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2022 DIGILAW 169 (KAR)

Divisional Manager v. Leela

2022-02-08

S.VISHWAJITH SHETTY

body2022
JUDGMENT 1. These two appeals are filed by the Insurer of the offending Tanker bearing registration No.KA-25/6059 challenging the judgment and award dtd. 17/2/2016 passed by the Principal Senior Civil Judge and CJM and Addl. MACT, Dharwad(hereinafter referred to as 'the Tribunal', for brevity), in MVC Nos.696/2012 and 285/2012, on the ground of liability. 2. Though these appeals are listed for admission, with the consent of learned counsel appearing on both sides, the same are taken up for final disposal. 3. The parties to these appeals are referred to by their rankings assigned to them before the Tribunal for the sake of convenience. 4. The facts of the case as revealed from the records are; On 9/11/2011 at about 10.30 am, the deceased Pruthivigouda was traveling as a pillion rider along with the claimant in MVC No.285/2012 in a motorcycle bearing registration No.KA-25/EE 5685 and when the said motorcycle reached near Belavantar village near Basavanadevargudi, the offending Tanker bearing registration No.KA-25/6059, which was driven in a rash and negligent manner came from Mundagod towards Kalaghatagi side and dashed against the motorcycle, as a result, the rider as well as the pillion rider suffered grievous injuries and the pillion rider succumbed to the said injuries in the hospital. The claimants in MVC No.696/2012, who are the parents of the deceased Pruthivigouda, who was the pillion rider in the motorcycle, had filed a claim petition under Sec. 163A of the Motor Vehicles Act, 1988 claiming compensation from the owner and insurer of the offending Tanker, while the injured claimant had filed a claim petition under Sec. 166 of the Motor Vehicles Act, 1988, in MVC No.285/2012, claiming compensation in respect of the injuries suffered by him in the road traffic accident. The Tribunal had partly allowed the claim petition and had saddled the liability to pay the compensation amount on the Insurer of the offending Tanker and being aggrieved by the same, the Insurer is before this Court. 5. Learned counsel for the Insurer submits that the driver of the offending Tanker did not possess a valid and effective driving licence to drive a heavy goods vehicle carrying hazardous substance and therefore the Tribunal was not justified in saddling the liability to pay the compensation on the Insurer of the offending vehicle. 5. Learned counsel for the Insurer submits that the driver of the offending Tanker did not possess a valid and effective driving licence to drive a heavy goods vehicle carrying hazardous substance and therefore the Tribunal was not justified in saddling the liability to pay the compensation on the Insurer of the offending vehicle. He submits that the driver held only a heavy goods vehicle driving licence and there is no endorsement in the said licence to the effect that he was also entitled to drive heavy goods vehicle carrying hazardous substance. Since the vehicle was used in violation of the terms and conditions of the policy, the Tribunal ought not to have saddled the liability to pay the compensation on the Insurer. Accordingly, he prays to allow the appeals. 6. Per contra, learned counsel for the claimants submits that the offending lorry at the time of accident was not carrying any hazardous substance in the said vehicle. Therefore, the Tribunal had rightly saddled the liability to pay the compensation on the Insurer of the said vehicle, having regard to the judgment of the Division Bench of this Court reported in ILR 2015 Karnataka 393 in the case of New India Assurance Co. Ltd., Vs. Velumurugan V. Accordingly he prays to dismiss the appeals. 7. The accident in question is not in dispute, so also the involvement of the offending vehicle in the said accident, in which the claimant in MVC No.285/2012 was injured and the son of the claimants in MVC No.696/2012 had died. It is also not in dispute that the offending Tanker bearing registration No.KA-25/6059, which was involved in the said accident was duly insured by the appellant Insurer and the said policy was valid as on the date of the accident. The material on record would go to show that, at the time of accident, the driver of the offending vehicle was possessing a valid and effective heavy goods vehicle driving licence. The material on record would also go to show that the offending Tanker was empty as on the date of the accident and it was not carrying any hazardous substance at the time of accident. 8. In identical circumstance, the Division Bench of this Court in the case of New India Assurance Co. Ltd., Vs. Velumurugan V. reported in ILR 2015 Karnataka 393, at paragraph 10 has observed as follows: "10. 8. In identical circumstance, the Division Bench of this Court in the case of New India Assurance Co. Ltd., Vs. Velumurugan V. reported in ILR 2015 Karnataka 393, at paragraph 10 has observed as follows: "10. So far as point No.1 is concerned, the appellant is not disputing the driver possessing a valid licence to d rive a HGV. The contention of the appellant is that since the vehicle in question is registered as petrol tanker, special endorsement was required to be obtained by the driver to d rive a petrol tanker. Admittedly, when the accident occurred , it was an empty tank. In the cross- examination of RW.1, he has ad mitted as hereunder:- "When the accid ent occurred , there was no petroleum prod uct in the tanker." Therefore, it is clear that when the accident occurred , it was an empty tanker. In ord er to drive an empty tanker, no end orsement is required by a driver to drive such vehicle since it was not carrying on any hazardous or combustible material. In ord er to consider the questions involved in this appeal, we have to consid er the provisions under Sec. 14(2)(a) of the Motor Vehicles Act, 1988, which read s as hereund er:- "14(2)(a) in the case of a licence to d rive a transport vehicle, be effective for a period of three years: [Provided that in the case of licence to drive a transport vehicle carrying goods of d angerous or hazardous nature b e effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus; and]" Proviso to Sec. 14(2)(a) clearly indicates that special licence is required to drive a vehicle, which is carrying on goods of dangerous or hazardous nature and such licence will be effective for a period of one year and thereafter the d river has to undergo one day refresher course of the prescribed syllabus. Therefore, it is clear that the special licence to be granted under this proviso will be valid for one year and thereafter it will be renewed subject to the driver undergoing one d ay refresher course, which indicates that in order to grant such special licence, the d river has to und ergo a course which is meant for safety measure. Safety measure is required when the vehicle is carrying on comb ustible, dangerous or hazardous nature goods. I n other words, if a tanker is not carrying on goods of dangerous or hazardous nature, there is no necessity to obtain such special licence to d rive an empty tanker. Therefore, the arguments of Sri R.Jaiprakash that the d river did not possess an endorsement is not acceptable. Accordingly, we hold that in ord er to drive empty tanker, no such licence is req uired because the vehicle did not carry any dangerous or hazardous nature goods. Accordingly, point No.1 is answered in negative." 9. The Tribunal having regard to the said judgment, has rightly saddled the liability to pay the compensation on the Insurer of the offending vehicle. Though the learned counsel for the appellant has contended that, having regard to the judgment of the Full Bench of this Court in the case of New India Assurance Co. Ltd., vs. Yallavva and Another reported in 2020 ACJ 2560, since the offending vehicle was used in violation of the policy conditions, the Insurer is required to be given liberty to pay and recover the compensation amount from the owner of the offending vehicle, since the offending vehicle was not carrying any hazardous substance at the time of accident and admittedly, the offending vehicle was empty, it cannot be said that the vehicle was used in violation of the terms and conditions of the policy. 10. Under the circumstances, the Tribunal was justified in saddling the liability on the Insurer of the offending vehicle to pay the compensation amount and I do not find any illegality or irregularity in the said judgment and award passed by the Tribunal. Accordingly the appeals are dismissed. The amount in deposit is directed to be transferred to the Tribunal in both these appeals, for the purpose of disbursement.