Karnataka High Court

Ashok And Anr vs Ashok And Anr on 25 July, 2024

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                                                              NC: 2024:KHC-K:5298
                                                       MFA No. 200866 of 2024
                                                   C/W MFA No. 203897 of 2023




                               IN THE HIGH COURT OF KARNATAKA,

                                       KALABURAGI BENCH

                             DATED THIS THE 25TH DAY OF JULY, 2024

                                              BEFORE
                           THE HON'BLE MR. JUSTICE UMESH M ADIGA


                       MISCL. FIRST APPEAL NO. 200866 OF 2024 (MV-D)
                                                C/W
                       MISCL. FIRST APPEAL NO. 203897 OF 2023 (MV-D)


                      IN MFA.NO.200866/2024:
                      BETWEEN:

                      1.   ASHOK S/O NATHU RATHOD
                           AGE: 37 YEARS, OCC: COOLIE,
                           R/O KANNUR LT,
                           TQ. AND DIST. VIJAYAPURA-586119.

Digitally signed by   2.   SMT. SHOBHA W/O ASHOK RATHOD
SHIVALEELA
DATTATRAYA                 AGE 34 YEARS, OCC: HOUSEHOLD WORK,
UDAGI                      R/O KANNUR LT,
Location: HIGH
COURT OF                   TQ. AND DIST. VIJAYAPURA 586119.
KARNATAKA
                                                                    ...APPELLANTS

                      (BY SRI KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE)


                      AND:

                      1.   ASHOK S/O KALU PAWAR
                           AGED ABOUT 49 YEARS, OCC: BUSINESS,
                           R/O C/O H. NO. 920 VIDYA PAN SHOP,
                           MURAGAWADA ZOPAD PATTI,
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                                        NC: 2024:KHC-K:5298
                                  MFA No. 200866 of 2024
                              C/W MFA No. 203897 of 2023



     TQ. AND DIST. RATNAGIRI- 413107,
     (MAHARASHTRA STATE)

2.   THE MANAGER LEGAL
     THE SHRIRAM GENERAL INSURANCE COMPANY LTD.,
     E-I, RIICO INDUSTRIAL AREA, SITAPUR,
     JAIPUR 302022,
     RAJASTHAN STATE.

                                           ...RESPONDENTS

(BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE FOR R1;
 SMT. SANGEETA BHADRASHETTY, ADVOCATE FOR R2)

     THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
A) CALL FOR THE RECORDS B) TO SET ASIDE THE IMPUGNED
JUDGMENT AND AWARD DATED 07.02.2015 PASSED IN MVC
NO. 687/2014 BEFORE THE MEMBER MOTOR ACCIDENT
CLAIMS TRIBUNAL AND PRESIDING OFFICER FAST TRACK
COURT VIJAYAPURA AT VIJAYAPURA, AND ALLOW THIS APPEAL
FILED BY THE APPELLANT/OWNER OF THE VEHICLE BEFORE
THIS HON'BLE COURT. C) ORDER FOR COSTS OF THIS APPEAL.
D) PASS SUCH OTHER ORDERS DEEMS FIT IN THE
CIRCUMSTANCE OF THE CASE.

IN MFA NO. 203897/ 2023:

BETWEEN:

ASHOK S/O KALU PAWAR
AGED ABOUT 49 YEARS, OCC: BUSINESS,
R/O C/O H. NO. 920 VIDYA PAN SHOP,
MURAGAWADA ZOPAD PATTI,
TQ. AND DIST. RATNAGIRI -413107,
(MAHARASHTRA STATE)
                                               ...APPELLANT
(BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE)
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                                   MFA No. 200866 of 2024
                               C/W MFA No. 203897 of 2023



AND:

1.   ASHOK S/O NATHU RATHOD
     AGED ABOUT 37 YEARS, OCC: COOLIE,
     R/O KANNUR LT,
     TQ. AND DIST. VIJAYAPURA-586119.

