IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF DECEMBER, 2017 BEFORE THE HON’BLE Mr. JUSTICE L.NARAYANA SWAMY MFA.No.4756/2015 C/W MFA.Nos.1877/2015, 4757/2015 AND MFA.No.1251/2015 (MV) MFA.NO.4756/2015 BETWEEN:
SRI MANJUNATH S/O DUDDA BORAYYA, AGED ABOUT 37 YEARS, R/A 43/1, ANANTHANAGAR, 1st MAIN, 9TH CROSS, BINNYPET, BANGALORE-560 028. … APPELLANT (BY SRI RAVI H.K., ADV., FOR SRI SHIVARAMAIAH, ADV.,) AND:
1. M/S THE NEW INDIA ASSURANCE CO., LTD ., REGIONAL OFFICE, M.G.ROAD, BANGALORE, REP. BY ITS MANAGER.
2. SRI S.SHEKARAN S/O SAMUNDHI, NO.1, VENKATESHWARA NILAYA, 1st MAIN, 9TH CROSS, KALYANAGAR, NAGARBHAVI, BANGALORE-560 072. … RESPONDENTS (BY SRI B.M.MOHAN KUMAR, ADV., FOR R2 SRI M.NARAYANAPPA, ADV., FOR R1) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:25.09.2014 PASSED IN MVC NO.2370/2012 ON THE FILE OF THE XII ADDITIONAL SMALL CAUSES JUDGE AND MEMBER, M.A.C.T, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
MFA NO 1877 OF 2015 BETWEEN:
SHRI S.SHEKARAN AGED 57 YEARS, S/O SAMUNDHI, NO.1, VENKATESHWARA NILAYA, I MAIN, 9TH CROSS, NAGARABHAVI, BANGALOR-560 072.
... APPELLANT (BY SRI B.M.MOHAN KUMAR, ADV.,) AND:
1. SHRI MANJUNATH S/O DUDDA BORAYA, AGED ABOUT 38 YEARS, RESIDING AT 43/1, ANANTHANAGAR, 1ST MAIN, 9TH CROSS, BANGALORE-560 028.
2. THE NEW INDIA INSURANCE CO. LTD., REGIONAL OFFICE, M.G.ROAD, BANGALORE-560 003.
REP. BY ITS MANAGER (INSURER OF LORRY BEARING REGISTRATION NO.KA-16-7812) ... RESPONDENTS (BY SRI SHIVARAMAIAH, ADV., FOR R1) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:25.9.2014 PASSED IN MVC NO.2370/2012 ON THE FILE OF THE 12TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.42,193/- WITH INTEREST @ 6% P.A FROM THE DATE OF THE CLAIM PETITION TILL ITS REALIZATION.
MFA NO 4757 OF 2015 BETWEEN:
1. SMT SHIVARUDRAMMA W/O SRI NINGAYYA, AGED ABOUT 49 YEARS, 2. SRI NINGAYYA S/O CHIKKABORAIAH, AGED ABOUT 54 YEARS, BOTH ARE R/O H-19-4, YADANAHALLI, MADDUR TALUK, MANDYA DISTRICT.
3. SMT REVAMMAS D/O NINGAYYA, NO.210, 1ST MAIN ROAD, 6TH CROSS, ANANTHNAGAR, BAPUJINAGAR, BANGALORE-560 026.
... APPELLANTS (BY SRI RAVI H.K., ADV., FOR SRI SHIVARAMAIAH, ADV.,) AND:
1. M/S THE NEW INDIA ASSURANCE CO., LTD., REGIONAL OFFICE, M.G.ROAD, BANGALORE-01.
REP. BY ITS MANAGER 2. SRI S.SHEKARAN S/O SAMUNDHI, NO.1, VENKATESHWARA NILAYA, 1ST MAIN, 9TH CROSS, KALYANAGAR, NAGARBHAVI, BANGALORE-560 072.
... RESPONDENTS (BY SRI B.M.MOHAN KUMAR, ADV., FOR R2 SRI M.NARAYANAPPA, ADV., FOR R1) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:25.09.2014 PASSED IN MVC NO.2369/2012 ON THE FILE OF THE XII ADDITIONAL SMALL CAUSES JUDGE AND MEMBER, MACT, BANGALROE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
MFA NO 1251 OF 2015 BETWEEN:
SHRI S. SHEKARAN AGED 57 YEARS, S/O SAMUNDHI, NO.1, VENKATESHWARA NILAYA, I MAIN, 9TH CROSS, NAGARABHAVI, BANGALORE-560 072.
