Karnataka High Court

The Manager (Legal) vs Smt Poornima K on 28 February, 2022

Bench: P S Kumar, Rajendra Badamikar

                                         M.F.A No.1879/2019

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                          PRESENT

      THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                              AND
     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

               M.F.A No.1879 OF 2019 (MV)

BETWEEN :

THE MANAGER (LEGAL)
RELIANCE GENERAL INSURANCE CO. LTD.,
OPP. KSRTC BUS STAND
1ST FLOOR, NO.36D, MYSORE TRADE CENTRE
MYSORE-570 001
NOW REP. BY ITS
LEGALMANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
EAST WING, 5TH FLOOR
CENTENARY BUILDING
NO.28, M.G.ROAD
BANGALORE-560 001                              ... APPELLANT

(BY SHRI. B. PRADEEP, ADVOCATE)

AND :
1.    SMT. POORNIMA K
      W/O LATE NANDAKUMAR T
      AGED ABOUT 41 YEARS

2.    PRATHIKA N
      S/O LATE NANDAKUMAR T
      AGED ABOUT 22 YEARS
                                              M.F.A No.1879/2019

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3.   POOJA N
     D/O LATE NANDAKUMAR T
     AGED ABOUT 21 YEARS

4.   T. THIMMEGOWDA
     S/O LATE HONNITHIMMEGOWDA
     AGED ABOUT 73 YEARS

5.   SMT. PUTTAMMA
     W/O T. THIMMEGOWDA
     AGED ABOUT 66 YEARS

     ALL ARE R/AT GOSEGOWDA STREET
     SRIRANGAPATNA TOWN
     MANDYA DISTRICT-580 726

6.   M/S. D.K. CONSTRUCTION
     NO.922, 1ST MAIN
     KANTHARAJE URS ROAD
     LAKSHMIPURAM
     MYSORE-570 725                              ... RESPONDENTS

(BY SHRI. R. PRAMOD, ADVOCATE FOR R1 TO R5;
    SHRI. N. DILEEP, ADVOCATE FOR R6)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT    AND    AWARD    DATED   29.09.2018    PASSED   IN   MVC
NO.1409/2016 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, &
MEMBER, MACT, SRIRANGAPATNA, AWARDING COMPENSATION OF
RS.16,49,000/- WITH INTEREST @ 9% P.A FROM THE DATE OF
PETITION TILL REALIZATION.


     THIS   MFA,   HAVING    BEEN   HEARD   AND     RESERVED    FOR
JUDGMENT ON 19.01.2022 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, P.S.DINESH KUMAR         J, PRONOUNCED THE
FOLLOWING:-
                                            M.F.A No.1879/2019

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                        JUDGMENT

This appeal is filed by Reliance General Insurance

Company challenging the judgment and Award dated

September 29, 2018 in MVC No.1409/2016 on the file of

Prl. Senior Civil Judge and Member, MACT, Srirangapatna.

2. Heard Shri. B. Pradeep learned Advocate for

appellant, Shri. R. Pramod learned Advocate for first to fifth

respondents and Shri. N. Dileep, learned Advocate for sixth

respondent.

3. For the sake of convenience, parties shall be

referred as per their status before the Tribunal.

4. Shri. Pradeep, for the insurer urged two grounds.

Firstly that the driver of the offending vehicle did not

possess a valid driving license. Therefore, the insurer is not

liable to indemnify the owner of the offending vehicle as

there has been breach of policy condition. Secondly that M.F.A No.1879/2019

rate of interest at 9% awarded by the Tribunal is higher.

Accordingly, he prayed for allowing this appeal.

5. Shri. Pramod and Shri. Dileep, for respondents

argued opposing the appeal.

6. We have carefully considered rival contentions

and perused the records.

7. Undisputed facts of the case are, first claimant's

husband Nanda Kumar was working in a Stone Crushing

Unit run in the name and style of 'Sumathi Stone Crusher'

situated in Ragimuddanahalli, Mandya Taluk. A lorry of

Eicher make with a tanker loaded with diesel came to the

site to deliver the diesel. After delivering the diesel, the

driver moved the vehicle in reverse direction. Nanda Kumar

who was standing behind the lorry sustained grievous

injuries and died in the hospital. On consideration of the

claim petition, Tribunal has awarded `16,49,000/- and

directed the insurer to satisfy the Award. Feeling aggrieved,

the insurer has presented this appeal.

M.F.A No.1879/2019

8. The main contention urged by Shri. Pradeep for

the insurer is, the driver of a tanker carrying diesel is

required to possess specific endorsement to drive the

hazardous goods vehicle and admittedly, the driver did not

possess a valid licence to drive the tanker. Therefore,

insurer is not liable to indemnify the owner.

9. He further submitted that Tribunal has awarded

interest at 9% p.a. This Court has been consistently

granting interest at 6% p.a. Accordingly, he prayed for

allowing this appeal.

10. Shri. Dileep for the owner of the offending

vehicle, placing reliance on New India Assurance Company

Ltd., Vs. Shri. Velumurugan and another1 submitted that

the accident has occurred after diesel was unloaded while

the driver was reversing the truck. Therefore, as held by

this Court in Velumurugan, no special license was required

because, the vehicle was not loaded with any dangerous or

hazardous goods when the accident took place.

