The New India Assurance Co. Ltd., Vs Smt. Prema

THE NEW INDIA ASSURANCE CO. LTD. OPP: RAMA MANDIRA GENERAL KARIYAPPA ROAD (BARLINE ROAD) K.R. EXTENSION, TUMAKURU - 572 101 THROUGH ITS BENGALURU REGIONAL OFFICE NO.9, 2ND FLOOR, M.G. ROAD BENGALURU-560 001 REPRESENTED BY ITS MANAGER.

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&APPELLANT

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(BY SRI S.V. HEGDE MULKHAND, ADVOCATE)

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AND:

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Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: High Court of Karnataka

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SMT. PREMA W/O. CHANDRANNA @ CHANDRASHEKAR AGED ABOUT 42 YEARS.

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CHANDRANNA @ CHANDRASHEKAR S/O. VENKATARAVANAPPA AGED ABOUT 46 YEARS

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RESPONDENT NOS.1 AND 2 ARE RESIDENTS OF SATYAMANGALA WARD NO.23 TUMKUR - 572 101.

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THIMMAIH C. S/O. CHIKKATHIMMAIAH AGED ABOUT 52 YEARS

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HC-KAR

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RESIDENT OF NO.10 PURANDARAHALLI

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KORATAGERE TALUK - 572 122.

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&RESPONDENTS

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(BY VIDE ORDER DATED 28-2-2024, SRI SAMPATH KUMAR A.V., FOR SRI PRATHEEP K.C., APPOINTED AS AMICUS CURIAE, FOR R-1 AND R-2; VIDE ORDER DATED 23-2-2022, NOTICE TO R-1 AND R-2 ARE HELD SUFFICIENT; R-1 PREMA, R-2 - CHANDRANNA ARE UNREPRESENTED; R-3 THIMMAIH-SERVED AND UNREPRESENTED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 1-9-2016 PASSED IN MVC NO.855 OF 2014 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, & MACT, TUMAKURU, AWARDING COMPENSATION OF RS.15,60,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE VENKATESH NAIK T)

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The appeal is filed by the appellant/Insurance Company challenging the judgment and award dated 01.09.2016 passed in MVC.No.855/2014 by the II Additional Senior Civil Judge and

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HC-KAR

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MACT at Tumakuru (for short, "the Tribunal") on the ground of negligence and quantum of compensation, whereby the Tribunal awarded a sum of Rs.15,60,000/- as compensation with interest at the rate of 6% per annum from the date of petition till the date of realization.

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For the sake of convenience, the parties herein

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shall be referred to in terms of their status before the Tribunal.

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Brief facts of the case is that on 22.04.2014 at 5.00 p.m. when Sathish K.C. (hereinafter referred to as "deceased") was standing near Siddaganga Mutt compound to watch the JCB earth work, the operator of JCB bearing registration No.KA-06-N-250, while operating it without observing Sathish K.C., negligently removed the compound wall. As a result, the compound wall fell on Sathish K.C. and he died on the spot. This led to registration of FIR and investigation. Hence, the claimants filed claim petition under Section 166 of the Motor Vehicles Act seeking compensation on various heads.

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HC-KAR

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Sri. S.V.Hegde Mulkhand, learned counsel for the

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appellant-Insurance Company vehemently contended that the appellant had issued an insurance policy covering risk of JCB bearing registration No.KA-06-N-2501 as on the date of the accident, and the driver of the JCB was not possessing valid Driving Licence to drive the said JCB. Therefore, the Insurance Company is not liable to pay the compensation to the claimants. Further, the Tribunal has awarded high and exorbitant compensation under conventional heads, which needs to be reduced. Further, the Tribunal has also wrongly added 50% towards future prospects by applying the multiplier '18', which is contrary to the principles of law. Thus, he prayed to allow Insurance appeal.

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Sri. Sampath Kumar, learned counsel for

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Sri.Pratheek K.C., learned Amicus Curiae appearing for the respondents - claimants contended that the accident is of the year 2014 and the Tribunal has wrongly considered the notional income of the deceased at Rs.7,000/- p.m., which ought to

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have been taken at Rs. 8,500/- per month. Further, the Tribunal has not awarded fair and reasonable compensation

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under the conventional heads. Hence, he prayed for dismissal of the appeal.

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We have perused the impugned judgment and

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award passed by the Tribunal, appeal memo, and the contentions raised by both parties. Having heard learned counsel for the parties and on perusal of appeal memo including records of the Tribunal, the points that arise for our consideration is:

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Whether the appellant/Insurance Company

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has proved that, as on the date of the accident, the driver of JCB was not possessing valid and effective Driving Licence to drive the JCB, hence, the insurer of JCB is not liable to pay compensation?

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Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement or reduction?

