Karnataka High Court
Girijavva W/O Basavappa Totagi vs M/S. P B Ibrahim on 31 May, 2024
-1-
NC: 2024:KHC-D:7234-DB
MFA No. 102474 of 2017
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 31ST DAY OF MAY, 2024
PRESENT
R
THE HON'BLE MR JUSTICE M.I.ARUN
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
MISCELLANEOUS FIRST APPEAL NO. 102474 OF 2017 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 102063 OF 2017 (MV-I)
MISCELLANEOUS FIRST APPEAL NO. 102064 OF 2017 (MV-I)
MISCELLANEOUS FIRST APPEAL NO. 102473 OF 2017 (MV-D)
IN MFA NO.102474 OF 2017
BETWEEN
KUMAR OMKAR
S/O. SOMANATH BASHETTI,
SINCE MINOR REPRESENTED BY
MINOR GUARDIAN MRS. ASHWINI
W/O. SOMANATH BASHETTI,
Digitally signed AGE: 38 YEARS,
by D HEMA
OCC: HOUSEHOLD WORK,
Location: HIGH
COURT OF R/O: H.NO.162, SECTOR NO.6,
KARNATAKA CHANNAMMA HOUSING SOCIETY,
SHREE NAGAR,
BELAGAVI-590016.
...APPELLANT
(BY SRI VITTAL S.TELI, ADVOCATE)
AND
1. M/S. P.B. IBRAHIM,
H.NO.22, RANADE COLONY,
OPP. GOGTE COLLEGE,
HINDWADI,
BELAGAVI-590011.
-2-
NC: 2024:KHC-D:7234-DB
MFA No. 102474 of 2017
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
2. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LTD.,
HAVING ITS OFFICE CLUB ROAD,
BELAGAVI-590001.
RESPONDENTS
(BY SRI S.R. KAMATE, ADVOCATE FOR R1;
SRI R.R.MANE, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED
15.02.2017 PASSED IN MVC NO.1514/2016 ON THE FILE OF IX-
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER,
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO 102063 OF 2017
BETWEEN
1 . NEW INDIA ASSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER,
HAVING ITS OFFICE AT
CLUB ROAD, BELAGAVI,
HEREIN REPRESENTED BY ITS
DULY CONSTITUTED ATTORNEY.
...APPELLANT
(BY SRI. RAVINDRA R. MANE, ADVOCATE)
AND
1 . SMT. GIRIJAVVA
W/O BASAVAPPA TOTAGI
AGE: 60 YEARS,
OCC: HOUSEHOLD WORK,
2 . SRI.ANAND
S/O BASAVAPPA TOTAGI
AGE: 36 YEARS,
OCC: MEDICAL STUDENT,
3 . SMT.ASHWINI
W/O SOMANATH BASHETTI
AGE: 34 YEARS,
OCC: HOUSEHOLD WORK,
-3-
NC: 2024:KHC-D:7234-DB
MFA No. 102474 of 2017
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
R1 TO R3 ARE R/O: H.NO.162,
SECTOR NO.6, CHANNAMMA HOUSING SOCIETY,
SHREE NAGAR,
BELAGAVI.-590001
4 . M/S. P.B. IBRAHIM
AGE: MAJOR,
OCC: BUSINESS,
R/O: H.NO.22, RANADE COLONY,
OPP. GOGTE COLLEGE,
HINDWADI,
BELAGAVI,-590006
(OWNER OF VEHICLE BEARING NO.KA-22/Z-1530)
...RESPONDENTS
(BY SRI. VITTHAL S TELI, ADVOCATE FOR R1-R3
SRI. S.R. KAMATE, ADVOCATE FOR R4)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
15.02.2017 PASSED IN MVC NO.1127/2016 ON THE FILE OF THE XI-
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER,
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI,
AWARDING COMPENSATION OF Rs.7,42,400/- WITH INTEREST AT
9% P.A. FROM THE DATE OF PETITION TILL ITS DEPOSIT.
IN MFA NO.102064 OF 2017
BETWEEN
NEW INDIA ASSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER,
HAVING ITS OFFICE AT CLUB ROAD,
BELAGAVI - 590 001,
HEREIN REPRESENTED BY ITS
DULY CONSTITUTED ATTORNEY. ..APPELLANT
(BY SRI R.R. MANE, ADVOCATE)
AND
1. KUMAR OMKAR
S/O. SOMANATH BASHETTI,
AGE: 6 YEARS,
OCC: STUDENT,
-4-
NC: 2024:KHC-D:7234-DB
MFA No. 102474 of 2017
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
SINCE MINOR REPRESENTED
BY HIS NATURAL GUARDIAN MOTHER,
SMT. ASHWINI
W/O. SOMANATH BASHETTI,
AGE: 34 YEARS,
OCC: HOUSEHOLD WORK,
R/O: H.NO.162, SECTOR NO.6,
CHANNAMMA HOUSING SOCIETY,
SHREE NAGAR,
BELAGAVI-590001.
