Arun S/O Saravan Kale vs Basamma And Ors
2022 Latest Caselaw 1645 Kant

                            1


          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 3RD DAY OF FEBRUARY-2022

                        PRESENT

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                           AND

      THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA

             MFA NO.201064/2018 (MV)

BETWEEN:

Arun S/o Saravan Kale,
Age: 30 years, Occ: Owner of the
Vehicle bearing Reg.No.KA-32-A-2211,
R/o Sanjeev Nagar, Kalaburagi-585 102.
                                              ... Appellant

(By Sri. K.A.Kalburgi & Sri Chetan Kalburgi, Advocates)

AND:

1.     Basamma W/o Late Chandrakanth Kaba,
       Age: 34 years, Occ: Household,

2.     Mitun S/o Late Chandrakanth Kaba,
       Age: 16 years, Occ: Student,

3.     Chetan S/o Late Chandrakanth Kaba,
       Age: 13 tears, Occ: Student,

4.     Naveen S/o Late Chandrakanth Kaba,
       Age: 13 years, Occ: Student,
                              2



      Respondent Nos.2 to 4 are minors
      U/G of their natural mother respondent No.1

      All Respondent Nos.1 to 4 are
      R/o Honnakiranagi Village,
      Tq. & Dist. Kalaburagi-585 102.

5.    IFFCO TOKIO Gen. Insurance Co. Ltd.,
      Through its Manager,
      Strategic Business Unit, Sudev Plaza,
      3rd Floor, Opp. Shrilaxmi Temple,
      Dajibanpeth, Hubli-580 029.
                                            ... Respondents

(Sri. Santosh Biradar, Advocate for R1;
 R2 to R4 are minors reptd. by R1;
 Sri. Subhash Mallapur, Advocate for R5)

       This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to allow the
appeal by modifying the impugned Judgment and award
passed by the I Addl. Senior Civil Judge & MACT at
Kalaburagi in MVC No.1082/2015 dated 08.03.2018 and
the liability be fixed on respondent No.5.

      This appeal coming on for Final Hearing this day,
K.S. Hemalekha J., delivered the following:

                        JUDGMENT

The owner has preferred this appeal, assailing

the judgment and award dated 08.03.2018 passed in

MVC No.1082/2015 by the I Additional Senior Civil

Judge and MACT, Kalaburagi, (hereinafter referred to

as "the Tribunal" for short) on the ground of liability

fastened on the owner of the vehicle.

2. The claimants filed a claim petition before

the Tribunal under Section 166 of the Motor Vehicles

Act, 1988, seeking compensation of Rs.47,25,000/-

on account of death of one Chandrakanth, who died in

a fatal road traffic accident, contending that on

20.11.2014 the deceased was returning in the Bolero

Jeep bearing Registration No.KA.32/M.9708 after

completing his work at Honna Kiranagi and though the

driver of the jeep was driving slowly on the left side of

the road, when the jeep was near Sardarji Dhaba on

Gulbarga-Jewargi Road, a lorry bearing Registration

No.KA.32/A.2211 came in a zigzag manner and

dashed against the jeep. Due to the impact of the

accident, the said Chandrakanth fell down and

sustained head injuries and injuries on other parts of

the body. The deceased was treated for some time in

Narayan Hrudalaya, Hyderabad and later he

succumbed to the injuries sustained due to the

accident on 25.11.2014. The deceased was hale and

healthy and was aged about 30 years on the date of

the accident and he was running a business and doing

agriculture work and was earning a sum of

Rs.50,000/- per month. The claimants are the wife

and children of the deceased Chandrakanth, who was

the only earning member of the family and the

claimants were solely depending upon the income of

the deceased. It is contended that the accident

occurred due to the rash and negligent driving of the

lorry driver, who dashed against the jeep.

3. On issuance of the summons by the

Tribunal, respondent Nos.1 and 2 appeared through

their counsel and filed their statement of objections.

4. Respondent No.1-owner filed the statement

of objections denying the age and income of the

deceased and contended that the accident occurred

due to the rash and negligent driving of the driver of

the jeep and not due to the rash and negligent driving

of the driver of the lorry. It is also contended that the

driver of the lorry was holding a valid and effective

driving licence as on the date of the accident.

5. Inter alia, respondent No.2 contended that

the driver of the lorry was not holding a valid and

effective driving licence as on the date of the accident

and there is violation of the policy conditions. It is

contended that the accident occurred due to the rash

and negligent driving of the driver of the jeep in which

the deceased was traveling. There was one day delay

in filing the complaint.

