Karnataka High Court
V Hanumanthappa S/O. V Anjinappa, vs G Shanthamma W/O. Late Gouripura, on 14 January, 2020
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IN THE HIGH COU RT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 14 T H DAY OF JANU ARY 2020
BEFORE
THE HON'BLE MR. JUSTICE P.G.M.PATIL
MFA NO.20242/2012 (MV)
BETWEEN
V. HANUMANTHAPPA S/O. V ANJINAPPA,
AGE:46 Y EARS, O WNER OF TRACTOR
& TRAILER BEARING REGN. NO .KA- 35/T-3190
AND KA-35/3191,
R/O: 25 T H WARD, JAMBUNATHA ROAD,
HOSPETE, DIS T: BELLARY .
... APPELLANT
(BY SRI. HANUMANTHAREDDY SAHUKAR, ADV.)
AND
1. G. SHANTHAMMA
W/O. LA TE GOURIPURA MALLESHI,
AGE: 26 YEARS , OCC: HOUSE WIF E,
2. MINOR. SHIVKUMAR
S/O. LATE GOURIPURA MALLESHI,
AGE: 8 YEARS , OCC: S TUDENT,.
3. MINOR. KRISHNA
S/O. LATE GOURIPURA MALLESHI,
AGE: 5 YEARS , S TUDENT,.
4. MINOR. ARJUNA
S/O. LATE GOURIPURA MALLESHI,
AGE: 4 YEARS ,.
5. MINOR. ANNAPOORNESHWARI
D/O. LA TE GOURIPURA MALLESHI,
AGE: 2 YEARS ,.
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6. G PAKKIRAPPA S/O G. VEERAPPA,
AGE: 61 YEARS ,.
7. SMT.G . KARE HANUMAMMA
W/O. G PAKKIRAPPA,
AGE: 56 YEARS ,
PETITIONERS NO.2 TO 5 ARE MINORS
REPRESENTED BY THEIR MOTHER
NATURAL GUARDIAN AND MOTHER
SMT. G.SHANTHAMMA
ALL R/O: HALEMALAPANAGUDI VILLAGE,
TQ: HOSPET, DIS T: BELLARY.
PRESENTLY R/A SRIDHARAGADDA VILLAGE,
TQ/DIS T: BELLARY.
8. RAMANJINI S/O. VENKA BHOVI,
AGE: 38 YEARS , DRIVER OF TRACTOR
BEARING REG . NO . KA-35/T-319
AND KA-35/3191,
R/O: DANAYANKANAKERE VILLAGE,
TQ: HOSPET, DIS T: BELLARY.
9. THE BRANCH MANAGER,
CHOLAMANDALAM M S GENERAL
INSURANCE CO., LTD.,
2 N D F LOOR, DARE HOUSE, 2 NSC BO SE
ROAD, CHENNAI - 600001.
... RESPONDENTS
(BY SRI R. R. MANE, ADV. FOR R9
R8- DISPNESED WITH.
R1 & R6- ARE S ERVED
[R2 TO 5 MINORS R/BY R1.)
THIS MFA FILED U/S.173(1) OF THE M.V.ACT
1988, AGAINST TH E JUDGEMENT AND AWA RD
DATED:29.10.2011, PASSED IN MVC NO.709/2011 ON
THE F ILE OF THE MO TOR A CCIDENT CLAIM S
TRIBUNAL- XII, AT BELLARY , AWARDING THE
COMPENSATION O F RS.6,78,000/- WITH INTERES T A T
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THE RA TE OF 6% P.A. FROM THE DATE OF PETITIO N
TILL THE DATE OF DEPOSIT.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE F OLLOWING:
JUDGMENT
Matter is taken up for final disposal with the consent of learned counsel for the parties.
2. The owner of the offending vehicle being aggrieved by the judgment and award dated 29/10/2011 passed in MVC No.709 of 2011 on the file of the MACT-XI, Bellary, has filed this appeal.
3. Respondents No.1 to 7 as claimants filed claim petition before the tribunal claiming compensation of Rs.51,00,000/- for the death of one Gouripura Malleshi, who died in the motorcycle accident on 30/4/2011. The claimants have stated that the deceased as directed by respondent No.1 and other coolies were on duty as loaders in the tractor bearing registration No.KA- 35/T-3190 and trailer bearing registration No.KA- 4 35/T3191 belonging to respondent No.1. On the date of accident, they were returning in the said Tractor and Trailer towards Kondanayakanahalli to unload ash in the field of insured. The first respondent-driver of the Tractor and Trailer drove the vehicle in a rash and negligent manner at about 10.45a.m. infront of new traffic police station building on Harihara road and in order to avoid the accident with lorry, took the Tractor and Trailer to the extreme left side of the road and he lost his control, as a result of which, the vehicle turtle fell down. The deceased Gouripura Malleshi and others fell down. He sustained fatal injuries and died on the spot. The deceased was hale and healthy and aged about 32 years and was earning Rs.300/- per day and used to contribute his earning towards maintenance of the family. Therefore, they claimed compensation against the owner and insurer of the offending vehicle. 5
4. In pursuance of the notice, respondent Nos.1 to 3 appeared before the Tribunal and filed separate written statement. Respondent No.1 has denied the petition averments and that the accident was due to the rash and negligent driving of the vehicle. The Tractor and Trailer was insured with respondent No.3 and respondent No.2 is the owner of the said vehicle. Therefore, he is not liable to pay compensation. Respondent No.2 also filed the objection on the same line and stated that his vehicle is insured with respondent No.3. However, he admitted the accident and further contended that in case of any liability, it may be fastened against respondent No.3. Respondent No.3 insurer denied the averments made in the claim petition. Further admitted that offending Tractor and Trailer was insured with him and the policy was in force and valid from 26/4/2011 to 25/4/20112. His liability is subject to the terms and conditions of the policy. 6 Respondent No.1 was not holding valid driving license. Therefore, there is violation of terms and conditions of the policy. He has further contended that he has not permitted the insured to carry any passengers/persons in the vehicle and therefore, there is violation of the terms and conditions of the policy. Therefore, the claim petition is liable to be dismissed.