2.   SMT. SHOBHA W/O ASHOK RATHOD
     AGED ABOUT 34 YEARS, OCC: HOUSEHOLD WORK,
     R/O KANNUR LT,
     TQ. AND DIST. VIJAYAPURA-586119.

3.   THE MANAGER LEGAL
     THE SHRIRAM GENERAL INSURANCE
     COMPANY LIMITED,
     E-1 RIICO INDUSTRIAL AREA, SITAPUR,
     JAIPUR-302022, (RAJASTHAN STATE).
                                           ...RESPONDENTS

(BY SRI KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE
 FOR R1 AND R2;
 SMT. SANGEETA BHADRASHETTY, ADVOCATE FOR R3)

       THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
A) CALL FOR THE RECORDS B) TO SET ASIDE THE IMPUGNED
JUDGMENT AND AWARD DATED 07-02-2015 PASSED IN MVC
NO. 687/2014 BEFORE THE           MEMBER MOTOR ACCIDENT
CLAIMS TRIBUNAL AND PRESIDING OFFICER FAST TRACK
COURT VIJAYAPURA AT VIJAYAPURA, AND ALLOW THIS APPEAL
FILED BY THE APPELLANT/OWNER OF THE VEHICLE         BEFORE
THIS HON'BLE COURT. C) ORDER FOR COSTS OF THIS APPEAL.
D)   PASS   SUCH   OTHER   ORDERS     DEEMS   FIT   IN   THE
CIRCUMSTANCES OF THE CASE.


       THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                   MFA No. 200866 of 2024
                               C/W MFA No. 203897 of 2023




CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA


                    ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE UMESH M ADIGA)

Though these appeals arise out of judgment and

award passed by the MACT & Fast Track Court, Vijayapura

(hereinafter for short referred to as 'Tribunal') in MVC

No.687/2014 dated 07.02.2015.

MFA No.200866/2024 is filed by the claimants for

enhancement of compensation and MFA No.203897/2023

is filed by the owner of the JCB challenging the liability of

the insurer to pay the compensation.

2. Though these appeals are slated for orders,

with the consent of learned counsels, they are taken up for

final disposal.

3. The parties will be referred to as per their ranks

before the Tribunal for sake of convenience.

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4. It is the case of the claimants that on

11.12.2013 around 5:15 p.m. son of the appellants by

name Preetam met with an accident by JCB machine

bearing Reg.No.MH-08/A-8489 at Ekata Nagar, Khedashi

village of Ratnagiri taluka. Due to the said injury, the said

boy aged about 2 years sustained fatal injuries and died.

5. The claimants further contended that they are

the legal heirs of the deceased and prayed for awarding of

the compensation.

6. Respondent No.1/owner denied the contents of

the claim petition and has stated that the said vehicle was

insured with respondent No.2. The driver of the JCB had

valid and effective driving licence to drive the said class of

vehicle. He is not liable to pay the compensation and

prayed to direct the respondent-insurer to pay the

compensation.

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7. Respondent No.2/Insurance Company denied

the contents of the claim petition and has further stated

that its liability is restricted to terms and conditions of the

policy of insurance and holding of valid and effective

driving licence by driver of the said vehicle.

8. From the rival contentions of both the parties,

the Tribunal had framed the necessary issues for

determination.

9. The claimants to prove their case examined

PW.1 and got marked Exs.P.1 to 7. The respondents have

examined RWs.1 and 2 and got marked Exs.R.1 and 2.

10. The Tribunal after hearing both the parties and

appreciating the evidence available on record, by the

impugned judgment, awarded the compensation of

Rs.1,50,000/- and directed the owner of the vehicle to pay

the compensation and absolved the liability of respondent-

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insurer from paying the compensation on the ground that

operator/driver of the JCB had no valid and effective

driving licence. Therefore, insurer is not liable to pay the

compensation.

11. I have heard the arguments of learned counsel

for both side.

