IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR MISCELLANEOUS FIRST APPEAL No.1750/2015 (MV) C/W MISCELLANEOUS FIRST APPEAL No.4882/2014 IN M.F.A. NO.1750/2015 BETWEEN:
UNITED INDIA INSURANCE CO. LTD., PRABHU BUILDING MAIN ROAD, PUTTUR, DAKSHINA KANNADA DISTRICT.
REPRESENTED BY THE MANAGER, UNITED INDIA INSURANCE COMPANY LTD., MTOR T.P. DEPARTMENT, REGN. OFFICE:KRISHI BHAVAN, 5TH FLOOR, NRUPATHUNGA ROAD, BANGALORE – 560 001.
(BY SRI.P.B. RAJU, ADV.) AND:
1. SMT.KHAIRUNNISA, W/O AMIR JAN, AGED ABOUT 67 YEARS, 2. SANIYA, D/O SANNAULLAH, AGED ABOUT 13 YEARS, ...APPELLANT BOTH RESIDING AT: PUMP HOUSE ROAD, BELUR GATE, BELUR TALUK.
3. SRI.MOHAMMED SAHEEL, S/O N.K.IBRAHIM, KAMMARA KODI HOUSE, BAJATHOOR VILLAGE, KOILA POST, PUTTUR TALUK, D.K.
4. SRI.S.K.IBRAHIM, S/O HAMMAD, KAMMARA KOODI HOUSE, BAJATHOOR VILLAGE, KOILA POST, PUTTUR TALUK, D.K.
(BY SRI.CHETHAN B., ADV., FOR R1; R2 IS MINOR;
... RESPONDENTS SRI.SHRIPAD V SHASTRI, ADV., FOR R3 & R4) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED:25.10.2013 PASSED IN MVC NO.533/2012 ON THE FILE OF SENIOR CIVIL JUDGE, MACT, BELUR, AWARDING COMPENSATION OF RS.5,38,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION.
IN M.F.A. NO.4882/2014 BETWEEN:
UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE: TUMKUR.
REPRESENTED BY THE MANAGER, UNITED INDIA INSURANCE COMPANY LTD., MTOR T.P. DEPARTMENT, REGN. OFFICE:KRISHI BHAVAN, 5TH FLOOR, NRUPATHUNGA ROAD, BANGALORE – 560 001.
(BY SRI.P.B. RAJU, ADV.) AND:
1. SHABIR AHMED, S/O ABDUL KHADIR, J.P.NAGAR, BELUR TALUK – 573 115.
2. SRI.MOHAMMED SAHEEL, S/O N.K.IBRAHIM, KAMMARA KODI HOUSE, BAJATHOOR VILLAGE, KOILA POST, PUTTUR TALUK, D.K. – 37.
3. SRI.S.K.IBRAHIM, S/O HAMMAD, KAMMARA KODI HOUSE, BAJATHOOR VILLAGE, KOILA POST, PUTTUR TALUK, D.K. – 37.
(BY SRI.CHETHAN B., ADV., FOR R1;
...APPELLANT ... RESPONDENTS SRI.SHRIPAD V SHASTRI, ADV., FOR R2 & R3) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED:25.10.2013 PASSED IN MVC NO.534/2012 ON THE FILE OF SENIOR CIVIL JUDGE, MACT, BELUR, AWARDING A COMPENSATION OF RS.20,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
THESE MFAs COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
JUDGMENT Though the matters are listed for orders, with the consent of learned counsel on both sides, the matters are taken up for final disposal.
2. Both these appeals are preferred by the appellant/ Insurer against the judgment and award dated 25.10.2013 passed by the MACT and Civil Judge (Sr.Dn), Belur, in MVC Nos.533/2012 filed by the claimants of the deceased of the Sanaulla and MVC No.534/2012 filed by the injured claimant Shabir Ahamed, challenging the liability fastened on it and also the income of the deceased, compensation awarded under the conventional heads and the on-establishment of relationship between the petitioners and the deceased.