ILR 2015 KAR 393 M.F.A No.1879/2019

11. This argument is untenable because, admittedly,

the tanker loaded with diesel came to the Stone crushing

site driven by a driver who did not possess a valid licence.

The learned Advocate sought to make a very fine distinction

that when the tanker dashed against the victim, diesel was

unloaded.

12. Thus, in substance, the argument advanced on

behalf of the owner of the vehicle is, though the driver did

not possess license to drive a vehicle carrying hazardous

material, the diesel was unloaded at the time of accident.

Therefore, he is entitled for benefit flowing from the

judgment of this Court in Velumurugan.

13. It is important to note that Motor Vehicle Act and

Rules have prescribed special attributes for a person

desirous of driving vehicles carrying dangerous or

hazardous material. Section 14 of MV Act reads as follows:

"14. Currency of licences to drive motor vehicles.--(1) A learner's licence issued under this Act shall, subject to the other provisions of this Act, be effective M.F.A No.1879/2019

for a period of six months from the date of issue of the licence.

(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 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;

(b) in the case of any other licence,--

(i) if the person obtaining the licence, either originally or on renewal thereof, has not attained the age of fifty years on the date of issue or, as the case may be, renewal thereof,--

(A) be effective for a period of twenty years from the date of such issue or renewal;or (B) until the date on which such person attains the age of fifty years, whichever is earlier;

(ii) if the person referred to in sub-clause (i), has attained the age of fifty years on the date of issue or as the case may be. renewal thereof, be effective, on payment of such fee as may be prescribed, for a period of five years from the date of such issue or renewal:

Provided that every driving licence shall, notwithstanding its expiry under this sub-section, continue to be effective for a period of thirty days from such expiry.

M.F.A No.1879/2019

Rule 9 of the Central Motor Vehicles Rules made as follows:

9. Educational qualifications for drivers of goods carriages carrying dangerous or hazardous goods.--(1) One year from the date of commencement of Central Motor Vehicles (Amendment) Rules, 1993, any person driving a goods carriage carrying goods of dangerous or hazardous nature to human life share, in addition to being the holder of a driving licence to drive a transport vehicle, also have the ability to read and write at least one Indian language out of those specified in the VIII Schedule of the Constitution and English and also possess a certificate of having successfully), passed a course consisting of following syllabus and periodicity connected with the transport of such goods.

Period of training     3 days
Place of training      At any institute recognised by the
                       State Government
Syllabus

A. Defencive driving
Questionnaire          Duration of training

Cause of accidents for A & B--1st and Accidents statistics 2nd day Driver's personal fitness Car condition Braking distance Highway driving Road / Pedestrian crossing Railway crossing Adapting to weather Head on collision Rear end collision Night driving Films and discussion M.F.A No.1879/2019

B. Advance Driving skills and Training

(i) Discussion Before starting - Check list

- Outside/below/near/ Vehicle

-Product side

- Inside vehicle During driving - Correct speed/gear

- Signalling

- Lane control

-Overtaking/giving side

-Speed limit/safe distance

- Driving on slopes Before stopping - Safe stopping place signalling, road width, condition After stopping - preventing vehicle movement

- wheel clocks

- vehicle attendance Night driving

(ii) field test - 1 driver at a time testing C. Product safety - UN classification duration UN Panel - Hazchem Code of training

- Toxicity, for (C) Flammability third day other definitions Product information - Tremcards

- CIS/MSDS

- Importance of temperature pressure, level

- Explosive limits

- Knowledge about equipment Emergency procedure - Communication

- Spillage handling

- Use of PPE

- Fire fighting

- First Aid

- Toxic release control

- Protection of wells, rivers, lakes, etc.

- Use of protective equipment

- Knowledge about valves, etc.

(2) The holder of a driving licence possessing the minimum educational qualification or the certificate referred to in sub- rule (1), shall make an application in writing on a plain M.F.A No.1879/2019

paper along with his driving licence and the relevant certificate to the licensing authority in whose jurisdiction he resides for making necessary entries in his driving licence and if the driving licence is in Form 7 the application shall be accompanied by the fee as is referred to in Serial No. 8 of the Table to rule 32.

(3) The licensing authority, on receipt of the application referred to in sub-rule (2), shall make an endorsement in the driving licence of the applicant to the effect that he is authorised to drive a goods carriage carrying goods of dangerous or hazardous nature to human life.

(4) A licensing authority other than the original licensing authority making any such endorsement shall communicate the fact to the original licensing authority."

14. Thus, a person desirous of driving a vehicle

carrying hazardous material is required to pass a course

with the syllabus provided in the Rules.

15. On facts, it is not disputed that the driver of the

offending vehicle had driven the tanker loaded with diesel

and the same was unloaded in the stone crushing unit. If

the argument advanced on behalf of the owner to shift the

liability on the Insurer were to be accepted, in our view, it

amounts to placing premium on the impunity on the part of

the driver.

M.F.A No.1879/2019

16. In Velu Murugan, on facts, this Court has held