Karnataka High Court
Ashok And Anr vs Ashok And Anr on 25 July, 2024
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NC: 2024:KHC-K:5298
MFA No. 200866 of 2024
C/W MFA No. 203897 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO. 200866 OF 2024 (MV-D)
C/W
MISCL. FIRST APPEAL NO. 203897 OF 2023 (MV-D)
IN MFA.NO.200866/2024:
BETWEEN:
1. ASHOK S/O NATHU RATHOD
AGE: 37 YEARS, OCC: COOLIE,
R/O KANNUR LT,
TQ. AND DIST. VIJAYAPURA-586119.
Digitally signed by 2. SMT. SHOBHA W/O ASHOK RATHOD
SHIVALEELA
DATTATRAYA AGE 34 YEARS, OCC: HOUSEHOLD WORK,
UDAGI R/O KANNUR LT,
Location: HIGH
COURT OF TQ. AND DIST. VIJAYAPURA 586119.
KARNATAKA
...APPELLANTS
(BY SRI KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE)
AND:
1. ASHOK S/O KALU PAWAR
AGED ABOUT 49 YEARS, OCC: BUSINESS,
R/O C/O H. NO. 920 VIDYA PAN SHOP,
MURAGAWADA ZOPAD PATTI,
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NC: 2024:KHC-K:5298
MFA No. 200866 of 2024
C/W MFA No. 203897 of 2023
TQ. AND DIST. RATNAGIRI- 413107,
(MAHARASHTRA STATE)
2. THE MANAGER LEGAL
THE SHRIRAM GENERAL INSURANCE COMPANY LTD.,
E-I, RIICO INDUSTRIAL AREA, SITAPUR,
JAIPUR 302022,
RAJASTHAN STATE.
...RESPONDENTS
(BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE FOR R1;
SMT. SANGEETA BHADRASHETTY, ADVOCATE FOR R2)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
A) CALL FOR THE RECORDS B) TO SET ASIDE THE IMPUGNED
JUDGMENT AND AWARD DATED 07.02.2015 PASSED IN MVC
NO. 687/2014 BEFORE THE MEMBER MOTOR ACCIDENT
CLAIMS TRIBUNAL AND PRESIDING OFFICER FAST TRACK
COURT VIJAYAPURA AT VIJAYAPURA, AND ALLOW THIS APPEAL
FILED BY THE APPELLANT/OWNER OF THE VEHICLE BEFORE
THIS HON'BLE COURT. C) ORDER FOR COSTS OF THIS APPEAL.
D) PASS SUCH OTHER ORDERS DEEMS FIT IN THE
CIRCUMSTANCE OF THE CASE.
IN MFA NO. 203897/ 2023:
BETWEEN:
ASHOK S/O KALU PAWAR
AGED ABOUT 49 YEARS, OCC: BUSINESS,
R/O C/O H. NO. 920 VIDYA PAN SHOP,
MURAGAWADA ZOPAD PATTI,
TQ. AND DIST. RATNAGIRI -413107,
(MAHARASHTRA STATE)
...APPELLANT
(BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE)
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NC: 2024:KHC-K:5298
MFA No. 200866 of 2024
C/W MFA No. 203897 of 2023
AND:
1. ASHOK S/O NATHU RATHOD
AGED ABOUT 37 YEARS, OCC: COOLIE,
R/O KANNUR LT,
TQ. AND DIST. VIJAYAPURA-586119.
2. SMT. SHOBHA W/O ASHOK RATHOD
AGED ABOUT 34 YEARS, OCC: HOUSEHOLD WORK,
R/O KANNUR LT,
TQ. AND DIST. VIJAYAPURA-586119.
3. THE MANAGER LEGAL
THE SHRIRAM GENERAL INSURANCE
COMPANY LIMITED,
E-1 RIICO INDUSTRIAL AREA, SITAPUR,
JAIPUR-302022, (RAJASTHAN STATE).
