Sri Mohan vs Sri C Prabhudevaiah
2021 Latest Caselaw 5615 Kant

                                 1


            IN THE HIGH COURT OF KARNATAKA, BENGALURU

             DATED THIS THE 7TH DAY OF DECEMBER, 2021

                              BEFORE

                 THE HON'BLE MR. JUSTICE P.N.DESAI

                      MFA NO.3292/2015 (MV)
BETWEEN:

SRI. MOHAN
S/O. RANGAIAH @ RANGAPPA
AGED ABOUT 30 YEARS,
RESIDING AT IUDP LAYOUT,
CHITRADURGA - 577 501.
                                                        ...APPELLANT.
(BY SHRI SIDDAPPA B.M., ADVOCATE.)

AND:

1. SRI. C.PRABHUDEVAIAH
   S/O. CHANDRASHEKARAIAH
   AGE:MAJOR,
   OWNER OF THE MINI LORRY BEARING
   NO.TN57/Y-7787
   RESIDING AT OPP:RAILWAY STATION,
   RMC YARD, CHITRADURGA - 577 501.

2. THE BRANCH MANAGER,
  THE NEW INDIA ASSURANCE CO. LTD.
  BRANCH OFFICE, B.D.ROAD
  CHITRADURGA - 577 501.

                                                     ...RESPONDENTS.


(BY SHRI K.KISHOR KUMAR REDDY, ADVOCATE FOR R2;
  R1 SERVED)

       THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED:08.01.2015 PASSED IN MVC NO.148/2013
ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL
MACT-V, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
                                    2


        THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                                 JUDGMENT

Though this appeal is listed for admission with consent of

learned counsel for both the parties, the same is taken up for final

disposal.

2. This appeal lays challenge to the judgment passed by the

II Additional Senior Civil Judge & Additional MACT-V, Chitradurga, in

MVC No.148/2013 dated 08.01.2015 wherein, the tribunal has

awarded a sum of Rs.76,840/- as compensation with interest at 7.5%

per annum to the petitioner.

3. The brief case of the claimant before the tribunal is that

on 12.03.2018 at about 06:30 a.m. when the petitioner along with his

friend were going on a bicycle for coconut business near truck

terminal, new bridge on NH-4 road, Tumkur, at that time, suddenly

the driver of the mini lorry bearing registration No.TN-57/Y-7787

drove the same in a rash and negligent manner with high speed and

dashed to the said bicycle. As a result, the petitioner fell down and

sustained grievous injuries to the left foot, fracture of 3rd and 4th

metatarsal left foot and other grievous injuries on several parts of the

body. Immediately after the accident, the petitioner was shifted to

Government Hospital, Kyathasandra, where he took first aid

treatment. Thereafter, on the advise of the doctor, he was shifted to

major private hospital at Bengaluru, wherein he took treatment as an

inpatient for a period of 15 days and further he took follow up

treatment and spent a sum of Rs.50,000/- towards his treatment.

Hence, he filed the petition claiming compensation for the loss and

injuries sustained by him.

4. The respondent Nos.1 and 2 appeared before the court and

denied the contentions of the petitioner. Respondent No.1 contended

that he is the owner of the mini lorry bearing Registration No.TN-57/Y-

7787 which is insured with respondent No.2 and the same is admitted

by respondent No.2. Respondent No.2 contended that its liability is

only as per the terms and conditions of insurance policy and if there is

a violation of policy, insurance company is not liable to pay

compensation and further the petitioner be put to strict proof of his

contentions.

5. The tribunal on the basis of the pleadings and contentions

of the parties framed the following issues:

"1. Whether the petitioner proves that, he sustained injuries in the RTA occurred on 12.03.2008 at about 06:30 a.m. near NH-4 road, Truck terminal Tumkur due to rash and negligent driving of the Mini Lorry bearing Reg.No.TN-57/Y-7787 by its driver?

2. Whether the petitioner is entitled for compensation, if so, how much and from whom?

3. What order or award?"

6. Before the tribunal, the petitioner got himself examined as

PW.1 and examined one witness Dr.Venkatashiva Reddy as PW.2 and

got marked eight documents as Exs.P1 to P8 which consists of FIR,

complaint, spot mahazar, IMV report, wound certificate, disability

certificate, Signature of PW.2, Evaluation form and X-ray film. On

behalf of respondents, one witness - Satish Kumar got examined

himself as RW.1 and another witness - Mohammed got examined

himself as RW.2 and got marked five documents as Exs.R1 to R4.

