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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2019
PRESENT THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON’BLE MR.JUSTICE ASHOK G.NIJAGANNAVAR
MISCELLANEOUS FIRST APPEAL No.1059/2015 (MV)
BETWEEN:
1.SMT. TARA N. A W/O SRI T C LAKSHMINARAYAN AGED ABOUT 52 YEARS FLAT NO. 423 4TH FLOOR, 4TH E MAIN KALYANA NAGAR BANGALORE-560043
2.MISS MALATHI T L D/O SRI T C LAKSHMINARAYAN AGED 27 YEARS FLAT NO.418 4TH FLOOR, 4TH E MAIN KALYANA NAGAR BANGALORE-560043 ..APPELLANTS
(BY SRI B.K.MOHAN, ADVOCATE FOR AMAN ASSOCIATES)
AND:
1.SRI. SYED JAKIR S/O SYED MUSTHAF MAJOR R/AT NO.126, 1ST MAIN 5TH BLOCK, HILAL NAGAR
2 HRB LAYOUT, K K HALLI BANGALORE-560043
2.HDFC ERGO GENERAL INSURANCE CO. LTD., BANGALORE REPRESENTED BY ITS MANAGER NO. 108, 109, 110 AND 111 1ST FLOOR, H M GENEVA HOUSE NO.14, NEXT TO FORTIS HOSPITAL CUNNINGHAM ROAD BANGALORE-560052 ..RESPONDENTS
(BY SRI O MAHESH, ADVOCATE FOR R-2, R-1 -SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED:06.11.2014 PASSED IN MVC NO.8272/2010 ON THE FILE OF THE XVI ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
J U D G M E N T
This appeal is filed by the claimants in MVC No.8272/2010 being aggrieved by the Judgment and award dated 06.11.2014 passed by the Motor Accident Claims Tribunal, Bengaluru City (hereinafter referred to as `Tribunal’ for the sake of brevity) seeking
3 enhancement in compensation and also being aggrieved by the exoneration of the second respondent-insurer.
For the sake of convenience, parties shall be referred to in terms of their rankings and status before the Tribunal.
The appellant-claimants filed the claim petition under Section 166 of the Motor Vehicles Act (hereinafter referred to as `Act’ for the sake of brevity) seeking compensation on account of death of Poornima, daughter of Lakshminarayan and first appellant and sister of second appellant, in a road traffic accident. According to the appellants Poornima was aged 26 years she was working as `Group Lead- Process Trainer’ in M/s.Hinduja Global Solutions Limited, Bengaluru, and that on 14.05.2010 she was proceeding in a Honda Activa bearing registration
4 No.KA-03-EG-3469 as a pillion rider along with her friend Rohan Jairaj at about 1.45 P.M. near Lingarajapura Bus Stand. At that time the driver of a Mini Lorry bearing registration No.KA-19-5429 drove the said vehicle in a rash and negligent manner and dashed against the goods autorickshaw bearing registration No.KA-03-C-2452 and then against Honda Activa on which Poornima was traveling as a pillion rider. He proceeded again and dashed against a Bajaj Scooter bearing registration No.KA-03-K-3912 and another autorickshaw bearing registration No.KA-02- 6620 and then BMTC bus bearing registration No.KA- 01-F-4290. The rider of Honda Activa bearing registration No.KA-03-EG-3429 died on the spot while Poornima died on the way to the hospital. According to the claimants, the husband of the first claimant, father of the deceased has deserted them; contending that Poornima was the bread-earner of the family and
5 they were dependent on her for their livelihood and Poornima was hale and healthy and had great prospects in life and on account of early demise, the family was left in the lurch and pain and agony; they filed claim petition seeking compensation and alleging negligent driving of the driver of mini lorry bearing registration No.KA-19-5429. They sought compensation of Rs.50,00,000/- with interest @ 12% p.a.
In response to the notice issued by the Tribunal, respondent No.2 insurance company appeared through counsel and filed statement of objections; while notice to respondent No.1 was taken out by way of substituted service but respondent No.1 did not appear and he was placed exparte. The second respondent in its statement of objections admitted that a policy was issued in respect of the mini lorry
6 bearing registration No.KA-19-5429 but denied the other averments in the claim petition. It contended that the vehicle was not having valid and effective fitness certificate and driver of the offending vehicle- mini lorry did not have valid and effective driving licence on the date of accident; that the petition was bad for misjoinder and non-joinder of the parties and that the accident occurred due to the negligence of the driver of the Honda Activa and that the claim of the claimants is excessive, exorbitant and exaggerated and therefore insurance company sought for dismissal of the claim petition.
