IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.3785 OF 2015 [MV] BETWEEN SRI. Y.H.GANGADHARAIAH @ H.GANGADHARAPPA, AGED ABOUT 58 YEARS, S/O. HANUMANTHAPPA, R/O. C/O. MARUGI G., NO.A19, ANANDANAPPA BUILDING, VIDHANA SOUDHA LAYOUT, LAGGERE, BANGALORE-560 058.
PERMANENT ADDRESS:
YAKARIAHALLY VILLAGE, MADHUGIRI TALUK, TUMKUR DISTRICT. ... APPELLANT [BY SRI. NAGARAJA REDDY D., ADVOCATE] AND 1. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., NO.31, TBR TOWER, 1ST CROSS, NEW MISSION ROAD, NEXT TO JAIN COLLEGE, JC ROAD, BANGALORE-560 002, REP. BY ITS MANAGER.
2. SRI. ANJISWAMY, MAJOR, S/O. HANUMANTHAPPA, R/O. SHAMBHUKANAGARA, GOWRIBIDANUR TALUK, CHIKKABALAPURA DISTRICT-561 208. ... RESPONDENTS [BY SRI. O.MAHESH, ADVOCATE FOR R1. R2-SERVED] * * * THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.12.2014 PASSED IN MVC NO.5682/2012 ON THE FILE OF THE MEMBER, MACT AND XVI ADDITONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU, IN PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR DICTATING JUDGMENT, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The injured/claimant has preferred this appeal seeking enhancement of compensation awarded by the Tribunal, wherein a sum of Rs.2,50,000/- with interest at 9% p.a. has been awarded by the Tribunal for the injuries sustained by him in a road traffic accident.
2. I have heard the learned counsel appearing for the appellant and also the learned counsel appearing for respondent No.1/Insurance Company.
3. It is the case of the appellant/claimant that on 21.07.2012 at about 6.00 p.m. when he was proceeding as a pillion rider on a TVS star sports motorcycle bearing reg. No.KA-04/Ex-5810, which was ridden by its rider cautiously, observing all traffic rules and when they reached near Lineman Nanjundappa’s house, Karekallahalli, Gowribidanur town, at that time, a passenger autorickshaw bearing reg. No.KA-40/7568 driven by its driver in a rash and negligent manner without observing any Traffic Rules came and dashed against their motorcycle. Due to the said impact, the appellant fell down and sustained grievous injuries. He was taken to the Government General Hospital, Gowribidanur, wherein first-aid treatment was given and then he was shifted to ESI Hospital, Bengaluru, wherein he was admitted as in- patient. He was treated with debridement and with external fixator to the right leg and treated till 14.08.2012. Again he was admitted to M.S.Ramaiah Hospital, Bengaluru as in- patient and thereafter, discharged with an advise to take complete bed-rest and follow-up treatment.
It is the further case of the appellant that he was having an income of Rs.12,000/- p.m. by running a puncture [vulcanizing] shop. He was an agriculturist and was also doing electrical work. Due to the accidental injuries, he suffered permanent disability etc.
Before the Tribunal the claimant got examined himself as P.W.1 and he examined one orthopedic surgeon, who treated him as P.W.2. Exs.P1 to 16 were marked in evidence. On behalf of the respondents, R.Ws.1 and 2 were examined and Exs.R1 to 6 were marked in their evidence.
The Tribunal after considering the oral and documentary evidence on record awarded a total compensation of Rs.2,50,000/- with interest at 9% p.a. from the date of petition till payment.
4. The Tribunal after holding that there is a breach of terms and conditions of the policy, since the driver of the autorickshaw bearing reg. No.KA.40/7568 was not holding a valid driving licence to drive the insured vehicle as on the date of accident and therefore held that the insurer is not liable to indemnify the insured i.e., respondent No.2 before the Tribunal and accordingly, held that the insurer is not liable to pay the compensation to the claimant.
5. The learned counsel for the appellant contended that the Tribunal was not justified in taking the income of the appellant at Rs.6,000/- p.m. ignoring the evidence adduced by P.W.1 with regard to the avocation and the income. He submits that the appellant was having an income of Rs.12,000/- p.m. by doing electrical and agricultural work and also running a puncture shop. He submits that in view of the avocation of the appellant, the percentage of disability assessed by the Tribunal is also on a lower side. He submits that the doctor has assessed the extent of disability at 45% to the right lower limb. To the whole body it has been assessed as 24.5% and hence, he submits that the disability at 15% taken by the Tribunal is not proper.
6. The learned counsel for the appellant would further contend that the Tribunal was not justified in absolving the liability of the insurer from paying the compensation on the ground that the driver of the offending vehicle was not holding a valid driving licence, which is contrary to the Judgment of the Hon’ble Apex Court in the case of Mukund Devangan Vs. Oriental Insurance Company Limited reported in AIR 2017 SCC 663. Accordingly, he seeks to allow the appeal.
Per contra, learned counsel appearing for respondent No.1-Insurance Company vehemently contended that the Tribunal after considering the entire evidence and material on record has awarded just and reasonable compensation and there are no grounds to interfere with the Judgment and Award passed by the Tribunal. He would contend that the Tribunal was justified in absolving the insurer from paying the compensation since the vehicle involved was a passenger autorickshaw, which is a transport vehicle and the driver of the said autorickshaw was holding a driving licence to drive a LMV [NT]. He also contended that the decision referred by the learned counsel for the appellant in Mukund Devangan Vs. Oriental Insurance Company Limited [supra] has been referred to a larger Bench and therefore, the same is not applicable to the case on hand.
7. The contention of the learned counsel for the insurance company is that the driver of the passenger autorickshaw 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.