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In the instant appeal, the appellant/Insurance Company has specifically contended that though the Insurance

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Company had issued a policy covering the risk of JCB, the driver of the JCB did not possess a valid and effective Driving

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Licence. However, he was possessing only LMV / Class-I licence. Admittedly, a JCB is not considered a Light Motor Vehicle (LMV) or a transport vehicle, but it is a specialized nontransport construction equipment vehicle. While a driving licence for LMV may be considered sufficient for driving some types of JCBs, the key point is that JCBs are classified as nontransport vehicles, heavily requiring specialized authorization under the category of construction equipment. Therefore, JCBs are designated for construction or earth-moving work, and not for regular transportation of passengers or goods. Therefore, the standard of LMV licence may be sufficient for driving certain types of construction vehicles, but this is not a general exception under law. Section 10 of the Motor Vehicles Act requires the driver to hold a licence with respect to the class of vehicle, and not merely the construction type of the vehicle. Within one class of vehicles, there may be different categories. If they fall within the same class, no separate endorsement is required to drive such vehicles. Since Light Motor Vehicles include transport vehicles also, the holder of LMV licence can drive all vehicles within that class, including transport vehicles.

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However, in the present case, the driver of the JCB only possessed an LMV licence.

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We have perused the oral evidence of RW1, who

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is the Indian Motor Vehicle Inspector. He has categorically stated that a JCB is considered as an LMV. Further, in Mukund Dewangan Vs. Oriental Insurance Co., Ltd., reported in 2017 (14) SCC 663 , at paragraph 20, the Hon'ble Apex Court has discussed the LMV licence to be issued in form - 4, which

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reads as under:

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20. The aforesaid form was in vogue till 28-3-2001. In spite of the amendment made in the year 1994, deleting Sections 10(2)(e) to (h), the form in which application was required to be made was not changed and came to be changed only in the year 2001 so as to carry out the effect of the amendment. The relevant extract of the amended form, as amended on 28-32001, by which expression <transport vehicle= had been inserted, is extracted hereunder:

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< FORM 4 [See Rule 14(1)] Form of application for licence to drive a motor vehicle To, The licensing authority, &&&&&&&&&&&&&..

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I apply for a licence to enable me to drive vehicles of the following description4 (a) Motorcycle without gear (b) Motorcycle with gear (c) Invalid carriage (d) Light motor vehicle (e) Transport vehicle (f) Medium passenger motor vehicle

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***

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(i) Roadroller
(j) Motor vehicle of the following description:
***
Certificate of test of competence to drive
The applicant has passed the test prescribed under Rule 15 of the Central
Motor Vehicles Rules, 1989. The test was conducted on (here enter the
registration mark and description of the vehicle)
&&&&&&&&&&&&&&&&&&&&&&&&&&&&& on (date)&&&&
The applicant has failed in the test.
(The details of deficiency to be listed out)
Date:&&&&..
Signature of Testing Authority
&&&&&&&&
&&&&&&&&&.
Full name and designation
Two specimen signatures of applicant:
1.&&&&&..
2.&&&&&..
Strike out whichever is inapplicable.=

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9. Therefore, the driver of JCB was possessing valid

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and effective Driving Licence to drive the JCB.

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The appellant/Insurance Company fairly submits

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that the weight of the JCB was below 7,500/- k.g. The Hon'ble

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Apex Court in the case of Mukund Dewangan (Supra) , paragraphs 21 to 25, read as under:

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"21. Though Form 4 has undergone other changes with respect to Item (a) 4 motorcycle without gear, same is not relevant for our purpose. Form 4 makes it apparent that <light motor vehicle= is a description of the kind of vehicle as defined in Section 2(21). A transport vehicle of a light motor vehicle category is not at all excluded from the form. Even otherwise the form cannot control the substantive provisions carved out in Sections 10(2)(d) and 10(2)(e). The interpretation of the form is also to be in tune with the Statement of Objects & Reasons and the provisions of the Act inserted by virtue of the amendment. Though it appears that in the amended form, <medium passenger motor vehicle= remains that appears to be

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more due to oversight. Thus, as intended, the simplification of the procedures and policy liberalisation has taken place by introducing in the form category of <transport vehicle= instead of medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle and heavy passenger motor vehicle. The policy of liberalisation became necessary with an introduction of newer types of vehicles and fast increasing numbers of both personal and commercial vehicles in the country. In case it was intended to take transport vehicle out of the category of the light motor vehicle then it was necessary to amend Section 2(21) and Section 10(2)(d) also which has not been done. Thus, the intendment of the amendment has to be taken by addition of <transport vehicle= of the aforesaid categories of medium and heavy vehicles only so that a person is required to apply for licence, only once to drive aforesaid four kinds of vehicles as per the amended provision of Section 10(2)(e) and the form.