...RESPONDENTS
(BY SRI KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE
FOR R1 AND R2;
SMT. SANGEETA BHADRASHETTY, ADVOCATE FOR R3)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
A) CALL FOR THE RECORDS B) TO SET ASIDE THE IMPUGNED
JUDGMENT AND AWARD DATED 07-02-2015 PASSED IN MVC
NO. 687/2014 BEFORE THE MEMBER MOTOR ACCIDENT
CLAIMS TRIBUNAL AND PRESIDING OFFICER FAST TRACK
COURT VIJAYAPURA AT VIJAYAPURA, AND ALLOW THIS APPEAL
FILED BY THE APPELLANT/OWNER OF THE VEHICLE BEFORE
THIS HON'BLE COURT. C) ORDER FOR COSTS OF THIS APPEAL.
D) PASS SUCH OTHER ORDERS DEEMS FIT IN THE
CIRCUMSTANCES OF THE CASE.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC-K:5298
MFA No. 200866 of 2024
C/W MFA No. 203897 of 2023
CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE UMESH M ADIGA) Though these appeals arise out of judgment and award passed by the MACT & Fast Track Court, Vijayapura (hereinafter for short referred to as 'Tribunal') in MVC No.687/2014 dated 07.02.2015.
MFA No.200866/2024 is filed by the claimants for enhancement of compensation and MFA No.203897/2023 is filed by the owner of the JCB challenging the liability of the insurer to pay the compensation.
2. Though these appeals are slated for orders, with the consent of learned counsels, they are taken up for final disposal.
3. The parties will be referred to as per their ranks before the Tribunal for sake of convenience. -5-
NC: 2024:KHC-K:5298 MFA No. 200866 of 2024 C/W MFA No. 203897 of 2023
4. It is the case of the claimants that on 11.12.2013 around 5:15 p.m. son of the appellants by name Preetam met with an accident by JCB machine bearing Reg.No.MH-08/A-8489 at Ekata Nagar, Khedashi village of Ratnagiri taluka. Due to the said injury, the said boy aged about 2 years sustained fatal injuries and died.
5. The claimants further contended that they are the legal heirs of the deceased and prayed for awarding of the compensation.
6. Respondent No.1/owner denied the contents of the claim petition and has stated that the said vehicle was insured with respondent No.2. The driver of the JCB had valid and effective driving licence to drive the said class of vehicle. He is not liable to pay the compensation and prayed to direct the respondent-insurer to pay the compensation.
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NC: 2024:KHC-K:5298 MFA No. 200866 of 2024 C/W MFA No. 203897 of 2023
7. Respondent No.2/Insurance Company denied the contents of the claim petition and has further stated that its liability is restricted to terms and conditions of the policy of insurance and holding of valid and effective driving licence by driver of the said vehicle.
8. From the rival contentions of both the parties, the Tribunal had framed the necessary issues for determination.
9. The claimants to prove their case examined PW.1 and got marked Exs.P.1 to 7. The respondents have examined RWs.1 and 2 and got marked Exs.R.1 and 2.
10. The Tribunal after hearing both the parties and appreciating the evidence available on record, by the impugned judgment, awarded the compensation of Rs.1,50,000/- and directed the owner of the vehicle to pay the compensation and absolved the liability of respondent- -7-
NC: 2024:KHC-K:5298 MFA No. 200866 of 2024 C/W MFA No. 203897 of 2023 insurer from paying the compensation on the ground that operator/driver of the JCB had no valid and effective driving licence. Therefore, insurer is not liable to pay the compensation.
11. I have heard the arguments of learned counsel for both side.
12. The learned counsel for the claimants submits that deceased was aged about 2 years. He was son of the claimants. The claimants have lots of hope and expectation on him that in their olden days he would look after them and unfortunately he died in the accident. The Tribunal has not considered these facts and awarded meager amount of compensation. Therefore, prayed to enhance the compensation on the basis of law laid by the Hon'ble Apex Court in the cases of death of a minor. -8-
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13. The learned counsel for owner of the vehicle would submit that weight of the JCB is less than 7500kg. It is noted in the impugned judgment by the Tribunal. As held in the case of Mukund Dewangan vs. Oriental Insurance Company Limited 1, JCB comes under the category of light motor vehicle and also the driver of the JCB if has got a licence to drive light motor vehicle, he can drive JCB also. This point was not considered by the Tribunal and absolved the insurer from its liability and directed the owner to pay the compensation, which is erroneous.
