IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL M.F.A.NO.10700 OF 2013 (MV) BETWEEN:
SRI K.L.SHIVANANJEGOWDA S/O LATE LINGEGOWDA AGED ABOUT 68 YEARS R/AT KAMENAHALLI VILLAGE, HOSUR KALLAHALLI POST, K.R. NAGARA TALUK, MYSORE DISTRICT – 571 602. ... APPELLANT (By Smt.SUMA KEDILAYA, ADVOCATE) AND:
1. N.SURESH S/O NAGARAJU AGED ABOUT 31 YEARS R/O NO.31/1, 12TH MAIN KEMPAMMA LAYOUT, OPPOSITE IR POLYTECHNIC, KAVERI NAGAR, LAGGARE, BENGALURU – 560 096.
2. NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE (TP HUB) JLB ROAD, CHAMUNDIPURAM, MYSURU – 570 004. ...RESPONDENTS (By SRI S.V.HEGDE MULKHAND, ADVOCATE FOR R2; R1 - SERVED AND UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.07.2013 PASSED IN MVC NO.1269/2012 ON THE FILE OF V ADDITIONAL DISTRICT JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL AT MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The present appeal has been preferred by the appellant/claimant assailing the judgment and award passed by the V Additional District Judge and Additional Motor Accident Claims Tribunal at Mysuru in M.V.C.No.1269 of 2012 dated 24.07.2013.
2. Heard the learned counsel appearing for the parties. The appeal is admitted and with the consent of the learned counsel appearing for the parties, it is taken up for final disposal.
3. Brief facts of the case are that on 06.11.2012 at about 12.00 noon, wife of the petitioner by name Seethamma was crossing the road near Government Hospital, K.R.Nagara town in K.R.Nagar, Hassan main road. At that time, TATA ACE goods vehicle bearing Reg.No.KA-02-AC-1428 came from TMC Circle towards Berya in a rash and negligent manner and dashed to the said Seethamma. Due to the said impact, she sustained injuries and died on the way to the Government hospital, K.R.Nagara. It is further contended that the said deceased Seethamma was aged about 60 years and working as a Housewife and earning Rs.5,000/- per month. On account of sudden death of the deceased, the petitioner has lost his wife who is a life partner and also that there is a loss of income and as such, a claim petition was filed under Section 166 of the Motor Vehicles Act (hereinafter called as the ‘Act’) claiming compensation of Rs.3,95,000/- with interest at the rate of 12% p.a.
4. In pursuance of the notice, Respondent Nos.1 and 2 appeared through their counsel and filed their written statement by denying the contents of the petition. It is further contended that the said vehicle has been insured with the Respondent No.2 but the liability is subject to terms and conditions of the policy. It is further contended that the driver of the said vehicle had no valid and effective driving license as on the date of the accident and as such, the Respondent No.2 is not liable to pay any compensation. On these grounds, he prayed for dismissal of the said petition.
5. On the basis of the pleadings, the Tribunal framed the following issues:
i) Whether the petitioner proves that deceased Seethamma met with an accident on 06.11.2012 at about 12.00 noon near Government Hospital, K.R.Nagar Town in Mysore-Hassan Main Road, while she was crossing the road?
ii) Whether the petitioner further proves that the said accident occurred due to the rash and negligent act on the part of the driver of the TATA ACE vehicle bearing Reg.No.KA-02-AC-1428, who drove the same in rash and negligent manner from K.R.Nagar Town and dashed against the pedestrian – Seethamma and caused her death i.e., Seethamma expired due to accidental injuries in Government Hospital, K.R.Nagar?
iii) Whether Respondent No.2 proves that the driver of the said TATA ACE vehicle bearing Reg.No.KA-02-AC-1428 was not having valid and effective driving license as on the date of accident and hence he is not liable to pay the compensation?
iv) Whether the Respondent No.2 further proves that the petition is bad for non- joinder of necessary parties, i.e., driver of the TATA ACE vehicle bearing Reg.No.KA-02-AC-1428?
v) Whether petitioner is entitled for compensation or not? If so, to what extent and from whom?
vi) To what Order or Award?
6. In order to prove the case, the appellant got examined himself as PW-1 and also got examined eye witness as PW-2 and got marked Exs.P1 to P11. On behalf of Respondent No.2, RW-1 has been examined and got marked Exs.R1 to R4. After hearing the parties to the lis, the impugned judgment and award came to be passed and overall, compensation of Rs.1,52,000/- with interest at the rate of 6% p.a. has been awarded to the appellant. Assailing the said judgment and award, the appellant/claimant is before this Court.
7. The accident is not in dispute so also the involvement of the offending vehicle insured with Respondent Insurance Company.
