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Judgment
K.N. Keshavanarayana, J.—M.F.A. No. 30081/2011 & M.F.A. No. 31658/2011 are directed against the judgment and award dated 14.07.2010 passed by the Principal Civil Judge (Sr. Dn.) and MACT, Gulbarga in MVC No. 930/2009 while M.F.A. No. 302238/2011 is directed against the judgment and award dated 26.10.2010 passed by the 3rd Additional Civil Judge (Sr. Dn.) and MACT, Gulbarga in MVC No. 595/2009. The two claim petitions arose out of the motor vehicle accident that occurred at about 8.00 p.m. on 26.08.2009 involving the motor cycle bearing registration No. KA-36-A-9285 and a tanker bearing registration No. KA-32-3856 near Panegaoun Cross on Gulbarga-Jewargi main road.
MVC No. 930/2009 was filed by the legal representatives viz., wife, children and mother of the deceased Raj Ahmed who was the rider of the motor cycle and died at the spot, u/s 166 of the M.V. Act seeking compensation of Rs. 25,00,000/-
MVC No. 595/2009 was filed by Sharanappa claiming compensation of Rs. 6,50,000/- for the personal injuries sustained by him. He was stated to be the pillion rider of the motor cycle. In both the claim petitions it was contended that the deceased Raj Ahmed and Sharanappa were proceeding on the motor cycle, and while they were so proceeding on Gulbarga-Jewargi Main Road, near Panagaon cross, the tanker, which came from the opposite direction driven by its driver in a rash and negligent manner dashed against the motor cycle resulting in severe injuries to both the rider and the pillion rider of the motor cycle and the rider succumbed to the injuries at the spot itself, while the injured Sharanappa was shifted to hospital for treatment. Thus, according to the claimants in both these petitions, the accident was solely due to the negligence of the driver of the tanker.
The claimants in MVC No. 930/09 further contended that the deceased Raj Ahmed was carrying on a hotel business and was earning not less than Rs. 500/- per day from the said business and in addition, he was also earning annual income of Rs. 3 Lakhs from the agricultural lands and that he was the only bread earner of the family. The claimant in MVC No. 595/2009 further contended that in spite of the best treatment he has suffered permanent disability, which has affected his future earning capacity.
The claim petitions, pending before different tribunals were contested by the owner and insurer of the tanker. The owner of the tanker denied the case of the claimants that the accident was due to the negligence of the driver of the tanker. However, he contended that the tanker is validly insured and therefore, he is entitled to be indemnified by the insurer. The insurer though admitted the issuance of policy and its validity as on the date of the accident contended that at the time of the accident the driver who was on the wheels of the vehicle did not possess a valid and effective licence to drive the class of vehicle involved in the accident and therefore, the insurer is not liable to indemnify the insured. It was further contended that the vehicle being a oil tanker used for transporting dangerous and hazardous substance, the person driving such vehicle should be authorized to drive such vehicle and since the driver of the vehicle did not possess such authorization, the insured has committed violation of the terms and conditions of the policy, as such the insurer is entitled to be absolved from its liability. Therefore, the insurer sought for dismissal of the claim petitions.
