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2020 DIGILAW 2140 (KAR)

S. M. Mariyappa v. S. M. Channabasappa Gowda

2020-11-02

NATARAJ RANGASWAMY

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JUDGMENT Nataraj Rangaswamy, J. - This appeal is filed by the claimant aggrieved by the dismissal of the claim petition as against the insurer and also for enhancement of compensation. 2. The facts as set out in the claim petition would disclose that on 30.11.2005 at about 7:00 a.m., when the claimant was herding his cattle for grazing, a driver of a Tiller bearing registration No.KA-15-J-3927 dashed against the petitioner from behind. As a result, the petitioner sustained serious injuries and he contended that he had spent Rs.75,000/- for medical and other expenses and he lost an income of Rs.75,000/- per annum which he was earning from agricultural work. 3. The driver of the offending vehicle (respondent No.2) denied negligence on his part and also contended that he possessed a valid driving licence to drive the Tiller in question. The owner of the offending vehicle (respondent No.1) filed a memo dated 26.09.2007 adopting the objections filed by driver / respondent No.2 before the Tribunal. 4. Respondent No.3 Insurer filed its written statement contending that the claimant and respondent No.1 were brothers and that the claim petition was collusive to make unlawful gain at the expense of the insurer. The insurer further contended that the driver of the Tiller did not have an effective and valid driving licence to drive the vehicle in question. It, therefore, contended that the owner having permitted the Tiller to be driven by an unlicenced person, had committed breach of the policy conditions and that the insurer is entitled to pay and recover the compensation from respondent No.1. 5. The Tribunal considered the age of the claimant at 49 years and having regard to the fact that the claimant had suffered fracture of meta tarsal bone of left foot and that he had undergone treatment at Kasturba Medical College hospital, Manipal, awarded the following compensation: Heads under which compensation is awarded Amount Pain and agony Rs.12,000/- Medical expenses Rs. 30,000/- Conveyance, nourishment and other incidental expenses Rs. 2,000/- Loss of amenities Rs. 5,000/- Total Rs.49,000/ - 6. The Tribunal while fastening the liability to pay the compensation noticed from Ex.R2, which is the driving licence issued in favour of respondent No.2 / driver that he was authorized to drive vehicles other than transport vehicle between 22.12.2002 and 21.12.2007, which was renewed from 22.12.2007 to 21.12.2012 and transport vehicle with effect from 12.12.2002 to 11.12.2005. The Tribunal while fastening the liability to pay the compensation noticed from Ex.R2, which is the driving licence issued in favour of respondent No.2 / driver that he was authorized to drive vehicles other than transport vehicle between 22.12.2002 and 21.12.2007, which was renewed from 22.12.2007 to 21.12.2012 and transport vehicle with effect from 12.12.2002 to 11.12.2005. This was again renewed from 12.12.2005 to 11.12.2008 and from 12.12.2008 to 11.12.2011. The Tribunal, therefore, held that the driver was authorized to drive both transport vehicle and non-transport vehicle. The Tribunal adverted to Section 10 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act ) and referred to Section 2 of the Act, which did not classify a Tiller into any type of vehicle. Therefore, the Tribunal held that the driver was not authorized to drive a Tiller and thus, fastened the liability to pay compensation on the owner respondent No.1. 7. The claimant aggrieved by the quantum of compensation awarded by the Tribunal as well as the fixation of liability to pay the compensation on the owner instead of the insurer has filed this appeal. 8. The claimant appellant contended that Section 41(4) of the Act sets out how a vehicle has to be registered and the same is extracted below: 41. Registration, how to be made. (1) An application by or on behalf of the owner of a motor vehicle for registration shall be in such form and shall be accompanied by such documents, particulars and information and shall be made within such period as may be prescribed by the Central Government: Provided that where a motor vehicle is jointly owned by more persons than one, the application shall be made by one of them on behalf of all the owners and such applicant shall be deemed to be the owner of the motor vehicle for the purposes of this Act. (2) An application referred to in sub-section (1) shall be accompanied by such fee as may be prescribed by the Central Government. (3) The