On the basis of the rival pleadings, Tribunal framed the issues as under:
“1. Whether the petitioners prove that the deceased died in an accident arising out of the negligence of the LMV vehicle bearing
7 No.KA-19-5429 occurred on 14.05.2010 at about 01.45 p.m.?
Whether the petitioners prove that they are LRs of the deceased Miss.Poornima Lakshminarayana?
Whether the petitioners are entitled to compensation? If so, how much and from whom?
What Order?”
In order to substantiate their case, the claimants examined Smt.Tara N.A., mother of the deceased as PW-1 and claimants produced 18 documents marked as Exhibits P-1 to P-18. While respondent-insurer examined three witnesses as RW-1 to RW-3 and produced three documents marked as Exhibits R-1 to R-3.
8 7. On the basis of the evidence on record, the Tribunal answered issue Nos.1 to 3 in the affirmative and awarded compensation of Rs.25,75,000/- with interest @ 9% p.a. from the date of claim petition till date of payment.
Being aggrieved by the meager award of compensation and exoneration of the insurance company from payment of any compensation by the Tribunal, the claimants have preferred this appeal.
We have heard the learned counsel for the appellants and learned counsel for respondent No.2 and we have perused the material on record and the original record.
Appellants counsel contended that the Tribunal was not right in awarding a meager compensation of Rs.25,75,000/- on the head `loss of dependency’ and
9 a sum of Rs.20,000/- on the head `love and affection’ and Rs.20,000/- on the head `funeral expenses’ and in toto Rs.25,75,000/-. He contended that the deceased was working in M/s.Hinduja Global Solutions Limited as a `Group Lead-Process Trainer’ and drawing a salary of Rs.29,167/- per month and annual amount of Rs.3,50,000/- as per Exhibit P-7 and that she earlier worked at Microland and annual salary package was Rs.2,80,000/-. But the Tribunal has assessed the salary at Rs.2,80,000/- per annum and has taken Rs.2,60,000/- as net salary or take home salary and after adding 50% towards future prospects and deducting 50% towards living expenses, applying multiplier `13’ has awarded Rs.25,35,000/- on the head `loss of dependency’. He submitted the amount on the head of `loss of dependency is meager as the Tribunal could not have deducted 50% of the earnings towards living expenses of the deceased. He further
10 contended that the award of compensation on the conventional heads is also meager and therefore the same may be enhanced.
Learned counsel for the appellants next contended that the Tribunal was not right in exonerating the insurance company in the instant case on the premise that the driver of the offending vehicle did not possess a valid and effective driving licence on the date of the accident. He submitted that accident occurred on 14.05.2010 and that driver of the vehicle had licence to drive a non-transport vehicle for the period from 30.06.2000 to 29.06.2020 but as far as transport vehicle is concerned the licence had been issued on 30.06.2007 and it would have been valid till 29.06.2010 and that the accident occurred on 14.05.2010 but the badge issued to driver of the mini lorry had expired on 16.02.2010. Taking said fact into
11 consideration the Tribunal has come to the conclusion that the driver of the mini lorry had not renewed the badge and that the licence with regard to driving a transport vehicle had expired on 16.02.2010 as the badge had expired and therefore on 14.05.2010 driver of the offending vehicle did not possess a valid licence and hence exonerated the insurer. He contended that having regard to the latest dictum of the Hon’ble Supreme Court in the case of Mukund Dewangan Vs Oriental Insurance Company Limited reported in AIR 2017 SC 3668 once a driver of the vehicle possessed a licence to drive a particular class of vehicle it does not matter what kind of vehicle he would drive in that particular class. It is not necessary to get an additional transport endorsement as a licence to drive the light motor vehicle would be sufficient to drive a transport or non-transport vehicle. That in the instant case the driver of the offending
12 vehicle did possess a licence to drive the mini lorry having transport endorsement from 30.06.2007 which is for a period of three years upto 29.06.2010 accident has occurred on 14.05.2010. Merely because badge issued to the driver of the mini lorry had expired on 16.02.2010 it cannot be inferred that said driver did not have the skill or qualification to drive the said vehicle. He contended that there was no fundamental breach in the instant case i.e., breach of a condition of the policy and hence the Tribunal was not right in exonerating the insurer. In this regard he drew our attention to the evidence of RW-1 who is the First Division Assistant working in the RTO, Indiranagar, Bengaluru and he had produced driving licence extract as Exhibit R-1 which shows that the licence was for the period from 30.06.2007 to 16.02.2010. He therefore contended that the exoneration of the
13 insurer may be reversed and the compensation may be enhanced.
