IN THE HIGH COURT OF KARNATAKA, BANGALORE :BEFORE: THE HON BLE MR.JUSTICE K.N. PHANEENDRA MISCELLANIOUS FIRST APPEAL NO.5643/2010

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 11 TH DAY OF AUGUST, 2014 :BEFORE: THE HON BLE MR.JUSTICE K.N. PHANEENDRA MISCELLANIOUS FIRST APPEAL NO.5643/2010 BETWEEN: THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., 1 ST CROSS GARDEN AREA, VINAYAKA COMPLEX, SHIMOGA. THROUGH ITS BANGALORE REGIONAL OFFICE, NO.44 & 45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE. REP. BY ITS REGIONAL MANAGER.... APPELLANT (BY SRI. S.V.HEGDE MULKHAND, ADV.,) AND: 1. SHAFFIULLA S/O DILSHAD, AGED ABOUT 30 YEARS, COOLIE, R/O AND POST 2 ND CROSS, AZADNAGAR, SHIMOGA. 2. RAHAMATHULLA S/O SABUSAB, AGED ABOUT 33 YEARS, R/O CLERTPET ALI MANZIL, 2 ND CROSS, AZADNAGAR, SHIMOGA. 3. AZGHAR MAHADI S/O SAXIQ AZEEZ, MAJOR IN AGE, ALI MANZIL, 2 ND CROSS, AZADNAGAR, SHIMOGA.... RESPONDENTS (BY SRI. R1-3 HELD SUFFICIENT) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: PASSED IN MVC NO.488/2007 ON THE FILE OF THE DISTRICT JUDGE, ADDITIONAL MACT-II, I FAST TRACK COURT, SHIMOGA, AWARDING A COMPENSATION OF `.42,500/- WITH 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.

2 2 THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: J U D G M E N T The aggrieved Insurance Company, the appellant herein is challenging the judgment and award passed in MVC No.488/2007 on the file of the District Judge and Addl. MACT-II, I Fast Track Court, Shimoga, questioning the fastening of the liability and directing to deposit the entire amount within 30 days from the date of the award, on the appellant. 2. The records disclose that though notices were issued to the first respondent rider, second respondent owner of the TVS Star vehicle bearing Regn. No.KA-14/V which is involved in the accident, they remained absent before the Tribunal and they were placed exparte. The third respondent Insurance Company, the appellant herein is the only contesting respondent before the Tribunal. 3. The appellant has challenged the award only on the ground that the rider of the motor cycle was not

3 3 possessing valid driving licence, in order to drive two wheeler motor cycle, which met with an accident. 4. The learned counsel for the appellant drawn my attention to the document produced before the Tribunal marked at Ex.R1 - Driving Licence Extract, stating that the rider of the vehicle Sri Rahamathulla was possessing licence to drive LMV(NT) and HTV. But, this document does not establish that he had a licence to drive two wheeler i.e., motor-cycle as on the date of the accident. 5. The Insurance Company, in its written statement at paragraph 8 has specifically taken the contention that the first respondent did not possess valid driving licence to drive the vehicle on the alleged date of accident and the second respondent had entrusted the said vehicle to the first respondent knowing fully well that the first respondent was not holding valid and effective driving licence to drive the vehicle which was involved in the incident. Hence, there is breach of policy condition and hence this respondent is not liable to pay any compensation.

4 4 6. The Tribunal has exhaustively discussed this particular aspect at paragraph 12 of its judgment and ultimately came to the conclusion relying upon the provisions of Section 2(21) and 2(26) of the Motor Vehicles Act (hereinafter referred to as MV Act for short) and also relying upon several rulings of the High Court and the Hon'ble Supreme Court, that a person who has licence to drive HTV and also LMV can also drive the motor-cycle though it is classified as a different type of vehicle. The said findings of the Tribunal is seriously questioned in this appeal. 7. Before adverting to the contentions taken up by the learned counsel for the appellant, it is just and necessary for this Court to bear in mind the provisions relied upon by the Tribunal u/s.2(21) and 2(26) of the Motor Vehicles Act, which reads thus: 2(21) light motor vehicle means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed (7,500) kilograms;

5 5 2(26) motor car means any motor vehicle other than a transport vehicle, omnibus, roadroller, tractor, motor cycle or invalid carriage; 7. The aforementioned two definitions shall not be read conjunctively, but that should be read as disjunctively. The definition given in the Motor Vehicles Act u/s.2(21) and 2(26) of the Act, does not say anything about the classification of the motor-cycle. It only refers to the description of LMV and also motor cars. Even on meaningful understanding and reading of the above said two provisions, at any stretch of imagination it can be said that, those definitions can also include the definition of motorcycle. Therefore, a separate provision is made u/s.2(27) of the Act providing the definition of motor-cycle which is defined as - 2(27) motor cycle means a two-wheeled motor vehicle, inclusive of any detachable sidecar having an extra wheel, attached to the motorvehicle;. If any vehicle does not fall under this particular category, at any stretch of imagination, it can be called as a motor-cycle. Therefore, the Tribunal has committed an error in drawing

