsel appearing for the insurance company on the other hand would vehemently contend that the vehicle involved in this case is TATA Indica Car, which is a Transport Vehicle/passenger carrying commercial vehicle. The driver of the said vehicle was not possessing a valid and effective driving licence to drive such type of vehicle. He would submit that the Tribunal has failed to appreciate that the driving licence- exhibit R-2, was issued for the first time on 21.06.2011 to be valid till 20.06.2031 for a period of 20 years for M\C with Gear and LMV-NT. Driving Licence for Transport Vehicle, on the other hand would be issued only for a period of three years and therefore, on the date of accident, the driver of the offending vehicle in question was not possessing a valid driving licence to drive the passenger carrying commercial vehicle. Even for a “light transport vehicle” the license holder should have authorization to drive transport vehicle.
7. It is the further contention of the learned counsel for the insurance company that the Tribunal was not justified in taking the income of the deceased at Rs.4,500/- per month in the absence of convincing material with regard to the alleged hotel business. He would submit that the proper multiplier which is applicable shall be on the basis of the age of the younger parent of the deceased and since the deceased was a bachelor, it cannot be said that he would have contributed more than 1/4th of his income to his parents. Accordingly, he submits that the judgment and award passed by the Tribunal be set aside and the appeal filed by the insurance company be allowed.
8. The claimants are the parents of the deceased- Bharath, who was a bachelor, aged about 18 years. The accident involving TATA Indica Car bearing Reg.No.KA-03- C-837 on 09.11.2012 at about 11:00 PM due to the rash and negligent driving by its driver and the fact that the said car was insured with the appellant in M.F.A.No.4417/2014 is not in dispute.
9. The contention of the learned counsel for the insurance company is that the driver of the TATA Indica Car was holding a driving licence to drive a “light motor vehicle” only and he was not holding a driving licence to drive a passenger carrying commercial vehicle or a transport vehicle and therefore, the insurance company is not liable to pay the compensation. Learned counsel draws the attention of this Court to the relevant provisions of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘Act’ for short) and contends that under Section 2(10) of the said Act a “driving licence” means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle of any specified class or description and under Section 2(21) of the Act a “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.
10. The contention of the learned counsel is that though the definition of “light motor vehicle” includes 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, however, to drive such vehicle, authorising the person specified therein to drive otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description is necessary. He would also draw the attention to the definition of “motor car” as provided under Section 2(26) of the Act and contends that motor car means any motor vehicle other than a transport vehicle, omnibus, road-roller, tractor, motor cycle or invalid carriage and therefore, it does not include in the category of “transport vehicle”.
11. Learned counsel for the insurance company would therefore contend that a person holding a driving licence to drive “light motor vehicle” (Non-Transport) is not entitled to drive a transport vehicle or a passenger carrying commercial vehicle as such, there is violation of the conditions of the policy and therefore, the insurer cannot be held liable to pay the compensation.
12. The Hon’ble Apex Court in the case of MUKUND DEWANGAN v. ORIENTAL INSURANCE COMPANY LIMITED reported in AIR 2017 SC 3668, has held at paragraph Nos.45 and 46 as under:
“45. Transport vehicle has been defined in section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab, a motor cab, contract carriage, and stage carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994.
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.
13. In view of the decision of the Hon’ble Apex Court in the afore mentioned case, the contention of the learned counsel for the insurance company holds no water. The Hon’ble Apex Court has held that 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. It is also held that the 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.
14. Learned counsel, Sri. O.Mahesh would contend that the Hon’ble Apex Court in M/S. BAJAJ ALLIANCE GENERAL INSURANCE CO. LTD. vs. RAMBHA DEVI & ORS., Civil Appeal No.841/2018, after noticing certain distinct provisions pertaining specifically to transport vehicles such as Sections 4 (1), 4 (2), 7, 14, 14 (2) (a) and Rules 5, 31 of the Motor Vehicles Rules, 1989 has referred the decision rendered in Mukund Dewangan’s Case (supra) to a larger bench and therefore submits that the law laid donw in Mukund Dewangan’s Case (supra) cannot be pressed into service.
15. The Hon’ble Apex Court in the case of ASHOK SADARANGANI AND ANOTHER v. UNION OF INDIA & OTHERS (2012) 11 SCC 321 at para 29, has observed a under:
“29. As was indicated in Harbhajan Singh case (2009) 13 SCC 608, the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh case (2010) 15 SC 118 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.”
16. It is specifically held by the Hon’ble Apex Court that the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. In view of the above dictum, it cannot be said that the insurer of the offending vehicle is not liable to pay the compensation to the claimants. The insurer is therefore held liable to pay the compensation.
17. The contention of the learned counsel for the claimants is that the deceased was having an income of Rs.9,000/- per month from his hotel business. Apart from producing the Licence-exhibit P-8, showing that the deceased was running a hotel business, there is no other acceptable evidence to establish that the deceased was earning Rs.9,000/- per month. However, the notional income taken by the Tribunal at Rs.4,500/- per month is on a lower side. Considering the fact that the accident has occurred in the year 2012 and also considering that the deceased was a bachelor and the claimants are his parents, the notional income of the deceased is assessed at Rs.7,000/- per month.
18. The Hon’ble Apex Court in the case of HEM RAJ vs. ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS (2018 ACJ 5) has held that while determining the addition to be made to the income for considering the future prospects there cannot be distinction where there is positive evidence of income and where minimum income is determined on guess work in the facts and circumstances of a case. Both the situations stand at the same footing.
19. Following the decision of the Hon’ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS reported in AIR 2017 ACJ 2700 SC and HEMRAJ vs ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS (SUPRA).
I am of the considered view that an addition of 40% has to be made to the income of the deceased and after deducting one half towards personal expenses and applying the multiplier 18, the total compensation to which the claimants are entitled towards ‘Loss of dependency’ would be (Rs.4,900x12x18) Rs.10,58,400/- as against Rs.5,76,000/- awarded by the Tribunal. The Tribunal has awarded a total compensation of Rs.20,000/- towards ‘transportation of the body, Funeral expenses, obsequies’ and ‘Loss of estate’. The same is on the lower side and accordingly, under the said heads the claimants are entitled for a sum of Rs.30,000/-. The claimants being the parents, another sum of Rs.40,000/- is awarded towards ‘Loss of love and affection’. Hence, the claimants are entitled for a total compensation of Rs.11,28,400/- as against Rs.5,96,000/-awarded by the Tribunal.
Accordingly, I pass the following:
ORDER M.F.A.No.4663/2014 is partly allowed.
The judgment and award dated 10.3.2014 passed in M.V.C.No.05/2013 on the file of the Court of Senior Civil Judge & J.M.F.C & MACT, Channapattana, is hereby modified.
The appellants/claimants in M.F.A.No.4663/2014 are entitled for a total compensation of Rs.11,28,400/- with interest at 6% p.a. from the date of petition till its realization.
The Insurance company shall deposit the amount within a period of six weeks from the date of receipt of a copy of this order.
The amount in deposit shall be transmitted to the Tribunal forthwith.
The appeal filed by the Insurance company i.e., M.F.A.No.4417/2014 is dismissed.
Sd/- JUDGE SMJ