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2017 DIGILAW 1463 (KAR)

Siddarudh v. R. D. Karbari

2017-11-07

B.A.PATIL

body2017
JUDGMENT : 1. These appeals have been preferred by the appellants/claimants challenging the judgment and award passed by the Motor Accident Claims Tribunal No. IV-Bagalkot, in MVC Nos. 533, 534 and 535 of 2006 dated 27.05.2009. 2. Brief facts are that, on 15.02.2006 at about 07.20 p.m. Siddaruda was driving his tempo trax bearing registration No. KA-23/M-2972 to proceed to Badami and he took his three friends in the said vehicle as he was proceeding towards their village and when the said tempo trax came near Sikari Cross i.e. Kadampur Rehabilitation centre, a tractor trailor bearing registration No.KA-19/1731 came rashly and negligently and dashed to the tempo trax. As a result of the same, the petitioners sustained grievous injuries and were admitted in Hospital and were treated in Kumareshwar, Hosiptal Bagalkot and subsequently the petitioner, Siddaruda took treatment at K.L.E. Hospital, Belgaum as well as Nimahan’s Hospital Bangalore. For having sustained injuries, they filed the claim petitions under Section 166 of M.V. Act. 3. In pursuance of the notice the respondent Nos.1 to 3 appeared and filed their written statement by denying the contents of the petitions, it is further contended that the driver of the tempo trax has not been made as a party and because of non-joinder of the necessary parties, the petition is liable to be dismissed. It is further contended that the alleged accident took place due to the fault of the driver of the tempo trax. It is further contended that the said tractor trailor was insured with the respondent No.3 and the driver was holding valid and effective driving licence and as such the respondent No.2 is liable to pay the compensation. The respondent No.2 also filed his written statement by denying the contents of the petition. He further contended that the driver of the tractor and trailor was not having valid and effective driving licence to drive the said vehicle and as such there is a breach of conditions of the policy and he is not liable to pay any compensation. On these grounds he prayed for dismissal of the said petition. On the basis of the above pleading, the Tribunal framed the following issues:- “1. On these grounds he prayed for dismissal of the said petition. On the basis of the above pleading, the Tribunal framed the following issues:- “1. Whether the petitioner proves that he sustained injuries in the motor vehicle accident that occurred on 15.02.2006 at about 07.20 p.m. near Shikkeri cross due to the rash and negligent driving of the tractor No. MEP.7390 & Trailor No.KA.290/1732 by its driver? 2. Whether the respondent No.2 proves that the petitioner is bad for non-joinder of necessary parties? 3. Whether the respondent No.2 proves that driver of the vehicle in question had no valid and effective D.L. as on the date and time of the accident? 4. Whether the petitioner is entitled for compensation? If yes, for how much and from whom? 5. For what order or award?” After hearing the parties to the lis the impugned judgment and award came to be passed by awarding the compensation of Rs.1,99,640/- in M.V.C. No.533 of 2006 and Rs.5,000/- in M.V.C. No.534 of 2006 and FRs.6,500/- in M.V.C.No.535 of 2006 respectively along with interest at the rate of 6% per annum from the date of petition till realization of the award amount and the liability was fixed on respondent Nos.1 and 3 and the claim as against the respondent No.2 – insurer came to be dismissed. Assailing the same, the appellants/claimants are before this Court. 4. The main grounds urged by the learned counsel for the appellant in M.V.C. No. 533 of 2006 are that though the Doctor PW-4 who came to be examined before the Tribunal has deposed that the petitioner has sustained 100% disability to a particular limb and 29% disability to the whole body. But the Tribunal has taken 20% disability and assessed the loss of future income on the lower side. He further contended that the injuries was 24 years old at the time of the accident, but the Tribunal has applied a multiplier of ‘17’ instead of 18. He further contended that the compensation awarded under the other heads are also on the lower side. He also further contended that the appellant was an agriculturist and because of the disability, he is not in a position to work as before incident and the Tribunal ought to have considered the disability to the extent of 100% and adequate compensation ought to have been awarded. He also further contended that the appellant was an agriculturist and because of the disability, he is not in a position to work as before incident and the Tribunal ought to have considered the disability to the extent of 100% and adequate compensation ought to have been awarded. He further contended that the driver of the tractor and trailor was holding valid and effective driving licence to drive LMV non-transport vehicle, but he was not holding any licence to drive the transport vehicle as such he cannot drive the same in that light the liability was fixed on respondent No.3. he further contended by relying upon the decision in the case of Mukund Dewangan vs. Oriental Insurance Company Limited reported in AIR 2017 SC 3668 , and contended that if the driver is having licence to drive a light motor vehicle non-transport, then he can also drive the transport vehicle and as such the liability ought to have been fixed on respondent No.2 and the insurer could have been directed to pay the compensation. On these grounds he prayed for allowing the appeal by setting-aside the impugned order. 5. The learned counsel for the respondent insurer vehemently argued and contended that by taking into consideration the age of the petitioner, the Tribunal ought to have adopted the multiplier of 17 instead of 18. He further contended that the Doctor, who was examined as PW-4 was not a treated Doctor and he has not specifically deposed about the specific functional disability as to how and in what manner the said disability affected to the loss of future income. He further contended that the petitioners have not produced any document to substantiate the fact that they were having an agricultural establishment. He further contended that the compensation awarded by the Tribunal is just and proper and as such he prays for dismissal of the appeal. 6. As could be seen from the judgment and award in M.V.C.No.533 of 2006, therein the appellant/claimant has suffered the fracture of his right humorous bone and right radius and forearm and he has also got examined PW-4 Doctor Raviraj Ghorpade, who earlier treated him at K.L.E. Hospital Belagaum. 