Per contra, learned counsel for insurance company contended that in the instant case the licence to drive the transport vehicle namely offending vehicle was issued on 30.06.2007 and expired on 16.02.2010 as per Exhibit R-1. Therefore on the date of the accident driver of the offending vehicle was not duly licenced to drive the said vehicle. Hence, the Tribunal was right in holding that there was breach of terms and conditions of the policy and thereby exonerated the insurer. He contended that there is no merit in the submission of the learned counsel for appellants in this regard. He further submitted that the award of compensation granted by the Tribunal is just and proper and the claimants are not entitled to any further enhancement in this appeal and that there
14 is no merit in the appeal and the appeal may be dismissed.
Having heard the learned counsel for the respective parties, following points arise for our consideration:
“1. Whether the Tribunal was right in exonerating the insurer from its liability under the policy vis-à-vis the offending vehicle namely, mini lorry bearing registration No.KA-19-5429?
Whether the appellant-claimants are entitled to additional compensation?
What order?”
The fact that Poornima died in a road traffic accident that occurred on 14.05.2010 when she was proceeding as a pillion rider on Honda Activa bearing
15 registration No.KA-03-EG-3469 which was driven by her friend Rohan Jairaj at about 1.45 P.M. on the said date near Lingarajapura Bus Stand, when the driver of the mini lorry bearing registration No.KA-19-5429 drove the same in a rash and negligent manner and dashed against the scooter and three other vehicles has been established.
The first controversy in this appeal is with regard to driver of the offending mini lorry possessing a valid and effective driving licence on the said date. In this regard the insurance company has examined RW-1, First Division Assistant, working in RTO, Indiranagar, Bengaluru. He produced Exhibit R-1 which is the driving licence extract. On perusal of the same it is noted that the driver of the mini lorry had a licence to drive the non-transport vehicle for the period from 30.06.2000 to 29.06.2020. The said licence is for a
16 period of twenty years for non-transport vehicle in respect of a light motor vehicle. As far as licence to drive light motor transport vehicle from Exhibit R-1 it is noted that the said licence was effective from 30.06.2007 to 16.02.2010. It is not known as to why the licence ceased on 16.02.2010. Normally a transport endorsement issued on a licence for driving transport vehicle it is for three years. In the cross examination RW-1 has also accepted the said fact and he has said it ought to have been upto 29.06.2010. No reason is forthcoming as to why the licence would have expired on 16.02.2010 in the instant case. In the cross examination RW-1 has admitted it may be a mistake in stating that licence was only upto 16.02.2010. However as per Section 14(2)(a) of the Act the period of licence to drive a transport vehicle is three years. Hence, in the instant case the said period could not have been cut short upto 16.02.2010
17 it ought to have been from 30.06.2007 to 29.06.2010. Even otherwise it is noted that in the instant case the driver of the offending vehicle is licensed to drive light motor vehicle non-transport for the period from 30.06.2000 to 29.06.2020 and as already noted accident occurred on 14.05.2010. As per the latest dictum of the Hon’ble Supreme Court in the case of Mukund Dewangan (supra) the definition of `light motor vehicle’ has to be given full effect to and it has to be read with Section 10(2)(d) of the Act which makes it abundantly clear that `light Motor Vehicle’ can also be `transport vehicle’, the gross vehicle weight or unladen weight not exceeding 7500 kgs as specified in the provision. Thus, a driver who has been issued a licence as per the class of vehicle i.e., light motor vehicle can drive any type of vehicle within the said class, namely, transport vehicle or omnibus or any other vehicle of other category as per gross
18 vehicle weight or unladen weight as specified in Section 2(21) of the Act. Then it would mean a specified authorization to drive a vehicle of the same category. In other words once a person has a licence to drive a light motor vehicle even in the absence of a transport endorsement he is entitled to drive transport vehicle which is in the light motor vehicle category. In this regard paragraphs 45 and 46 of the Judgment could be referred and it reads as under: “45. Transport vehicle has been defined in section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab, a motor cab, contract carriage, and stage carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) to mean
19 a motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994.