8. 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”.
9. 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.
10. Considering the rival submission, the points that arise for my consideration are;
1) Whether the compensation awarded by the Tribunal requires to be enhanced?
2) Whether the Tribunal was justified in holding that the insurer is not liable to indemnify respondent No.2 to compensate the appellant?
11. It is the case of the appellant that on 21.07.2012 at about 6.00 p.m. when he was traveling as a pillion rider on a TVS star sports motorcycle bearing reg. No.KA-04/EX-5810, the driver of a passenger autorickshaw bearing reg. No.KA- 40/7568 while driving the said autorickshaw in a rash and negligent manner dashed against the motorcycle. Due to which, the appellant sustained injuries. The accident involving the said autorickshaw which was insured with the 1st respondent herein and the actionable negligence on the part of its driver in causing the accident are not in dispute.
12. The contention of the learned counsel for the appellant is that he was having an income of Rs.12,000/-
p.m. by doing electrical work and also by running a puncture shop and doing agricultural work. Apart from the oral testimony of the appellant, who got examined himself as P.W.1 before the Tribunal, there is no other convincing evidence on record to hold that he was earning a sum of Rs.12,000/- p.m. as stated by him. In the absence of any such evidence, it cannot be held that the appellant was having an income of Rs.12,000/- p.m. However, considering the facts and circumstances of the case and the year of accident, the notional income of the appellant can be assessed at Rs.7,000/- p.m.
13. Ex.P5 is the wound certificate. Due to the accident the appellant sustained compound fracture of both bones of right leg. Initially, he took treatment at Government Hospital, Gowribidanur and then he was admitted to ESI Hospital, Bengaluru and thereafter, referred to M.S.Ramaiah Hospital, Bengaluru for further treatment. P.W.2 is the orthopaedic surgeon. His evidence goes to show that the appellant was initially operated in ESI Hospital with external fixator stabilization and later he was referred to M.S.Ramaiah Hospital, wherein the said P.W.2 was working in the department of orthopaedics. The appellant was diagnosed with open fracture of right tibia and fibula segmental type with external fixator in situ. On 27.08.2012, the external fixator was removed and ilizzarov fixator was applied. He was then discharged on 17.09.2012. Again he was admitted on 22.01.2013 and bone grating was done on 28.01.2013 and discharged on 29.01.2013. Again on 23.04.2013 he was admitted and procedure of bone grating was done on 04.05.2013 and was discharged on 11.05.2013. He was then admitted on 23.08.2013. Ilizzarov fixator was removed on 29.08.2013 and was discharged on 30.08.2013.
14. P.W.2 has further deposed that he examined the patient on 08.07.2014 for the assessment of disability. On examination, the total disability to the right lower limb was assessed at 49% and over all disability to the whole body was assessed at 24.5%.
15. Considering the aforesaid medical evidence on record, I am of the view that the total disability suffered by the appellant could be assessed at 16.5% as against 15% assessed by the Tribunal.
16. The Tribunal considering the medical records, wherein the age of the appellant was stated to be 57 years has applied the multiplier ‘9’. Since the income of the appellant having been assessed at Rs.7,000/- p.m. and the disability to the whole body is 16.5%, the appellant is entitled for a sum of Rs.1,24,740/- [Rs.7,000 x 12 x 9 x 16.5%] towards loss of future income due to disability as against Rs.98,000/- awarded by the Tribunal.
17. Considering the nature of injuries, surgeries conducted and period of treatment undergone by the appellant, the compensation awarded under the head pain and sufferings is enhanced from Rs.50,000/- to Rs.75,000/-. A sum of Rs.40,000/- is awarded towards loss of amenities as against Rs.25,000/- awarded by the Tribunal. The compensation of Rs.49,000/- is awarded towards loss of income during the laid-up period. The compensation of Rs.10,000/- awarded towards medical expenses and Rs.5,000/- awarded towards future medical expenses is undisturbed. The compensation awarded towards food, nourishment, conveyance, attendant charges is enhanced from Rs.20,000/- to Rs.30,000/-. Hence, the appellant is entitled for a total compensation of Rs.3,33,740/- as against Rs.2,50,000/- awarded by the Tribunal.
18. The Tribunal has held that there is breach of conditions of the policy since the driver of the passenger autorickshaw which is a transport vehicle, was holding a driving licence to drive only LMV [NT]. The Tribunal held that respondent No.1 was not liable to indemnify respondent No.2 to compensate the appellant herein and held respondent No.2 is liable to pay the compensation.
19. The Hon’ble Apex Court in the case of Mukund Devangan Vs. Oriental Insurance Company Limited [supra] at para 46 held as under:
“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.”
20. 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 down in Mukund Dewangan’s Case [supra] cannot be pressed into service.
21. 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.”
22. 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. Accordingly, I pass the following:
ORDER The appeal is allowed in part. The Judgment and Award dated 09.12.2014 passed in MVC No.5682/2012 on the file of the Member, MACT and XVI Additional Judge, Court of Small Causes, Bengaluru is hereby modified.
The appellant is entitled for a total compensation of Rs.3,33,740/- as against Rs.2,50,000/- awarded by the Tribunal.
The enhanced amount of Rs.83,740/- shall carry interest at the rate of 6% p.a. from the date of petition till realization.
Respondent Nos.1 and 2 herein shall be jointly and severally liable to pay the compensation to the claimant.
The insurer/respondent no.1 herein shall pay the compensation to the claimant/appellant and the amount shall be deposited within a period of four weeks from the date of receipt of a copy of this Judgment.
Sd/- JUDGE.
Ksm*