14. The learned counsel for the owner has relied on the judgments of the Co-ordinate Bench of this Court in the case Reliance General Insurance Company Limited vs. S. Ramya and others in MFA No.6789/2010 DD 09.11.2020 and in the case of Renuka and another 1 (2017) 14 SCC 663 -9- NC: 2024:KHC-K:5298 MFA No. 200866 of 2024 C/W MFA No. 203897 of 2023 vs. Shreeshail and another in MFA No.201104/2021 DD 27.02.2024. Hence, prayed to fasten the liability on the insurer.
15. The learned counsel for the insurer has vehemently contended that driving licence should be issued as per provisions of Section 10 of the Motor Vehicles Act, 1988 (for short, 'M.V.Act'). The JCB comes under different class of vehicle i.e. Section 10(2)(J) would be applicable to it and the driver must hold licence to drive JCB. Mere holding of licence to drive light motor vehicle is not sufficient and hence, the Tribunal has rightly exonerated the insurer from its liability and directed the owner of the vehicle to pay the compensation. It does not call for interference.
16. The learned counsel for the insurer has further submitted that insurer is not at all liable to pay the compensation since there is breach of terms of policy.
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NC: 2024:KHC-K:5298 MFA No. 200866 of 2024 C/W MFA No. 203897 of 2023 Moreover, the Tribunal by considering the materials on record awarded just amount of compensation. It is not necessary to interfere in the said finding. With these reasons prayed to dismiss both the appeals.
17. The fact of accident, manner in which accident had taken place and death of minor boy aged about 2 years due to the said accident are not seriously disputed. Therefore, there is no need to reconsider the same. The main grievance in this case is regarding liability of the insurer to pay the compensation.
18. According to Section 2(cab) of the Central Motor Vehicles Rules, JCB comes under the category of construction equipment. In the impugned judgment, the Tribunal has considered that unladen weight of the said JCB was below 7500 kg. In the case of Mukund Dewangan (supra), it is held by the Hon'ble Apex Court that a person authorized to drive light motor vehicle,
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NC: 2024:KHC-K:5298 MFA No. 200866 of 2024 C/W MFA No. 203897 of 2023 unladen weight of which is less than 7500kg, is authorized to drive any of the class of the vehicle coming within the said category. In the above said judgment the Hon'ble Apex Court observed as under:
"14. The definition of 'light motor vehicle' makes it clear that for 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 7500 kgs. 'Gross vehicle weight' has been defined in section 2(15). The motor car or tractor or road roller, the unladen weight of any of which does not exceed 7500 kgs. as defined in section 2(48) of the Act, are also the light motor vehicle. No change has been made by Amendment Act of 54/94 in the provisions contained in sections 2(21) and 10(2)(d) relating to the light motor vehicle. The definition of 'light motor vehicle' has to be given full effect to and it has to be read with section 10(2)(d) which makes it abundantly clear that 'light motor vehicle' is also a 'transport vehicle', the gross vehicle weight or unladen weight of which does not exceed 7500 kgs. as specified in the provision. Thus, a driver is issued a licence as per the class of vehicle i.e. light motor vehicle, transport vehicle or omnibus or another vehicle of
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NC: 2024:KHC-K:5298 MFA No. 200866 of 2024 C/W MFA No. 203897 of 2023 other categories as per gross vehicle weight or unladen weight as specified in section 2(21) of the Act. The provision of section 3 of the Act requires that a person in order to drive a 'transport vehicle' must have authorization. Once a licence is issued to drive light motor vehicle, it would also mean specific authorization to drive a transport vehicle or omnibus, the gross vehicle weight or motor car, road roller or tractor, the unladen weight of which, as the case may be, does not exceed 7500 kg. The insertion of 'transport vehicle' category in section 10(2)(e) has no effect of obliterating the already defined category of transport vehicles of the class of light motor vehicle. A distinction is made in the Act of heavy goods vehicle, heavy passenger motor vehicle, medium goods vehicle and medium passenger motor vehicle on the basis of 'gross vehicle weight' or 'unladen weight' for heavy passenger motor vehicle, heavy goods vehicle, the weight, as the case may be, exceed 12000 kg. Medium goods vehicle shall mean any goods carriage other than a light motor vehicle or a heavy goods vehicle; whereas 'medium passenger motor vehicle' means any public service vehicle or private service vehicle or educational institution bus other than a motorcycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle.
