Master Muna & Muniraju vs K.M. Krishna Murthy

B. Manohar, J.—Appellant is the claimant, being not satisfied with the quantum of compensation awarded in the judgment and award dated 3.11.2010 made in MVC No. 2953/2009 passed by Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as "the Tribunal" for short) filed this appeal a seeking enhancement of compensation and also fastening liability on the owner of the vehicle to compensate the claimant.

The minor claimant represented by his natural guardian-mother filed a claim petition contending that on 2.1.2009 at about 5.30 p.m., while the claimant was playing with his friends in the play-ground near Kuppampalya bus-stand, at that time a Tata ACE Mini Goods tempo bearing Registration No. b KA-08/3858 being driven in a rash and negligent manner, in a high speed came to the wrong side of the road and dashed against the claimant, due to the impact, the claimant fell down and sustained grievous injuries all over the body. Immediately after the accident, he was taken to Government Hospital, Tayalur, Mulabagal Taluk later he was shifted to R.L.Jalappa Hospital at Kolar, wherein he had taken treatment as inpatient. The PSI, Mulabagal Police Station c registered a case against the driver of the Mini Goods Tempo. In the accident he has sustained closed oblique mid shaft fracture of left femur. At the time of accident, the claimant was aged about 09 years and sought for compensation of Rs. 5,00,000.

In response to the notice issued by the Tribunal, though the owner of the Mini Goods Tempo was served with notice, he remained unrepresented. The d second respondent-Insurance Company filed written statement denying the occurrence of accident due to negligent driving of the Mini Goods Tempo. The driver of the offending tempo was not holding valid and effective driving licence as on the date of accident. Therefore, there is violation of conditions of the policy. The driver of the offending vehicle was under the influence of alcohol at the time of accident. Though the insurance policy was in force as on e the date of accident, it is subject to fulfilment of conditions of the policy. Apart from that, the claimant negligently ran to cross the road. Hence sought for dismissal of the claim petition.

The mother of the claimant got examined herself as P.W.1, the doctor who treated the claimant was examined as P.W.2 and got marked the documents as Ex.P1 to Ex.P13. On behalf of the Insurance Company, Senior Executive of the Insurance Company was examined as R.W.1 and ARTO was examined as R.W.2 and got marked the documents as Ex.R1 to Ex.R8.

The Tribunal, after appreciating the oral and documentary evidence let in by the parties and taking into consideration IMV report, spot Mahazar, seizure Mahazar, copy of the complaint and charge sheet held that due to the actionable negligence on the part of driver of the Tata ACE Mini Goods tempo, � the accident occurred and the claimant has sustained injuries. Hence he is entitled for compensation. With regard to quantum of compensation is concerned, in the accident, the claimant has sustained two simple injuries and one grievous injury. He has undergone closed reduction and hip spica cast application for left femur with POP. The doctor assessed the disability to an extent of 20% to the left lower limb. The Tribunal awarded a sum of Rs. 35,000 towards pain and suffering, Rs. 5,000 towards medical expenditure; Rs. 13,500 towards loss of future income; Rs. 5,000 towards loss of education and Rs. 10,000 towards loss of amenities; Rs. 10,000 towards attendant and conveyance a charges. In all, Rs. 78,500 with interest at the rate of 6% p.a.

With regard to liability is concerned, the driver of the Tata ACE Mini Goods Tempo was holding driving licence to drive the heavy transport vehicle, between 21.11.2005 to 20.11.2008, whereas the accident occurred on 2.1.2009. As on the date of accident, he was not holding the valid driving licence to drive the Mini Goods vehicle. The owner of the vehicle entrusted the vehicle to the person did not possess the valid and effective driving licence as on the date of accident. Hence, the liability was fastened on the owner of the vehicle to compensate the claimant. The claimant being not satisfied with the quantum of compensation awarded and also fastening the liability on the owner of the offending vehicle to compensate the claimant has filed this appeal.

Mr. N. Gopalkirshna, learned Counsel appearing for the appellant contended that due to the actionable negligence on the part of driver of the Mini Goods Tempo, the accident occurred and the claimant has sustained fracture of left femur and he has undergone surgery for the same. The doctor who treated the claimant had assessed the disability to an extent of 20% to the lower limb and 10% to the whole body. The compensation in a sum of Rs. 78,500 awarded is on lower side and hence sought for enhancement of compensation. Further the driver of the Mini Goods Tempo was having driving licence to drive the LMV (NT) w.e.f 27.11.2000 to 26.11.2020. The driving licence obtained is prior to coming into force of the amendment Rules on 28.3.2001. The amendment made to the Motor Vehicles Act is only prospective in operation. The driving licence obtained is prior to the amendment of the Motor Vehicles Rules and he is entitled to drive the light goods vehicle. Even in the instant case, the vehicle involved is Tata ACE Mini Goods Tempo and he is entitled to drive the said vehicle. The judgment and award passed by the Tribunal fastening liability on the owner of the vehicle is contrary to law. He also relied upon the judgment reported in ILR 2010 KAR 4733, National Insurance Company Limited Rep. by Its Administrative Officer v. Yalgurdappa, Since Deceased by His LRs and Another, II (2012) ACC 736 and also on an unreported judgment made in MFA No. 23307/2012 disposed of on 13th August 2012.