2. M/S. P.B. IBRAHIM,
AGE: MAJOR, OCC: BUSINESS,
H.NO.22, RANADE COLONY,
OPP. GOGTE COLLEGE,
HINDWADI, BELAGAVI-590006.
(OWNER OF VEHICLE BEARING NO.KA-22/Z-1530)
RESPONDENTS
(BY SRI VITTAL S.TELI, ADVOCATE R1;
SRI S.R. KAMATE, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
15.02.2017 PASSED IN MVC NO.1514/2016 ON THE FILE OF IX-
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER,
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI,
AWARDING COMPENSATION OF RS.5,15,100/- WITH INTEREST AT
9% P.A. FROM THE DATE OF PETITION TILL ITS DEPOSIT.
IN MFA NO 102473 OF 2017
BETWEEN
1 . GIRIJAVVA
W/O BASAVAPPA TOTAGI,
AGE: 60 YEARS,
OCC: HOUSEHOLD WORK,
2. ANAND
S/O. BASAVAPPA TOTAGI,
AGE: 36 YEARS,
OCC: MEDICAL STUDENT,
-5-
NC: 2024:KHC-D:7234-DB
MFA No. 102474 of 2017
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
3. ASHWINI
W/O. SOMANTH BASHETTI,
AGE: 34 YEARS,
OCC: HOUSEHOLD WORK,
ALL ARE R/O: H NO. 162,
SECTOR NO.6,
CHANNAMMA HOUSING SOCIETY,
SHREE NAGAR,
BELAGAVI-590016.
...APPELLANTS
(BY SRI. VITTHAL S. TELI, ADVOCATE)
AND
1. M/S. P B IBRAHIM,
H NO. 22, RANADE COLONY,
OPP GOGTE COLLEGE,
HINDWADI,
BELAGAVI-590011.
2. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LTD.,
HAVING ITS OFFICE CLUB ROAD,
BELAGAVI-590001.
...RESPONDENTS
(BY SRI. S.R. KAMATE, ADVOCATE FOR R1
SRI. RAVINDRA R. MANE, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1)N OF MOTOR
VEHICLES ACT, AGAINST THE JUDGEMENT AND AWARD DATED
15.02.2017 PASSED IN MVC NO.1127/2016 ON THE FILE OF THE XI
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER,
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs ARE COMING ON FOR HEARING AND THE SAME
HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON
04.04.2024, THIS DAY, UMESH M ADIGA, J., PRONOUNCED THE
FOLLOWING:
-6-
NC: 2024:KHC-D:7234-DB
MFA No. 102474 of 2017
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
JUDGMENT
Both, claimants as well as insurer have filed these
appeals challenging the impugned judgment and award passed
by the XI Addl. Dist and Sessions Judge and Addl. M.A.C.T.,
Belagavi, (hereinafter referred to as "Tribunal" for short) in
M.V.C.No.1127/2016 and MVC.No.1514/2016 dated
15.02.2017.
2. Brief facts of the case of both the parties are as
under:
On 07.05.2016, deceased Basavappa Totagi along with
his wife, claimant No.1 - Smt.Girijavva and his grandson by
name Omkar (claimant in MVC.No.1514/2016) were going on
Honda Activa scooter (hereinafter referred to as 'scooter' for
short) bearing registration No.KA-22/EA-5477, on the road
going from Sericulture Office towards Shree Nagar Garden,
situated in Channammanagar of Belagavi. When they reached
near by the house of one Hogarati, at 04:30 p.m., the driver of
bulldozer bearing registration No.KA-22/Z-1530, came from
opposite direction in a rash and negligent manner and dashed
against the scooter of the deceased. As a result of which, rider
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
of the scooter-Basavappa and Omkar had sustained grievous
injuries and both of them were shifted to hospital for
treatment. While undergoing treatment, Basavappa succumbed
to injuries on 08.05.2016.
3. It is further contention of the claimants that
deceased Basavappa was aged about 64 years at the time of
his death. He was a retired Post Master and was getting
pension of Rs.24,000/- per month and he was also an
agriculturist and he was earning Rs.3,00,000/- per annum from
agriculture. Claimants are his wife, son and daughter. They
were depending upon his earnings. With these reasons, they
prayed to award compensation of Rs.70,00,000/-.
4. It is a case of claimant in MVC.No.1514/2016 that
due to the accident he sustained fracture of upper shaft of right
femur. He underwent few surgeries, however he could not fully
recover. He has been suffering from permanent disability. He
was aged about 06 years at the time of accident. With these
reason prayed to award compensation of Rs.50,00,000/-.
5. The respondent No.1 - owner of the vehicle has
denied all the contents of the claim petition. He has stated that
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
accident had taken place due to rash and negligent riding of
scooter by Basavappa and amount of compensation claimed is
exorbitant. Therefore, prayed to dismiss the claim petition.
