IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON'BLE MR.JUSTICE N.ANANDA

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Walter Norton
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1 - 1 - IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 31 st DAY OF JULY 2014 BEFORE THE HON'BLE MR.JUSTICE N.ANANDA M.F.A. No.3845/2012(MV) BETWEEN: Thyanna, S/o.Chandrappa Aged about 32 years, Occ:Agricultural Coolie R/o.Nannivala Village Challakere Taluk Now R/o.Kelagote, Ist Cross Chitradurga District. APPELLANT (By Sri.Kumara.K.G., for Sri.G.Shankar Goud, Advocate) AND: 1.A. Ravikumar, 31 years, S/o.N. Anjinappa, Owner of the Hitachi NO.70, Engine No.0702/05 R/o.9 th Ward, Sapthagiri Nivas, Behind Housing Board Colony Challakere Taluk Chitradurga District. 2.The Branch Manager, New India Assurance Co., Ltd., Opp.Nanjundeshwara Petrol Bunk Davanagere Road, Chitradurga. RESPONDENTS (By Sri.Spoorthy Hegde, Adv. for R-1 Sri.D.S. Sridhar, Adv. for R-2) This appeal is filed under Section 173(1) of M.V. Act against the judgment and award dated passed in MVC.No.476/09 on the file of Civil Judge (Sr.Dn) and Additional MACT, Chitradurga, dismissing the claim petition as not maintainable. This appeal coming on for admission this day, the court delivered the following:-

2 - 2 - JUDGMENT The matter is listed for admission. Lower Court records are received. With the consent of learned counsel for parties, it is taken up for final disposal. 2. The Tribunal has dismissed the claim petition by holding that vehicle viz Tata Hitachi Hydraulic Excavator involved in accident is not a motor vehicle. Therefore, provisions of the Motor Vehicles Act are not applicable. The Tribunal has relied on the judgment of the Supreme Court in the case of Bolani Ores Limited.vs. State of Orissa, wherein it is held:- The question would then arise, are dumpers, rockers and tractors suitable or fit for use on roads? It is not denied, that these vehicles are not on pheumatic wheels and can be moved about from place to place with mechanical power. The word vehicle itself connotes that it is a contrivance which moves a vehicle which merely moves from one place to another need not necessarily be a motor vehicle within the meaning of Section 2(18) of the Act. It may move on iron flats

3 - 3 - made into a chain such as a caterpillar vehicle or a military tank. Both move from one place to another but are not suitable for use on roads. It is not that they cannot move on the roads but they are not adopted, made fir or suitable for use on roads. They would, if used, dig and damage the roads. 3. In the aforestated judgment, the Supreme Court referring to dumpers, rockers and military tank has held though the vehicles are self propelled vehicles they are not suitable for use on roads. In the case on hand, the vehicle involved in the accident is Tata Hitachi Hydraulic Excavator, which is a self propelled vehicle. 4. The learned counsel for claimant referring to definition of motor vehicle under Rule 2(ca) would submit that construction equipment vehicle which includes escavator is a motor vehicle under the Act. Rule 2(ca) of the Central Motor Vehicles Act, 1989, reads thus:-

4 - 4-2(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, fork 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 offhighway 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.

5 - 5 - The learned Judge of the Tribunal without referring to the definition of the motor vehicle under Central Motor Vehicles Rules, 1989 has held that Tata Hitachi Hydraulic Excavator is not a motor vehicle. In my considered opinion, this finding of the Tribunal is erroneous. 5. In the result, I pass following:- ORDER The appeal is accepted. The impugned judgment of the Tribunal is set aside and the matter is remanded to the Tribunal for reconsideration in the light of the observations made herein and in accordance with law. Parties are at liberty to adduce evidence. Office is directed to send back records along with a copy of this judgment to Tribunal. *alb/-. SD/- JUDGE.

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

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,