12. The learned counsel for the claimants submits

that deceased was aged about 2 years. He was son of the

claimants. The claimants have lots of hope and

expectation on him that in their olden days he would look

after them and unfortunately he died in the accident. The

Tribunal has not considered these facts and awarded

meager amount of compensation. Therefore, prayed to

enhance the compensation on the basis of law laid by the

Hon'ble Apex Court in the cases of death of a minor.

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13. The learned counsel for owner of the vehicle

would submit that weight of the JCB is less than 7500kg.

It is noted in the impugned judgment by the Tribunal. As

held in the case of Mukund Dewangan vs. Oriental

Insurance Company Limited 1, JCB comes under the

category of light motor vehicle and also the driver of the

JCB if has got a licence to drive light motor vehicle, he can

drive JCB also. This point was not considered by the

Tribunal and absolved the insurer from its liability and

directed the owner to pay the compensation, which is

erroneous.

14. The learned counsel for the owner has relied on

the judgments of the Co-ordinate Bench of this Court in

the case Reliance General Insurance Company

Limited vs. S. Ramya and others in MFA No.6789/2010

DD 09.11.2020 and in the case of Renuka and another

(2017) 14 SCC 663

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vs. Shreeshail and another in MFA No.201104/2021 DD

27.02.2024. Hence, prayed to fasten the liability on the

insurer.

15. The learned counsel for the insurer has

vehemently contended that driving licence should be

issued as per provisions of Section 10 of the Motor

Vehicles Act, 1988 (for short, 'M.V.Act'). The JCB comes

under different class of vehicle i.e. Section 10(2)(J) would

be applicable to it and the driver must hold licence to drive

JCB. Mere holding of licence to drive light motor vehicle is

not sufficient and hence, the Tribunal has rightly

exonerated the insurer from its liability and directed the

owner of the vehicle to pay the compensation. It does not

call for interference.

16. The learned counsel for the insurer has further

submitted that insurer is not at all liable to pay the

compensation since there is breach of terms of policy.

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Moreover, the Tribunal by considering the materials on

record awarded just amount of compensation. It is not

necessary to interfere in the said finding. With these

reasons prayed to dismiss both the appeals.

17. The fact of accident, manner in which accident

had taken place and death of minor boy aged about 2

years due to the said accident are not seriously disputed.

Therefore, there is no need to reconsider the same. The

main grievance in this case is regarding liability of the

insurer to pay the compensation.

18. According to Section 2(cab) of the Central

Motor Vehicles Rules, JCB comes under the category of

construction equipment. In the impugned judgment, the

Tribunal has considered that unladen weight of the said

JCB was below 7500 kg. In the case of Mukund

Dewangan (supra), it is held by the Hon'ble Apex Court

that a person authorized to drive light motor vehicle,

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unladen weight of which is less than 7500kg, is authorized

to drive any of the class of the vehicle coming within the

said category. In the above said judgment the Hon'ble

Apex Court observed as under:

"14. The definition of 'light motor vehicle' makes it clear that for 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 kgs. 'Gross vehicle weight' has been defined in section 2(15). The motor car or tractor or road roller, the unladen weight of any of which does not exceed 7500 kgs. as defined in section 2(48) of the Act, are also the light motor vehicle. No change has been made by Amendment Act of 54/94 in the provisions contained in sections 2(21) and 10(2)(d) relating to the light motor vehicle. The definition of 'light motor vehicle' has to be given full effect to and it has to be read with section 10(2)(d) which makes it abundantly clear that 'light motor vehicle' is also a 'transport vehicle', the gross vehicle weight or unladen weight of which does not exceed 7500 kgs. as specified in the provision. Thus, a driver is issued a licence as per the class of vehicle i.e. light motor vehicle, transport vehicle or omnibus or another vehicle of