... APPELLANT (BY SRI B.M.MOHAN KUMAR, ADV.,) AND:
1. SMT. SHIVARUDRAMMA W/O SHRI NINGAYYA, AGED ABOUT 50 YEARS, 2. SHRI NINGAYYA S/O CHIKKABORAIAH, AGED ABOUT 55 YEARS, PERMANENT RESIDENT OF H-19-4, YADANAHALLI VILLAGE, MADDUR TALUK, MANDYA DISTRICT-571 428.
3. SMT REVAMMAS D/O NINGAYYA, MAJOR, NO.210, I MAIN ROAD, 6TH CROSS, ANANTHNAGAR, BAPUJINAGAR, BANGALORE-26.
4. THE NEW INDIA INSURANCE CO., LTD., REGIONAL OFFICE, M.G.ROAD, BANGALORE-560 003, REPRESENTED BY ITS MANAGER, (INSURER OF LORRY BEARING REGISTRATION NO.KA-16-7812) ... RESPONDENTS (BY SRI SHIVARAMAIAH, ADV., FOR R1 TO R3 SRI M.NARAYANAPPA, ADV., FOR R4) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:25.9.2014 PASSED IN MVC NO.2369/2012 ON THE FILE OF THE 12TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.8,25,000/-WITH COSTS AND INTEREST AT THE RATE OF 6% P.A FROM THE DATE OF PETITION TILL ITS REALIZATION.
THESE APPEALS COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT MFA.No.4756/2015 is filed by the appellant who is the pillion rider of the motor cycle bearing registration No.KA-41-V-522, MFA.Nos.1877/2015 and 1251/2015 are filed by the owner of the tanker lorry bearing registration No.KA-16-7812 and MFA.No.4757/2015 is filed by the appellants who are the claimants.
2. The appellants who are the claimants in MFA.No.4757/2015 are the legal representatives of deceased Sri N.Prakash who died in a motor vehicle accident occurred on 01.03.2012.
3. The brief facts of the case are that on 01.03.2012 at about 5.00 pm., the rider – Sri N.Prakash and Sri Manjunath - pillion rider were proceeding on a motor cycle bearing registration No.KA-41-V-522 and when they reached near Kanminke, a lorry bearing registration No.KA-16-7812 driven by its driver in a rash and negligent manner, dashed against the motor cycle from behind, as a result of which, they fell down and sustained grievous injuries. The rider of the motor cycle died on the spot and the pillion rider sustained grievous injuries. The pillion rider who sustained grievous injury in a road traffic accident made a compliant alleging that the accident has occurred due to rash and negligent driving of the driver of tanker lorry. The pillion rider preferred MVC.No.2370/2012 before the Tribunal claiming compensation of Rs.3,50,000/- and the claimants who are the legal representatives of deceased Sri N.Prakash preferred MVC.No.2369/2012 on the file of Motor Accident Claims Tribunal, Bangalore (SCCH-8). The Tribunal by its judgment and award dated 25.09.2014 allowed the claim petitions awarding compensation to both the pillion rider and the claimants who are legal representatives of the deceased and fastened liability on the owner of the offending vehicle.
4. The ground urged by the owner of the tanker lorry is that, instead of fastening liability on the Insurance Company, the Tribunal has fastened the liability on the owner of the tanker lorry, which is an error. It is further urged that the driver of the lorry was possessing valid and effective driving licence. For the purpose of Sections 3 and 10 of the Motor Vehicles Act, 1988 (for short the ‘Act’), he made a specific application to obtain the driving licence and the competent authority has issued a licence to the driver of the transport vehicle.