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22. Our aforesaid conclusion is also fortified by the inclusion of Rule 8 of the 1989 Rules which provides for minimum educational qualification for driving transport vehicles to be 8th standard. The proviso to the Rule makes it clear that the said qualification shall not apply in the case of renewal of driving licence to drive a transport vehicle and/or addition of another class of transport vehicle to the driving licence already obtained before commencement of the Motor Vehicles Act, 2007. Amended Rule 8 as inserted w.e.f. 10-4-2007 is quoted below:

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< 8. Minimum educational qualification for driving transport vehicles .4The minimum educational qualification in respect of an applicant for obtaining a licence to drive a transport vehicle shall be a pass in the eighth standard: Provided that the minimum educational qualification specified in this Rule shall not apply in the case of4 (i) renewal of a driving licence to drive a transport vehicle; or (ii) addition of another class of transport vehicle to the driving licence; already held before the commencement of the Motor Vehicles (Amendment) Rules, 2007.=

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23. The backdrop history indicates that earlier aforesaid Rule 8 existed. It was omitted on 28-10-1989. It had been reinserted in 2007. Rule 8 contemplates the addition of transport vehicle of another category than the existing one in the licence. In 2007, the existing category of transport vehicle could be only of the light motor vehicle in Section 10(2)(d) and another category of the transport vehicle to be added is only as in the amended provision Section 10(2)(e). Rule 8 refers to the

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addition of transport vehicle to light motor vehicle category, otherwise no purpose would be left behind insertion of Rule 8 again in the year 2007, in case transport vehicles of all categories are read into Section 10(2)(e), Rule 8 also unambiguously lends support to the legislative intent behind Section 10(2)(e). Any other interpretation would make it a redundant rule. An exercise in futility is not undertaken by legislation.

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24. Driving licence is issued in Form 6 as provided in Rule 16 of the 1989 Rules. Form 6 is extracted hereunder:

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	“FORM 6 [_See_Rule 16(1)]
(To be printed in book form of the size six ce	ntimetres by eight centimetres)
	Form of Driving Licence
Name of the licence holder………………..
Son/wife/daughter of……………………..
Name to be written across the photograph
(Part of the seal and signature of the
licensing authority to be on the photograph
and part on the driving licence).		Specimen signature/thumb
		impression of the holder of
		the licence
		Signature and designation of
		the licensing authority
Driving licence number……………………..
Date of issue……………………..
Name……………………..
Son/wife/daughter of……………………..
Temporary address/official address (if any)……	………………..
Permanent address……………………..
Date of birth……………………..
Educational qualifications ……………………..
Optional Blood group ……………………..
RH factor ……………………..
The holder of this licence is licensed to drive th	roughout India vehicles
of the following description—
Motorcycle without gear
Motorcycle with gear
Invalid carriage
Light motor vehicle
Transport vehicle
Mediumpassenger motor vehicle

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A motor vehicle of the following description:
The licence to drive a motor The licence to drive transport vehicle
vehicle other than transport vehicle is valid from…………….to..
vehicle is valid from ……………… …………………………..
to ……………..
Name and designation of the authority who Signature and designation of the
conducted the driving test. licensing authority.
Authorisation to drive transport vehicle
Number………………… Date………………….
Authorised to drive transport vehicle with effect from ……………..
Badge Number…………………
Signature……………..
……………..
Designation of the licensing authority.
Name and designation of the authority who conducted the driving test.
Space for addition of other classes of vehicles
Number………………… Date…………………………………
Also authorised to drive the following class or description of motor vehicles
Name and designation of the authority Signature and designation of
who conducted the driving test licensing authority.
Date…………………
Space for renewal of driving licence
The licence to drive motor vehicles The licence to drive transport vehicles
other than transport vehicles is
hereby renewed.
From…………….to………… From…………….to…………
Signature of licencing authority Signature of licencing authority
From…………….to………… From…………….to…………
Signature of licencing authority Signature of licencing authority
Space for endorsement by court
Date Section and Rule Fine or other punishment Signature of the endorsing authority
(1) (2) (3) (4)
Space for endorsement by licensing authority
Date Proceedings number and date Disqualification period Signature of the licensing authority
from …… to ……
(1) (2) (3) (4)”

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25. Form 6 provides for <light motor vehicle= and <transport vehicle= separately. Though the form contains separate validity period for a motor vehicle other than transport vehicles, the aforesaid form and period of validity have to be understood in the light of the aforesaid discussion made by us of the light motor vehicle and transport vehicle. The form cannot govern the interpretation of the provision of Sections 10(2)(d) and 10(2)(e) otherwise also form has to be interpreted harmoniously with the Act and cannot be in conflict with the statutory provisions. The provision of the light motor vehicle has to be given full effect and it is enjoined upon the authorities to issue the licence in terms of the discussion made by us in the order and validity period has to be construed accordingly. The validity period of transport vehicle of light motor vehicle licence which means the vehicle as defined in Section 2(21), has to be the same as that of other light motor vehicle of non-transport category and there cannot be any distinction made with respect to the validity period of the class of light motor vehicle. The separate prescription for the validity of transport vehicle in Form 6 is only to take care of the provisions inserted in Section 10(2)(e) by deleting the provisions of Sections 10(2)(e) to (h). It would apply to those categories."