7. The Tribunal after hearing the arguments of learned

counsel for both the parties, passed the impugned order which is

under challenge before this court.

8. Learned counsel for the appellant argued that the tribunal

has computed the compensation taking the monthly income of the

petitioner at Rs.3,000/- per month which is very much on the lower

side. But he has also contended that the compensation awarded under

the head pain and suffering is also less. The tribunal considering the

evidence of RW.1 and RW.2, erred in coming to the conclusion that the

offending vehicle which is involved in the accident is a medium goods

vehicle and the driver of the mini lorry did not possess the valid

license to drive the offending vehicle. Though the driver had license to

drive Light Motor Vehicle which is the transport vehicle, he had no

license to drive offending vehicle. Subsequently, he obtained the

license to drive MHMV transport goods vehicle also. On the basis of

evidence of RW.1 and RW.2, the tribunal came to the conclusion that

the respondent No.1/Owner has violated the terms and conditions of

the insurance policy by handing over the offending vehicle to the

person who did not possess the valid driving license to drive medium

goods vehicle, hence, learned counsel argued that the tribunal erred in

coming to the said wrong conclusion and fastening the liability on

owner of the offending lorry. In support of his arguments, he relied on

the decision of Hon'ble Supreme Court reported in [2017 (14) SCC

663] in the case of Mukund Devagan vs. Oriental Insurance

Company Ltd. wherein the definition of Section 2(21) of Motor

Vehicles Act, 1988 is discussed at paragraph Nos.60, 60.2 and 60.3 of

the said judgment. Learned counsel argued that the since the unladen

weight of the goods vehicle does not exceed the weight of 7500 k.g. it

comes under the definition of 'Light Motor Vehicle' and since the driver

had license to drive said vehicle, there is no breech of terms of policy.

With these main contentions, he prayed to re-determine the

compensation and fix the liability on the insurance company-

respondent No.2.

9. Against this, learned counsel for respondent No.2 -

insurance company argued that the insurance company has examined

one Satishkumar as RW.1 who is a claim assistant and he has stated

that the driver of the offending vehicle had possessed the valid license

to drive light motor vehicle i.e., LMV and luxury taxi and any goods

vehicle of this type. He has denied the contention that light goods

vehicle are also called as light motor vehicles. He has admitted that as

per Ex.R3 - 'B' register extract, the offending lorry comes under the

definition of medium goods vehicle. As per Ex.R5 - driving license

extract, the driver had got license to drive light goods vehicle and

RW.2 stated that offending vehicle is medium goods vehicle and the

driver had not possessed valid license to drive the said vehicle. He

cannot state the unladen weight of said vehicle. Therefore, learned

counsel argued that the petition be dismissed as the compensation

awarded by the tribunal is just and proper. The impugned judgment

and award is just and reasonable and there is no ground to interfere

with the same. With these main contentions, he prayed to dismiss the

appeal.

10. I have perused the judgment and also documents

produced in this case.

11. The petitioner/appellant in his evidence has stated that he

was selling coconut trees and earning a sum of Rs.10,000/- per

month. Ofcourse, he has not produced documentary evidence in this

regard, but he may not get also. However, the tribunal on guess work

has taken a sum of Rs.3,000/- as his notional income. But when there

is no proof of income, before the Lok-Adalath, while settling the

matters, as per Lok-Adalath chart for the year 2008, i.e., the accident

year, income at Rs.4,500/- per month is to be taken which is just and

proper. Therefore, taking the income of the appellant at Rs.4,500/-

per month, applying multiplier at '18' considering the age of the

appellant as 28 and taking the disability at 8% which has been

determined by the tribunal, the compensation towards 'loss of future

income' works out to Rs.77,760/-.

12. Towards pain and suffering a sum of Rs.15,000/- was

awarded by the tribunal. Looking to the nature of injuries and

hospitalization of the appellant at the time of accident, the said

amount needs to be enhanced to Rs.20,000/- instead of Rs.15,000/-.

Towards food, diet and nourishment a sum of Rs.10,000/- was

awarded by the tribunal which needs no interference. Therefore, the

petitioner is entitled for compensation of Rs.1,07,760/- with interest

at 7% per annum awarded by the tribunal.

