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Karnataka High Court · body

2020 DIGILAW 437 (KAR)

Hemachandra V v. Hajira

2020-02-14

N.S.SANJAY GOWDA

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JUDGMENT : Being aggrieved by the award of compensation vide judgment and award dated 29.11.2016 passed in MVC Nos.839 and 932/2015 on the file of Motor Accidents Claims Tribunal, Bengaluru, the claimants are in appeal seeking enhancement of compensation and the owner of the vehicle is in appeal seeking to set aside the impugned Judgment and Award. 2. The Tribunal has awarded compensation of a sum of Rs.15,000/- in MVC No.839/2015 and a sum of Rs.10,17,016/- in MVC No.932/2015. 3. The owner of the offending vehicle as well as the claimants have preferred these appeals. 4. The facts are not in serious dispute that when the claimants were traveling in an auto rickshaw bearing Reg.No.KA05/A9381, at that time, an LMV JCB vehicle bearing Reg. No. KA 53/M-4986 came in high speed, rash and negligent manner, lost control over the vehicle and collided with the auto rickshaw, which resulted in injuries to the claimant in MVC No.839 and death of Azaz Pasha. This resulted in filing of two claim petitions before the Tribunal. The Tribunal on consideration of evidence adduced before it came to the conclusion that the accident had occurred in the manner stated in the claim petitions and awarded the following sums : MVC No.839/2015 : Global compensation of Rs.15,000/- MVC No.932/2015 : a. Loss of Dependency Rs.7,97,016/- b. Loss of consortium Rs.1,00,000/- c. Loss of love and affection, deprivation, protection and social security to the family Rs.1,00,000/- d. Funeral Expenses and transportation of dead body Rs. 20,000/- Total Rs.10,17,016/- 5. Insofar as the liability was concerned, the Tribunal proceeded to take the view that the offending vehicle was a construction equipment vehicle and the driver of the said vehicle did not possess the licence to drive the vehicle of a specified class and therefore, proceeded to exonerate the Insurance Company of all its liability. 6. Learned counsel for the offending vehicle/owner contended that the construction equipment vehicle as defined under Rule 2(ca) of the Central Motor Vehicles Rules, 1989 will have to be considered as a non-transport vehicle, having regard to the unladden weight of the vehicle and if the driver possesses the requisite class of licence it will have to be held that the Insurance Company is liable. He also submitted that in view of the judgment in MUKUND DEWANGAN Vs. He also submitted that in view of the judgment in MUKUND DEWANGAN Vs. ORIENTAL INSURANCE COMPANY LIMITED reported in AIR 2017 SC 3668 the Insurance Company in this case would be liable, since the unladden weight was less than 7,500 kgs and thereby the driver was competent to drive the said vehicle. 7. On the other hand, the learned counsel for the Insurance Company contended that the compensation awarded cannot be found fault with and sought for dismissal of the appeals. 8. Learned counsel for the claimants contended that the compensation awarded was on the lower side and was required to be enhanced. 9. I have considered the submission of the learned counsel for the parties and perused the material on record. 10. It is not in dispute that the accident occurred due to a collision between a Construction equipment vehicle and an autorickshaw. The contention raised is that to drive the Construction equipment vehicle, the driver/owner should possess a special licence. 11. Learned counsel for the Insurance Company contends that under Section 10(j) of the Motor Vehicles Act, 1988, the licence should contain an endorsement which enables to drive a motor vehicle of a specified description. According to him, since there is no endorsement in the licence of the driver of the offending vehicle regarding permission to drive the construction equipment vehicle, the liability of the Insurance Company has rightly been absolved. 12. Rule 2 (ca) of the Central Motor Vehicles Rules, 1989 reads thus : “Rule 2(ca) : “Construction equipment vehicle means rubber tyred, (including pneumatic tyred), rubber padded or steel drum wheel mounted, self propelled, excavator, loader, backhoe, compactor roller, dumper, motor grader, mobile crane, dozer, fort lift truck, self-loading concrete mixer or any other construction equipment vehicle or combination thereof designed for off-highway operations in mining, industrial undertaking, irrigation and general construction but modified and manufactured with “on or off” or “on and off” highway capabilities. Explanation :- A Construction equipment vehicle shall be a non-transport vehicle the driving on the road of which is incidental to the main off-highway function and for a short duration at a speed not exceeding 50 kms per hour, but such vehicle does not include other purely off-highway construction equipment vehicle designed and adopted for use in any enclosed premises, factory or mine other than road network, not equipped to travel on public roads on their own power.” 13. The explanation appended to Rule 2(ca) clearly states that a construction equipment vehicle shall be a non-transport vehicle, the driving on the road of which is incidental to the main off-highway function and for a short duration at a speed not exceeding 50 kilometers per hour. In view of this explanation the construction equipment vehicle will have to be considered as non-transport vehicle. 14. In the instant case, admittedly the unladden weight is 7,465 kgs and therefore, any person who possesses licence to drive an light motor vehicle would also be competent to drive the said vehicle. 15. The main function of a construction equipment vehicle is to aid any construction activity indusputably the said vehicle for that purpose will have to be transported to the place of construction and it will have to therefore be used on the public roads. It is for this reason that the rule categorically says that it is a non-transport vehicle. In view of the same, and having regard to the decision of the Apex Court in MUKUND DEWANGAN Vs. ORIENTAL INSURANCE COMPANY LIMITED reported in AIR 2017 SUPREME COURT 3668 it will have to be held that the driver of vehicle should possess a valid and effective licence to drive the construction equipment vehicle. Thus as a consequence, the Insurance Company will have to be saddled with the liability of the compensation. 16. As far as the appeal seeking for enhancement by the claimants is concerned, I find that even if the amounts are recalculated for enhancement of compensation, the compensation awarded would be more or less the same. Having regard to the totality of the circumstances, I am of the view, that the compensation awarded by the Tribunal is just and proper and does not call of interference. 17. Accordingly, the appeal filed by the owner is allowed and it is hereby ordered that the insurance company would be liable to satisfy the award passed by the Tribunal. The appeals filed by the claimants are dismissed.