6. Respondent No.2 - insurer has also denied all the
contents of claim petition. It has further stated that accident
had taken place due to rash and negligent riding of scooter by
the deceased Basavappa. Claim petition is bad for non-joinder
of necessary parties. The driver of the bulldozer was not having
valid and effective driving licence to drive the said category of
the vehicle, which is breach of conditions of the insurance
policy. Therefore, respondent No.2 is not liable to pay the
compensation. With these reasons, respondent No.2 prayed to
dismiss the claim petitions.
7. From the rival contentions of the parties, the
Tribunal had framed necessary issues for determination in both
claim petitions.
8. In this case, legal heirs of the deceased Basavappa
as well as guardian of the injured Omkar have filed claim
petitions in M.V.C. Nos.1127 and 1514 of 2016 respectively.
Both the petitions arose out of common accident. Therefore,
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
Tribunal has clubbed both the matters; recorded common
evidence and disposed off by impugned common judgment.
9. The claimants on their behalf, examined P.Ws.1 to
3 and got marked Exs.P.1 to P.19 and closed their evidence.
Respondent No.2 examined R.Ws.1 and 2 and got marked
Exs.R.1 to Ex.R.4.
10. The Tribunal, after hearing the parties and
appreciating the pleadings and evidence on record, awarded
the following amount of compensation in M.V.C.No.1127 of
2016:
1 Loss of dependency. Rs.4,51,440/-
2 Loss of consortium to petitioner Nos.2 Rs.1,00,000/-
and 3.
3 Loss of consortium to petitioner - Rs.1,00,000/-
claimant No.1.
4 Medical expenses. Rs.65,901/-
5 Funeral expenses. Rs.25,000/-
Total Rs.7,42,341/-
Rounded off to Rs.7,42,400/-
- 10 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
11. Following amount of compensation awarded in
M.V.C.No.1514 of 2016:
Loss of physical disability Rs.1,00,000/-
Pain and suffering Rs.30,000/-
Medical expenses Rs.4,60,067/-
Future medical expenses Rs.15,000/-
Loss of food, nutrition and Rs.10,000/-
attendant charges
Total Rs.6,15,100/-
12. The Tribunal had fastened the entire liability on the
insurer of bulldozer to pay the compensation.
13. Being aggrieved by the said judgment and award
passed by the Tribunal, both the claimant and insurer have filed
these Miscellaneous First Appeals. Claimant challenged the
impugned judgment for enhancement of the compensation and
the insurer challenged on the ground that it is not liable to pay
the compensation since there was breach of terms of policy
conditions i.e., not holding of valid and effective driving licence
by the driver of bulldozer.
14. We have heard the arguments of learned Advocates
appearing for both the parties.
- 11 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
15. Following questions arises for our determination:
"i) Whether the Tribunal is justified in holding
that accident had taken place due to
negligence of the driver of the bulldozer?
ii) Whether claimants are entitled for
enhancement of compensation?
iii) Whether the driver authorised to drive
light motor vehicle can drive bulldozer
(construction equipment vehicle)?"
16. P.W.1 is an eyewitness to the incident and she is
claimant in M.V.C. No.1127/2016. In her evidence, she has
reiterated contents of the claim petition and has stated that
accident had taken place due to rash and negligent driving of
the bulldozer by its driver. Both owner and insurer of bulldozer
have thoroughly cross-examined her, but nothing was brought
out to discard her evidence. Respondents have not examined
any of the eyewitnesses to the incident, to rebut her evidence
and to show that accident had taken place due to negligence of
Basavappa. It is pertinent to note that on the complaint of
P.W.1, the concerned Police investigated the matter and charge
sheeted the driver of the bulldozer. The claimants proved
- 12 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
before the Tribunal that accident had taken place due to
negligence of driver of the bulldozer and there are no reasons
to interfere in the said findings of the Tribunal. Accordingly,
question No.1 is answered in the affirmative.
17. Let us consider question No.2 in
M.V.C.No.1127/2016;
Tribunal has taken the age of deceased as 66 years on
the basis of post-mortem report and inquest panchanama. It is
not seriously disputed by the claimants. The Tribunal did not
accept the case of claimants that deceased had agriculture
lands and he was earning Rs.3,00,000/- per annum from
agriculture. The said findings of the Tribunal are based on
materials placed before it. There are no reasons to interfere in
the said findings.
18. Claimants have contended that deceased was
getting pension of Rs.24,000/- as pleaded in the petition.
Claimants have produced Ex.P.8 "Pension Certificate" of the
deceased. It shows that Rs.22,573/- per month was paid as a
family pension. This point is not disputed by the claimants in
the present appeal. In fact, Ex.P.8 pertains to family pension of
- 13 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
Smt.Girijavva B. Totagi i.e., claimant No.1, issued to her after
the death of her husband-Basavappa Totagi, with effect from
08.05.2016. Therefore, it is not "pension certificate" of the
deceased. However, in the claim petition itself, it is mentioned
that deceased was getting pension of Rs.24,000/- and during
the course of argument, the learned advocate for claimants did
not dispute regarding amount of pension taken by the Tribunal.