13. Regarding the liability, Ex.R1 the policy of the offending

vehicle shows that the gross weight of the vehicle is 5300 kg. Ex.R2 is

the driving license of the driver - Sathish Kumar which shows that he

had license to drive the Light Motor Vehicle with effect from

04.02.2005 to 03.02.2008 and again he has got license renewed from

04.02.2008 to 03.02.2011. The accident occurred on 12.03.2008, so

on the date of accident, he has valid driving license to drive light

motor vehicle. Ex.R3 shows that vehicle is a Medium Goods Vehicle

and the unladen weight of the said vehicle is 2230 k.g. As per the

definition of Section 2(21) Motor Vehicles Act, 1988, "light motor

vehicle" means a transport vehicle or omnibus and 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.

14. The learned counsel for the appellant drawn the attention

of this court to the provisions of Motor Vehicles Act, 1988, wherein

Section 2(21) defines that the transport vehicle which reads as under:

Sub-Section (21) of Section 2- "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 [7500] kilograms;"

15. Further learned counsel brought to the notice of this court

the Section 2(47) regarding transport vehicle wherein, by Act of 54 of

1994 an amendment was made with effect from 14.11.1994 and

earlier categories were deleted and transport vehicle is included. The

learned counsel also relied upon the Mukund Devagan's case

referred supra and draws attention to the relevant paragraph of 10

of the said judgment wherein the Hon'ble Supreme Court discussed

the pre-amendment of provision of Section 10 of the Act and also

amended provisions by Act 54 of 1994 and other conditions of license

which reads as under:-

10. The pre-amended provision of Section 10 contained the vehicles of ten kinds in Sections 10(2)(a) to (j). In order to simplify the procedure for obtaining the license, categories like medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, and heavy passenger motor vehicle were deleted and one category was inserted for these four kinds of vehicles in the form of "Transport Vehicle" in Section 10(2)(e) so that drivers are not required to obtain the license again and again for the aforesaid four kinds of vehicles. The provision of Section 10 after amendment made by Act 54 of 1994 is extracted hereunder:

"10. Form and contents of licenses to drive.- (1) Every learner's license and driving license, except a driving license issued under Section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.

(2) A Learner's license or, as the case may be, driving license shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely-

(a) motorcycle without gear;

(b) motorcycle with gear;

(c) invalid carriage;

(d) light motor vehicle;

(e) transport vehicle;

(f)-(h)

(i) roadroller;

(j) motor vehicle of a specified description."

Further learned counsel also relied upon the Paragraph nos.60,

60.1, 60.2, 60.3 and 60.4 which reads as under:

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 Sections

2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 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 roadroller, "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 roadroller, 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 of 1994 and 28-3-2001 in the form.

60.3. The effect of the amendment made by virtue of Act 54 of 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."

Therefore, in view of these provisions, it is evident that the gross

weight of the vehicle which does not exceed 7500 k.g., would be

considered as light motor vehicle. Ex.R3 the license indicates that the

unladen weight of the vehicle is 2230 kg and Ex.R1 insurance policy

also shows that gross-weight of the offending vehicle is 5300 kg.

Therefore, it comes under the definition of light motor vehicle and it

also covers the license regarding driving transport vehicle.

In the present case, it is not in dispute that the driver of the

offending vehicle was holding license to drive light motor vehicle which

is at Ex.R2 and admittedly the gross vehicle weight does not exceed

7500 k.g. In view of the provisions of amendment to Motor Vehicles

Act, which covers transport vehicle as light motor vehicle and the

holder of license can drive all the goods vehicle including transport

vehicle and only thing is unladen weight should be below 7500 k.g. in

respect of goods vehicle. So in view of the discussions made above,

insurance company is liable to pay the compensation.

The tribunal has fastened the liability on respondent No.1/owner

who has insured his vehicle with respondent No.2. Therefore, that

portion of judgment fastening the liability on respondent No.1/owner

needs to be modified.

In the result, I proceed to pass the following:

ORDER

i) The appeal is allowed in part.

ii) The appellant is entitled for enhancement of compensation

of Rs.1,07,700/-(Rupees One Lakh Seven Thousand Seven

Hundred only) as against Rs.76,840/- (Rupees Seventy Six

Thousand Eight Hundred and Forty only) awarded by the

tribunal.

iii) Further respondent Nos.1 and 2 jointly and severally liable

to pay the compensation amount as respondent No.1

owner has insured the vehicle with respondent No.2 - The

New India Insurance Company Limited. Hence respondent

No.2 is liable to deposit the said compensation amount

with interest at 6% per annum from the date of petition.

iv) Rest of the conditions imposed by the tribunal shall stands

intact.

v) Respondent No.2 shall make good the differential amount

within a period of six weeks.

vi) Costs made easy.

Sd/-

JUDGE

HJ