The Tribunal in both the claim petitions recorded oral evidence led by the parties and on assessment of oral and documentary evidence, the Tribunal in MVC No. 930/2009 after answering the issue raised regarding actionable negligence in the affirmative holding that the accident was solely due to the negligence of the driver of the tanker and as a result of the said accident the rider of the motor cycle Raj Ahmed died, proceeded to hold that the driver of the vehicle possessed licence to drive heavy goods vehicle and that he was not disqualified from holding any licence to drive the heavy goods vehicle, therefore, the insurance company has failed to prove that respondent No. 1-the driver was not holding a valid and effective driving licence. Therefore, the Tribunal held that the insurer is liable to indemnify the insured. The Tribunal by reckoning the monthly earning of the deceased Raj Ahmed at Rs. 4,500/- p.m. and by deducting 1/4th of the same towards personal expenses of the deceased and by applying the multiplier of 15 with reference to the age of the deceased, quantified the loss of earning at Rs. 6,07,500/-. To this the Tribunal added a sum. Of Rs. 10,000/- towards loss of consortium, a sum of Rs. 10,000/- towards loss love and affection and a sum of Rs. 5,000/- towards funeral expenses. Thus, in all the Tribunal awarded a total compensation of Rs. 6,32,500/- and directed the insurer of the offending vehicle to pay the said amount with interest at 6% p.a. from the date of petition till the date of payment. However, in MVC No. 595/2009, the Tribunal on assessment of the oral and documentary evidence, though answered the issue regarding actionable negligence in the affirmative holding that the accident was solely due to the negligence of the driver of the tanker, having regard to the class of vehicle, which the driver of the vehicle was authorized to drive and in the light of the Proviso to clause (a) of Section 14(2) of the M.V. Act proceeded to hold that since the vehicle in question was a goods carriage used for transporting dangerous and hazardous substance and to drive such vehicle the driver is required to have endorsement authorizing him to drive such vehicle and since the driver of the offending vehicle did not possess such endorsement, proceeded to hold that the insurer is not liable to indemnify the insured, therefore, exonerated the insurance company from the liability. Consequently, dismissed the claim petition as against the insurer and directed the compensation determined at Rs. 1,71,053/- to be paid by respondent No. 2-owner of the vehicle with interest at 6% p.a. from the date of petition till the date of payment.
Aggrieved by the judgment and award passed in MVC No. 595/2009 exonerating the insurer from its liability, the owner of the offending vehicle has preferred MFA No. 30238/2011. Aggrieved by fastening the liability on the insurer to pay the compensation in MVC No. 930/2009, the insurer has preferred MFA No. 30081/2011. Being dissatisfied with the quantum of compensation, the claimants in MVC No. 930/2009 have preferred MFA 31658/2011. In view of the above, all these appeals were heard together and are being disposed of by this common judgment.
I have heard Mr. Shivanand Patil, learned counsel appearing for the insurance company, the appellant in MFA No. 30081/2011 and the respondent in the other two appeals; Mr. Babu H. Metagudda, learned counsel for the appellant in MFA No. 30328/2011 and the respondents in the other two appeals. Mr. Liyaqat Fareed Ustad, counsel appearing for appellant in MFA No. 31658/2011 and the respondents in MFA No. 30081/2011 as well as Mr. Santosh R. Belamgi, learned counsel appearing for the claimants in MFA No. 30238/2011 are absent.
Mr. Shivanand Patil, learned counsel appearing for the insurance company vehemently contended that the evidence placed on record of both the claim petitions clearly establishes that the offending vehicle is an oil tanker used for transportation of dangerous or hazardous substance and the licence possessed by the driver of the offending vehicle at the time of the accident authorized him only to drive heavy goods vehicle without there being further endorsement authorizing him to drive goods carriage used for transportation of dangerous or hazardous substance. Learned counsel by drawing attention of the Court to Rule 9 of the Central Motor Vehicles Rules, 1989 and in particular to Sub Rules (2) and (3) contended that such an endorsement authorizing the licencee to drive a goods carriage carrying goods of dangerous or hazardous nature to human life is very much necessary and in the absence of such endorsement, the driver did not posses a valid and effective licence to drive the class of vehicle involved in the accident. Therefore, the learned counsel contended that the Tribunal in MVC No. 595/2009 is justified in exonerating the insurer while the Tribunal in MVC No. 930/2009 has committed error in fastening the liability on the insurer. Therefore, he sought for allowing the appeal filed by the insurer and to dismiss the appeal filed by the owner of the offending vehicle.
On the other hand, Mr. Babu H. Metagudda, learned counsel appearing for the owner of the offending vehicle sought to contend that the offending vehicle is registered only as a tanker and that there is no material on record to indicate that the vehicle was being used for transportation of the dangerous or hazardous substance and therefore, the driver at the time of the accident was possessing a valid and effective licence to drive heavy goods vehicle, as such, the insurer is liable to indemnify the insured. He further contended that assuming for the purpose of argument that the vehicle in question was being used for transportation of dangerous or hazardous substance, even according to the evidence collected by the police during investigation and produced along with charge sheet, at the time of the accident the vehicle was not carrying any dangerous or hazardous substance since it was going back to the place of origin after unloading the product transported and therefore, it cannot be said that at the time of the accident the vehicle was being used for transporting dangerous or hazardous substance requiring the driver to have an endorsement authorizing him to drive such vehicle.