Hence same is taken as income of deceased.
19. Main grievance of the learned advocate for
claimants that Tribunal deducted 50% of the pension amount
on the ground that after death of Basavappa, claimant No.1
would get 50% of the said pension amount as family pension to
her. Therefore, she was not entitled for the said amount of
50% of the pension since it would continue even after the
death of Basavappa. The learned advocate for claimants has
relied on a Judgment of Hon'ble Apex Court in the case of
Sebastiani Lakra and others vs. National Insurance
Company Limited and another1. In the above said case,
Hon'ble Apex Court held as under :
2019 AAC 122 (SC)
- 14 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
"The law is settled that deductions cannot be
allowed from the amount of compensation either
on account of insurance, or on account of
pensionary benefits or gratuity or grant of
employment to a kin of the deceased. The main
reason is that all these amounts are earned by the
deceased on account of contractual relation
entered into by him with others. It cannot be said
that these amounts accrued to the dependents or
the legal heirs of the deceased on account of his
death in a motor vehicle accident. The claimants /
dependents are entitled to 'just compensation'
under the Motor Vehicles Act as a result of the
death of the deceased in a motor vehicle accident.
Therefore, the natural corollary is that the
advantage which accrues to the estate of the
deceased or to his dependents as a result of some
contract or act which the deceased performed in
his life time cannot be said to be the outcome or
result of the death of the deceased even though
these amounts may go into the hands of the
dependents only after his death. As far as any
amount paid under any insurance policy is
concerned whatever is added to the estate of the
deceased or his dependents is not because of the
death of the deceased but because of the contract
entered into between the deceased and the
insurance company from where he took out the
policy. These amounts are also payable on death,
- 15 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
whatever be the cause of death. Therefore,
applying the same principles, the said amount
cannot be deducted."
20. The learned advocate appearing for claimants also
relied on the judgment of the Hon'ble Apex Court, in the case
of Vimal Kanwar and others vs. Kishore Dan and others2.
In the above said case also it is held as under:
"Compassionate appointment" can be one of
the conditions of service of an employee, if a
scheme to that effect is framed by the employer. In
case the employee dies in harness i.e. while in
service leaving behind the dependants, one of the
dependants may request for compassionate
appointment to maintain the family of the deceased
employee, who dies in harness. This cannot be
stated to be an advantage receivable by the heirs
on account of one's death and have no correlation
with the amount receivable under a statute
occasioned on account of accident death.
Compassionate appointment may have nexus with
the death of an employee while in service but it is
not necessary that it should have a correlation with
the accidental death. An employee dies in harness
even in normal course, due to illness and to
maintain the family of the deceased one of the
(2013) 7 SCC 476
- 16 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
dependants may be entitled for compassionate
appointment but that cannot be termed as
"pecuniary advantage" that comes under the
periphery of the Motor Vehicles Act and any amount
received on such appointment is not liable for
deduction for determination of compensation under
the Motor Vehicles Act."
21. Law laid down in the above said judgments by the
Hon'ble Apex Court is applicable to the facts of the present
case. Therefore, deduction of 50% in the pension amount by
the Tribunal on the premises that after the death of Basavappa,
his wife would get 50% of his pension as a family pension is not
tenable. Pension of the deceased is taken as Rs.22,573/- per
month on the basis of Ex.P.8. There is no dispute that multiplier
applicable to the case on hand is 5.
22. It is true that claimant Nos.2 and 3 are not
dependent on the income of deceased. The deceased left
behind him his wife, who is claimant No.1. In view of law laid
down in the case of Sarla Verma and others vs. Delhi
Transport Corporation and another3 and National
Insurance Company Limited vs. Pranay Sethi and
2009 (6) SCC 121
- 17 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
others4, 1/3rd of income of deceased needs to deducted
towards personal expenses. On the basis of said calculations,
compensation needs to be recalculated towards loss of
dependency.
23. Tribunal has awarded Rs.65,901/- towards medical
expenses on the basis of Ex.P.9 and the same does not call for
any interference.
24. The Tribunal has awarded Rs.2,00,000/- towards
love and affection and consortium and Rs.25,000/- towards
funeral expenses. The said amount is to be re-calculated in
view of the law laid down by the Hon'ble Apex Court in the case
of Pranay Sethi (supra). Accordingly, amount of compensation
awarded under the conventional heads have been re-
calculated.
25. Claimants are entitled for following amount of
compensation:
2017 ACJ 2700
- 18 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
1 Loss of dependency Rs.9,02,920/-
(Rs.22,573 - 1/3 X 5 X 12)
2 Medical expenses Rs.65,901/-
3 Loss of consortium Rs.1,20,000/-
4 Loss of estate Rs.15,000/-
5 Funeral expenses Rs.15,000/-
Total Rs.11,18,821/-
26. Claimants are entitled for enhancement of
Rs.3,76,421/-. Accordingly, this question is answered, partly in
the affirmative.