6. On the basis of the pleadings, the Tribunal

framed the following issues:

ISSUES

1. Whether the petitioners prove that on 20.11.2014 at about 8.00 PM Saradarji Dhaba on Gulbarga-Jewargi NH.218 road, the deceased Chandrakant had met with an accident and sustained injuries due to rash and negligent driving of the Lorry bearing Regn.No.KA.32/A.2211 by its driver and thereafter the deceased died in the accident while taking treatment?

2. Whether the petitioners are entitled for the compensation? If so, how much and from whom?

3. What order or award?

7. In order to substantiate the case of the

claimants, petitioner No.1-wife of the deceased

examined herself as PW.1 and got marked Exs.P-1 to

P-21. On the other hand, respondent No.2-insurance

company examined the RTO official as RW.2 and got

marked Exs.R-1 to R-3.

8. The Tribunal, on the basis of the pleadings,

evidence and material on record held that there is

contributory negligence on the part of the deceased

and also held that the accident occurred due to the

rash and negligent driving of the driver of the lorry

bearing Registration No.KA.32/A.2211. However,

fastened the liability upon the owner of the vehicle on

the ground that as on the date of the accident, the

driver of the lorry was not possessing valid and

effective driving licence to drive the said vehicle and

as such there was violation of the policy conditions, as

the lorry was carrying goods of dangerous and

hazardous in nature and an endorsement was required

under Section 14 of the M.V. Act is not complied with.

Thus, the Tribunal held that the driver of the offending

vehicle did not possess a valid and effective driving

licence to drive the vehicle carrying dangerous and

hazardous goods and fastened the liability on the

owner of the vehicle and awarded compensation of

Rs.9,12,000/- with interest at the rate of 6% per

annum from the date of petition till realisation.

9. Being aggrieved by the fastening of liability

on the owner of the lorry bearing Regn. No.KA.32/

A.2211, the present appeal is filed by the owner

challenging the fastening of liability and absolving the

liability of the insurance company.

10. Heard learned counsel for the appellant-

owner and the learned counsel for respondent No.5-

insurance company.

11. Sri Chetan Kalburgi, learned counsel for the

appellant would contend that the Tribunal was not

justified in fastening the liability on the appellant-

owner on the ground that there was violation of the

policy conditions, as the driver of the lorry was not

holding a valid and effective driving licence to

transport the dangerous and hazardous goods without

considering the fact that as per the objections filed by

the owner and the cross-examination put forth by the

insurance company to the petitioner would clearly

establish the fact that as on the date of the accident,

the lorry driven by the driver was transporting empty

gas cylinders which do not amount to hazardous

goods and this aspect was not considered by the

Tribunal thereby resulting in erroneous conclusion.

12. In this regard, he placed reliance on the

decision of the Hon'ble Apex Court in the case of

Mukund Dewangan vs. Oriental Insurance

Company Limited [(2016) 4 SCC 298] in order to

contend that though the driver of the offending vehicle

did not possess a valid and effective driving licence to

drive the offending vehicle which was carrying

hazardous goods i.e., gas cylinders, the undisputed

fact that the driver of the offending vehicle possessed

a valid and effective driving licence to drive a vehicle,

albeit of a different class was sufficient to fasten the

liability to pay compensation upon the insurance

company and absolve the appellant-owner from his

liability to pay the compensation. It is also specifically

contended that on the date of the accident, the driver

was carrying empty gas cylinders and not dangerous

and hazardous goods as contended by the insurance

company and in this regard, he placed reliance on the

decision of this Court in the case of New India

Assurance Company Limited vs. Shri

Velumurugan and another [2015 (2) KCCR

1182].

13. Per contra, Sri Subhash Mallapur, learned

counsel for respondent No.5-insurance company,

submits that the decision of the Apex Court in

Mukund Dewangan's case supra, in relation to

driving licence not having endorsement to drive a

transport vehicle is not applicable to the facts of the

instant case in respect of the offending insured vehicle

which was carrying hazardous goods and also the

judgment of this Court in New India Assurance

Company Limited vs. Shri Velumurugan and

another's case supra is not applicable to the facts

and circumstances of the present case. Consequently,

the Tribunal was justified in fastening the liability to

pay the compensation upon the appellant-owner of

the vehicle.

14. Having heard learned counsel for the

parties and in view of the rival contentions urged by

the parties, the following point would arise for our

consideration:

"Whether the Tribunal was justified in fastening the liability on the owner of the vehicle bearing Reg.No.KA.32/A.2211 on the ground that the driver of the vehicle did not possess effective and valid driving

licence to drive the vehicle carrying dangerous and hazardous goods in the present facts and circumstances of the case?"

15. In order to answer the above issue, the

objection filed by the owner of the vehicle, the

objection filed by the insurance company and the

evidence needs to be considered. Before the Tribunal,

the owner of the offending vehicle filed his objections

and paragraph No.5 reads as under:

"5. It is submitted that respondent No.1/driver is having valid and effective driving licence on the date of the accident to drive Comet Lorry bearing registration No.KA-32-A-2211 and also vehicle insured with respondent No.2."