In the facts and circumstances of the case and in the light of the submissions made by the learned counsel on both the sides, the points that arise for consideration in these appeals are:
(i) Whether the offending vehicle was a goods vehicle used for transportation of dangerous or hazardous substances?
(ii) Whether the driver of the offending vehicle on the wheels at the time of accident possessed a valid and effective driving licence to drive such class of vehicle?
(iii) Whether the insurer of the offending vehicle is liable to indemnify the insured?
(iv) Whether the claimant in MVC No. 930/2009 is entitled for enhancement of compensation?
As noticed supra, the accident occurring on account of the collision between the motor cycle bearing registration No. KA-36-J-9285 and the Tanker bearing registration No. KA-32-3856 is not in dispute. The factum of death of Raj Ahmed, rider of the motor cycle at the spot and Sharanappa S/o Honnappa Gadasi, pillion rider on the two wheeler sustaining injuries are also not in dispute. As noticed supra, there is divergent finding by the two Tribunals regarding the liability of the insurer. The finding of the Tribunals on the issue regarding actionable negligence has not been seriously disputed in any of these appeals.
Learned counsel for the owner of the offending vehicle produced a copy of the registration certificate in respect of the offending vehicle. According to the registration certificate, the description of the vehicle is shown as Tanker. The owner of the vehicle in the statement of objections filed by him has not contended that the Tanker was not used for transportation of dangerous or hazardous substance. The insurer of the vehicle in its objections contended that the vehicle is a goods carriage adopted for the purpose of transportation of dangerous or hazardous substance. The officer of the insurer examined as R.W. 1 in both the cases has asserted that the vehicle is an oil tanker used for transportation of petroleum products. The said evidence on the part of R.W. 1 has not been controverted nor challenged in the cross-examination. Owner of the offending vehicle though represented by his counsel has not chosen to cross-examine R.W. 1. Thus, the evidence of R.W. 1 in this regard has remained unchallenged. In addition to this, as could be seen from the copies of the charge sheet papers, it is clear that during the investigation of criminal case by the Police, the owner of the offending vehicle said to have made statement before the Investigating Officer wherein he has stated that in the afternoon of 26.03.2009, the tanker in question was loaded with petrol at Gulbarga and the vehicle was sent to Shahapur for unloading petrol and the accident occurred while coming back to Gulbarga after unloading petrol at Shahapur. The owner of the offending vehicle has not entered witness box to explain as to whether he did not make any such statement nor has come out with any explanation as to under what circumstances he made such statement. Therefore, there is no difficulty in placing reliance on the said statement of the owner of the offending vehicle. Thus, from the above it is clearly established that the vehicle in question described as tanker in the registration certificate was a goods carriage used for transportation of dangerous or hazardous substance.
Table - III annexed to Central Motor Vehicles Rules, 1989 sets out list of hazardous goods. Petroleum crude oil is at Sl. No. 1656. From the statement of the owner, it is clear that the vehicle on the date of the accident carried petrol from Gulbarga to Shahapur. Therefore, the vehicle in question was a goods carriage used for transportation of dangerous or hazardous substance. Hence, point No. 1 is answered accordingly.
There is no dispute that the offending vehicle was driven at the time of the accident by one Saibanna S/o Bhimarao Talwar, R/o Shivaji Chowk, Naldarg, Taluk Tuljapur, Usmanabad District, Maharashtra State. The copy of the driving licence of Saibanna produced before the Tribunal as referred to in the judgments under appeal authorized the driver to drive the Light Motor Vehicle (non-transport) from 10.07.2006 to 11.08.2024 and HGV from 14.12.2008 to 13.12.2011. The accident occurred on 26.03.2009. Thus, from the above, it is clear that as on the date of the accident, the driver possessed a licence to drive a heavy goods vehicle. The question for consideration is whether this licence authorized the driver to drive class of vehicle involved in the accident i.e., goods carriage used for transportation of dangerous or hazardous substance. Section 14 of the Motor Vehicles Act deals with currency of licences to drive motor vehicles. According to subsection (2) of Section 14 of the Act, a driving licence issued or renewed under the Act in case of licence to drive the transport vehicle, be effective for a period of three years. Proviso to clause (a) of sub-section (2) states that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be 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. Reading of this proviso makes it clear that whenever a licence is issued to drive a transport vehicle carrying goods of dangerous or hazardous nature, its currency would be for one year and renewal thereafter would be subject to conditions laid down therein. In the case on hand, as noticed supra, authorization to drive HGV was from 14.12.2008 to 13.12.2011. From this it is clear that the licensee authorized to drive heavy goods vehicle only since its currency was for three years. If the licence authorized the licensee to drive a transport vehicle carrying goods of dangerous or hazardous nature, its currency ought to have been for a period of one year only. This circumstance would clearly indicate that the licence issued to Saibanna did not authorize him to drive a transport vehicle carrying goods of dangerous or hazardous nature.