Assessment of compensation in MVC No.1514/2016.
27. In this case, claimant was aged about 06 years at
the time of accident. He sustained fracture of upper shaft of
right femur. Looking to the medical records produced by the
claimant, it appears he underwent surgery thrice in that tender
age and according to the evidence of P.W.3, he is suffering
from permanent disability to an extent of 18% to the right
lower limb.
28. The learned counsel for the claimant has submitted
that amount of compensation awarded by the Tribunal on all
heads are on lower side. He further submits that during
- 19 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
pendency of this appeal, certain medical bills were produced
along with an application and the said application was allowed
by this Court and accordingly additional evidence is recorded.
Claimant has produced receipts for taking further treatment for
the injuries sustained in the accident. The total amount of the
said medical expenses is Rs.83,812/-. He submits that claimant
is resident of Belagavi; for treatment purpose, he came to
Bengaluru and taken treatment. Since he is minor, his parents
had to come for attending him to provide him treatment and
they also incurred expenses. Considering the same, a
reasonable amount of compensation under the head medical
expenses as well as incidental expenses needs to be enhanced.
29. The learned counsel for respondent submits that
the said medical bills are created; therefore claimant is not
entitled for enhancement on the basis of additional evidence
produced before this Court. Therefore, prayed for rejection of
the same.
30. Mother of the claimant has been examined and
additional evidence was lead and records are produced before
this Court which are marked as Ex.P.20 to 23. Ex.P.20 and 22
- 20 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
reveal that due to injuries sustained in the accident, claimant
was suffering from severe pain, therefore he had to undergo
another surgery in the Sparsha Hospital at Bengaluru on
24.01.2017. As per Ex.P.22, he once again admitted in the
hospital for treatment for two days and taken treatment. In the
cross examination of P.W.2, nothing was brought out to show
that the said documents were created for claiming more
amount of compensation. Therefore, the said evidence is
believable. The total amount of inpatient bills of the said
hospital is Rs.83,812/-.
31. As per the address given in the cause title of the
claim petition, minor claimant is resident of Belagavi. As per
Ex.P.20 and 22, he had taken treatment at Bengaluru.
Therefore, claimant might have spent some amount towards
incidental expenses, i.e., travelling from Belagavi to Bengaluru
and staying in Private Lodge etc.,. Since he is a minor, along
with him his parents might have also come to Bengaluru to
provide him treatment. Considering all these facts some
amount of compensation is to be awarded towards incidental
expenses.
- 21 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
32. The Tribunal has awarded just and reasonable
amount of compensation on all the heads relying on the
Judgments of Hon'ble Apex Court. The claimant was aged about
5 to 6 years as on the date of the accident. Considering these
facts, he is not entitled for enhancement under the other heads
except under the head medical and incidental expenses, which
he had incurred as per Ex.P.22 and 23.
33. Considering the above said documents at Ex.P.22
and 23 and also the miscellaneous expenses, an amount of
Rs.1,00,000/- is enhanced towards medical and incidental
expenses in addition to compensation awarded by the Tribunal
and claimant is also entitled for interest on the enhanced
amount of compensation at the rate of 6% per annum from the
date of petition till its realization. Accordingly, question No.2 is
answered.
34. Question No.3: Whether the driver authorised to
drive light motor vehicle can drive bulldozer (construction
equipment vehicle) does it amount to breach of terms and
conditions of policy.
- 22 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
35. The learned Advocate for insurer has vehemently
contended that the driver of bulldozer had no valid and
effective driving licence to drive the said class of the vehicle. As
per Section 2(cab) of the Central Motor Vehicles Rules, 1989,
bulldozer is considered as "construction equipment vehicle" and
the driver ought to have specified licence to drive the said class
of the vehicle. Section 10(2)(j) of the Motor Vehicles Act, 1988
deals with category of licences, pertaining to "such class of the
vehicle". Hence, the driver had no valid and effective driving
licence. However, the Tribunal did not consider this point and
directed the insurer to pay the compensation on the ground
that there are no fundamental breach of conditions of policy. At
the most, Tribunal could have directed the insurer to pay the
amount of compensation and recover the same from owner of
the vehicle.
36. The learned advocate for the claimants has
submitted that the driver had licence to drive light motor
vehicle. The bulldozer is considered as construction equipment
vehicle and according to the Section 2(cab) of the Central
Motor Vehicles Rules, 1989, Explanation, show that it does not
come under the category of transport vehicle. Moreover,
- 23 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
bulldozers are not used to transport or movement of goods or
passengers. It will be taken on road only to take it to the place
of operation/work/construction. In the present case, unladen
weight of said vehicle was less than 7500 kg. Therefore, the
driver authorised to drive light motor vehicle can drive the
bulldozer and there is no need that it would require specified
licence to drive that class of vehicle.
