Karnataka High Court

The Divisional Manager vs Leela W/O Totanagouda Patil on 8 February, 2022

Bench: S.Vishwajith Shetty

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 8TH DAY OF FEBRUARY, 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

       MISCELLANEOUS FIRST APPEAL No.102324/2016(MV)
                            C/W.
       MISCELLANEOUS FIRST APPEAL No.102325/2016(MV)

BETWEEN:

THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO.LTD.,
KESHWAPUR CIRCLE
KUSUGAL ROAD, HUBBALLI
REPRESENTED THROUGH ITS
REGIONAL OFFICE, SUMANGALA COMPLEX
2ND FLOOR, STATION ROAD, HUBBALLI 580 020.
REP.BY ITS DEPUTY MANAGER.
                                                ...APPELLANT
                                                   (COMMON)
(BY SRI. NAGANGOUDA R. KUPPELUR, ADVOCATE)

AND:

1.     SMT.LEELA W/O TOTANAGOUDA PATIL
       AGE:56 YEARS, OCC. HOUSEHOLD WORK
       R/O. KYARAKOPPA VILLAGE
       TQ and DIST. DHARWAD 580 007.

2.     SRI.TOTANAGOUDA S/O LINGANAGOUDA PATIL
       AGE:62 YEARS, OCC. NIL
       R/O. KYARAKOPPA VILLAGE
       TQ and DIST. DHARWAD 580 007.

3.     SRI.SURYAKANTH S/O SHIVARAYAPPA SHEELAVANT
       AGE:MAJOR, OCC: BUSINESS
       R/O LIG NO.139, KCC BANK COLONY
                                             MFA NO.102324/2016
                                       C/W. MFA NO.102325/2016

                             2


     M NAVANAGAR, HUBBALLI,
     DIST. DHARWAD 580 023
     (OWNER OF THE TANKER NO.KA-25/6059)
                                              ...RESPONDENTS
                                  (IN MFA NO.102324 OF 2016)

(BY SRI. HANAMANT R. LATUR, ADVOCATE FOR C/R1 & R2;
    SRI. SURESH P. HUDEDGADDI, ADVOCATE FOR R3;

1.   SUBHANABI @ RAFIQUE S/O MEHABOOBSAB
     CHAPPARAMANI
     AGE:25 YEARS, OCC. MASON
     R/O. KYARAKOPPA VILLAGE
     TQ and DIST. DHARWAD 580 007.

2.   SRI.SURYAKANTH S/O SHIVARAYAPPA SHEELAVANT
     AGE:MAJOR, OCC. BUSINESS
     R/O. LIC NO.139, KCC BANK COLONY
     M NAVANAGAR, HUBBALLI
     DIST. DHARWAD 580 023
     (OWNER OF THE TANKER NO.KA-25/6059)
                                               ...RESPONDENTS
                                  (IN MFA NO. 102325 OF 2016)

(BY SMT. SHAILA BELLIKATTI, ADVOCATE FOR R1;
    SRI. SURESH P. HUDEDGADDI, ADVOCATE FOR R2;

     MFA NO.102324/2016 IS FILED U/S.173(1) OF THE MOTOR
VEHICLES ACT 1988, AGAINST THE JUDGMENT & AWARD
DATED:17.02.2016, PASSED IN MVC.NO.696/2012 ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM AND MEMBER
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, DHARWAD,
AWARDING THE COMPENSATION OF `4,57,834/- WITH INTEREST AT
THE RATE OF 8% P.A. FROM THE DATE OF PETITION TILL ITS
REALIZATION.

     MFA NO.102325/2016 IS FILED U/S.173(1) OF THE MOTOR
VEHICLES ACT 1988, AGAINST THE JUDGMENT & AWARD
DATED:17.02.2016, PASSED IN MVC.NO.285/2012 ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM AND MEMBER
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, DHARWAD,
AWARDING THE COMPENSATION OF `2,45,600/- WITH INTEREST AT
THE RATE OF 8% P.A. FROM THE DATE OF PETITION TILL THE DATE
OF REALIZATION.

     THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                                       MFA NO.102324/2016
                                                 C/W. MFA NO.102325/2016

                                    3



                             JUDGMENT

These two appeals are filed by the Insurer of the

offending Tanker bearing registration No.KA-25/6059

challenging the judgment and award dated

17.02.2016 passed by the Principal Senior Civil Judge

and CJM and Addl. MACT, Dharwad(hereinafter

referred to as 'the Tribunal', for brevity), in MVC

Nos.696/2012 and 285/2012, on the ground of

liability.

2. Though these appeals are listed for

admission, with the consent of learned counsel

appearing on both sides, the same are taken up for

final disposal.

3. The parties to these appeals are referred to

by their rankings assigned to them before the

Tribunal for the sake of convenience.