5. As per Section 14 (2)(a) of the Act, it requires an endorsement to drive a transport vehicle carrying goods of dangerous or hazardous nature. Under these circumstances, as per Section 3 of the Act, driver of the tanker lorry was having valid and effective driving licence, despite of that, the Tribunal has committed an error in fastening the liability on the owner of tanker lorry. The other ground urged by the owner is that there is no specific finding with regard to contents of the lorry as on the date of the accident. Unless the vehicle is loaded with dangerous and hazardous goods, which becomes the transport vehicle and in the absence of specific finding with regard to the contents of the lorry, as the driver was having valid and effective driving licence, it should have been held that the driver was having valid licence for the purpose of transportation. Subsequently, there is no specific condition made in the policy to obtain the driving licence for one year with endorsement and in the absence of such specific ground, since the policy is a contract between the insurer and the insured, it should have been held in favour of the insurer by indemnifying the liability on the Insurance Company. The learned counsel appearing for the owner of the tanker lorry has relied upon the judgment in the case of Renu and another Vs. The Oriental Insurance Co., Ltd., and another reported in ILR 2014 KAR 2592 and relied upon another judgment of the Hon’ble Supreme Court in the case of Lakshmi Chand Vs. Reliance General Insurance reported in 2016 (3) SCC 100.
6. In MFA.No.4757/2015 the claimants who are the legal representatives of the deceased have urged the ground on two folds.
Firstly, in respect of fastening liability on the Insurance Company, it is the submission of the learned counsel that the driver was having valid driving licence as prescribed under Section 3 of the Act and obtaining an endorsement to undergo test, it becomes only at the time of renewal and further there is no indication or material to establish that as on the date of the accident, the vehicle was carrying goods of dangerous or hazardous nature and secondly, there is no such condition in the policy being violated. The learned counsel has relied upon the judgments of this Court in the case of Renu and another Vs. The Oriental Insurance Co., Ltd., and another reported in ILR 2014 KAR 2592 and New India Assurance Co., Ltd., Vs. Shri Velumurugan V and Another reported in ILR 2015 KAR 393 and another unreported judgment from the High Court of Judicature at Madras between National Insurance Co., Ltd., Vs. K.Ramasway and Others in Civil Miscellaneous Appeal No.1988/1999. It is further submitted that mere absence of endorsement in the driving licence is not fatal.
7. The learned counsel for the Insurance Company supports the order passed by the Tribunal. It is the specific submission that the policy covers the headnote of persons or classes of persons entitled to drive, under which, it clarifies that any person including the insured provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective Learner’s Licence may also drive the vehicle and that such a person satisfies the requirement of Rule 3 of the Central Motor Vehicles Rules, 1989.
8. The learned counsel for the Insurance Company by relying on Sub-section 2(a) of Section 14 of the Act has submitted that the licence to drive a transport vehicle with dangerous and hazardous goods, the period valid is only one year. In the instant case, Ex.R.3 – policy copy disclose the period of cover as one year. It is also submitted that unless the presence of valid and effective driving licence, the driver should not drive the vehicle in the public place. The learned counsel relying upon the judgment of this Court in the case of New India Assuarance Company Limited Vs. Shri Velumurugan V and Another reported in ILR 2015 KAR 393 has submitted that Section 14(2)(a) of the Act clearly indicates that special licence is required to drive a vehicle, which is carrying on goods of dangerous and hazardous nature and such licence will be effective for a period of one year and thereafter, the driver has to undergo one day refresher course of the prescribed syllabus and also relied on the judgment of this Court for the purpose of substantiating the effectiveness of the driving licence.
9. Heard the learned counsel for the parties and perused the materials placed before the Court.
10. The driving licence at Ex.R.2 contains the validity period of three years and the driver of the tanker lorry was in possession of the driving licence. The driving licence was issued on 19.07.2011 and the validity period is mentioned as 18.07.2014. That means to say that the licence was valid for a period of three years. The vehicle which was involved in the accident undisputedly is a tanker.
11. Sub-section (10) of Section 2 of the Act defines the “driving licence” as the licence issued by a competent authority under Chapter II authorizing the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description. Section 3 of the Act further requires the necessity for driving licence, which mandates that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle and no person shall so drive a transport vehicle (other than (a motor cab or motor cycle) hired for his own use or rented under any scheme made under Sub-section (2) of Section 75) unless his driving licence specifically entitles him so to do.