Rule 131 of the Central Motor Vehicles Rules, 1989 states that it shall be the responsibility of the consignor intending to transport any dangerous or hazardous goods listed in Table - III, to ensure, apart from other things, that the driver of the goods carriage is trained in handling the dangers posed during transport of such goods. Rule 132(3) of the said Rules further directs that the owner of the goods carriage shall ensure that the driver of such carriage is given all the relevant information in writing as given in Annexure-V of the rules in relation to dangerous or hazardous goods entrusted to him for transport and satisfy himself that such driver has sufficient understanding of the nature of such goods and the nature of the risks involved in the transport of such goods and is capable of taking appropriate action in case of an emergency. Sub-rule (5) of Rule 132 directs that it shall be the duty of the owner to ensure that the driver of the goods carriage carrying dangerous or hazardous goods holds a driving licence as per provisions of Rule 9. Sub-rule (1) of Rule 9 of the rules sets out education qualification for drivers of goods carriages carrying dangerous or hazardous goods. According to sub-rule (2) of Rule 9, the holder of a driving licence possessing minimum educational qualification or the certificate referred to in sub-rule (1), shall make an application in writing on a plain paper along with his driving licence and the relevant certificate to the licensing authority in whose jurisdiction he resides for making necessary entries in his driving licence. As per sub-rule (3) the licensing authority, on receipt of the application referred to in sub-rule (2), shall make an endorsement in the driving licence of the applicant to that effect that he is authorized to drive a goods carriage carrying goods of dangerous or hazardous nature to human life. Sub-rule (4) of Rule 9 states that if the licensing authority making such endorsement is one other than the original licensing authority, it shall communicate the said fact to the original licensing authority. Thus, from the above it is clear that to drive a goods carriage or a transport vehicle carrying substance of dangerous or hazardous nature would require a special authorization in addition to the licence to dive any other category of the vehicle. As noticed supra, in the case on hand, the driver of the offending vehicle at the time of the accident did not possess such an endorsement and he was merely authorized to drive HGV. Therefore, he could not have been driven the goods carriage used for transporting substance of dangerous or hazardous nature. Of-course, as noticed supra, according to the statement of the owner before the Police, on the date of the accident, the vehicle was loaded with petrol in Gulbarga and was sent to Shahapur for unloading and the accident occurred while returning to Gulbarga after unloading. From this it may be said that at the time of the accident, vehicle was not loaded with petroleum products nor with any other substance of dangerous or hazardous nature. Nevertheless, the fact remains that the vehicle when loaded with petroleum products was entrusted to said Saibanna for being driven to Shahapur for unloading. Thus, the very entrustment of the vehicle to Saibanna by the owner when the said driver did not possess an endorsement authorizing him to drive the said vehicle itself was opposed to the law and in violation of terms and conditions of the policy. Under these circumstances, in my considered opinion, the offending vehicle, at the time of the accident, was still a vehicle used for transportation of substance of dangerous or hazardous nature and the driver required an authorization to drive such vehicle. In view of the fact that admittedly, the driver Saibanna did not possess such authorization, the insured is guilty of committing violation of terms and conditions of the policy. Therefore, the insurer cannot be fastened with the liability of indemnifying the insured. A single Bench of Madras High Court in the case of Nagamani and Venkatesan Vs. Singaravelu and National Insurance Company Limited referred to by the Tribunal in its judgment in MVC No. 595/2009, while considering the question whether, in the absence of specific authorization, authorizing the licencee to drive a transport vehicle carrying dangerous or hazardous substance, the insurer is liable to indemnify the insured has held that in such circumstances, the insurer cannot be held liable.