registering authority shall issue to the owner of a motor vehicle registered by it a certificate of registration in such form and containing such particulars and information and in such manner as may be prescribed by the Central Government. (3) The registering authority shall issue to the owner of a motor vehicle registered by it a certificate of registration in such form and containing such particulars and information and in such manner as may be prescribed by the Central Government. (4) In addition to the other particulars required to be included in the certificate of registration, it shall also specify the type of the motor vehicle, being a type as the Central Government may, having regard to the design construction and use of the motor vehicle, by notification in the Official Gazette, specify. 9. The Central Government had issued a notification dated 05.11.2004 in exercise of the powers conferred by sub-section (4) of Section 41 of the Act which classified a Power Tiller as a transport vehicle and a nontransport vehicle depending upon its usage, namely, that it would be a transport vehicle when it is used on a public road and a non-transport vehicle when it is not used on a public road. This notification is dated 05.11.2004 which clearly meant that a power tiller was thenceforth classified as either a transport vehicle or non-transport vehicle depending upon its usage. In the case on hand, it is not in dispute that the driver of the offending vehicle not only possessed a licence to drive vehicles other than the transport vehicle, but he was also licenced to drive transport vehicles. As on the date of the accident, the driver of the offending vehicle did possess a licence to drive a transport vehicle. 10. In the present case, as per the case of the claimant, the power Tiller was used on a public road and therefore, as on the date of the accident, the driver of the vehicle must have possessed a licence to drive a transport vehicle. Learned counsel for the appellant, therefore, contended that the Tribunal failed to consider the impact of sub-section (4) of Section 41 of the Act for the purpose of classifying Tiller into a transport or a non-transport vehicle. This would assume significance since sub-section (10) of Section 2 of the Act warrants grant of a licence to a person to drive a motor vehicle or a motor vehicle of any specified class or description. 11. This would assume significance since sub-section (10) of Section 2 of the Act warrants grant of a licence to a person to drive a motor vehicle or a motor vehicle of any specified class or description. 11. In so far as the quantum of compensation is concerned, the learned counsel for the appellant claimant contended that the claimant was initially treated at Mc Gann hospital, Shivamogga and thereafter was shifted to Kasturba hospital, Manipal on 01.12.2005. The meta tarsal of the first left finger was fixed by K. wire on 01.12.2005 and he was shifted to plastic surgery ward on 03.12.2005 and was treated as LAD and SSG on 14.12.2005 and was transferred back to Orthopedic I on 28.12.2005 where he underwent K wire removal and below knee cast application. He was discharged on 30.12.2005. Learned counsel, therefore, contended that the Tribunal ought to have granted compensation on the ground of loss of income during the laid-up period and must have awarded substantial compensation under the head of pain and suffering. He, therefore, contended that the compensation awarded by the Tribunal requires reconsideration. 12. On the other hand, learned counsel for the insurer contended that the Power tiller was not a vehicle which was described anywhere in the Motor Vehicles Act, 1988 and the same was inserted in the Central Motor Vehicle Rules, 1989 vide Rule 2(v) with effect from 16.09.2005 and definition of Power tiller reads as under: Power tiller means an agricultural machinery used for soil preparation having a single axle in which the direction of travel and its control for field operation is performed by the operator walking behind it. This equipment may or may not have a riding attachment and when coupled to a trailer can be used for the transportation of goods. The maximum speed of the power tiller when coupled to a trailer, shall not exceed 22 km/h. The maximum haulage capacity of the Power tiller coupled to a trailer shall not exceed 1.5 tons. He, therefore, contends that the driver ought to have obtained a licence for driving power Tiller. He contended that the term transport vehicle is defined under subsection (47) of Section 2 of the Act as including a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle and does not include a power