Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1499 (KAR)

Ishawarappa Koppal v. Shamid Sab

2019-07-01

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. PATIL, J. 1. The claimant and the owner-insured being aggrieved by the judgment and award dated 21.07.2015 passed in MVC No.150/2013 by the Senior Civil Judge and MACT, Gangavathi have filed these appeals. 2. It is the case of the claimant before the tribunal that on 17.07.2012 at about 6.00 p.m. the petitioner and his relatives were proceeding for funeral ceremony of their relative on Karatagi-Gangavathi main road at Marlanahalli village, near Hulkihal Cross, the respondent No.1 drove the TATA ACE bearing Registration No.KA-37/A-2144 in high speed, in a rash and negligent manner and dashed to the petitioner and caused accident. Due to the accident the petitioner sustained grievous injuries. Immediately after the accident he was shifted to Karatagi Government Hospital for treatment. Thereafter, the petitioner was shifted to Chinivalar Hospital, Gangavathi for further treatment. He has spent Rs.1,00,000/- towards medical expenses. Prior to the accident he was hale and healthy and was student, and was working as tailor and was earning Rs.15,000/- per month. Due to the impact of the accident, the petitioner has become permanently disabled. Therefore, he filed claim petition seeking compensation of Rs.8,70,000/- against the driver, owner and insurer of the offending vehicle. 3. In pursuance to the notice, the respondents No.1 to 3 appeared before the tribunal . Respondent Nos. 1 and 2 appeared through their counsel and filed their written statement and denied the averments made in the petition and also denied that the accident occurred due to negligence of respondent No.1, but it is due to negligent driving of the petitioner. Respondent No.1 also denied the age, occupation and income of the petitioner. Respondent No.1 was holding valid and effective driving licence as on the date of the accident and the vehicle is duely insured with respondent No.3. Therefore, respondent No.3 is liable to indemnify the respondent Nos1 and 2. Respondent No.3 filed written statement and denied the petition averments. He has also denied the manner in which the accident occurred. He has admitted the insurance policy subject to the terms and conditions of the policy. The respondent No.1 was not holding valid and effective driving licence and therefore, respondent No.2 owner of the vehicle has violated the terms and conditions of the insurance policy. Therefore, he is not liable to pay compensation to the petitioner. He has also denied the age, occupation and income of the petitioner. 4. The respondent No.1 was not holding valid and effective driving licence and therefore, respondent No.2 owner of the vehicle has violated the terms and conditions of the insurance policy. Therefore, he is not liable to pay compensation to the petitioner. He has also denied the age, occupation and income of the petitioner. 4. On the basis of the pleadings of the parties, the tribunal framed issues. In support of his claim petition, the claimant has got examined as PW.1 and another witness as PW.2 and got marked 32 documents as Exs.P.1 to P.32. Per contra, the respondent insurance company has got examined its witnesses as R.ws.1 and 2 and got marked 4 documents as Ex.R.1 to 4. The tribunal after hearing both the parties, passed the judgment, awarding compensation of Rs.1,82,296/- with interest at 6% p.a. from the date of petition till realization. Respondent Nos. 1 and 2 were held jointly and severally liable to pay compensation to the petitioner. However, the respondent No.2 being the owner of the offending vehicle was directed to deposit the compensation amount along with interest within one month and the claim petition against the respondent No.3 was dismissed. 5. The respondent No.2 owner of the vehicle being aggrieved by the impugned judgment has filed MFA.No.103328/2015 on the ground that the tribunal has erred in holding that the driver of the vehicle was not holding valid and effective driving licence to drive vehicle involved in the case. Therefore, the liability fixed on the appellant owner of the vehicle has to be shifted on the insurer. The compensation awarded by the tribunalis also on the higher side. 6. The claimant being dissatisfied with the impugned judgment have filed MFA. Crob No.100040/2017 for enhancement of the compensation on the grounds that the income of the claimant and the disability considered by the tribunal is not proper and the compensation awarded on the other heads are also on the lower side. 7. Heard the arguments of the learned counsels appearing for the parties. 8. The short question which arise for consideration in these appeals is as to whether the owner has made out grounds to set aside the liability saddled against him and saddle liability on the insurer and whether the claimant has made out grounds for enhancement of the compensation. 9. Heard the arguments of the learned counsels appearing for the parties. 8. The short question which arise for consideration in these appeals is as to whether the owner has made out grounds to set aside the liability saddled against him and saddle liability on the insurer and whether the claimant has made out grounds for enhancement of the compensation. 