In this view of the matter, the Tribunal in MVC No. 595/2009 is justified in exonerating the insurer from the liability, while the Tribunal in MVC No. 930/2009 is not justified in fastening the liability on the insurer. Therefore the points 2 and 3 are answered accordingly. In this view of the matter, the appeal filed by the insurer deserves to be allowed while the appeal filed by the owner of the offending vehicle is liable to be dismissed.
In the appeal by the claimants in MVC No. 930/2009, they have contended that the compensation determined by the Tribunal towards loss of earning is on the lower side. According to them the Tribunal is not justified in reckoning the monthly income of the deceased at Rs. 4.500/-. Perusal of the evidence on record in MVC No. 930/2009 indicates that except the oral statement of the claimants, as to the vocation of the deceased and his earning, no other acceptable evidence is placed on record, to indicate that the deceased was running a hotel and earning a sum of Rs. 500/- per day and that he was earning Rs. 3,00,000/- per annum from the agricultural lands. Ex. P15 is stated to be the Trade Licence issued by Gulbarga City Corporation on 26.08.2008 to the deceased for running the hotel. As could be seen from the said document, it is noticed that there are lot of corrections and over writing. The printed form of the licence was for the year 2002-03 and the same has been struck off and at its place 2008-09 is written in ink. Similarly, the period for which the licence is granted, though it is printed as from 01.04.2002 to 31.03.2003 it is corrected as 2008-09 both in Kannada and English. Except producing this licence, no other documentary evidence is produced to show as to whether the deceased was running the hotel and as to what was his income. Therefore no reliance can be placed on the said documents. Ex. P17 is an RTC extract in respect of land bearing Sy. No. 24/3 standing in the name of Rajasaheb S/o Mattamma Yalasangi, measuring 4 acres 16 guntas. Ex. P17 does not clearly indicate as to the nature of the land and what kinds of crop/s being grown in the said land. Assuming that this land was owned by the deceased, having regard to the extent of land, the statement of the claimant that the deceased was getting an annual income of Rs. 3,00,000/- from the said land cannot be believed. The land is still available to the family, and what is lost is the service rendered by the deceased. The Tribunal has quantified the said service of the deceased as also the income from other sources totally at Rs. 4,500/-.
Regard being had to the fact that the accident occurred in the year 2009, the Tribunal has assessed the monthly income of the deceased at Rs. 4,500/-. In my opinion, the said quantification cannot be faulted on any ground. The deceased has left behind his wife, one son who had just attained majority, another minor son and aged mother. Therefore, the Tribunal has rightly taken the number of dependents as 4, as such, deduction towards personal and living expenses at � of the monthly income is in accordance with principles laid down in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . The multiplier of 15 has been rightly adopted having regard to the age of the deceased. Therefore loss of dependency/earning of the deceased has been correctly quantified as Rs. 6,07,500/-. I find no error committed by the Tribunal in reckoning the monthly income of the deceased nor quantum of compensation calls for enhancement as sought to be made out by the claimants or reduction as sought to be made out by the owner. The compensation awarded under the conventional head are just and proper therefore the appeal by the claimants has no merit and therefore, is liable to be dismissed. In the result, MFA No. 30081/2011 is allowed. The judgment and award dated 14.07.2010 passed in MVC No. 930/2009 by Prl. Civil Judge (Sr. Dn) & MACT Gulbarga, in so far as it relates to saddling liability of satisfying the award on the appellant-insurer is hereby set aside. The claim petition in M.V.C. No. 930/2009 as against insurer is dismissed. However, the claimants are entitled to recover the compensation amount determined by the Tribunal from the owner of the offending vehicle. In all other respects the award left undisturbed. MFA Nos. 31658/2011 filed by the claimants in MVC No. 930/2009, and 30238/2011 filed by the owner of the offending vehicle are dismissed.
The amount in deposit, if any in MFA 30081/2011 is ordered to be refunded to the appellant-insurer.
The statutory amount in deposit in MFA 30238/2011 is ordered to be transmitted to the Tribunal concerned.