8. As could be seen from the judgment and award of the Tribunal, the Tribunal has taken the income of the deceased at the rate of Rs.3,000/- per month and after deducting 1/3rd of the amount towards the personal expenses of the deceased and after applying the multiplier of 05 as the petitioner/husband of the deceased was aged about 67 years at the time of accident has awarded an amount of Rs.1,20,000/- towards loss of dependency. In the normal course, the multiplier adopted by the Tribunal would be justified. However, even in the absence of documentary evidence with regard to the income of the deceased in support of her earnings, keeping in view, the avocation and period of accident will have to be taken into consideration. Even at the time of fixing the income of the deceased, the value of service rendered in the house has to be taken into consideration at the time of fixing the liability. Though the wife is not working at the time of the accident, but however, the value of the service which has been rendered, it cannot be quantified in terms of money. But, however by taking into consideration the year of the accident, as the accident has taken place during 2012 and during the said period, in respect of a daily wager notional income of Rs.6,500/- per month is the yardstick to be adopted even in the Lok Adalath settlement. Though the learned counsel for the appellant/ claimant contended that the age of the deceased has to be taken into consideration by applying the multiplier, in view of the settled principles of law by the Apex Court, I feel that it is just and proper to take the age of the appellant /husband who is aged about 67 years and even the same multiplier has been adopted by the Tribunal after considering the decisions of the Apex Court. If that were to be adopted, then under such circumstances, I feel that the appellant/claimant is entitled to an amount of (Rs.6,500 x 1/3rd x 5 x 12 = 2,59,988/-) rounded to Rs.2,60,000/- and if it is adopted, it would be justifiable. In addition to the same, the compensation awarded under the conventional heads appears to be on the lower side. Keeping in view the decision of Rajesh & Others Vs. Rajbir Singh & Others (2013) 9 SCC 54, the compensation awarded under the conventional heads appears to be on the lower side. Keeping in view the said ratio laid down by the Apex Court, the appellant/claimant is entitled to a sum of Rs.25,000/- towards the funeral and conveyance expenses and an amount of Rs.50,000/- towards consortium and Rs.50,000/- towards love and affection. Therefore, the appellant/claimant is entitled to total sum of Rs.3,85,000/- after deducting the compensation awarded by the Tribunal, the appellant/claimant is entitled to an additional amount of Rs.2,33,000/-, with interest at 6% p.a.
9. As could be seen from the judgment and award, it is contended by the learned counsel for the appellant/claimant that the Tribunal was not justified in fixing and fastening the liability on the owner of the vehicle instead of fixing the liability on Respondent No.2 Insurance Company. She further contended that as per Ex.R1, the ‘B’ Register extract issued by R.T.O., the said vehicle is LGV - Light Goods Vehicle and unladen weight of the said vehicle is 1000 Kilograms and in view of Section 2(21) of the Act, if the un-laden weight does not exceed 7500 Kgs, then, under such circumstances, it will be called as a light motor vehicle. She further contended that the driver of the said vehicle was having license to drive a light motor vehicle but was not having any endorsement to drive the transport vehicle. She further contended that in view of the decision of the Apex Court in case of Mukund Dewangan Vs. Oriental Insurance Company Limited and others reported in AIR 2017 SC 3668, the Respondent No.2 Insurance Company is liable to pay the compensation and the liability can be fastened on Respondent No.2. On these grounds, she prayed for fixing the liability on Respondent No.2.
10. Per contra, learned counsel appearing for the Respondent – Insurance Company vehemently argued and contended that as per Section 2 sub- clause 23 of the Act, the said light vehicle falls within the definition of ‘Medium Goods Vehicle’ and as such, the driver of the said vehicle was not having a valid and effective driving license and further contended that the Tribunal after taking into consideration the said facts and circumstances, the Tribunal has rightly fastened the liability on Respondent No.1 and on these grounds, he prayed for dismissing the petition by holding that the liability fixed on Respondent No.1 is correct.
11. I have gone through the averments made on behalf of both the counsels and I have also perused the records. As could be seen from Ex.R2, the ‘B’ register extract, which has been produced by Respondent No.2 – Insurance Company itself, the column No.7 - the class of vehicle, which clearly indicates that it is LGV-Light Goods Vehicle and even column No.20 of the said extract indicates that the un-laden weight of the said vehicle is 1000 Kgs. By going through the definition of the Act as per sub- clause (2) of Section 21 the “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 un-laden weight of any of which, does not exceed [7,500] kilograms. It is not in dispute that the driver of the said vehicle was having a license to drive LMV non-transport vehicle but the tribunal by holding that he is not competent to drive the transport vehicle has fixed the liability on Respondent No.1. When the driver who owned driving license (non-transport), then, under such circumstances, he cannot be held as not competent to drive the transport vehicle as held in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited and others quoted supra, wherein, the Hon’ble Apex Court has held at Para 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.
12. As could be seen from the said para, it has been observed that if a person has been given a license for a particular type of vehicle, he cannot be said to have no license for driving another type of vehicle which is of the same category but of a different type, in that context the insurer is liable by holding that there is valid Driving License. Then, under such circumstances, the contention of the learned counsel for the respondent cannot be accepted and liability cannot be fixed on Respondent No.1. Keeping in view the above facts and circumstances of the case and in view of the decisions of the Hon’ble Apex Court, the fastening of liability on Respondent No.1 appears to be not justified. As such, the said finding of the Tribunal has been set aside and liability has been fixed on Respondent No.2 to pay the compensation awarded by the Tribunal as well as additional compensation awarded by this Court.
13. Keeping in view the above said facts and circumstances, the appeal is allowed in part by modifying the judgment and award dated 24.07.2013 in M.V.C.No.1269 of 2012 passed by the V Additional District Judge and M.A.C.T, Mysuru as indicated above by fixing the liability on Respondent No.2.
Respondent No.2 – Insurance Company is directed to deposit the compensation awarded by the Tribunal and additional compensation awarded by this Court within a period of six weeks from the date of receipt of copy of this order and the same shall be disbursed to the claimants as per the award of the Tribunal.
Registry is directed to draw the decree accordingly and send back the lower Court records accordingly.
Sd/- JUDGE dh