Divisional Manager, ICICI Lombardo General Insurance Company Limited v. Gangamma
2015-06-04
B.MANOHAR
body2015
DigiLaw.ai
JUDGMENT : B. Manohar, J. 1. The appellant-Insurance Company filed this appeal challenging the judgment and order dated 31-7-2007 made in No. WCA-F/41/2007 passed by the Labour Officer and the Commissioner for Workmen's Compensation, Bagalkot (hereinafter referred to as 'the WCC'). Respondents 1 to 4 herein filed a claim petition before the WCC contending that they are the legal representatives of deceased Basavaraj Thotad, who was working as a driver in a lorry bearing registration No. KA-26/4292 belonging to the 5th respondent. On 23-4-2006, as per the instructions of the owner, after loading granite stones at Ilkal while proceeding towards Bangalore, the said vehicle met with an accident on NH-13 and Basavaraj Thotad succumbed to injuries. At the time of accident, the deceased was aged about 32 years and getting a salary of Rs. 5,000/- per month and batta of Rs. 100/- per day. The claimants are dependents of the deceased. The accident occurred during the course and arising out of the employment. In view of the death of the bread earner, the family of the deceased became destitute and sought for compensation of Rs. 14,00,000/-. 2. In pursuance of the notice issued by the WCC, the owner of the vehicle entered appearance and filed statement of objections admitting the occurrence of the accident on 23-4-2006 and also relationship of master and servant and contended that he was paying salary of Rs. 3,000/- p.m. and batta of Rs. 100/- per day. Since the vehicle is covered by insurance policy, the insurer is liable to compensate the claimants and sought for dismissal of the claim petition as against the owner of the vehicle. 3. The appellant-Insurance Company filed statement of objections to the claim petition contending that, the deceased was not working as a driver in the offending lorry. He was travelling as an unauthorised passenger in the said goods vehicle. There is no relationship of master and servant between the deceased and the owner of the vehicle. Further, as on the date of the accident, the deceased was not holding effective driving licence to drive the goods vehicle, no document has been produced to show that he was getting income of Rs. 4,000/- p.m. and sought for dismissal of the claim petition. 4. On the basis of the pleadings of the parties, the WCC framed necessary issues.
Further, as on the date of the accident, the deceased was not holding effective driving licence to drive the goods vehicle, no document has been produced to show that he was getting income of Rs. 4,000/- p.m. and sought for dismissal of the claim petition. 4. On the basis of the pleadings of the parties, the WCC framed necessary issues. The first claimant got examined herself as P.W. 1 and got marked the documents as Exs. P. 1 to P. 10. The Insurance Company examined Sri M.X. Nagaraj Rao as D.W. 1 and got marked the insurance policy of the said vehicle as Ex. R. 2(1). 5. The WCC, after considering the oral and documentary evidence adduced by the parties, taking into consideration MVI report, spot mahazar and copy of FIR, held that due to the accident, the driver of the vehicle bearing registration No. KA-26/4292 died on 23-4-2006 during the course and out of employment and the claimants are the dependants of the deceased. Hence, they are entitled for compensation. The WCC, taking into consideration the income of the deceased as Rs. 4,000/- p.m. and deducting 50% thereof, taking into consideration age of the deceased as 37 years on the basis of the driving licence, applying the relevant factor of 192.14 awarded a sum of Rs. 3,84,280/- with interest at the rate of 12% p.a. Since the vehicle is covered by the insurance policy and the deceased was having effective driving licence as on the date of accident, and relying upon the judgment of the Hon'ble Supreme Court in National Insurance Company Limited v. Swaran Singh and Others, AIR 2004 SC 1531 : (2004) 3 SCC 297 : 2004 SCC (Cri.) 733 : 2004 AIR SCW 663 and Ashok Gangadhar Maratha v. Oriental Insurance Company Limited, AIR 1999 SC 3181 : (1999) 6 SCC 620 : 1999 SCC (Cri.) 1170 : 1999 CTJ 655 (SC), fastened the liability on the Insurance Company. The appellant-Insurance Company being aggrieved by the judgment and order fastening the liability on the appellant to compensate the claimants has filed this appeal. 6. Sri S.K. Kayakamath, learned Counsel appearing for the appellant contended that the judgment and order passed by the WCC fastening the liability on the appellant to compensate the claimants is contrary to law.