37. The learned advocate for claimant would further
submit that the driver of the offended bulldozer was not charge
sheeted for driving of vehicle without valid and effective driving
licence to drive the said class of vehicle. He further submitted
that it was not the case of insurer that accident had taken place
due to not having special skill or knowledge to drive the said
class of vehicle, by the driver of the bulldozer. All the while,
insurer has contended before the Tribunal that accident had
taken place due to rash and negligent riding of scooter by
deceased Basavappa and when the Tribunal did not accept the
said contention, on the basis of materials available on record,
insurer started contending that the Tribunal did not consider
that the driver of the bulldozer was not having effective driving
licence.
- 24 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
38. The learned advocate for claimants has further
submitted that in this regard, he would rely on the judgment of
Co-ordinate Bench of this Court in the case of Reliance
General Insurance Company Limited vs. Smt.Yallawwa
and others5 and also relied on the judgment of Hon'ble Apex
Court in the case of Mukund Dewangan vs. Oriental
Insurance Company Limited6.
39. The learned counsel for respondent in reply has
submitted that the judgment passed by the co-ordinate bench
of this Court in the case of Smt.Yallawwa (supra), is per
incuriam. At the time of passing of the said judgment by the
Division Bench, judgment of this Court in the case of Sadashiv
and others vs. Dyavakka and others7 as well as in the case
of M/s. United India Insurance Co. Ltd., vs. Shri R.S.
Shivaramayya and another8 are not considered. Hence it is
not applicable.
MFA 100570/2019 c/w MFA 102543/2019 dated 17.03.2023
(2017) 14 SCC 663
MFA 23085/2012 and MFA 24405/2010
2011 Kant. M.A.C. 632 (Kant)
- 25 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
40. Copy of the driving licence (notarized copy) of the
driver/operator of bulldozer is produced at Ex.P.10. The driver
was authorised to drive motorcycle with gear and light motor
vehicle and the said light motor vehicle licence is valid up to
19.07.2024. This fact is not in dispute. During the course of
trial before the Tribunal, insurer has contended that accident
had taken place due to rash and negligent riding of the scooter
by its rider. In the counter filed by the insurer, it has not
contended that driver of bulldozer was not having valid and
effective driving licence to drive that class of the vehicle.
41. The insurer though examined the RTO, but did not
elicit from R.W.2 regarding unladen weight of the said vehicle.
At present, after passing of the judgment by the Hon'ble Apex
Court, in the case of Mukund Dewangan (supra), unladen
weight of the vehicle is very much important to ascertain
authority of driver to drive that category of vehicle. Burden lies
on the respondent No.2 insurer to show that driver of bulldozer
was not authorised to drive bulldozer. It is also burden on the
respondent No.2 to lead the evidence, to show that the unladen
weight of bulldozer was more than 7,500 kgs.
- 26 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
42. In the case of Mukund Dewangan, (supra) the
Hon'ble Apex Court relied on its earlier judgment in the case of
Skandia Insurance Co. Ltd. vs. Kokilaben
Chandravandan9 and the Hon'ble Apex Court extracted part of
the said judgment, which reads as under:
"13. In order to divine the intention of the
legislature in the course of interpretation of the
relevant provisions there can scarcely be a better
test than that of probing into the motive and
philosophy of the relevant provisions keeping in
mind the goals to be achieved by enacting the
same. Ordinarily it is not the concern of the
legislature whether the owner of the vehicle insures
his vehicle or not. If the vehicle is not insured any
legal liability arising on account of third party risk
will have to be borne by the owner of the vehicle.
Why then has the legislature insisted on a person
using a motor vehicle in a public place to insure
against third-party risk by enacting Section 94?
Surely the obligation has not been imposed in order
to promote the business of the insurers engaged in
the business of automobile insurance. The provision
has been inserted in order to protect the members
of the community travelling in vehicles or using the
roads from the risk attendant upon the user of
motor vehicles on the roads. The law may provide
(1987) 2 SCC 654
- 27 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
for compensation to victims of the accidents who
sustain injuries in the course of an automobile
accident or compensation to the dependants of the
victims in the case of a fatal accident. However,
such protection would remain a protection on paper
unless there is a guarantee that the compensation
awarded by the courts would be recoverable from
the persons held liable for the consequences of the
accident. A court can only pass an award or a
decree. It cannot ensure that such an award or
decree results in the amount awarded being actually
recovered, from the person held liable who may not
have the resources. The exercise undertaken by the
law courts would then be an exercise in futility. And
the outcome of the legal proceedings which by the
very nature of things involve the time cost and
money cost invested from the scarce resources of
the community would make a mockery of the
injured victims, or the dependants of the deceased
victim of the accident, who themselves are obliged
to incur not inconsiderable expenditure of time,
money and energy in litigation. To overcome this
ugly situation the legislature has made it obligatory
that no motor vehicle shall be used unless a third
party insurance is in force. To use the vehicle
without the requisite third party insurance being in
force is a penal offence (Section 94 of the Motor
Vehicles Act). The legislature was also faced with
another problem. The insurance policy might
- 28 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
provide for liability walled in by conditions which
may be specified in the contract of policy. In order
to make the protection real, the Legislature has also
provided that the judgment obtained shall not be
defeated by the incorporation of exclusion clauses
other than those authorised by Section 96 and by
providing that except and save to the extent
permitted by Section 96 it will be the obligation of
the insurance Co. to satisfy the judgment obtained
against the persons insured against third party risk
(vide Section 96). In other words, the legislature
has insisted and made it incumbent on the user of a
motor vehicle to be armed with an insurance policy
covering third party risks which is in conformity with
the provisions enacted by the legislature. It is so
provided in order to ensure that the injured victims
of automobile accidents or the dependants of the
victims of fatal accidents are really compensated in
terms of money and not in terms of promise. Such a
benign provision enacted by the legislature having
regard to the fact that in the modern age the use of
motor vehicles notwithstanding the attendant
hazards, has become an inescapable fact of life, has
to be interpreted in a meaningful manner which
serves rather than defeats the purpose of the
legislation. The provision has therefore to be
interpreted in the twilight of the aforesaid
perspective."