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NC: 2024:KHC-K:5298 MFA No. 200866 of 2024 C/W MFA No. 203897 of 2023 Thus, the newly incorporated expression 'transport vehicle' in section 10(2)(e) would include only the vehicles of the category as defined in section 2(16) - heavy goods vehicle, section 2(17) - heavy passenger motor vehicle, section 2(23) - medium goods vehicle and section 2(24) medium passenger motor vehicle, and would not include the 'light motor vehicle' which means transport vehicle also of the weight specified in Section 2(21)."
19. In view of the said observation, the Hon'ble Apex Court held that a driver authorized to drive light motor vehicle is also authorized to drive JCB. Hence, the contention of the insurer that driver had no valid and effective driving licence is not acceptable.
20. The Division Bench of this Court in the case of Renuka vs. Shreeshail (referred supra) held that a person holding licence to drive light motor vehicle can operate JCB. Therefore, the said contention of the insurer is not res integra and it is already decided.
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NC: 2024:KHC-K:5298 MFA No. 200866 of 2024 C/W MFA No. 203897 of 2023
21. Even the Co-ordinate Bench of this Court in the case of Reliance General Insurance Company Limited vs. S. Ramya (supra) held that driver authorized to drive light motor vehicle can drive JCB if its unladen weight is 7500 kg. There is no evidence on record to show that the unladen weight of the JCB involved in the accident, was more than 7500kg. Hence, the contention of the insurer is not tenable.
22. Admittedly, the boy who met with an accident was aged about 2 years. Normally it is difficult to assess the compensation in case of death of minor especially below the age of 5 years when the minor is completely dependent on its parents.
23. Considering these facts, the Hon'ble Apex Court in catena of judgments assessed the compensation payable in case of death of a minor. One among them is Kishan Gopal (supra), the Hon'ble Apex Court in that
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NC: 2024:KHC-K:5298 MFA No. 200866 of 2024 C/W MFA No. 203897 of 2023 case awarded Rs.5,00,000/- for death of a boy aged about 10 years.
24. In the present case, the boy is aged about 2 years. He was dependent upon the claimants. Therefore, the compensation assessed by the Hon'ble Apex Court in the case of Kishan Gopal (supra) is not completely applicable to the facts of the present case, however, observation made in the said judgment is applicable.
25. Considering all these facts and circumstances of the case and also relying on the judgment in the case of New India Assurance Company Limited vs. Satender2, the claimants are entitled for compensation of Rs.2,95,000/-. The claimants are entitled for enhancement of Rs.1,45,000/-.
2 (2013) SCC 60
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NC: 2024:KHC-K:5298 MFA No. 200866 of 2024 C/W MFA No. 203897 of 2023
26. The claimants are also entitled for interest at the rate of 6% per annum on the enhanced compensation from the date of petition till its realization.
27. In the above para it is held that driver had valid licence to drive JCB. Hence, insurer is liable to indemnify owner of JCB.
28. For the aforesaid discussion, I pass the following:
ORDER i. Appeals in MFA No.200866/2024 and 203897/2023 are allowed in part.
ii. MFA No.203897/2023 filed by the owner is allowed.
iii. The impugned judgment and award passed by the MACT & Fast Track Court, Vijayapura in MVC No.687/2014 dated 07.02.2015 is modified.
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NC: 2024:KHC-K:5298
MFA No. 200866 of 2024
C/W MFA No. 203897 of 2023
a) The claimants are entitled for
enhancement of Rs.1,45,000/- along
with interest on the enhanced amount of compensation at the rate of 6% per annum from the date of petition till its realization.
iv. The respondent No.2 - insurance company shall deposit the said amount of compensation indemnify the owner of the vehicle within a period of 02 months from the date of receipt of copy of this order.
v. The order pertaining to apportionment, deposit and release etc., passed by the Tribunal is not disturbed.
vi. The registry to send a copy of this judgment to the Tribunal.
vii. Whatever amount deposited by the appellant/owner in MFA No.203897/2023 shall
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NC: 2024:KHC-K:5298 MFA No. 200866 of 2024 C/W MFA No. 203897 of 2023 be released to the appellant/owner on due acknowledgment.
Sd/-
JUDGE SDU LIST NO.: 1 SL NO.: 2 CT:PK