The appellant-Insurance Company being aggrieved by the judgment and order fastening the liability on the appellant to compensate the claimants has filed this appeal. 6. Sri S.K. Kayakamath, learned Counsel appearing for the appellant contended that the judgment and order passed by the WCC fastening the liability on the appellant to compensate the claimants is contrary to law. As on the date of accident, the deceased was holding the licence to drive only light motor vehicles, whereas the deceased was driving the transport vehicle. Hence there is violation of conditions of the policy. The vehicle was entrusted to the person who did not the possess effective driving licence. Hence, the insurer is not liable to compensate the claimants. In support of his contention, he relied upon the judgments in Oriental Insurance Company v. Zaharulnisha and Others, AIR 2008 SC 2218 : (2008) 12 SCC 385 : (2009) 1 SCC (Cri.) 431 : 2008 AIR SCW 3251 and a Full Bench decision of this Court in MFA No. 12579 of 2007 disposed on 8th September, 2011. In elaborating his contentions, he has contended that Section 10 of the Motor Vehicles Act, 1988 prescribes Forms and Contents of licences to drive. Section 10(2) provides for different types of vehicles. The holders of the said licence to drive the motor vehicle of one or more of the following classes: "10. (2)(a) motorcycle without gear; (b) motorcycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) transport vehicle; (i) road roller; (j) motor vehicle of a specified description". In the instant case, the deceased was holding driving licence to drive light motor vehicles. However, he was driving the transport vehicle and he was not holding the effective driving licence as on the date of accident. Hence, the judgment and order passed by the WCC fastening the liability on the appellant is contrary to law and sought for setting aside the same. 7. On the other hand, Sri Shivakumar Badawadagi, learned Counsel appearing for respondents 1 to 4 and Sri Vitthal S. Teli, learned Counsel appearing for the 5th respondent argued in support of the judgment and order passed by the WCC and contended that the deceased was holding the driving licence from 29-3-1991, much prior to the amendment brought to the Motor Vehicles Rules, 1989. There is no prohibition to drive the light goods vehicles.
There is no prohibition to drive the light goods vehicles. In support of their contention, they relied upon the judgments in S. Iyyapan v. United India Insurance Company and Another, AIR 2013 SC 2262 : (2013) 3 SCC (Cri.) 11 : (2013) 7 SCC 62 ; Kulwant Singh v. Oriental Insurance Company Limited, Civil Appeal Nos. 9927 and 9928 of 2014, disposed of on 28-10-2014 and National Insurance Company Limited v. Annappa Irappa Nesaria and Others, 2008 (2) Kar. L.J. 651 (SC) : 2008 (2) AIR Kar. R. 280 (SC) : AIR 2008 SC 1418 : (2008) 2 SCC (Cri.) 99 : 2008 AIR SCW 906 : (2008) 3 SCC 464 . 8. I have carefully considered the arguments addressed by the learned Counsel for the parties, perused the oral and documentary evidence of the parties and the judgment and order passed by the WCC. 9. The respondents 1 to 4 are the legal representatives of the deceased Basavaraj Thotad and they filed the claim petition contending that late Basavaraj Thotad was working as a driver in a lorry bearing Registration No. KA-26/4292 belonging to the 5th respondent. On 23-4-2006, after loading the granites from Ilkal while proceeding towards Bangalore, the said vehicle met with an accident. Basavaraj Thotad died due to the injuries he had sustained in the accident. The WCC after considering the matter in detail found that Basavaraj Thotad who was working as a driver in the lorry bearing Registration No. KA-26/4292 died due to the road traffic accident occurred during the course and arising out of employment. Hence, the claimants are entitled for compensation. Taking into consideration income of the deceased at Rs. 4,000/- p.m., age of deceased as 37 years, applying the relevant factor of 192.14 awarded compensation of Rs. 3,84,280/- with interest at the rate of 12% p.a. Since the driver of the said lorry was holding the valid driving licence as on the date of the accident, the liability was fastened on the Insurance Company to pay the compensation. 10. The appellant-Insurance Company filed this appeal mainly contending that as on the date of accident, the deceased was possessing the licence to drive only light motor vehicles whereas, the vehicle involved in the accident is the light goods vehicle. Hence, the driver did not possess the valid driving licence as on the date of the accident.