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NC: 2024:KHC-K:5298

other categories as per gross vehicle weight or unladen weight as specified in section 2(21) of the Act. The provision of section 3 of the Act requires that a person in order to drive a 'transport vehicle' must have authorization. Once a licence is issued to drive light motor vehicle, it would also mean specific authorization to drive a transport vehicle or omnibus, the gross vehicle weight or motor car, road roller or tractor, the unladen weight of which, as the case may be, does not exceed 7500 kg. The insertion of 'transport vehicle' category in section 10(2)(e) has no effect of obliterating the already defined category of transport vehicles of the class of light motor vehicle. A distinction is made in the Act of heavy goods vehicle, heavy passenger motor vehicle, medium goods vehicle and medium passenger motor vehicle on the basis of 'gross vehicle weight' or 'unladen weight' for heavy passenger motor vehicle, heavy goods vehicle, the weight, as the case may be, exceed 12000 kg. Medium goods vehicle shall mean any goods carriage other than a light motor vehicle or a heavy goods vehicle; whereas 'medium passenger motor vehicle' means any public service vehicle or private service vehicle or educational institution bus other than a motorcycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle.

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Thus, the newly incorporated expression 'transport vehicle' in section 10(2)(e) would include only the vehicles of the category as defined in section 2(16) - heavy goods vehicle, section 2(17) - heavy passenger motor vehicle, section 2(23) - medium goods vehicle and section 2(24) medium passenger motor vehicle, and would not include the 'light motor vehicle' which means transport vehicle also of the weight specified in Section 2(21)."

19. In view of the said observation, the Hon'ble

Apex Court held that a driver authorized to drive light

motor vehicle is also authorized to drive JCB. Hence, the

contention of the insurer that driver had no valid and

effective driving licence is not acceptable.

20. The Division Bench of this Court in the case of

Renuka vs. Shreeshail (referred supra) held that a

person holding licence to drive light motor vehicle can

operate JCB. Therefore, the said contention of the insurer

is not res integra and it is already decided.

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

case of Reliance General Insurance Company Limited

vs. S. Ramya (supra) held that driver authorized to drive

light motor vehicle can drive JCB if its unladen weight is

7500 kg. There is no evidence on record to show that the

unladen weight of the JCB involved in the accident, was

more than 7500kg. Hence, the contention of the insurer is

not tenable.

22. Admittedly, the boy who met with an accident

was aged about 2 years. Normally it is difficult to assess

the compensation in case of death of minor especially

below the age of 5 years when the minor is completely

dependent on its parents.

23. Considering these facts, the Hon'ble Apex Court

in catena of judgments assessed the compensation

payable in case of death of a minor. One among them is

Kishan Gopal (supra), the Hon'ble Apex Court in that

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case awarded Rs.5,00,000/- for death of a boy aged about

10 years.

24. In the present case, the boy is aged about 2

years. He was dependent upon the claimants. Therefore,

the compensation assessed by the Hon'ble Apex Court in

the case of Kishan Gopal (supra) is not completely

applicable to the facts of the present case, however,

observation made in the said judgment is applicable.

25. Considering all these facts and circumstances of

the case and also relying on the judgment in the case of

New India Assurance Company Limited vs.

Satender2, the claimants are entitled for compensation of

Rs.2,95,000/-. The claimants are entitled for enhancement

of Rs.1,45,000/-.

(2013) SCC 60

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26. The claimants are also entitled for interest at

the rate of 6% per annum on the enhanced compensation

from the date of petition till its realization.

27. In the above para it is held that driver had valid

licence to drive JCB. Hence, insurer is liable to indemnify

owner of JCB.

28. For the aforesaid discussion, I pass the

following:

ORDER

i. Appeals in MFA No.200866/2024 and

203897/2023 are allowed in part.

ii. MFA No.203897/2023 filed by the owner is

allowed.

iii. The impugned judgment and award passed by

the MACT & Fast Track Court, Vijayapura in

MVC No.687/2014 dated 07.02.2015 is

modified.

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         a) The      claimants        are    entitled     for

             enhancement        of   Rs.1,45,000/-      along

with interest on the enhanced amount of

compensation at the rate of 6% per

annum from the date of petition till its

realization.

iv. The respondent No.2 - insurance company

shall deposit the said amount of compensation

indemnify the owner of the vehicle within a

period of 02 months from the date of receipt

of copy of this order.