5. On the basis of the pleadings of the parties, the tribunal framed the issues. In support of their claim petition, claimant No.1 got examined as PW-1 and another witness was examined as PW.2 and got marked 7 documents as Exs.P.1 to P.7. Respondent No.3 examined one witness and got marked insurance policy as Ex.R.1.
6. The learned member of the tribunal, after hearing both the parties, passed the impugned judgment awarding compensation of 7 Rs.6,78,000/- with interest at 6% p.a. from the date of petition till its deposit. Respondent No.3 - insurer was exonerated and claim petition against him was dismissed. Respondent No.1 and 2 were held jointly and severally liable to pay compensation.
7. The respondent No.2-owner of the offending vehicle being aggrieved by the impugned judgment and award has filed this appeal to set aside the liability fastened against him and to fasten the liability on the Insurance Company on the ground that the deceased Gouripura Malleshi was working as coolie for loading and unloading in the Tractor and Trailer belonging to him and therefore, Insurance Company is liable to indemnity the liability fastened against him.
8. Heard the learned counsel appearing for the parties.
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9. Learned counsel for the appellant submitted that it is proved before the tribunal by producing Ex.P2-the statement of the witness PW-2 that the deceased was working as loader and unloader in the tractor and trailer belonging to respondent No.2, which is permitted by law and the risk of the coolies is covered by the insurance policy. Therefore the insurer has to be made liable to satisfy the award. Per contra, the learned counsel for the insurer supported the impugned judgment and award.
10. The learned counsel for the appellant/owner of the offending vehicle has submitted that Ex.P.2 and evidence of PW.2 is sufficient to prove that the deceased was working as coolie in the tractor and trailer belonging to the appellant herein and on the date of accident, he was travelling in the tractor and trailer as a coolie. Absolutely there is no material to show 9 that the deceased was a passenger in the tractor and trailer. The evidence of PW.2 and the documents produced at Ex.P.2 and P.6 are sufficient to hold that the deceased was travelling in the tractor and trailer as a coolie.
11. Under these circumstances, the judgment of the Division Bench of this Court in the case of National Insurance Company Limited Vs. Maruti and others, ILR 2011 Karnataka 4139, applies to the case on hand. The Division Bench of this Court after referring to the various judgments of the Apex Court has held in paragraph No.31 as follows:
31. By read ing Sections 147 and 149, it is clear that the Legislative in tent was that the insurer has to compulsor ily cover all the risks ar ising out of and use of motor vehicle and the liability of the insurer is co-extensive with that of insured. However, this is subject to the limitations envisaged 10 under Section 147(1)(b). It is also clear th at the coolies who are employees carr ied in a goods vehicle are to be compulsor ily covered under Section 147(1)(b).
12. Therefore in the case on hand it is proved by leading cogent evidence that the deceased was travelling in the tractor trailer as a coolie for loading and unloading and as such there is compulsory coverage of the risk of said coolies under insurance policy produced at Ex.R.1. It is not disputed that Ex.R.1 is the insurance policy covering the risk of driver and coolies. It is also admitted that extra premium is collected in respect of one coolie and it is not the case of the insurance company that there are more than one claim arising out of the said accident.
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13. Under these circumstances, this Court holds that the finding recorded by the tribunal that the claimants have not proved that the deceased was travelling as a coolie in the tractor and trailer and therefore the insurer has to be exonerated is erroneous, illegal and is liable to be set aside. The liability to satisfy the award has to be fastened against the insurer as there is no breach of policy conditions by the appellant/owner of the offending vehicle. There is no appeal by the claimants. Accordingly, this Court proceed to pass the following:
ORDER The appeal is allowed.
The judgment and award dated 29.10.2011, passed in MVC No.709/2011 by the MACT-XII, Ballari, so far as exonerating the insurer 12 respondent No.9 herein and fastening the liability on the appellant/owner is hereby set aside.
The insurer respondent No.9 herein is liable to satisfy the award and he is directed to deposit the compensation amount before the tribunal within a period of 60 days.
The amount of compensation deposited by the appellant/owner shall be refunded to him.
Sd/-
JUDGE Vmb/mrk/-