16. The objections filed by respondent No.2-

insurance company before the Tribunal at paragraph

No.9 reads as under:

"9. The driver of the lorry bearing registration No.KA 32/A-2211 was not holding a valid and effective driving licence and he is not authorised to drive the specific class of vehicle on the date of the accident. The Respondent No.1 fully knows well that the driver of the lorry was not holding a valid and effective driving licence to drive the lorry. Even though he entrusted the vehicle to driver in a public place. Thereby, committing the breach of the policy conditions."

17. In the affidavit filed by respondent

No.1/RW.3, who is the owner of the vehicle it is

specifically contended at paragraph No.8 that the

vehicle was used for carrying only empty gas cylinders

as on the date of the accident. The item i.e., the

empty cylinders does not fall under the meaning of

"hazardous items."

18. RW.3 was cross-examined by the insurance

company and the cross-examination of RW.3 clearly

and in an unequivocal terms states that as on the date

of the accident, the vehicle was carrying empty

cylinders and there was no dangerous or hazardous

substance carried in the said vehicle. The relevant

portion of the cross-examination of RW.3 reads as

under:

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19. A perusal of the objections of the owner,

insurance company and the cross-examination of

RW.3 clearly establish the fact that as on the date of

the accident, the offending vehicle driven by the driver

holding a licence for transport vehicle was not carrying

any dangerous and hazardous goods i.e., gas

cylinders and the evidence clearly establishes the fact

that the offending vehicle was carrying empty

cylinders and this evidence is not controverted by the

insurance company. This being so, the contention of

the insurance company that as on the date of the

accident the vehicle was carrying hazardous goods

i.e., the gas cylinders does not appraise the mind of

this court and thus cannot be accepted. This Court, in

the case of New India Assurance Company

Limited vs. Shri Velumurugan and another's case

supra at paragraphs 9 and 10 held as under:

9. Having heard the learned Counsel for the parties, we have to consider the following points:-

(1) Whether the liability saddled on the appellant-Insurance Company by the Tribunal required to be interfered with?

(2) Whether the compensation awarded by the Tribunal is liable to be interfered with?

10. So far as point No.1 is concerned, the appellant is not disputing the driver possessing a valid licence to drive a HGV. The contention of the appellant is that since the vehicle in question is registered as petrol tanker, special endorsement was required to be obtained by the driver to drive a petrol tanker. Admittedly, when the accident occurred, it was an empty tank. In the cross-examination of RW.1, he has admitted as hereunder: -

"When the accident occurred, there was no petroleum product in the tanker."

Therefore, it is clear that when the accident occurred, it was an empty tanker. In order

to drive an empty tanker, no endorsement is required by a driver to drive such vehicle since it was not carrying on any hazardous or combustible material. In order to consider the questions involved in this appeal, we have to consider the provisions under Section 14(2)(a) of the Motor Vehicles Act, 1988, which reads as hereunder:-

"14(2)(a) in the case of a licence to drive a transport vehicle, be effective for a period of three years:

[Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature he effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus; and]

Proviso to Section 14(2)(a) clearly indicates that special licence is required to drive a vehicle, which is carrying on goods of dangerous or hazardous nature and such licence will be effective for a period of one year and thereafter the driver has to undergo one day refresher course of the prescribed syllabus. Therefore, it is clear that the special licence to be granted under this proviso will be valid for one year and thereafter it will be renewed subject to the driver undergoing one day refresher course,

which indicates that in order to grant such special licence, the driver has to undergo a course which is meant for safety measure. Safety measure is required when the vehicle is carrying on combustible, dangerous or hazardous nature of goods. In other words, if a tanker is not carrying on goods of dangerous or hazardous nature, there is no necessity to obtain such special licence to drive an empty tanker. Therefore, the arguments of Sri.R.Jaiprakash that the driver did not possess an endorsement is not acceptable. Accordingly, we hold that in order to drive empty tanker, no such licence is required because the vehicle did not carry any dangerous or hazardous nature goods. Accordingly, point No.1 is answered in negative."

20. Section 14(2) of the Motor Vehicles

(Amendment) Act, 2019 (32/2019) reads as under:

"14. Currency of licences to drive motor vehicles.--

(1) xxxxx

(2) A driving licence issued or renewed under this Act shall,--

(a) in the case of a licence to drive a transport vehicle, be effective for a period of [five years]: [***] [Provided that in the case of licence

to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of [three years and renewal thereof shall be subject to such conditions as the Central Government may prescribe]."