3. The factual matrix of the appeal is as under:
It is stated in the claim petitions that on 19.01.2012 one Shabir Ahamed, doing vegetable business, was returning from shandy in his Goods Autorickshaw bearing No.KA-31-1619 from Sakaleshpura to Belur, the said vehicle got stopped in the middle and therefore, he took the assistance of one Sanaulla to get his auto repaired. After the autorickshaw got repaired, at about 9.30 p.m., both of them proceeded in the same autorickshaw. When they were near Bikkodu-Belur road, one Shabir Ahamed, driver of the Pick-up vehicle bearing No.KA-21-A-1356 who was coming from the opposite side i.e., from Belur in a rash and negligent manner in a wrong side dashed against the Shabir Ahameds’ autorickshaw. As a result of the said impact, Shabir Ahamed sustained injuries to his face, hands and legs whereas Sanaulla sustained heady injury and died on the spot. His dead body was sent to Government Hospital, Beluru, to conduct post- mortem. Hence, a claim petition was filed by the mother and daughter of the deceased Sanaulla seeking compensation for death of the deceased as they were solely dependant on him. Similarly, Shabir Ahamed, who sustained grievous injuries to his face, hands and legs, took treatment in Government Hospital, Belur. Due to accident, he has lost his four teeth and on account of the injuries sustained by him as aforesaid, he has spent Rs.50,000/- towards medical expenses. It is stated in the claim petition that he was said to be autorickshaw driver was earning Rs.50,000/- p.a. and also doing vegetable business earning Rs.15,000/- p.m., which he is unable to do by him due to the injuries sustained by him. His family members were totally dependent on his income. Hence, he filed a claim petition seeking compensation from the respondents.
4. In pursuance to issuance of notice, the respondents have put in appearance and filed their written statement and contested the claim petition denying all averments. During the enquiry before the Tribunal, the claimants have established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle bearing KA-21-A-1356 and its insurance coverage with the appellant-Insurer.
5. In the both cases, the Tribunal, after evaluation of the oral and documentary evidence has awarded compensation to the claimants fastening liability on the respondents. Being aggrieved, the Insurance Company has preferred these appeals.
6. The learned counsel for the appellant- Insurance Company in the appeal contended that the Pick-up vehicle bearing registration No.KA-21-1356 is insured with the Insurance Company wherein in the Certificate of Insurance it is mentioned as a “goods carrying public carrier other than 3-wheeler package policy” whereas the RC book shows the classification as the ‘light-goods vehicle’ having gross weight of 28.20 kgs and the licence held by the driver was only for Light Motor Vehicle. He further contended that the driver had not obtained valid licence. Therefore, the Insurance company is not liable to pay compensation but the driver as well as the owner of the Pick-up vehicle are liable to pay compensation to the claimants. It is further contended that the decision of the Supreme Court in S.Iyyappan –vs United Insurance Company Ltd. and another (AIR 2013 SCC 2262) is not applicable to the facts of the present case. Despite the fact, the Tribunal relying on the said judgment fastened liability on the Insurance Company and allowed the claim petitions by awarding compensation to the claimants, which calls for interference by this Court by allowing the appeals.
7. Per contra, learned counsel for the respondents has taken me through the evidence of PWs.1 and 2 so also the relevant documents in order to establish their case seeking compensation. On appreciation of the evidence and material documents, the Tribunal has awarded compensation to the claimants by a common order. Hence, they sought for dismissal of the appeals confirming the judgment and award of the Tribunal.
8. In the context of the contentions taken by the learned counsel for the appellant-Insurer and the learned counsel for the respondents, it is relevant to refer the judgment rendered by the Tribunal in Mukund Dewangan –vs- Oriental Insurance Co., Ltd. (2017) 14 SCC 663. In this judgment, the Apex Court has decided all the disputed contention as taken in these appeals namely driving of the Light Motor Vehicle having gross weight of 28.20 kgs., valid licence held by the driver. The relevant paras-58, 59 and 60 is quoted hereunder:
58. “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.
59.. 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.
60 .Thus we answer the questions which are referred to us thus:
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 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.
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.”
9. Therefore, keeping in view the ratio of the reliance as stated supra, the contentions taken by the learned counsel for the appellant-insurer does not hold any substance to call for interference in the impugned judgment and award. Consequently, the appeals are liable to be rejected. Accordingly, I proceed to pass the following:
ORDER The appeals are dismissed by confirming the judgment and award passed by the MACT and Civil Judge (Sr.Dn), Belur, in MVC Nos.533/2012 and 534/2012 dated 25.10.2013.
If any, amount in deposit in these appeals the same shall be transmitted to the concerned Tribunal forthwith along with LCR.
SD/- JUDGE TL