- 29 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
43. In the above Judgment the Hon'ble Apex Court
discussed noble intentions of legislature in enacting certain
provisions of Motor Vehicles Act, 1988 dealing with payment of
compensation to the victims of motor vehicle accident. The
Tribunal, therefore interpret the provisions to the benefit of the
victim.
44. In the Mukund Dewangan's case (supra), the
Hon'ble Apex Court after considering its previous judgments as
well as interpreting the provisions of Motor Vehicles Act held as
under:
"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
- 30 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
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
- 31 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
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
- 32 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
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."
45. In view of law laid down in the case of the Mukund
Dewangan (supra), now it is no more res integra that a
person authorised to drive light motor vehicle can drive any
type of motor vehicle, unladen weight of which is less than
7,500 kgs. Respondent - insurer did not lead evidence to show
that unladen weight of bulldozer was more than 7,500 kgs.
Admittedly, the driver/operator of bulldozer had licence to drive
light motor vehicle. In view of law laid down in Mukund
Dewangan's case the driver had valid licence to drive
bulldozer.
46. Interpreting the amended provisions of Motor
Vehicles Act, 1988, the Hon'ble Apex Court in the case of
Mukund Dewangan (supra), it is held that types of vehicles
- 33 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
are different from category of the driving licence required. A
person holding driving licence of a category, can drive different
types of the motor vehicles of that category.
47. A person holding driving licence to drive light motor
vehicle can drive motor car or tractor or road roller, etc., the
unladen weight of which does not exceed 7,500 kgs. It may be
true that operating systems and knowledge required to drive
different types of vehicle may be different. But only on that
count insurer can't disown its liability to pay compensation to
third party - victims or legal heirs and dependents of a person,
who died in the accident by involvement of such vehicle.
48. Rules 2(cab) of the Central Motor Vehicles Rules,
1989 reads as under :
"2(cab) "construction equipment vehicle"
means rubber tyred, (including pneumatic tyred),
rubbed padded or stell drum wheel mounted, self-
propelled, excavator, loader, backhoe, compactor
roller, dumper, motor grader, mobile crane, dozer
for lift truck, self-loading concrete mixer or any
other construction equipment vehicle or
combination thereof designed for off-highway
operations in mining, industrial undertaking,
- 34 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
irrigation and general construction but modified
and manufactured with "on or off" or "on and off"
highway capabilities.
Explanation.- A construction equipment vehicle
shall be a non-transport vehicle the driving on the
road of which is incidental to the main off-highway
function and for a short duration at a speed not
exceeding 50 kms per hour, but such vehicle does
not include other purely off-highway construction
equipment vehicle designed and adopted for use in
any enclosed premises, factory or mine other than
road network, not equipped to travel on public
roads on their own power."
(emphasis supplied)
49. As per the explanation referred above, construction
equipment vehicle is treated as non transport vehicle. If weight
of the said vehicle is less than 7,500 kgs then a driver
authorised to drive light motor vehicle can drive such vehicle.
50. Section 2(47) of the Motor Vehicles Act, 1988
defines 'Transport Vehicle' which means a public service
vehicle, goods carriage, an educational institution bus or a
private service vehicle. After amendment to Section 10 of Motor
Vehicles Act, 1988, next category after the light motor vehicle,
is 'transport vehicle'. There is no other category of vehicle in
- 35 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
between them. The category could be differentiated by the
unladen weight of the concerned vehicle. The construction
equipment vehicle does not fall under the category of transport
vehicle. As held in the case of Mukund Dewangan (supra), if
unladen weight of said motor vehicle is less than 7,500 kgs,
then a person authorized to drive light motor vehicle can drive
construction equipment vehicle. There is no reference regarding
licence required to drive the construction equipment vehicle in
Section 10 of the Motor Vehicles Act, 1988 and hence it can be
concluded that though it may be different class of vehicle, but
falls under category of Light Motor Vehicle.