20 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 be 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 be 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
21 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
22 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
23 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.”
24 16. In the circumstances, it is held that in the instant case the driver of the offending vehicle-mini lorry which is a light motor vehicle was duly licensed to drive the vehicle. There was no fundamental breach of any term regarding driving licence in the policy. Hence, Tribunal was not right in exonerating the insurance company from its liability to satisfy the award. Point No.1 is accordingly answered in favour of the appellants.
This takes us to the next point for consideration which is with regard to quantum of compensation to be awarded to the claimants who are the mother and sister of the deceased Poornima. Poornima was working as a `Group Lead-Process Trainer’ in M/s.Hinduja Global Solutions Limited. Accordingly to Exhibit P-7 which is the salary and allowances extract, she was receiving a monthly gross salary of
25 Rs.29,167/- and annual salary of Rs.3,50,000/-. Merely because the mother of the deceased-PW-1 deposed that the deceased was earlier drawing salary of Rs.2,80,000/- per annum, Tribunal considered the said salary by ignoring Exhibit P-7 which is a piece of documentary evidence. In the circumstances, we consider Exhibit P-7 and accept the gross and annual salary at Rs.3,50,000/-. From the said salary Rs.2,400/- would have to be deducted towards professional tax and a sum of Rs.35,000/- towards income tax. Thus, from Rs.3,50,000/- we have to deduct Rs.37,400/- balance would be Rs.3,12,600/-. Poornima was gainfully employed and 50% of the said amount would have to be added towards `future prospects’. Since Poornima was not married 50% of the same would have to be deducted towards her personal expenses and after such deduction the balance would be Rs.2,34,450/- which is to be
26 multiplied by appropriate multiplier `17’ since Poornima was aged 26 years at the time of her demise. The compensation on the head `loss of dependency would be:
Annual Income Rs.3,50,000 Less: Professional Tax 2,400 Less: Income Tax 35,000 ---------- Rs. 37,400 ---------------- Rs.3,12,600 Add: 50% towards future prospects Rs.1,56,300 -------------- Rs.4,68,900 Less: 50% towards personal expenses Rs.2,34,450 --------------- Rs.2,34,450
Loss of dependency (Rs.2,34,450x17) Rs.39,85,650 =========
Further, a sum of Rs.30,000/- is awarded to the mother of the deceased towards `loss of filial compensation’ and a sum of Rs.30,000/- to the sister
27 of deceased towards `loss of love and affection’. A sum of Rs.15,000/- towards `loss of estate’ and another sum of Rs.15,000/- towards `funeral expenses’. Thus, total compensation would be (Rs.39,85,650+90,000) Rs.40,75,650/-. The same shall carry interest at the rate of 6% p.a. from the date of claim petition till realization instead of 9% p.a. as awarded by the Tribunal. Point No.2 is accordingly answered.
Out of the total compensation with interest, 80% shall be apportioned to the mother and 20% to the sister of the deceased.
60% of the total compensation with interest shall be deposited by the mother of the deceased in any Post Office or Nationalised or Scheduled Bank for an initial period of five years. First appellant shall be entitled to withdraw periodical interest. Balance compensation shall be released to first appellant on proper identification.
50% of the compensation with interest awarded to the sister of the deceased shall be deposited in any Post Office or Nationalised or Scheduled Bank for an initial period of three years. Second appellant shall be entitled to withdraw periodical interest on the said deposit. Balance compensation shall be released to second appellant on proper identification.
At this stage, learned counsel for the appellants submits that the mother of the deceased is suffering from Cancer and therefore in the interest of the appellants, the compensation apportioned to the mother of the deceased may be deposited in the joint account of both the appellants with right to receive interest thereon given only to the mother of the appellant No.2. Said submission is accepted and accordingly the direction is issued.
29 22. Thus, the appeal filed by the claimants is allowed in part.
The respondent-insurer shall deposit the reassessed compensation with upto date interest excluding the amount already deposited within four weeks from the date of receipt of the certified copy of this Judgment. Parties to bear their respective costs.
In view of the disposal of the appeal I.A.1/2019 stands disposed.
Sd/-
JUDGE
Sd/- JUDGE
SBN