Tiller. He, therefore, contends that the driver ought to have obtained a licence for driving power Tiller. He contended that the term transport vehicle is defined under subsection (47) of Section 2 of the Act as including a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle and does not include a power Tiller. He, therefore, contended that the driver ought to have obtained appropriate endorsement authorizing him to drive a power Tiller apart from the licence that he had to drive a transport vehicle. He would further contend that the claimant had suffered injury to the first meta tarsal bone on the left leg and therefore, the compensation awarded by the Tribunal is just, proper and reasonable and does not call for interference by this Court. 13. The Tribunal noticed that the accident in question was caused by the power Tiller bearing registration No.KA-15-J-3927. The Tribunal also noticed that the offending vehicle was covered by a policy of insurance issued by respondent No.3. The owner of the offending vehicle was examined as RW.1. He admitted that the accident was due to the rash and negligent driving of the offending vehicle. Though the claimant had lodged the complaint on 21.03.2006 (Ex.P1) to the jurisdictional Police about the accident that occurred on 30.11.2005, the Tribunal has accepted the cause for the delay. The Tribunal has noticed that there was nothing amiss in the case of the claimant. Therefore, the Tribunal had assessed the compensation and fixed the liability to pay the compensation upon the owner of the offending vehicle. 14. It is relevant to note that as per Ex.P6 (treatment certificate), the claimant was admitted to Kasturba hospital, Manipal, on 01.12.2005 and was discharged on 30.12.2005 after removal of the K wire, which was inserted to treat the fracture. There is no contra evidence adduced on behalf of the insurer to dispute the contention that the claimant was deprived of the income for nearly one month. As contended by the learned counsel for the appellant claimant, the Tribunal ought to have granted compensation for the loss of income during the laid-up period and having regard to the fact that the claimant had undergone plastic surgery and also fixation of implants for treating the fracture, the Tribunal ought to have considered the same while granting the compensation towards Pain and Suffering. In that view of the matter, the compensation of Rs.49,000/- awarded by the Tribunal needs reconsideration. In view of the above, the compensation awarded by the Tribunal is redetermined as follows: Heads under which compensation is awarded Amount (in Rupees) Pain and suffering 25,000/- Loss of income during the laid-up period at the rate of Rs.4000/- 4,000/- Medical expenses 30,000/- Conveyance, attendant, nourishment and other incidental expenses 10,000/- Loss of amenities 10,000/- Loss of income due to disability 12,000/- TOTAL Rs.91,000/- In view of the above, the award passed by the Tribunal is required to be modified by awarding compensation of Rs.91,000/-. 15. In so far as the question of liability of the insurer to pay the compensation is concerned, as on the date of the driver obtaining a driving licence, power Tiller was described as a transport vehicle and also as a non- transport vehicle. It was in that context, a licence is granted to the driver of the offending vehicle authorizing him to drive a transport and non-transport vehicle. As stated earlier, the power Tiller was indeed a transport vehicle and therefore, it cannot be said that the driver of the offending vehicle did not carry a valid and effective driving licence as on the date of the accident. The contention of the learned counsel for the appellant insurer that the driver ought to have obtained an endorsement authorizing him to drive a power Tiller would be of no consequence in view of the law laid down by the Hon`ble Apex Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited, (2017) AIR SC 3668 . In that view of the matter, respondent No.3 - insurer is liable to pay the compensation as determined by this Court. 16. Hence, the Appeal is allowed in part and the impugned Judgment and Award passed by the Tribunal granting a sum of Rs.49,000/- (Rupees Forty Nine Thousand only) is modified and a sum of Rs.91,000/- (Rupees Ninety One Thousand only) is awarded as compensation along with interest at the rate of 6% per annum from the date of the claim petition till the date of realization. The insurer respondent No.3 is liable to pay the compensation to the claimant. 17. The insurer is directed to deposit the compensation with interest within a period of two months from the date of receipt of a certified copy of this order.