9. The tribunal has exonerated the insurer and saddled the liability on the owner for the reasons that respondent No.1 driver of the offending vehicle was not holding valid and effective driving license to drive the vehicle involved in the case. Attested copy of driving licence is produced at Ex.R.3. This license discloses that the respondent No.1 was authorized to drive LMV NT vehicle and it was valid as on the date of the accident. The vehicle involved in the accident is also a light goods vehicle. Therefore, in view of the judgment of the Hon'ble Supreme Court, in the case of Mukund Dewangan V. Oriental Insurance Company Limited, (2017) AIR SC 3668 there is no breach of policy condition in the present case. The Hon'ble Supreme Court at para 34 has held as under: 34. Coming to conflicting decisions of this Court entailing reference in Ashok Gangadhar Maratha (supra), this Court has considered the definition of ' light motor vehicle' and held thus: "10. The definition of "light motor vehicle" as given in clause (21) of Section 2 of the Act can apply only to a "light goods vehicle" or a "light transport vehicle". A "light motor vehicle" otherwise has to be covered by the definition of "motor vehicle" or "vehicle" as given in clause (28) of Section 2 of the Act. A light motor vehicle cannot always mean a light goods carriage. Light motor vehicle can be a non- transport vehicle as well." No doubt about it, that in addition thereto the Court while dealing with the matter comprehensively has gone in question as to the pleadings and the evidence adduced and it was observed that since there was neither a pleading nor a permit produced on record, the vehicle remained a light motor vehicle. If we proceed on the basis of the definition itself , we reach to the same conclusion that for driving transport vehicle of light motor vehicle category, no separate endorsement is required on a licence. If we proceed on the basis of the definition itself , we reach to the same conclusion that for driving transport vehicle of light motor vehicle category, no separate endorsement is required on a licence. Even when a light motor vehicle is used for carrying goods or for hire or rewards, it becomes a transport vehicle, though it remains included in the category of light motor vehicle as per Section 2(21) of the Act. The interpretation of the definition in Ashok Gangadhar Maratha (supra) , makes it clear that light motor vehicle cannot always be a light goods carriage. It can be a non- transport vehicle as well. The definition of a light motor vehicle includes light goods vehicle and light transport vehicle also. The interpretation of the definition of light motor vehicle in aforesaid extracted para 10 is sound and we are in unison with the same. It was not necessary for the Court to go into the question of pleadings and evidence in Ashok Gangadhar Maratha (supra) . Therefore, the driver having valid and effective driving licence to drive the LMV NT vehicle need not obtain a special endorsement for driving LMV Transport vehicle or passenger vehicle. 10. In the present case, the vehicle involved is light goods vehicle and admittedly, respondent No.1 driver was holding valid and effective driving licence to drive LMV NT vehicle. Therefore, there is no breach of policy conditions by the owner of the vehicle, as such the insurer is liable to indemnify the liability of the owner respondent No.2. Under these circumstances, this Court holds that the appeal filed by the owner deserves to be allowed and the liability has to be saddled against the insurer. 11. Claimant has contended before the tribunal that he was a student and also doing tailoring work and earning Rs.15,000/- per month. However, he has not produced any cogent evidence to prove the income. In the absence of such evidence, the tribunal has considered the income at Rs.5,000/- per month. Considering the age, occupation of the petitioner and also the year of accident namely 2012 and also considering the guidelines provided for settlement of cases before the Lok Adalath, it is just and necessary to consider the income of the petitioner at Rs.6,500/- per month for the purpose of awarding compensation. Considering the age, occupation of the petitioner and also the year of accident namely 2012 and also considering the guidelines provided for settlement of cases before the Lok Adalath, it is just and necessary to consider the income of the petitioner at Rs.6,500/- per month for the purpose of awarding compensation. The tribunal has considered the permanent disability of the petitioner at 9% of the whole body. The evidence of PW.2 and the disability Certificate produced at Ex.P.18 goes to show that the petitioner is suffering from permanent disability of 40% of the particular limb, 1/3rd of the same has to be taken as to the whole body. Therefore, it is necessary to consider the permanent disability of the petitioner at 14% of the whole body for the purpose of assessing loss of future income. 12. On reassessment of the material on record, the following just compensation is awarded. Loss of future income Rs.6,500x12x18x14%=1,96,560/-. Towards pain and suffering Rs.25,000/-, loss of amenities in life Rs.20,000/-, medical expenses Rs.50,096/-, loss of earnings during the period of treatment Rs.13,000/-, diet, nourishment, attendant charges and conveyance etc. , Rs.5,000/-. Thus, the claimant is entitled for total compensation of Rs.3,04,656/- as against Rs.1,82,296/- the compensation awarded by the tribunal . Therefore, the point for consideration is answered accordingly. In the result, this Court proceed to pass the following: ORDER MFA.Nos.103328/2015 is allowed. The judgment and award dated 21.7.2015 passed in MVC.No.150/2013 by the Senior Civil Judge, Gangavathi insofar as exonerating the insurer and saddling the liability on the owner is set aside. It is ordered that respondent Nos.2 and 3 owner and the insurer are liable to pay compensation and their liability is joint and several. Respondent No.3 insurer is directed to deposit compensation amount before the tribunal within eight weeks. Claimant in MFA.Crob.No.100040/2017 is awarded compensation of Rs.3,04,656/- with interest at 6% from the date of petition till its realization. The amount of compensation deposited in MFA.No.103328/2015 shall be refunded to the appellant.