6 6 an inference that these two definitions u/s.2(21) and 2(26) of the MV Act also include the motor-cycle, when there is a specific definition for motor-cycle u/s.2(27) of the Act, is given. 8. The Tribunal has also relied upon a decision reported in 2003(4) Civil Law Journal 598 Kar., wherein this Court has held that A person holding driving licence for LMV is also competent to drive Motor vehicle with gear Further liability to third party not affected by any of the conditions in the policy of Insurance Insurance Company was not absolved from liability to pay compensation to claimant third party. It is further observed that Breach of specific condition of the policy also not stated Failure to show that rider was disqualified to hold or obtain driving licence for motor-cycle with gears. 9. The Tribunal also relied upon another decision reported in 2002(2) Civil Law Journal 515 Kar., wherein, this Court has observed that -

7 7 Section 149 Accident by Trekker while carrying passenger Driver had licence to drive light motor vehicle Trekker not shown to be of more than 7500 kilograms weight Trekker came within the definition of light motor vehicle Insurance Company could not avoid the liability to pay compensation on mere absence of endorsement enabling the driver to carry passengers. 10. The Tribunal has relied upon another ruling of the Hon'ble Apex Court reported in AIR 2008 SCW 906, wherein, the Hon'ble Apex Court has observed that - A Light Goods Carriage indicates both a transport vehicle and a non-transport vehicle Transport vehicle has now been substituted for medium goods vehicle and heavy goods vehicle Light Motor Vehicle (LMV) cover both Light passenger carriage vehicle and light goods carriage vehicle Driver having driving licence of LMV authorized to drive a light goods vehicle as well. 11. Therefore, in my opinion, the above said rulings are not exactly in a straight jacket manner applicable to the facts and circumstances of this particular case. In all the

8 8 decisions cited supra, the person who is having driving licence to drive LMV, driven the vehicle which was on par with or equivalent to that of LMV. Therefore, the Court has held that such driving licence is sufficient to drive the similar type of vehicle if the weight of the vehicle is less than 7,500 kgs. 12. In the present case, the facts and circumstances are altogether different. Here, at any stretch of imagination, the motor-cycle can be categorized either as LMV or as HMV. When separate and distinct definition has been given, the law should be applied depending upon the facts and circumstances of each case. 13. In this background, the learned counsel for the appellant has relied upon a decision of the Hon'ble Apex Court reported in 2008 ACJ 1928 between Oriental Insurance Company Ltd., Vs. Zaharulnisha and others, where the similar factual matrix and legal points were involved. The Head Note of the said decision of the Hon'ble Apex Court reads thus:

9 [[[[ 9 Section 149(2)(a)(ii) read with Section 10(2) Motor Insurance Driving Licence, Liability of Insurance Company - Driver had licence to drive HMV, but he was driving two -wheeler scooter which hit a cyclist and the cyclist sustained fatal injuries - Whether the driver had valid and effective licence and Insurance Company is liable and the court has held that the Insurance Company is not liable further held that the driver was driving a different class of vehicle in violation of Section 10(2); Insurance Company directed to satisfy the award and shall have right to recover the amount from the owner. 14. In view of the above ruling of the Apex Court, I do not want to discuss much about the other provisions cited by the learned counsel for the appellant with regard to the description of the Motor Vehicle with gear/without gear, invalid carriage and etc., The above ruling in fact clears the doubt that though the person having a driving licence to drive a Heavy Motor Vehicle that does not ipsofacto empowers him to drive the vehicle which is classified as motor-cycle. If the vehicles are of similar type and if the vehicles are classified as equivalent, are not specifically

10 10 mentioned in the statute, then such driving licence can be used for the purpose of driving such vehicle, but not that categories differently classified by the statute. 15. It is just and necessary to quote the rulings of the Hon'ble Apex Court in the case of National Insurance Co.Ltd., Vs. Swaran Singh reported in 2004 ACJ 1(SC), relied upon by the learned counsel for the appellant. Paragraph 41 of the said decision reads thus (41) If a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have no licence for driving another type of vehicle which is of the same category but of different type. As for example, when a person is granted a licence for driving a light motor vehicle, he can drive either a car or a jeep and it is not necessary that he must have driving licence both for car and jeep separately. (Emphasis supplied) 16. Having analysed such distinction in the Swaran Singh s case, the Hon'ble Apex Court in the decision cited above reported in 2008 ACJ 1928, on fact held that a person holding a driving licence of HMV cannot drive a motor