12. The effective driving licence means effective and valid in respect of a vehicle and not in respect of vehicles under Section 14 of the Act, which is in respect of licences to drive motor vehicles. It clarifies that a learner’s licence issued under this Act shall, subject to the other provisions of this Act, be effective for a period of six months from the date of issue of the licence. The learner’s licence is also a licence for the purpose of this Act, but in order to clarify the learner’s licence one has to be accompanied with a valid driving licence. Sub-section (2) of Section 14 of the Act contemplates that a driving licence issued or renewed under this Act shall (a) in the case of a licence to drive a transport vehicle, be effective for a period of three years and the proviso further provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus. Be that as it may, the validity period to drive the tanker carrying goods of dangerous and hazardous nature is for a period of one year and not three years. This Court in the case of New India Assurance Company Limited Vs. Shri Velumurugan V and Another reported in ILR 2015 KAR 393 at paragraph No.10 has observed as under:
“10. So far as point No.1 is concerned, the appellant is not disputing the driver possessing a valid licence to drive a HGV. The contention of the appellant is that since the vehicle in question is registered as petrol tanker, special endorsement was required to be obtained by the driver to drive a petrol tanker. Admittedly, when the accident occurred, it was an empty tank. In the cross-examination of RW.1, he has admitted as hereunder:-
“When the accident occurred, there was no petroleum product in the tanker”.
Therefore, it is clear that when the accident occurred, it was an empty tanker. In order to drive an empty tanker, no endorsement it required by a driver to drive such vehicle since it was not carrying on any hazardous or combustible material. In order to consider the questions involved in this appeal, we have to consider the provisions under Section 14(2)(a) of the Motor Vehicles Act, 1988, which reads as hereunder:-
“14(2)(a) in the case of a licence to drive a transport vehicle, be effective for a period of three years:
[Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus; and]”
Proviso to Section 14(2)(a) clearly indicates that special license is required to drive a vehicle, which is carrying on goods of dangerous or hazardous nature and such licence will be effective for a period of one year and thereafter, the driver has to undergo one day refresher course of the prescribed syllabus. Therefore, it is clear that the special licence to be granted under this proviso will be valid for one year and thereafter, it will be renewed subject to the driver undergoing one day refresher course, which indicates that in order to grant such special licence, the driver has to undergo a course which is meant for safety measure. Safety measure is required when the vehicle is carrying on combustible, dangerous or hazardous nature of goods. In other words, if a tanker is not carrying on goods of dangerous or hazardous nature, there is no necessity to obtain such special licence to drive an empty tanker. Therefore, the arguments of Sri R.Jaiprakash that the driver did not possess an endorsement is not acceptable. Accordingly, we hold that in order to drive empty tanker, no such licence is required because the vehicle did not carry any dangerous or hazardous nature goods. Accordingly, point No.1 is answered in negative”.
13. The said judgment is only with regard to possessing of driving licence for a period of one year in the case of carrying goods of dangerous or hazardous nature. There is no necessity to obtain such special licence to drive an empty tanker. In case, if the vehicle is carrying goods of dangerous or hazardous nature, it should be made known to the police or it should be informed to the transport authority about using of such vehicle on the public road. Unless it is made known to the authorities, it is presumed that the vehicle is not loaded with dangerous or hazardous goods. It is further made clear that in case, if the vehicle is empty or not loaded with dangerous or hazardous goods, it is for the driver and owner of such vehicle to prove before the Tribunal or before the competent Court.
14. In the instant case, despite service of notice, the owner has not chosen to appear before the Tribunal. However, he made the statement before the police stating that as on the date of accident, the vehicle was loaded with dangerous or hazardous goods namely highly inflammable diesel oil. The said submission was recorded as per Ex.P.22, in which, he has stated that he has purchased the tanker lorry bearing registration No.KA-16-7812 and the records stands in his name and Praanesh S/o Shivalingegowda, aged 31 years, was appointed as a driver and on 01.03.2011 the tanker was loaded with diesel and at 12.00 pm., sent the tanker to Channapatana loaded with diesel. On the same day at 6.00 pm., the driver of the tanker informed him about the accident.
15. In the light of the above submission made before the Police, which is marked at Ex.P.22 and in view of the driving licence produced at Ex.R2, it is to be noted that as on the date of the accident, the driver of the tanker was not in possession of effective and valid driving licence.
16. The learned counsel for the claimants has relied upon the judgment of this Court reported in the case of National Insurance Co., Ltd., Vs. K.Ramaswamy and Others in Civil Miscellaneous Appeal No.1988/1999, wherein this Court at paragraph No.13 has held that even the absence of endorsement as provided under Rule 9 of the Rules in Ex.R2-licence will not enable the insurer/appellant herein to avoid its liability.