6. As could be seen from the judgment and award in M.V.C.No.533 of 2006, therein the appellant/claimant has suffered the fracture of his right humorous bone and right radius and forearm and he has also got examined PW-4 Doctor Raviraj Ghorpade, who earlier treated him at K.L.E. Hospital Belagaum. In his evidence, he has deposed that he has assessed the disability in respect of the claimant and came to the conclusion that the claimant has suffered the injuries on his spinal cord and right hand nerves system which has broken and it is completely become useless and functionally it is 100% disabled organ and as such he stated the total disability to the whole body is assessed to the extent of 29%. After considering the said evidence the Tribunal came to the conclusion that PW-4 is not a treated Doctor and the petitioner did not examine the Doctor, who treated him at Nimahan’s hospital Bangalore. Under the said fact and circumstances of the case the Tribunal took the disability to the extent of 20% and awarded the compensation of Rs.73,440/- towards loss of future income by taking the income of the appellant/claimant at the rate of Rs.1,800/- which is in admitted fact by the appellant/claimant himself. Though under the normal circumstances the method adopted by the Tribunal appears to be justifiable. But the observation made by the Tribunal to the effect that only because the said Doctor who was not treated the claimant while taking the disability to the extent of 20%. But as could be seen from the evidence of PW-4, he treated the claimant when he was admitted in K.L.E. Hospital, at Belgaum but he did not examined the Doctor who treated him at Nimahan’s Hospital, Bangalore. Only on that ground the assessment of the disability which has been stated by PW-4 cannot be ignored without any justifiable grounds. In that light, by taking into consideration the injuries and the functional disability as stated by PW-4, if the disability is taken at the rate of Rs.29% and by holding the income at Rs.1,800/- and after applying the multiplier of 18, the appellant/claimant would be entitled to a sum of Rs.1,12,752/- (Rs.1,800/- X 12 X 18 X 29%) towards loss of future income. 7. Insofar as the compensation awarded under the head of pain and suffering and loss of comforts, it appears to be on the lower side. 7. Insofar as the compensation awarded under the head of pain and suffering and loss of comforts, it appears to be on the lower side. Even the Tribunal has not awarded any compensation towards loss of income during the laid off period. In that light the appellant/claimant is entitled to a sum of Rs.40,000/- towards pain and suffering, Rs,30,000/- towards the loss of comforts and an amount of Rs.7,200/- towards the loss of income during the laid up period. 8. Insofar as the compensation awarded under the head of attendance and nourishment charges, medical expenses and towards transportation charges the same has been kept intact. In the light of the above discussion held by me, the appellant/claimant is entitled to total of compensation ofRs.2,69,152/- instead of Rs.1,99,640/- awarded by the Tribunal. After deducting the said amount of compensation awarded by the Tribunal, to the appellant/claimant would be entitled to an additional compensation ofRs.69,512//- with interest at the rate of 6% per annum. 9. Insofar as MVC No.535 of 2006 and 534 of 2006 are concerned, the injuries suffered by the appellants/claimants are simple in nature and there is no gravity and the Tribunal has awarded an amount of Rs.5,000/- and Rs.6,500/- respectively in both the cases. The said compensation appears to be just and proper and there is no ground to interfere with the judgment passed by the Tribunal while enhancing the compensation. 10. The Second contention taken up by the learned counsel for the appellant in both the cases is that the driver of the tractor trailor was holding the driving licence to drive the light motor vehicle non-transport and admitted that the said driving licence was valid and same is not in dispute. In view of the decision of the Hon’ble Apex Court in the case of Mukund Dewangan (supra) Hon’ble Apex Court at para Nos.45 and 46 has observed the above principle. Now it is relevant to refer to para Nos.45 and 46 of the said judgment, which are as under:- “45. Transport vehicle has been defined in section 2(47) of the Act, to a mean a public service vehicle, a goods carriage, an educational institution but or a private service vehicle. Now it is relevant to refer to para Nos.45 and 46 of the said judgment, which are as under:- “45. Transport vehicle has been defined in section 2(47) of the Act, to a mean a public service vehicle, a goods carriage, an educational institution but 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 maxi-cab, 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 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 authorized 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. 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. 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 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 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 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. 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)(d), 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 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. By going through the decision of the Hon’ble Apex Court it has been observed that if 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 h ire or reward would not require an endorsement and in view of the decision of the Hon’ble Apex Court the observation of the Tribunal that the driver was not holding valid and effective driving licence to drive the vehicle and there is violation of the policy condition issued by respondent No.2 is not sustainable in law. Hence, the same is liable to be set-aside. Accordingly the same is set-aside and it is made clear that there is no breech of condition of the policy and the insurer respondent No.2 is liable to pay the compensation. 12. Hence, the same is liable to be set-aside. Accordingly the same is set-aside and it is made clear that there is no breech of condition of the policy and the insurer respondent No.2 is liable to pay the compensation. 12. The judgment and award passed by the Tribunal in MVC Nos.534 and 535 of 2006 are modified as indicated above with clear observation that, the respondent No.2 insurer is directed to pay the compensation awarded by the Tribunal and additional compensation awarded by this Court in MVC No.533 of 2006 with up-to-date interest within a period of six weeks from date of receipt of a certified copy of this order. Registry is directed to draw the award accordingly and send back the records forthwith.