The Oriental Insurance Co Ltd vs Smt M Shivamma
2022 Latest Caselaw 5916 Kant

                           1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 1ST DAY OF APRIL, 2022

                         BEFORE

     THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

     MISCELLANEOUS FIRST APPEAL NO. 2933/2012 (MV)

BETWEEN:

THE ORIENTAL INSURANCE CO.LTD.,
REGIONAL OFFICE
NO.44/45, LEO SHOPPING COMPLEX
RESIDENCY ROAD, BANGALORE-560 025
BY ITS REGIONAL MANAGER.

                                        ... APPELLANT

(BY SRI. C.R.RAVISHANKAR, ADVOCATE )


AND:

1.      SMT. M. SHIVAMMA
        AGED ABOUT 58 YEARS
        W/O LATE MALLI REDDY @ MALLA REDDY

2.      SMT. SAROJAMMA
        AGED ABOUT 48 YEARS
        W/O LATE MALLI REDDY @ MALLA REDDY

3.      SRI. SOMU @ SOMASHEKARA REDDY M
        AGED ABOUT 40 YEARS
        S/O LATE MALLI REDDY @ MALLA REDDY

4.      SMT. MALLESHWARI @ MALLESHWARAMMA
        AGED ABOUT 22 YEARS
        D/O LATE MALLI REDDY @ MALLA REDDY

        R1 & R3 ARE R/AT NO.12-26/A
                           2

     RAMASAMUDRAM VILLAGE & MANDAL
     MADANAPALLI TALUK
     CHITTOOR DISTRICT
     ANDHRA PRADESH.

     R2 & R4 ARE R/AT No.9-20
     CHOWDAKUNTAPALLE VILLAGE
     REV. VILLAGE CHOWDASAMUDRAM
     MULAKALACHERUVU MANDAL
     TAMBALAPALLI TALUK
     CHITTOOR DISTRICT
     ANDHRA PRADESH.

5.   SRI. MOHAMMED SARDAR
     MAJOR
     S/O SRI. HAKEEM AMEER JAN
     NO.156, NOOR NAGAR, 4TH CROSS
     KOLAR-563 001.
                                 ...       RESPONDENTS

(BY SRI.N.S. SHESHADRI, ADVOCATE FOR R1 TO R4;
R5 & R6 ARE SERVED
R6 NOTICE THROUGH PAPER PUBLICATION ACCEPTED)


      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
59.09.2011 PASSED IN MVC NO.1612/2010 ON THE FILE
OF JUDGE MEMBER, MACT, BANGALORE, AWARDING A
COMPENSATION OF RS.1,97,500/- WITH INTEREST @ 6%
P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

     THIS M.F.A. COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                   JUDGMENT

This appeal is filed under Section-173(1) of the

Motor Vehicles Act, 1988 ('MV Act' for brevity) by the

appellant - insurance company, challenging the judgment

and award dated 05.09.2011, passed in MVC

No.1612/2010, on the file of Motor Accident Claims

Tribunal, at Bangalore.

Brief facts:

2. On 28.03.2009, at about 3.30 p.m., when the

deceased Malla Reddy was walking on the extreme left side

of the road in front of Manjunath Estate, on Kolar

Bangalore Road (NH-4) at that time the driver of the Tata

Ace bearing registration No.AP 03 X 0472 came in a rash

and negligent manner with high speed and dashed against

the deceased. Due to the impact, he fell down and

sustained grievous injuries and died on the way to the

Hospital. It is stated that the deceased was aged 63 years,

and was working as a Watchman in Manjunatha Farm

House and earning Rs.10,000/- per month. On service of

summons, respondent Nos.1 and 2 before the Tribunal

appeared through their respective counsel. Respondent

No.3 remained absent and hence placed exparte.

3. Hence, a claim petition was filed by the

dependants-claimants under Section-166 of the M.V. Act,

before the Tribunal claiming compensation. The Tribunal

on appreciating the materials on record, allowed the

petition in part, and awarded a compensation of

Rs.1,97,500/- along with interest at 6% per annum, from

the date of petition till the date of deposit. The Tribunal

held respondent Nos.1 to 3 are jointly and severally liable

to pay the compensation.

4. The learned counsel for the appellant -

insurance company submitted that the driver of the

offending vehicle was holding Driving License to drive non-

transport vehicle, but was driving goods vehicle (transport

vehicle). Therefore, there is a violation of the condition of

the insurance policy. Hence, the Tribunal without

considering that there is a breach of condition of the

policy, had erroneously fastened the liability on the

appellant. Therefore, the appeal is liable to be allowed by

exonerating the appellant-insurance company from the

liability to pay the compensation.

5. On the other hand, the learned counsel for

respondent Nos.1 to 4 - claimants submitted that the

Tribunal has correctly applied the legal principles and put

the burden on the appellant - insurance company to pay

compensation, which needs no interference. Therefore,

prays to dismiss the appeal.

6. Heard the learned counsel and perused the

material on record.

7. In the present case, the offending vehicle is

Tata Ace, which is a goods vehicle (transport vehicle).

Exhibit-R2 is the Driving License of the driver, which shows

the driver was having driving license to drive LMV (Non-

Transport Vehicle). Therefore, the learned counsel for the

appellant - insurance company contends that the driver

was holding driving license to drive non-transport vehicle

and hence cannot drive transport vehicle. This legal

position is clarified by the Hon'ble Supreme Court in the

judgment in the case of MUKUND DEWANGAN VS.

ORIENTAL INSURANCE COMPANY LIMITED, reported

in AIR 2017 SC 3668, wherein at para-10 it was held as

follows:

"45. 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 marriage, 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.

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."

8. Therefore, just because there is an

endorsement of non-transport in the driving license and if

the driver drives transport vehicle, that cannot be a

fundamental breach of the insurance policy so as to avoid

the liability of the insurance company. Therefore, the

Tribunal has correctly fastened the liability on the

appellant-insurance company to pay the compensation.

Hence the judgment and award passed by the Tribunal is

justified one which needs no interference. Therefore, the

appeal is devoid of merit and liable to be dismissed.

Accordingly, I proceed to pass the following:

ORDER

i. The appeal is dismissed.

ii. The judgment and award dated 05.09.2011,

passed in MVC No.1612/2010, on the file of Motor Accident

Claims Tribunal, at Bangalore is hereby confirmed.

iii. The amount in deposit is ordered to be

transferred to the Tribunal forthwith, along with TCR and a

certified copy of this order.

      iii.    Draw award accordingly.




                                           Sd/-
                                          JUDGE



JJ