51. Considering the law on this point as well as
provisions of the Motor Vehicles Act regarding definition of
'construction equipment vehicle' and explanation given in the
said definition etc., in the case of Yallawwa (supra), it is held
by Co-ordinate Bench of this Court (authored by one of the
Member of this Bench Mr.Justice Umesh Adiga), that a person
holding licence to drive light motor vehicle can drive the
JCB/construction equipment vehicle as defined under Section
2(cab) of the Central Motor Vehicle Rules, 1989. Moreover, it is
not held in the case of R.S.Shivaramayya (supra) that the
- 36 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
person holding licence to drive light motor vehicle cannot drive
construction equipment vehicle. That question was not at all
considered in that case. And principle of law laid down in the
case of Yallawwa is different. Whether driver authorised to
drive light motor vehicle can to drive JCB (construction
equipment vehicle) was the question involved in that case.
Hence, the Judgment in the case of Yallawwa is not contrary
to the Judgment in the case of R.S. Shivaramayya (supra).
52. The learned counsel for respondent No.1 has also
relied on the judgment rendered by learned Single Judge in the
case of Sadashiv (supra). In that case, it is considered that
the driver of the JCB did not have special category, special
knowledge and skill to drive that class of the vehicle. Therefore,
it is held that driving licence held by him was not proper and
sufficient.
53. In the following cases, the Co-ordinate Bench of
this Court as well as the learned Single Judge held that a driver
authorized to drive light motor vehicle can drive JCB / road
roller, if its uladen weight is less than 7500 kgs.
- 37 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
i) Shabeena Banu vs. Shriram General
Insurance Company Limited10
ii) Reliance General Insurance Company
Limited vs. S. Ramya and Others11,
iii) The Divisional Manager vs. Rangappa S/o.
Vaggappa Rathod12
54. In view of the law laid down in the case of Mukund
Dewangan (supra), the law laid down in the cases of
Shivaramayya and Sadashiva referred supra may not prevail.
55. Coming to the facts of the present case, as rightly
submitted by learned counsel for the claimant, during the trial
of the case insurer has contended that accident had taken place
due to rash and negligent riding of scooter by the deceased.
Nowhere, insurer has made out a case that driver of the
bulldozer had no skill and knowledge to drive the said class of
vehicle, because of which accident had taken place. Even it is
not the case of investigating agency while submitting the
charge sheet. The investigating agency have also not charge
LAWS (KAR) 2020 2 139
MFA.No.6789/2010 dated 09.11.2020
MFA No.24489/2012 c/w MFA No.22114/2012 dated 31.08.2020
- 38 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
sheeted driver of the offended vehicle, alleging that he was not
holding valid and effective driving licence. Under such
circumstances, now the insurer cannot contend that driver of
offended bulldozer did not have valid driving licence to drive
bulldozer and hence, it is not liable to pay compensation.
56. Looking to the discussions made in the case of
Mukund Dewangan by the Hon'ble Apex Court, the object of
the Motor Vehicles Act is to protect the interest of victims of an
accident and awarding just and reasonable amount of
compensation. The insurer cannot disown its liability to pay
compensation to victims of accused on the ground that driver
of offended vehicle had no valid and effective driving licence or
other technical reasons since the provision of Motor Vehicles
Act pertaining to compensation is benevolent legislation.
Therefore, in this case also, insurer cannot deny its liability on
technical ground that driver of the offended bulldozer had no
valid driving licence to drive that class of vehicle.
57. For aforesaid discussions, we answer the above
question No.3 in the affirmative and it is held that insurer of
- 39 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
the said vehicle is liable to pay the compensation on behalf of
the owner of the vehicle.
58. For aforesaid discussions, we pass the following:
ORDER
(i) Appeals are disposed off.
(ii) The impugned Judgment and Award dated
15.02.2017 passed in MVC.No.1127/2016 and
MVC.No.1514/2016 by the XI Additional
District and Sessions Judge and Additional
MACT, Belagavi is modified:
(a) Claimants in MVC.No.1127/2016 are
entitled for compensation of Rs.11,18,821/- as
against Rs.7,42,400/- awarded by the Tribunal
and claimants are entitled for enhancement of
Rs.3,76,421/- with interest at the rate of 6%
per annum on the enhanced amount of
compensation from the date of petition till its
realization.
(b) Claimant in MVC.No.1514/2016 is
entitled for enhanced compensation of
Rs.1,00,000/- in addition to the amount of
compensation awarded by the Tribunal with
interest at the rate of 6% per annum from the
date of petition till its realization.
- 40 -
NC: 2024:KHC-D:7234-DB
C/W MFA No. 102063 of 2017, MFA No.
102064 of 2017, MFA No. 102473 of 2017
(iii) Remaining operative portion of the impugned
Judgment is not disturbed.
(iv) The amount deposited by the insurer shall be
transmitted to the Tribunal forthwith for
disbursement of the amount to the claimants,
if it is already not paid.
Sd/-
JUDGE
Sd/-
JUDGE
RSH/CKK