10. The appellant-Insurance Company filed this appeal mainly contending that as on the date of accident, the deceased was possessing the licence to drive only light motor vehicles whereas, the vehicle involved in the accident is the light goods vehicle. Hence, the driver did not possess the valid driving licence as on the date of the accident. The said contention was considered by the WCC and held that the deceased Basavaraj Thotad was having licence to drive only Light Motor Vehicles from 29-3-1991 which was valid upto 24-5-2008. The WCC further held that the vehicle involved in the accident is also a light goods vehicle and its loading capacity is less than 7500 kgs. and driver of the vehicle possessed the valid driving licence to drive Light Goods Vehicle and passed the judgment and order relying upon the judgment in Swaran Singh and Annappa Irappa Nesaria's cases. 11. The Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') was enacted to consolidate and amend the law relating to Motor Vehicles. The driving licence has been defined in Section 2(10) of the Act. Section 2(21) of the Act defines light motor vehicle, means, a transport vehicle or omnibus, the gross vehicle weight either of which or a motor car or tractor or road-roller, the unladen weight of any of which does not exceed 7500 kgs. Section 2(47) defines transport vehicle, means, a public service vehicle, a goods carriage, an Educational Institution bus or private service vehicle. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act defines Forms and contents of licence to drive. Prior to the amendment with effect from 28-3-2001, the medium goods vehicle was in existence. It was replaced by transport vehicle. However, the light motor vehicle continued at the relevant point of time to cover both light passenger carriage vehicle and light goods carriage vehicle. A driver who had valid licence to drive a light motor vehicle is authorised to drive light goods vehicle also. Clause (e) of Form 2 provides for the transport vehicle which was substituted by GSR 221(E) with effect from 28-3-2001.
A driver who had valid licence to drive a light motor vehicle is authorised to drive light goods vehicle also. Clause (e) of Form 2 provides for the transport vehicle which was substituted by GSR 221(E) with effect from 28-3-2001. The amendments carried out in the Central Motor Vehicles Rules, 1989 having prospective operation, the licence held by the driver of the vehicle in question could not be said to have been invalid in law. The said issue has been considered by the Hon'ble Supreme Court in Annappa Irappa Nesaria's case, wherein it was held that a driver who had a valid licence to drive light motor vehicle was authorised to drive light goods vehicle as well. In the instant case, the deceased Basavaraj Thotad was having a driving licence issued prior to 2001. Since there is no change with regard to light motor vehicle, he is entitled to drive light goods vehicle. The amendment is only a prospective operation which came into force with effect from 28-3-2001. The WCC taking into consideration all these aspects of the matter fastened the liability on the appellant. I find there is no infirmity or irregularity in the said finding. 12. The judgment relied upon by Sri S.K. Kayakamath, in Zaharulnisha's case and also the judgment of the Full Bench of this Court in MFA No. 12579 of 2007, disposed of on 8-9-2011 are not applicable to the facts of the present case. In the judgment of Hon'ble Supreme Court referred to above, the person holding the licence to drive heavy motor vehicle while driving the scooter met with an accident. The said driver did not had the valid driving licence to drive the two wheeler, in those circumstances the Hon'ble Supreme Court held that the Insurance Company is not liable to compensate the claimants since the driver was not possessing the valid driving licence to drive two wheeler. Hence, the said judgment is not applicable to the facts of this case. Further, the Full Bench of this Court in a judgment referred to above is also with regard to the person having licence to drive LMV was driving the motor cycle and met with an accident.
Hence, the said judgment is not applicable to the facts of this case. Further, the Full Bench of this Court in a judgment referred to above is also with regard to the person having licence to drive LMV was driving the motor cycle and met with an accident. In those circumstances the Full Bench of this Court held that the rider of the motor cycle did not possess the valid driving licence to ride the motor cycle and hence the insurer is not liable to compensate the claimant. 13. The facts in the present case are entirely different. The deceased Basavaraj Thotad was having the valid driving licence to drive light motor vehicle from 29-3-1991. At the relevant point of time, under the Forms of licence it was defined as light motor vehicle, medium goods vehicle and heavy goods vehicle. As per the amendment dated 28-3-2001, the transport vehicle has been substituted for the medium goods vehicle and heavy goods vehicle. However, light motor vehicle continued in the Forms of licence to cover both light passenger carriage vehicle and light goods vehicle. Hence, Basavaraj Thotad was having valid and effective driving licence to drive light goods vehicle. The issue raised in this appeal is covered by the judgments in Zaharulnisha and S. Iyyapan's cases. There is no substantial question of law to be decided in this appeal. However, while passing the order, WCC awarded interest from one month after passing of the order instead of awarding interest from one month after the accident, in terms of the law laid down by the Hon'ble Supreme Court in the case of Oriental Insurance Company Limited v. Siby George and Others, AIR 2012 SC 3144 : (2012) 12 SCC 540 : 2012 ACJ 2126 (SC). In view of the authoritative pronouncement of law by the Hon'ble Supreme Court, the claimant is entitled for interest from one month after the accident. Accordingly, I pass the following: ORDER The appeal is dismissed. The amount in deposit be transferred to the WCC, Bagalkot.