On the other hand, Mr. O. Mahesh, learned Counsel appearing for the Insurance Company argued in support of the judgment and award passed by the Tribunal and contended that as on the date of accident, the driver of the Mini Goods Tempo was not holding valid and effective driving licence. Further, the driving licence to drive Heavy Transport Vehicle was obtained on 21.11.2005 which expired on 20.11.2008. The accident occurred on 2.1.2009. As on the date of accident, the driver of the said Mini Goods Tempo was not having effective driving licence to drive the goods tempo. Further, though the driver of the offending vehicle was having driving licence to drive the LMV(NT) covering the period from 27.11.2000 to 26.11.2020, since the driving licence obtained to drive Heavy Transport Vehicle expired on 20.11.2008, he cannot rely upon the d riving licence obtained on 27.11.2000. The quantum of compensation awarded by the Tribunal is also in accordance with law. There is no infirmity in the judgment and award passed by the Tribunal and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned Counsel for the parties, perused the judgment and award, oral and documentary evidence.

The dispute in this appeal is with regard to the liability to compensate the claimant and also quantum of compensation.

The injuries sustained by the minor claimant in the road traffic accident occurred on 2.1.2009 is not in dispute. In the accident, the claimant has sustained fracture of left femur. Under general anesthesia on 16.1.2009, the claimant has undergone closed reduction and hip spica cast application to left femur and POP was applied. He was inpatient between 2.1.2009 to 24.1.2009 i.e. for a period of 22 days and he was discharged on 24.1.2009. The compensation of Rs. 78,500 awarded by the Tribunal is on the lower side. Though the doctor assessed the disability to an extent of 20% to the left lower limb and 10% to the whole body, the Tribunal had taken the disability to an extent of 6% and taking notional income of Rs. 15,000 awarded a sum of Rs. 13,500 as notional income. A sum of Rs. 10,000 towards loss of amenities is also lower side. The claimant has to lead his remaining life with the disability of 20% to the left lower limb. In view of the closed reduction and hip spica cast application to the left femur, the claimant finds some difficulty in squatting and climbing the staircase. Hence, it is appropriate to award another sum of Rs. 50,000 in addition to Rs. 78,500 awarded by the Tribunal with interest at 6% p.a.

With regard to liability to pay compensation is concerned, the driver of the Tata ACE Mini Goods Tempo was having driving licence to drive LMV even prior to the amendment to the Motor Vehicles Rules came into force in the year 2001. The amendment to the Motor Vehicle Rules is prospective in operation. The driving licence obtained prior to the amendment of the Motor Vehicle Rules is continued to be in force. Hence, the driver is entitled to drive LMV goods vehicle on the basis of the driving licence obtained on 27.11.2000. The Hon Tile Supreme Court in a judgment reported in IV (2008) ACC 169 (SC) : (2008) 3 SCC 464 in the case of National Insurance Company Limited v. Annappa Irappa Nesaria @ Nesaragi and Others, held that the amendments carried out in the Motor Vehicle Rules, 1988 having a prospective operation, the licence held by the driver of the vehicle in question cannot be said to be invalid in law. Further the light motor vehicle continued, at the relevant point of time to cover both Tight passenger carriage vehicle'' and Tight goods carriage vehicle''. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well. In the instant case, admittedly, the driver of the offending vehicle obtained the driving licence to drive LMV (NT) on 27.11.2000. Motor Vehicles Rules was amended in the year 2001. In view of the judgment of the Hon''ble Supreme Court referred to above, the driver is entitled to drive the light goods vehicle as well. The Tribunal has not examined the matter in proper perspective, the driver of the offending vehicle was having driving licence prior to the amendment of Motor Vehicle Rules coming into force. Though the driver of the Mini Goods Tempo obtained the driving licence to drive Heavy Transport Vehicles between 21.11.2005 to 20.11.2008, the driving licence obtained for light motor vehicle continued to be in force and he is entitled to drive light goods vehicle. Hence, the judgment and award passed by the Tribunal cannot be sustained. The liability has to be fastened on the Insurance Company to compensate the claimant. Accordingly, I pass the following:

ORDER

The appeal is allowed in part. The judgment and award dated 3.11.2010 made in MVC No. 2953/2009 passed by the Motor Accident Claims Tribunal, Bangalore is hereby modified and the claimant is entitled to enhanced compensation of Rs. 50,000 in addition to Rs. 78,500 awarded by the Tribunal with interest at 6% p.a. Insofar as liability is concerned, since the driver of Mini Goods Vehicle was having driving licence prior to the amendment of Motor Vehicle Rules, he is entitled to drive the Mini Goods Vehicle. Hence, the Insurance Company is liable to compensate the claimant.