DIVISIONAL MANAGER v. NAGAPPA S/O RUDRAPPA

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TQ: SIRAGUPPA, DIST: BELLARY.

R1.(C) SMT. RUDRAMMA W/O. YAMANOORAPPA,

AGE: 35 YEARS,

R/O: ANOGONDI VILLAGE,

TQ: GANGAVATI, DIST: KOPPAL.

2. EDIGARA RUDRA SWAMY

S/O. MUDDABASAPPA

AGE: MAJOR,

R/O KONCHIGERI VILLAGE,

TQ: SIRUGUPPA, DIST: BELLARY,

OWNER OF THE TRACTOR-TRAILER NO. KA-34/T-4161 AND 4162) …RESPONDENTS

(NOTICE SERVED TO RESPONDENT NOS. R1(A) TO

R1(C) AND R2)

THIS MISCELLANEOUS FIRST APPEAL FILED U/SEC.173(1)

OF M.V. ACT 1988, PRAYING TO CALL FOR THE RECORDS

CONNECTED WITH M.V.C. NO.202/2009 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL-IX, BELLARY, EXAMINE

THE SAME AND SET ASIDE THE AWARD DATED 28.10.2010 IN

THE INTEREST OF JUSTICE.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,

THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

Heard Shri. N.R. Kuppelur, learned counsel for the appellant-Insurance Company. There is no representation on behalf of the respondents.

2. Insurance Company is in appeal challenging the validity of judgment and award passed in MVC No.202/2009 dated 28.10.2010 on the file of Motor Accident Claims Tribunal- IX, Bellary, insofar as the liability of the Insurance Company is concerned.

3. Facts in brief which are utmost necessary for disposal of the appeal are as under:

3.1. Nagappa who is an agriculturist aged 23 years laid a claim stating that he met with a road traffic accident which occurred on 17.06.2005 while returning from his agriculture fields to Honchigeri village by walk involving tractor and trailer bearing registration No.KA-34/T-4161 and KA-34/T-4162 (for shot 'T.T.Unit') and he was taken to the Primary Health Center, Srigeri. Thereafter he was shifted to VIMS Hospital, Bellary. Ultimately he was referred to NIMAHANS hospital for higher care and he got cured of all his injuries and laid a claim.

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4. After service of notice of claim petition, respondent Nos.1 and 2 appeared before the Court and engaged their respective counsel.

5. Respondent No.3 also engaged a separate counsel and filed written statement denying the involvement of the T.T.Unit as referred to supra and also deny the claim petition averments and sought for dismissal of the claim petition.

6. Tribunal raised necessary issues and on contest allowed the claim petition in a sum of Rs. 4,24,500/- with interest at the rate of 6% per annum from the date of petition till the date of deposit recoverable by Insurance Company.

7. Being aggrieved by the same, Insurance Company is in appeal.

8. Shri. N.R. Kuppelur, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum contended that the records produced by the very claimant himself shows that history given by the claimant is that he suffered injuries by fall from bullock cart. After two years, a private complaint came to be filed which was referred to the police and charge sheet came to be filed against the driver of the TT Unit.

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9. He also invited the attention of the Court that the evidence placed on record by examining the officer of the Insurance Company shows that there is a false implication of T.T. Unit in the accident and sought for allowing the appeal.

10. Respondents though served with the notice, remained absent.

11. During the pendency of the appeal first respondent who is the claimant died and his legal representatives brought on record. They were also served with the notice of the appeal, but they also remained absent.

12. In the light of the argument put forth on behalf of the appellant, this Court perused the material on record meticulously.

13. On such perusal of the material on record, medical records produced by the claimant himself shows that he has narrated the history when he first met the Doctor that he had suffered injuries by fall from bullock cart, as is clearly visible in Ex.P.18 and Ex.R.1. History column in Ex.P.18-history sheet bearing No.320426 and also Ex.R.1 are reads as under:

"Ex.P.18: Patient was apparently normal till yesterday when he fell from

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bullock cart around 6.30 p.m., who loss of consciousness for about ½ house after the fall.

Ex.R.1: This adult make allegedly fell down from a bullock cart while returning from work at Honchigere on 18.06.2005 at

5.30 p.m. Immediately following the fall, he c/o sever low back ache and inability to move both the legs, reduced sensations before the waist and inability to pass wine or stools. He was taken to VIMS, Bellary from when he has been referred for further management."

14. Admittedly the history given before the NIMAHANS Hospital, Bengaluru is on 21.06.2005 and history given before the VIMS Hospital is on 18.06.2005.

15. Private complaint came to be filed after two years involving the T.T.Unit. When the history of incident has been narrated by the claimant when he was fully conscious and taken to the VIMS Hospital, Bellary and then to NIMAHANS Hospital, Bengaluru, later on, that too after two years involving T.T.Unit only with an intention to claim the compensation has not been properly appreciated by the learned Trial Judge.

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16. In other words, the Trial Judge ignored the contents of the Ex.P.18 and Ex.R.1 in toto while fastening the liability on the Insurance Company.

