Partly allowed

Karibasappa S/O Shivappa Somanhalli v. the Senior Manager

Karnataka HC9 Mar 2020MFA/103788/2015

Case brief

AI extract

What is this about?

The High Court allowed the appeals and modified the lower court's award. It held the insurer liable as the driver held a valid L.M.V. license, citing Mukund Dewangan. The court enhanced the compensation for the claimant to Rs. 3,05,100 with interest.

What did the court decide?

Appellants succeeded; compensation enhanced to Rs. 3,05,100 with 6% interest payable by the Insurer; loss deposit returned to vehicle owner.

Karibasappa S/O Shivappa Somanhalli Vs the Senior Manager — Insurance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF MARCH, 2020

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PRESENT

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THE HON’BLE MR.JUSTICE B.A.PATIL

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AND

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THE HON’BLE MR. JUSTICE M.I. ARUN

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M.F.A. NO.103788 OF 2015 (MV-I) C/W. M.F.A.NO.102019 OF 2016

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IN MFA.NO.103788/2015 BETWEEN:

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KARIBASAPPA S/O SHIVAPPA SOMANHALLI, AGE:36, OCC. BUSINESS, R/O KUNCUR VILLAGE, TQ. HIREKERUR, DIST:HAVERI, OWNER OF THE TATA ACE VEHICLE, BEARING NO.KA-27/A-596.

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... .APPELLANT

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(BY SRI M.M.HIREMATH, ADVOCATE)

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AND

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THE SENIOR MANAGER, IFFCO TOKIO GENERAL INSURANCE CO. LTD., SHRI. SHANTI TOWERS, 5TH FLOOR, 3RD MAIN, 141 EAST, NGEF LABOUR, KASTURINAGAR, BENGALURU.

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UJJANGOUDA S/O VEERANAGOUDA PATIL, AGE:47 YEARS, OCC. AGRICULTURE,

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: 2 :

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IE., IRRIGATIONAL GROWING SEEDS, MILK VENDER OF THE TT UNIOT, R/O HOSASIDENUR VILLAGE, TQ. BYDAGI, DIST. HAVERI, NOW AT GURISHANKAR NAGAR, RANEBENNUR.

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... RESPONDENTS

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(BY SRI M.Y.KATAGI, ADVOCATE FOR R-1) (BY SRI.MADANMOHAN M.KHANNUR, ADVOCATE FOR R-2)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988 AND PRAYED TO SET ASIDE THE JUDGMENT AND AWARD PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND A.M.A.C.T., RANEBENNUR IN M.V.C.NO.736 OF 2013 DATED 01.06.2015 AGAINST THIS APPELLANT AND LIABILITY BE FIXED ON RESPONDENT NO.2 I.E. INSURANCE COMPANY AND ETC.

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IN M.F.A.NO.102019/2016 BETWEEN :

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SHRI UJJANGOUDA S/O. VEERANGOUDA PATIL, AGE 48 YEARS, OCC: AGRICULTURE, I.E. IRRIGATIONAL GROWING SEEDS, MILK VENDOR, OWNER OF THE T.T.UNIT, R/O. HOSASIDENUR VILLAGE, TQ. BYADGI – 581106, DIST. HAVERI, NOW AT GOURISHANKAR NAGAR, RANEBENNUR – 581115.

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... . APPELLANT

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(BY SRI MADANMOHAN M. KHANNUR, ADVOCATE)

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AND :

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KARIBASAPPA S/O. SHIVAPPA SOMANAHALLI, AGE MAJOR, OCC: BUSINESS, R/O. KUNCUR VILLAGE, TQ. HIREKERUR – 581116, DIST. HAVERI.

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THE SENIOR MANAGER, IFFCO TOKIO GENERAL INSURANCE CO, LTD., SHRI SHANATI S TOWERS, 5TH FLOOR, 3RD MAIN, 141 EAST NGEF LABOUR, KASTURINAGAR, BENGALURU – 560012.

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... RESPONDENTS

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(NOTICE TO RESPONDENT NO.1-SERVED) (BY SRI.M.Y.KATAGI, ADVOCATE FOR R-2)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988 AND PRAYED TO MODIFY THE JUDGMENT AND AWARD DATED 01.06.2015 IN M.V.C.NO.736 OF 2013 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND A.M.A.C.T., RANEBENNUR AND AWARD THE COMPENSATION AS CLAIMED IN THE CLAIM PETITION, IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE APPEALS ARE COMING ON FOR ADMISSION, THIS DAY, B.A.PATIL, J., DELIVERED THE FOLLOWING :

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JUDGMENT

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Appeal in M.F.A.No.103788 of 2015 has been filed

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by the appellant/owner of the vehicle and M.F.A.No.102019 of 2016 has been filed by the appellant-claimant being aggrieved by the Judgment passed by the Additional Senior Civil Judge and Additional M.A.C.T., Ranebennur in M.V.C.No.736 of 2013 dated 01.06.2015.

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We have heard the learned counsel appearing for the appellant and also the respondent.

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Though these cases have been listed for admission, with consent of learned counsel appearing for the parties, the same have been taken up for final disposal.

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The gist of the complaint is that on 15.04.2013 at about 5.00 p.m. the petitioner was proceeding on his motorcycle bearing registration No.KA.27/V-1399 for his personal work, at that time, a TATA ACE vehicle

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bearing registration No.KA-27/A-596 came from Ranebennur side and dashed to the motorcycle on which the petitioner was proceeding, as a result of the same, he sustained injuries. Immediately, he was shifted to the Government Hospital Ranebennur, there he has taken first aid and thereafter he was shifted to Apoorva Hospital, Davanagere.