11 11 cycle. The facts involved in the said decision also play an important role in order to decide the present case. The facts of the said case are as follows: On at about 6.00 p.m., one Shukurullah was going from Kasya Courts to his village Shivpur on a bicycle. A two-wheeler scooter, bearing registration No.UP , being driven by one Ram Surat in a rash and negligent manner hit Shukurullah near Sapha, P.S. Kasya and as a result thereof, Shukurullah sustained grievous injuries and died. At paragraph 4 of the said judgment, it is also observed that The driver Ram Surat was holding licence for driving a heavy motor vehicle (HMV) only, therefore, he had no valid licence to drive a twowheeler scooter which is totally a different class of vehicle in terms of section 10 of the Motor Vehicles Act, The contention of the Insurance Company was up-held by the Hon'ble Apex Court observing that a person having driving licence to drive HMV cannot said to possess a driving licence impliedly to drive a motor-cycle or any other type of vehicle which is not equivalent to any Heavy Motor

12 12 Vehicle. In view of the aforesaid rulings of the Hon'ble Apex Court, I have absolutely no doubt to say that the Tribunal has committed a serious error in fastening liability on the Insurance Company. 18. In the aforesaid decision of the Hon'ble Apex Court, at Paragraph 18, the Hon'ble Apex Court has categorically held that In the light of the above settled proposition of law, the appellant insurance company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of scooter by Ram Surat who admittedly had no valid and effective licence to drive the vehicle on the day of accident. The scooterist was possessing driving licence of driving HMV and he was driving totally different class of vehicle. By saying so, the Hon'ble Apex Court at paragraph 19 has also held that In the result, the appeal is allowed to the limited extent and it is directed that the appellant insurance company though not liable to pay the

13 13 amount of compensation, but in the nature of this case, it shall satisfy the award and shall have the right to recover the amount deposited by it along with interest from the owner of the vehicle viz., respondent No.8 particularly in view of the fact that no appeal was preferred by him nor has he chosen to appear before this court to contest this appeal. This direction is given in the light of the judgments of this Court in National Insurance Co.Ltd., Vs. Baljit Kaur, 2004 ACJ 428 (SC) and Daddappa Vs. Branch Manager, National Insurance Co.Ltd., 2008 ACJ 581 (SC). 19. The learned counsel for the appellant has strenuously contended that the judgment rendered by the Hon'ble Apex Court in the case of Baljit Kaur, the law was not settled but in subsequent ruling of the Hon'ble Apex Court in Swaran Singh s Case, cited supra, law has been settled that the Insurance Company is not liable to pay compensation, when the conditions of the policy has been violated by the owner of the vehicle in letting the vehicle to a person to drive the vehicle without valid licence. Therefore, he contended before this Court that the Hon'ble Apex Court by exercising its extraordinary power under Article 142 of

14 14 the Constitution of India and in the facts and circumstances of that case, directed the Insurance Company to pay and recover the compensation from the owner of the vehicle. Therefore, the observations of the Hon'ble Apex Court cannot be taken as the law laid down or it cannot have any precedential value. 20. In view of the facts and circumstances of this particular case, I differ from the submissions made by the learned counsel for the appellant Insurance Company, for the simple reason that though law has been laid down in Swaran Singh s case in the year 2004 itself, there was still some confusion with regard to pay and recover principle. Therefore, in the decision of Baljit Kaur s case cited supra, pay and recovery order has been passed. But if that were to be correct proposition, in the year 2008 when both the rulings are available, depending upon the facts of that particular case, the Court has directed the Insurance Company to pay and recover. The facts of this particular case is totally tallies and similar to that of the facts dealt with by the Hon'ble Apex Court. Further, in the said case

15 15 also, the owner of the scooter has not contested before the High Court as well as the Hon'ble Apex Court. In this particular case also, as I have already noted that the owner and the driver, though served, they remained absent and placed exparte before this Court. This was also taken note of as one of the circumstances by the Hon'ble Apex Court to make such an observation in directing the Insurance Company to pay and recover from the owner. 21. On perusal of the factual matrix of the case involved before the Hon'ble Apex Court and the present case before this Court are almost similar. There is no factual difference between the two cases. Therefore, I am of the opinion that the observation made by the Hon'ble Apex Court at paragraph 19 is applicable with all force so far as this case is concerned. Hence, I do not want to deviate from the observations made by the Hon'ble Apex Court. 22. In the result, I proceed to pass the following: ORDER The appeal is partly allowed. The judgment and award passed by the Tribunal directing the 3 rd respondent

16 16 Insurance Company to pay the award amount is hereby modified holding that the 2 nd respondent is liable to pay the award amount. However, the 3 rd respondent Insurance Company is directed to pay and recover the same from the owner of the said vehicle as per the observations of the Hon'ble Apex Court in the same proceedings by means of filing an Execution Petition. The statutory deposit made by the Insurance Company before this Court is ordered to be transmitted to the Tribunal for needful. PL SD/- JUDGE