17. The Trial Judge has discussed so far as the liability aspect of the Insurance Company in paragraph No.22 which reads as under:

""22. As far as liability is concerned Respondent No.1 being the driver of the tractor and trailer bearing Reg. No.Ka-34/T-4161 and KA- 34/T-4162 which belong to respondent No.2 both are vicariously held liable to pay compensation. No doubt respondent No.3 Insurance company in their written statement have clearly admitted that, the said tractor and trailer was Insured with them having valid Insurance coverage for the period 29.04.05 to mid night of 28.04.06, policy copy is available in the file. However under the drivers clause defense is raised R.W.1 has stated that, respondent No.1 was only holding license to drive LMV it was granted for 20 years. There was no authorization on his license to drive tractor and trailer or a transport vehicle, Therefore, respondent No.2 Insured authorized the respondent No.1 to drive the vehicle who was not holding valid and effective driving license as such it is contended that, as there is violation of policy conditions Insurance company is not liable to pay any

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compensation. Learned counsel for the Insurance company issued notice to the counsel for the petitioner and respondent No.1 and 2 under order

11 Rule 16 of CPC for cause production of driving license as evidenced by Ex.R.2. Respondent No.1 and 2 have submitted one xerox copy of the driving license as evidenced by Ex.R.5 and R.3. Counsel for the petitioner replied to the said notice as per Ex.R.4 stating that, claimant is a third party and he is not a necessary party to the said notice. It is clear from the Ex.P.3 that respondent No.1 was holding license to drive LMV. Though the xerox copy was not visible however it was given valid up to 11.04.2018. Therefore, learned counsel for the Insurance company argued that, tractor is fitted with trailer as such it becomes a transport vehicle under Rule 3 of the motor vehicle rules 1988, petitioner No.1 was not authorized to drive tractor and trailer no endorsement is there en Ex.P.3 and urged that, Insurer is not liable to pay compensation and entitled to take a defense under drivers clause available under section 149(2)of IMV Act. Learned counsel for the petitioner has produced copy of the Registration Certificate pertaining to tractor and trailer bearing Reg. No. KA-24/T-4161 showing its unladan weight 1836 kgs and the R.C. of trailer bearing Reg. No. KA-34/T- 4162 unladan weight 1050 kgs. Therefore, the total unladan weight of tractor and trailer becomes in all 2886 kg., He urged that, as the unladen weight Is less than 7500 kg it falls within the category of

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vehicle light motor vehicle and the driver holding LMV license is entitled to drive the tractor and trailer. He has relied on a decision reported In AIR 2008 S.C. page 1418 in the case of National Insurance Company Ltd Vs., Annappa Irappa Nesaria wherein their lordships have clearly ruled that, under section 2(21) of the motor vehicles Act light motor vehicle was defined and under Section 2(23) defines medium goods vehicle as under.

"Light motor vehicle means a transport vehicle or Omni bus the gross vehicle weight are either of which or a motor car or tractor or road roller, the unladen weight of any of which does not exceed 7,500 kilo grams. Therefore, under Rule III of the IMV Act which proscribes the driver should hold valid and effective driving license to drive a motor vehicle in any public place. Therefore, after amendment to motor vehicle act transport vehicle has been substituted for medium goods vehicle and heavy goods vehicle. The light motor vehicle continued. Therefore, by applying the principles it can be said that, it is not necessary to endorse the RTO authorize to drive tractor if unladen weight of tractor and trailer together falls less than 7,500/- kgs it will be treated as light motor vehicle. Therefore, driver possessing LMV license cannot be said to not possess effective license to drive tractor and trailer. The principles laid down in the above cited decision can be applied to the present facts of the case on hand. On this principal learned counsel for the petitioner has relied other decisions 2009

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ACJ page 1283 In the case of New India Assurance Company Ltd., Vs. Chikkappaiah and others, wherein their lordships of our own high Court by following the above said Annap's decision have ruled that, "Insurance company seeks to avoid its liability on the ground that, driver had license to drive light motor vehicle and a non-transport vehicle but he was driving a goods vehicle a transport vehicle. The definition of light motor vehicle would indicate that, it takes within its umbrage both a transport vehicle and a non- transport vehicle. The other decision relied 2010(2) T.A.C. page 661 (Ori) in the case of Smruti Ranjan Parida Vs., Taramani Das and others wherein it is held that, motor vehicle Act, 1988, section 2 (21) and 173 Motor accident light motor vehicle implications of auto rickshaw delivery van used for carriage of goods registered as a transport vehicle. Having unladen weight of 470 kgs. and laden weight of 995 kgs light motor vehicle includes both a transport vehicle and a non transport vehicle whose gross vehicle weight does not exceed 7,500 kgs. Therefore, 'Light motor vehicle' can also mean a light passenger carriage vehicle and light goods carriage vehicle license to drive auto rickshaw, which is admittedly a light motor vehicle held valid violation of policy conditions rule out. Therefore, driver holding LMV is entitled to drive the tractor and trailer of unladen weight of 7,500 kg., Therefore, Insurance Company is liable to pay compensation."

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18. As could be seen from the discussion in paragraph No.22 there is not even a whisper as to the probative value of contents of Ex.P.18 and Ex.R.1.

19. On the contrary the Tribunal has gone on discussing irrelevant aspects with regard to the un-laden weight of T.T.Unit which is not so relevant to decide liability of insurance company.

20. Therefore, there is sufficient force in the argument of Insurance Company the liability could not have been fastened on to the T.T.Unit.

21. Accordingly, a case is made out for interference and liability is to be transferred on the owner of the T.T.Unit.

22. Hence, the following order is passed:

ORDER

(i) Appeal is allowed in part while maintaining the quantum of compensation the liability fastened on the Insurance Company is hereby set aside and the legal representatives of the claimant are

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entitled to receive the compensation from the owner of the T.T.Unit.

(ii) Amount in deposit is ordered to be returned to the Insurance Company under due identification.

(iii) Ordered accordingly.

Sd/-

JUDGE

SMM

LIST NO.: 2 SL NO.: 43