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It is admitted fact that, as on the date of accident, the policy was in force and the driver of JCB possessed a valid and effective Driving Licence. Thus, the Insurance Company is liable to pay the compensation.

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Hence, there is no merit for consideration in the contention raised by the Insurance Company.

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Insofar as the quantum of compensation is concerned, learned counsel for the respondent - claimants contended that the Tribunal considered the notional income of the deceased at Rs.7,000/- p.m., which is on lower side and

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the Tribunal has not awarded fair compensation under the conventional heads. No doubt, the claimants/respondents have not filed cross-objection. However, as contemplated under Order 41 Rule 33 of CPC, this Court is empowered to enhance compensation, which is permissible in law.

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The Tribunal has assessed the notional income at Rs.7,000/- per month. The accident is of the year 2014, but to corroborate the same, no documentary evidence is placed on record. In the absence of proof of income, taking note of the Circular issued by 'Karnataka State Legal Services Authority' and 'High Court Legal Services Committee, Bengaluru', we deem it appropriate to assess the income of the deceased at Rs.8,500/- per month. The deceased was aged about 16 years at the time of accident. Hence, appropriate multiplier applicable is '18'. Admittedly, the Tribunal has committed an error by adding 50% future prospects. In view of the ratio laid down in the case of National Insurance Co. Ltd. v. Pranay Sethi, Reported in (2017) 16 SCC 680, for the age group of deceased, we are adding 40% future prospects to the income of the deceased, which comes to Rs.11,900/- (8500 + 40%).

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There are two claimants to the deceased. Hence, 50% deduction has to be taken into consideration in view of the decision of the Hon'ble Apex Court in the case of Sarla Verma v. Delhi Transport Corporation and Another, Reported in (2009) 6 SCC 121 . Thus, the compensation under the head 'loss of dependency' is re-assessed as under:

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8500 + 40% = 11,900 x 50% = 5,950 x 12 x 18 = 12,85,200/-

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The Tribunal has committed an error by awarding meager compensation under conventional heads. As per the judgment rendered by the Hon'ble Apex Court in the case of Magma general Insurance Company Ltd., Vs. Nanu ram Alias Chuhru Ram and Others reported in (2018) 18 SCC 130 and Pranay Sethi's case referred supra , the claimants are entitled for Rs.40,000/each towards 'loss of consortium' , which comes to Rs.80,000/-.

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The Tribunal has awarded Rs.10,000/- towards 'loss of estate', Rs.3,000/- towards 'transportation of dead body' and Rs.25,000/- towards 'funeral expenses'. We deem it appropriate to award Rs.15,000/- towards 'loss of estate'

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and Rs.15,000/- towards 'funeral and transportation

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charges' .

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Thus, in all claimants are entitled for modified

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compensation as under:

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	HEADS	Amount (in Rs.)
1	Loss of dependency	12,85,200.00
2	Loss of estate	15,000.00
3	Loss of Consortium	80,000.00
4	Funeral and transportation expenses	15,000.00
	Total	13,95,200.00
	Compensation awarded bythe Tribunal	- 15,60,000.00
	- Reduced compensation	- 1,64,800.00

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Hence, the claimants are entitled for total

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compensation of Rs.13,95,200/-, as against the compensation

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awarded by the Tribunal at Rs.15,60,000/-. Thus, we have

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reduced compensation of Rs.1,64,800/- out of the

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compensation awarded by the Tribunal.

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In the result, we pass the following:

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ORDER

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i) The appeal is allowed-in-part .

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ii) The judgment and award dated 01.09.2016 passed by the II Additional Senior Civil Judge

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and MACT at Tumakuru in MVC.No.855/2014 is modified to the extent stated hereinabove. The claimants are entitled for reduced compensation of Rs.13,95,200/- as against Rs.15,60,000/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of filing the claim petition till the date of its realization. The compensation awarded by the Tribunal is reduced by Rs.1,64,800/-.

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iii) The Insurance Company shall deposit the entire compensation amount together with interest before the Tribunal within a period of six weeks' from the date of receipt of a copy of this judgment.

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