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Karnataka High Court · body

2020 DIGILAW 153 (KAR)

Divisional Manager v. Faroja Faiyaz Jamadar

2020-01-17

P.G.M.PATIL

body2020
JUDGMENT : P.G.M. PATIL, J. 1. With the consent of learned counsel for the parties, the matter is taken up for final hearing. The Insurer-Royal Sundaram Insurance Company Limited and the claimant being aggrieved by the Judgment and award dated 07.11.2015 passed in MVC No. 1029/2014 on the file of the III Addl. District & Sessions Judge and MACT-V, Belagavi have filed this appeal and Cross Objections, respectively. 2. It is the case of the claimant before the Tribunal that on 03.11.2013, the claimant/petitioner had been to her office at Belagavi. After completion of her work, she was returning to her house on scooty motor cycle bearing registration No.KA-22/E 9092 from Belagavi to Kadrolli. When she was proceeding near Dastikoppa on NH-4, the offending Tata Magic bearing registration No.KA-24/7814 came from the opposite direction in a rash and negligent manner and dashed to the scooty of the petitioner. Due to the said impact, she sustained grievous injuries. Immediately she was shifted to Vijaya Artho Trauma Centre, Belagavi, where she took treatment and spent a sum of Rs. 1,50,000/-. She is suffering from permanent disability due to the injuries suffered in the accident. Therefore, she filed claim petition against the owner and Insurer of the offending vehicle claiming compensation of Rs.8,00,000/-. 3. In pursuance of notice, respondent Nos. 1 & 2 appeared through their counsel and filed objections before the Tribunal. Respondent No.1 has denied the averments in the claim petition and he has stated that his vehicle is duly insured with respondent No.2 and in case of liability, it may be saddled against respondent No.2. Respondent No.2 filed objections, denying the averments made in the claim petition. It has denied the age, occupation and income of the petitioner and also the injuries and medical expenses. It has also further denied that the driver of the offending vehicle did not possess a valid and effective driving license to drive the said vehicle involved in the accident and therefore there is a violation of terms and condition of Insurance policy and as such it is not liable to pay the compensation. 4. On the basis of the pleadings of the parties, the Tribunal framed the issues. In support of her claim petition, the claimant got examined as PW-1 and one witness as PW-2 and got marked 21 documents i.e. Ex.P-1 to Ex.P-21. 4. On the basis of the pleadings of the parties, the Tribunal framed the issues. In support of her claim petition, the claimant got examined as PW-1 and one witness as PW-2 and got marked 21 documents i.e. Ex.P-1 to Ex.P-21. Respondent No.2 examined 2 witnesses and got marked 6 documents as Ex.R-1 to Ex.R-6. The Tribunal after hearing both the parties, passed the impugned Judgment, and A warded a compensation of Rs. 1,36,100/- with interest at the rate of 6% per annum from the date of petition till final realization. The Tribunal directed respondent No.2 - Insurer to deposit the compensation amount. 5. The Insurer being aggrieved by the impugned Judgment and Award has filed MFA No. 100180/2018 for setting aside the Judgment and Award passed against it on the ground that the driver of the offending vehicle did not possess a valid and effective driving license to drive the said vehicle and therefore, there is a breach of policy condition and therefore, it is not liable to pay the compensation. 6. The claimant being dissatisfied with the impugned Judgment and Award has filed MFA Crob. No. 100074/2016 seeking enhancement of the compensation on the ground that the Tribunal has awarded meager compensation under all the heads. 7. Since the appeal and Cross Objections arise out of the Judgment and Award dated 07.11.2015 passed in MVC No. 1029/2014, they are heard together and disposed off by this common Judgment. 8. Heard the learned counsel for the parties. 9. The appellant-Insurer has filed the appeal for setting aside the award passed against him on the only ground that the driver of the offending vehicle did not possess a valid and effective driving license to drive the said vehicle. It is seen from the records that, the Insurer himself has produced certified copy of the driving license of the driver of the offending vehicle at Ex.R-4 and he has also examined RW-2 in order to prove that the driver of the offending vehicle had a valid and effective driving license only to drive LMV Non-transport vehicle and that the vehicle involved in the accident is LMV Transport. Under these circumstances, the case on hand is squarely covered by the Judgment of the Apex Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited, AIR 2017 SC 3668 . Under these circumstances, the case on hand is squarely covered by the Judgment of the Apex Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited, AIR 2017 SC 3668 . The Apex Court in paragraph No. 46 of the judgment has held as follows: "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 he 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. Any other interpretation would he 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, 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: (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. (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. (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)(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. (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." 10. Admittedly, in the case on hand, the driver of the offending vehicle had a valid and effective driving license to drive the light motor non-transport vehicle and that the vehicle involved in the accident is a light motor transport vehicle. Admittedly, in the case on hand, the driver of the offending vehicle had a valid and effective driving license to drive the light motor non-transport vehicle and that the vehicle involved in the accident is a light motor transport vehicle. In view of the dictum of the Apex Court, stated in the above case, a driver having license to drive LMV Non-transport vehicle need not obtain a special endorsement for driving LMV transport vehicle. Therefore, there is no violation of any of the terms and conditions of the policy in the case on hand and as such the Insurer cannot avoid his liability. Accordingly, the appeal filed by the Insurer is liable to be dismissed. 11. The claimant has sought for enhancement of the compensation on all the heads. It is seen from the records that, the claimant had sustained fracture of right femur middle third and comminuted fracture right radius lower end and also fracture of distal end left radius. The Tribunal has awarded a sum of Rs.6,000/- towards paid and suffering. This compensation appears to be on the lower side, therefore, the compensation under the head of pain and suffering is enhanced to Rs.20,000/-. The Tribunal has not awarded any compensation towards loss of amenities due to the disability suffered by the claimant. Therefore, a sum of Rs.25,000/- is awarded towards loss of amenities. Thus, the claimant is entitled for a enhanced compensation of Rs.39,000/- with interest at the rate of 6% per annum from the date of petition till realization. Accordingly, this Court passes the following: ORDER: (i) MFA No. 100180/2016 filed by the Insurance Company is dismissed. (ii) MFA Crob. No. 100014/2016 filed by the claimant is allowed in part. The claimant is awarded enhanced compensation of Rs.39,000/- (Rupees Thirty nine thousand only) with interest at the rate of 6% per annum from the date of petition, till realization. (iii) The amount deposited in MFA No.100180/2016 shall be transmitted to the concerned Tribunal.