4. The facts of the case as revealed from the

records are;

MFA NO.102324/2016 C/W. MFA NO.102325/2016

On 09.11.2011 at about 10.30 am, the deceased

Pruthivigouda was traveling as a pillion rider along

with the claimant in MVC No.285/2012 in a

motorcycle bearing registration No.KA-25/EE 5685

and when the said motorcycle reached near

Belavantar village near Basavanadevargudi, the

offending Tanker bearing registration No.KA-25/6059,

which was driven in a rash and negligent manner

came from Mundagod towards Kalaghatagi side and

dashed against the motorcycle, as a result, the rider

as well as the pillion rider suffered grievous injuries

and the pillion rider succumbed to the said injuries in

the hospital. The claimants in MVC No.696/2012,

who are the parents of the deceased Pruthivigouda,

who was the pillion rider in the motorcycle, had filed

a claim petition under Section 163A of the Motor

Vehicles Act, 1988 claiming compensation from the

owner and insurer of the offending Tanker, while the

injured claimant had filed a claim petition under

Section 166 of the Motor Vehicles Act, 1988, in MVC

No.285/2012, claiming compensation in respect of MFA NO.102324/2016 C/W. MFA NO.102325/2016

the injuries suffered by him in the road traffic

accident. The Tribunal had partly allowed the claim

petition and had saddled the liability to pay the

compensation amount on the Insurer of the offending

Tanker and being aggrieved by the same, the Insurer

is before this Court.

5. Learned counsel for the Insurer submits

that the driver of the offending Tanker did not

possess a valid and effective driving licence to drive

a heavy goods vehicle carrying hazardous substance

and therefore the Tribunal was not justified in

saddling the liability to pay the compensation on the

Insurer of the offending vehicle. He submits that the

driver held only a heavy goods vehicle driving licence

and there is no endorsement in the said licence to

the effect that he was also entitled to drive heavy

goods vehicle carrying hazardous substance. Since

the vehicle was used in violation of the terms and

conditions of the policy, the Tribunal ought not to

have saddled the liability to pay the compensation on MFA NO.102324/2016 C/W. MFA NO.102325/2016

the Insurer. Accordingly, he prays to allow the

appeals.

6. Per contra, learned counsel for the

claimants submits that the offending lorry at the time

of accident was not carrying any hazardous substance

in the said vehicle. Therefore, the Tribunal had

rightly saddled the liability to pay the compensation

on the Insurer of the said vehicle, having regard to

the judgment of the Division Bench of this Court

reported in ILR 2015 Karnataka 393 in the case of

New India Assurance Co. Ltd., Vs. Velumurugan

V. Accordingly he prays to dismiss the appeals.

7. The accident in question is not in dispute,

so also the involvement of the offending vehicle in

the said accident, in which the claimant in MVC

No.285/2012 was injured and the son of the

claimants in MVC No.696/2012 had died. It is also

not in dispute that the offending Tanker bearing

registration No.KA-25/6059, which was involved in

the said accident was duly insured by the appellant MFA NO.102324/2016 C/W. MFA NO.102325/2016

Insurer and the said policy was valid as on the date

of the accident. The material on record would go to

show that, at the time of accident, the driver of the

offending vehicle was possessing a valid and effective

heavy goods vehicle driving licence. The material on

record would also go to show that the offending

Tanker was empty as on the date of the accident and

it was not carrying any hazardous substance at the

time of accident.

8. In identical circumstance, the Division

Bench of this Court in the case of New India

Assurance Co. Ltd., Vs. Velumurugan V. reported

in ILR 2015 Karnataka 393, at paragraph 10 has

observed as follows:

"10. So far as point No.1 is concerned, the appellant is not disputing the driver possessing a valid licence to d rive 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 d rive a petrol tanker. Admittedly, when the accident MFA NO.102324/2016 C/W. MFA NO.102325/2016

occurred , it was an empty tank. In the cross-

examination of RW.1, he has ad mitted as hereunder:-

"When the accid ent occurred , there was no petroleum prod uct in the tanker."

Therefore, it is clear that when the accident occurred , it was an empty tanker. In ord er to drive an empty tanker, no end orsement is required by a driver to drive such vehicle since it was not carrying on any hazardous or combustible material. In ord er to consider the questions involved in this appeal, we have to consid er the provisions under Section 14(2)(a) of the Motor Vehicles Act, 1988, which read s as hereund er:-

"14(2)(a) in the case of a licence to d rive 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 d angerous or hazardous nature b e 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]"

MFA NO.102324/2016 C/W. MFA NO.102325/2016

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 d river 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 d ay refresher course, which indicates that in order to grant such special licence, the d river has to und ergo a course which is meant for safety measure.

Safety measure is required when the vehicle is carrying on comb ustible, dangerous or hazardous nature goods. I n 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 d rive an empty tanker. Therefore, the arguments of Sri R.Jaiprakash that the d river did not possess an endorsement is not acceptable. Accordingly, we hold that in ord er to drive empty tanker, no such licence is req uired because the vehicle did not carry any dangerous or hazardous nature goods.

MFA NO.102324/2016 C/W. MFA NO.102325/2016

Accordingly, point No.1 is answered in negative."

9. The Tribunal having regard to the said

judgment, has rightly saddled the liability to pay the

compensation on the Insurer of the offending vehicle.

Though the learned counsel for the appellant has

contended that, having regard to the judgment of the

Full Bench of this Court in the case of New India

Assurance Co. Ltd., vs. Yallavva and Another

reported in 2020 ACJ 2560, since the offending

vehicle was used in violation of the policy conditions,

the Insurer is required to be given liberty to pay and