Kerala High Court

The Principal vs Josy on 12 April, 2024

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
           THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
   FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
                     MACA NO. 2712 OF 2012
 AGAINST THE ORDER/JUDGMENT DATED 28.07.2011 IN OPMV NO.1722
    OF 2006 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,
                           ALAPPUZHA
APPELLANT/PETITIONER:

 JOSY
 AGED 43 YEARS
 S/O.P.G.PETER,PALLIKATHAYYIL
 HOUSE,THUMPOLI WARD,ALAPPUZHA.

 BY ADVS.
 SRI.T.G.RAJENDRAN
 SRI.T.R.TARIN


RESPONDENTS/RESPONDENTS:

1 PREMKUMAR
  S/O.SIVANANDAN,KIZHAKKEVELIL HOUSE,
  AP WARD XI, ALAPPUZHA-6.

2 THE PRINCIPAL
  HOLY FAMILY EM PUBLIC
  SCHOOL,VELLARANKALLU,KALOOR,ERNAKULAM.

3 THE UNITED INDIA INSURANCE CO.LTD
  THODUPUZHA BRANCH,REP. BY ITS MANAGER.

  BY ADVS.
  SRI.PADMALAYAN.P.P.
  SMT.D.GEETHA
  SMT.K.SHERIN MOHAN

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 12.04.2024, ALONG WITH MACA.1298/2016, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 MACA Nos.2712 of 2012 & 1298 of 2016   2



           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
           THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
   FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
                     MACA NO. 1298 OF 2016
 AGAINST THE ORDER/JUDGMENT DATED 12.06.2015 IN OPMV NO.1722
     OF 2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA

APPELLANT/2ND RESPONDENT:

   THE PRINCIPAL
   HOLY FAMILY ENGLISH MEDIUM PUBLIC
   SCHOOL, VELLARAMKALLU, KALOOR,
   MUVATTUPUZHA, ERNAKULAM DISTRICT'

   BY ADVS.
   SRI.MATHEW JOHN (K)
   SRI.DOMSON J.VATTAKUZHY


RESPONDENTS-PETITIONER & RESPONDENTS 1 & 3:

 1 JOSY
   S/O P.G. PETER, PALLIKATHAYIL
   HOUSE, THUMPOLI WARD, ALAPPUZHA

 2 PREMKUMAR
   S/O SIVANANDAN, KIZHAKKEVELIL
   HOUSE, WARD NO XI, SOUTH ARYADU
   PANCHAYATH, ALAPPUZHA

 3 THE UNITED INDIA INSURANCE CO. LTD
   REPRESENTED BY ITS MANAGER,
   TGHODUPUZHA

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 12.04.2024, ALONG WITH MACA.2712/2012, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 MACA Nos.2712 of 2012 & 1298 of 2016    3


                                JUDGMENT

The claim petitioner in OP(MV) No.1722 of 2006 on the file of

Motor Accidents Claims Tribunal, Alappuzha, filed MACA No.2712 of

2012 challenging the award, on the ground of inadequacy of

compensation.

2. The 2nd respondent, owner of the offending vehicle, filed

MACA No.1298 of 2016 challenging the award, as the insurer was

given the right to recover the compensation amount from the

owner of the vehicle.

3. On 01.04.2006 at about 9 p.m, while the appellant in

MACA No.2712 of 2012 was pillion riding a motorcycle, he was

knocked down by KL/7C 8379 tempo van owned by the appellant

in MACA No.1298 of 2016. He suffered serious injuries including

fracture and he was hospitalised for 23 days in total. He

approached the Tribunal claiming compensation of Rs.2,51,000/-.

But, the Tribunal awarded only Rs.66,684/-. Hence he filed MACA

No.2712 of 2012.

4. 1st respondent was the driver of the offending tempo van.

2nd respondent was its owner and the 3rd respondent was its

insurer.

5. Respondents 1 and 2 remained ex parte before the

Tribunal. 3rd respondent/insurer contested the case but admitted

the policy. According to them, 1st respondent/driver had no valid

driving licence to drive KL/7C 8379, which was a transport vehicle

and he was having no badge also during the relevant period. So,

learned Tribunal, finding violation of the policy conditions, directed

the insurer to pay the compensation awarded initially to the

claimant, and permitted them to recover the same from the

2nd respondent/owner.

6. 2nd respondent/owner approached the Tribunal for setting

aside the ex parte award. Learned Tribunal dismissed his petition,

against which he approached this Court and obtained an order to

take a decision as to the question of liability of the registered

owner to compensate the claimant. Learned Tribunal, as per

Award dated 12.06.2015, found that the 2nd respondent/owner was

responsible to compensate the claimant, thereby confirming the

pay and recovery, ordered in favour of the insurer. Against that

finding, 2nd respondent/owner has filed MACA No.1298 of 2016.

7. Heard learned counsel for the appellants and learned

counsel for the 3rd respondent/insurer.