17. In the Renu’s case, at paragraph No.8 this Court has held as under:
“8. Especially in case of Oil tankers, the main purpose of such endorsement or training required is, to take a special care to over come the situation like capsizing of vehicle, spilling of oil from the tanker and likelihood of destruction from fire, confronting with dangerous situation and in case of head-on-collision, which results in causing damage/danger to the vehicle namely the tanker as well as other vehicle involved in the accident, due to fire there is complete destruction of defence resulting in damage to both the men and material”.
The above judgment relied upon by the learned counsel cannot be accepted for the following reasons:
It is to be noted that every provision or Act is made for specific purpose. When the driving licence is valid for a period of one year to drive a transport vehicle carrying goods of dangerous or hazardous nature, he must have such licence to drive for a period of one year only and it cannot be stretched for any other purpose.
18. In the light of statement of the owner made before the police as per Ex.P.22 and also as per Ex.R.2, as on the date of the accident, the vehicle was loaded with inflammable diesel oil, which is dangerous and hazardous goods and the driver was having licence to drive for a period of three years and hence, for the purpose of Section 3 of the Act, he was not having valid and effective licence to drive the transport vehicle with hazardous goods. Under these circumstances, I hold that the order passed by the Tribunal is consonance with the provisions of law and not contrary to law.
19. This Court in the Renu’s case has held that a special care has to be taken to over come the situation like capsizing of vehicle, spilling of oil from the tanker and likelihood of destruction from fire, confronting with dangerous situation. As per Section 14 of the Act, to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver should undergo one day refresher course. This stringent enactment has been made in the public interest. This was made public by the Government of Karnataka and in most of the cases, death take place due to negligence and also because of without obtaining driving licence under Section 3 or without complying Section 129 of the Act, which mandates that the person driving two wheeler, they should have headgear or helmet and the inmates of the vehicle should insert seat belt. It was made clear that when the death or injury occurs without complying requirement of having headgear as prescribed under Section 129 of the Act or without inserting seat belt, they are not entitled for compensation before the Tribunal. In the instant case, the rider died and the pillion rider sustained injury and it is not forthcoming whether he was having headgear or wearing helmet as prescribed under Section 129 of the Act. In the case of this nature, it is for the Tribunal to give a specific finding as to whether he was wearing helmet as prescribed under Section 129 of the Act.
20. Rule 230 (4) of the Karnataka Motor Vehicles Rules prescribes that headgear shall have minimum three adhesive type retro-reflective red colour stripes on the back of the headgear which will illuminate during the night. The stripes should be of the size of 2 cm x 13 cm and affixed horizontally to the headgear.
21. Under Section 129 of the Act it makes mandatory that every person driving or riding (otherwise than in a side car, on a motor cycle of any class or description) shall, while in a public place, wear (protective headgear confirming to the standards of Bureau of Indian Standards) Provided further that the State Government may, by such rules, provide for such exceptions as it may think fit.
Explanation: “Protective headgear” means a helmet which,-
(a) by virtue of its shape, material and construction, could reasonably be expected to afford to the person driving or riding on a motor cycle a degree of protection from injury in the event of an accident; and (b) is securely fastened to the head of the wearer by means of straps or other fastenings provided on the headgear.
22. It is duty of the police to see whether the driver has used the headgear prescribed under the law. Unless the specific finding is given by the Tribunal, driver or pillion rider or inmates of the car are not entitled for any compensation. In such cases, it is held that the Tribunal should not be under mercy for those persons.
23. In the light of the above observations, these appeals are disposed of and the matters are remitted back to the Tribunal to give a specific finding as to whether the driver who died and the pillion rider who sustained injury in the road traffic accident which occurred on 01.03.2012 were wearing headgear as prescribed under Section 129 of Act and Rule 230(4) of the Karnataka Motor Vehicles Rules and also it is directed for the Tribunal to pass an appropriate order.
For the convenience of both the parties, it is for the parties to appear before the Tribunal on 09.01.2018 without awaiting service of notice. It is also for the parties to adduce evidence and produce the materials on record.
Since, these matters are of the year 2012, the Tribunal is directed to dispose of the matters expeditiously, but not later than six months from the date of receipt of copy of this order and the parties are directed to co-operate as and when the case is listed.
Amount in deposit has to be transmitted to the Tribunal.
Sd/-
JUDGE PB