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For having sustained injuries and for having spent the amount and for loss of future income, the claim petition was came to be filed. Claim petition is seriously contested by the Insurance Company by filing its objections. He further contended that the driving licence was not valid as on the date of the accident and as such, the company is not liable to pay the compensation.

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The Tribunal after taking into consideration the evidence and material placed on record, has awarded

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the compensation on various heads as mentioned in the

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below chart :

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1	For pain and suffering	Rs. 25,000/-
2	Medical expenses	Rs. 78,220/-
3	Conveyance, diet, extra, nourishment charges food and attendant charges	Rs. 4,000/-
4	Loss of income during laid up period	Rs. 6,000/-
5	Loss of future earning capacity on account of permanent physical disability	Rs. 68,040/-
6	Loss of amenities and enjoyment of life	Rs. 5,000/-
	Total	Rs.1,86,260/-

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It is the contention of the learned counsel for

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the appellant-owner of the vehicle that, the driver of vehicle was holding valid and effective L.M.V. licence, which he has taken on 04.12.2012 and is valid upto 31.12.2026. It is his further submission that the Tribunal without considering the decision of the Hon’ble

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Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Limited , reported in AIR 2017 SC 3668 has exonerated the liability of the Insurer by fixing the liability on the appellant. It ought to have fixed the liability on respondent-insurer on these grounds he prayed to allow the appeal.

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We have carefully and cautiously heard the

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submissions made by the learned counsel appearing for the parties.

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The learned counsel appearing on behalf of the

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Insurer, though seriously contested the said say of the appellant, but as could be seen from the records, the driver of the vehicle was holding valid and effecting L.M.V. license and it was valid from 04.12.2012 to 31.12.2026. It is observed by the Hon’ble Apex Court in the case of Mukund Dewangan coated supra that, if the driver is holding a valid L.M.V. licence, then under such circumstances, he can also have the capacity to

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drive the vehicle, which was involved in the accident. At paragraph Nos.45 and 46, it has been observed as under :

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Transport vehicle has been defined in section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab, a motor cab, contract carriage, and stage carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly

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contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994.

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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 postamended 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 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the

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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 :

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(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.

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(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

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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.

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(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 continued “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.

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(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.”

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Therein, it has been observed by the Hon’ble Apex Court that the provisions of the Motor Vehicles Act it also includes that the transport vehicle and other i.e., light motor vehicle and thereby he has not incapacitated to drive the vehicle though he was holding the L.M.V. licence. In view of the ratio laid down by the Hon’ble Apex Court, when the driver was holding L.M.V. licence, then under such circumstances, the respondent-insurer ought to have been made liable. The Tribunal without looking into the said facts has wrongly fixed the liability

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on the appellant-owner of the vehicle. In that light, there is some force in the arguments advanced by the learned counsel for the appellant.

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It is the contention of the learned counsel for

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the appellant-claimant that the income which has been taken in respect of appellant is on the lower side, consequently the compensation awarded on various heads is also on the lower side.

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As could be seen from the records, P.W.-2 Doctor has opined that he has treated the claimant for the type 5 fracture of left tibita condyle bone of left leg and he has also issued the wound certificate as per Ex.P.6. He has assessed the disability at 40% to the left lower limb. If 1/3^rd is taken into consideration, it will be coming to 13%. Even the income which is considered for the purpose of calculation of the future prospects is on the lower side. Admittedly, the accident has taken place in the year 2013, at that time the notional income of

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Rs.7,000/- per month is the yardstick to be fixed to the cases settled in the Lok-Adalat. If the income is taken at the rate of Rs.7,000/- per month and the 13% disability, if it is taken and the injured was aged about 45 years. The appropriate multiplier will be 12. In that light, the claimant is entitled to an amount of Rs.1,52,880/- ( Rs.7,000/- X 12 X 14 X 13% ) for loss of future earning capacity on account of permanent physical disability. The Tribunal has awarded an amount of Rs.5,000/- to loss of amenities and enjoyment. If an additional amount of Rs.20,000/- if it is given it will meet the ends of justice. The Tribunal has also awarded Rs.6,000/- under the head loss of income during the laid off period, if it is enhanced to Rs.8,000/-, it will be the appropriate amount. An attended might have been attended and in that light another sum of Rs.6,000/-, if it is awarded, it is coming to meet the ends of justice.

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In so far as, the amount of compensation

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awarded under the head pain and suffering to the tune of Rs.25,000/- and an amount of Rs.78,220/- awarded for medical expenses deserves to be correct and same have not been disturbed.

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Taking into consideration the above said facts

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and circumstances, the claimant is entitled to following compensation :

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1	For pain and suffering	Rs. 25,000/-
2	Medical expenses	Rs. 78,220/-
3	Conveyance, diet, extra, nourishment charges food and attendant charges	Rs. 10,000/-
4	Loss of income during laid up period	Rs. 14,000/-
5	Loss of future earning capacity on account of permanent physical disability	Rs. 1,52,880/-
6	Loss of amenities and enjoyment of life	Rs. 25,000/-
	Total	Rs.3,05,100/-

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The total compensation which is awarded is Rs.3,05,100/- instead of Rs.1,86,260/-. The Tribunal has awarded an amount of Rs.1,86,260/-, after deducting the same, the appellant-claimant is entitled to an enhanced compensation of Rs.1,18,840/- with interest at the rate of 6% per annum.

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Taking into consideration the discussion held by us above, M.F.A.No.103788 of 2015 and M.F.A.No.102019 of 2016 are allowed in part. The Judgment and award passed by the Additional Senior Civil Judge and Additional M.A.C.T, Ranebennur in M.V.C.No.736 of 2013 dated 01.06.2015 is modified as indicated above. It has been made clear that the respondent-Insurer is liable to pay the entire compensation with up to date interest.

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