8. Regarding the liability of the owner of the vehicle, the

finding of the Tribunal was to the effect that the 1st

respondent/driver had no valid driving licence and badge to drive

the offending vehicle. Learned counsel for the 2nd respondent

produced Annexure A registration particulars of the offending

vehicle which shows that it was an LMV-Contract Carriage (EIB)

and its unladen weight was 2105 kg. It further shows that it was

an educational institution bus owned by Holy Family English

Medium Public School, Vellamkallu, Kallur.

9. Learned counsel for the 3rd respondent/insurer would

submit that, even if the offending vehicle was a light motor vehicle,

since it was being used as an educational institution bus, it will

come under the classification of transport vehicle under Section

2(47) of the Motor Vehicles Act, and so it should have been driven

by a driver having licence to drive a transport vehicle. 1st

respondent/driver was having only licence to drive light motor

vehicles, and so there was violation of the policy conditions. But,

going by the decision Mukund Dewangan v. Oriental Insurance

Company Limited [2017(4) KHC 648], even if a vehicle is being

used as a transport vehicle, if it's unladen weight is below 7500kg,

it is liable to be treated as a light motor vehicle.

10. Paragraph 46 of that judgment reads thus:

"46. S.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 28/03/2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in S.2(21) and the provisions of S.10(2)(d), R.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 S.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 S.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 S.2(21) of the Act would include a transport vehicle as per the weight prescribed in S.2(21) read with S.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 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in S.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 S.10(2)(d) continues to be valid after Amendment Act 54/1994 and 28/03/2001 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 Cls.(e) to (h) of S.10(2) which contained "medium goods vehicle" in S.10(2)(e), medium passenger motor vehicle in S.10(2)(f), heavy goods vehicle in S.10(2)(g) and "heavy passenger motor vehicle" in S.10(2)(h) with expression 'transport vehicle' as substituted in S.10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of S.10(2)(d) and S.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 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".

11. In the light of the above decision, the offending vehicle

in this case, which was having unladen weight of 2105 kg, is liable

to be treated as a light motor vehicle. Ext.B1 driving licence

particulars of the 1st respondent shows that, he was having driving

licence to drive non transport vehicle valid from 26.07.1990 to

07.04.2010. It was valid during the period of accident also. 3rd

respondent/insurer is admitting the policy during the relevant

period.

12. Based on Mukund Dewangan's case cited supra, the

offending vehicle was liable to be treated as a light motor vehicle.

The 1st respondent was having valid driving licence to drive light

motor vehicles as on the date of accident. So, there was no

violation of the policy conditions. So, the 3rd respondent/insurer

was liable to indemnify the 2nd respondent/owner for the act

committed by the 1st respondent/driver. So, the finding of the

Tribunal that the company can recover the compensation amount

from the 2nd respondent/owner is liable to be set aside.

13. Now coming to the appeal filed by the claimant i.e. MACA

No.2712 of 2012, learned counsel for the appellant would submit

that, the compensation awarded by the Tribunal is on the lower

side. The appellant/claimant was a 43 year old Tailor earning

monthly income of Rs.8,000/-. The Tribunal accepted his income

as such, and fixed his monthly income @ Rs.8,000/- as claimed by

him. But, learned Tribunal assessed loss of earning for one month

only. He had suffered fracture of trochanter right, fracture SD 7

right, fracture condyle right, fracture tibia right, lacerated wound

right knee 2x1 cm and right leg 6x3, 3x2, 2x1. So, this Court is of

the view that loss of earning for four months can be granted @

Rs.8,000/- per month which will come to Rs.32,000/-. After

deducting Rs.8,000/- already given, he is entitled to get the

balance amount of Rs.24,000/-.

14. Towards bystander expenses, learned Tribunal awarded

Rs.2,300/-. Since he was hospitalised for 23 days, this Court is

inclined to award Rs.1,500/- more under the head 'bystander

expenses'.

15. Towards damage to clothing, no amount was awarded by

the Tribunal. This Court is inclined to award Rs.500/- under that

head.

16. The compensation awarded under all other heads seems

to be reasonable and hence it needs no modification.

                                 Amount                  Amount        Difference to
          Head of claim        awarded by               awarded in      be drawn as
                               the Tribunal               appeal         enhanced
                                                                       compensation
                 (1)               (2)                      (3)             (4)


        Loss of earning        Rs.8,000/-               Rs.32,000/-     Rs.24,000/-

        Bystander              Rs.2,300/-               Rs.3,800/-         Rs.1,500/-
        expenses

        Damage to                      -                 Rs.500/-           Rs.500/-
        clothing

        Total                 Rs.10,300/-           Rs.36,300/-        Rs.26,000/-

17. The appellant in MACA No.2712 of 2012 is entitled to get

enhanced compensation of Rs.26,000/- (Rupees Twenty six

thousand only).

The 3rd respondent/insurer is directed to deposit the

enhanced compensation of Rs.26,000/- (Rupees Twenty six

thousand only) with interest @ 7% per annum from the date of

petition till the date of deposit (except 399 days of delay in filing

the appeal) before the Motor Accidents Claims Tribunal, Alappuzha,

within a period of two months from the date of receipt of a copy of

this judgment. Learned Tribunal shall disburse that amount to the

appellant in MACA No.2712 of 2012, after deducting the liabilities,

if any, towards Tax, balance court fee and legal benefit fund. The