21. The Co-ordinate Bench of this Court in the

case of New India Assurance Company Limited

vs. Shri Velumurugan and another supra, observed

that if an empty tanker was driven by the driver only

possessing licence to drive the heavy goods vehicle

and not vehicle carrying goods of hazardous nature,

the insurance company cannot avoid its liability.

Only difference in the case of New India Assurance

Company Limited vs. Shri Velumurugan and

another supra is that, Section 14(2)(a) was not

amended, but however the amendment (32/2019) is

only in respect of the period of licence. Earlier to

amendment Act, as on the date of New India

Assurance Company Limited vs. Shri

Velumurugan and another's case, as per Section

14(2)(a) of the Motor Vehicles Act, 1988, licence to

drive vehicle under the said Section is effective for a

period of three years. The relevant portion reads as

under:

"14(2)(a) in the case of a licence to drive a transport vehicle, be effective for a period of three years:

[Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus; and]"

22. In view of the amendment, now it is three

years and renewal thereof shall be subject to such

condition as the Central Government may prescribe.

However, the prior amendment or post amendment to

Section 14(2)(a) is of least consequences in the

present fact and circumstances of the case as the

offending vehicle in question was not carrying

hazardous goods and thus, there is no necessity for

the driver to obtain special licence to drive the vehicle

carrying the empty gas cylinders.

23. The careful perusal of the judgment of the

Co-ordinate Bench of this Court in New India

Assurance Company Limited vs. Shri

Velumurugan Vs. and another reveals that the

facts and circumstances of the said care are similar to

the case on hand and it is squarely applicable, as the

offending vehicle was not carrying hazardous goods

i.e., the filled gas cylinders as on the date of the

accident. Also, on careful perusal of the decision of

the Hon'ble Apex Court in the case of Mukund

Dewangan supra, the Apex Court has categorically

held that so long as the driver possesses a valid and

effective driving licence to drive a particular class of

vehicle, merely because the said licence does not have

an endorsement to drive a different class of vehicle,

the said circumstance, cannot be made the basis to

absolve the liability of the insurance company to pay

the compensation.

24. In the instant case, it is an undisputed fact

that the driver possessed a driving licence to drive the

offending vehicle which was a transport vehicle and

the said licence authorised him to drive a particular

class of vehicle in view of the fact that as on the date

of the accident, the vehicle was not carrying the

hazardous goods, but was carrying empty gas

cylinders and the same being not controverted by the

insurance company and no material evidence is

produced to show that the vehicle was carrying

hazardous goods. Under these circumstances, merely

because the said driving licence undisputedly

possessed by the driver to drive the transport vehicle

did not contain an endorsement authorising him to

drive a different class of vehicle for the purpose of

carrying hazardous goods, the decision of the Hon'ble

Apex Court in Mukund Dewangan's case and the

judgment of this Court in New India Assurance

Company Limited vs. Shri Velumurugan and

another's case supra would squarely apply to the

facts of the instant case and accordingly, the said

contention urged by the insurance company cannot be

accepted. Accordingly, we answer the point raised for

consideration in the negative.

25. Insofar as the quantum of compensation is

concerned, the Tribunal, taking into account the age

and income of the deceased and applying the proper

multiplier has awarded the compensation under the

head 'loss of dependency' to the tune of

Rs.7,84,000/-. Further, the Tribunal has awarded a

sum of Rs.40,000/- towards loss of consortium,

Rs.60,000/- towards loss of love and affection,

Rs.15,000/- towards funeral and transportation

expenses and Rs.1,30,000/- towards medical

expenses. The Tribunal, considering all the material

evidence and oral evidence on record and in view of

the dictum of the Hon'ble Apex Court in the case of

National Insurance Company Limited vs. Pranay

Sethi and others reported in (2017) 16 SCC 680

under the settled position of law has rightly awarded

just and fair compensation, which does not call for

interference by this Court.

26. In the result, we pass the following:

ORDER

i) The appeal is allowed in part.

ii) The impugned judgment and award

dated 08.03.2018 passed by the

Tribunal in MVC No.1082/2015 insofar

as it relates to absolving the insurance

company of its liability to pay the

compensation and fastening the

liability upon the appellant-owner is

hereby set aside.

iii) Respondent No.5-insurance company is

directed to pay the compensation

awarded by the Tribunal together with

upto date interest in favour of

respondent Nos.1 to 4/claimants within

a period of eight weeks from the date

of receipt of a certified copy of this

judgment.

iv)    The    amount      deposited       before   the

       Tribunal     by   the   appellant-owner      is

       directed     to    be   refunded      to    the

       appellant.

v) The Registry is directed to transmit the

Trial Court records to the Tribunal

forthwith.

Sd/-

JUDGE

Sd/-

JUDGE

SMP/LG