Karnataka High Court
Mallappa Kallappa Domawadi vs Smt.Niramala W/O Baburao Patil on 16 July, 2019
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JULY 2019
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
MISCELLANEOUS FIRST APPEAL No.103732/2015
C/W MISCELLANEOUS FIRST APPEAL No.103566/2015(MV)
In MFA No. 103732 OF 2015
BETWEEN
SMT.NIRMALA W/O BABURAO PATIL
AGE:42 YEARS. OCC:HOUSEHOLD WORK,
R/O:KERUR, TQ:CHIKODI,
DIST:BELAGAVI. ..APPELLANT
(BY SRI ASHOK A NAIK, ADVOCATE)
AND
1. SHRI.MALLAPPA KALLAPPA DOMAWADE
AGE:46 YEARS, OCC:RMP DOCTOR
R/O:KERUR, TQ:CHIKODI
DIST:BELAGAVI.
2. SHRI.BABU KALLAPPA DOMAWADE
AGE:45 YEARS, OCC:AGRICULTURE,
R/O:DIGGEWADI, TQ:RAIBAG,
DIST:BELAGAVI.
3. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE
COMPANY LIMITED,
HAVING ITS OFFICE AT MARUTI GALLI,
BELAGAVI. ... RESPONDENTS
(BY SRI BAHUBALI KANABARAGI, ADV. FOR R1 AND R2,
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SRI RAVINDRA R.MANE, ADV. FOR R3)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT & AWARD DATED:09.10.2015, PASSED IN
MVC.NO.1062/2013 ON THE FILE OF THE VI ADDITIONAL DISTRICT
AND SESSIONS JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.103566 OF 2015
BETWEEN:
1. MALLAPPA KALLAPPA DOMAWADI,
AGE:46 YEARS, OCC:RMP DOCTOR
R/O:KERUR, TQ:CHIKODI,
DIST:BELAGAVI.
2. BABU KALLAPPA DOMAWADI,
AGE:46 YEARS, OCC:AGRICULTURE,
R/O DIGGEWADI, TQ:RAIBAG,
DIST:BELAGAVI. ... APPELLANTS
(BY SRI.BAHUBALI N.KANABARAGI, ADVOCATE)
AND:
1. SMT.NIRAMALA W/O BABURAO PATIL,
AGE:42 YEARS, OCC:HOUSEHOLD WORK,
R/O:KERUR, TQ:CHIKODI,
DIST:BELAGAVI.
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE
COMPANY LIMITED,
HAVING ITS OFFICE AT MARUTI GALLI,
BELAGAVI. ...RESPONDENTS
(BY SRI ASHOK A.NAIK, ADVOCATE FOR R1,
SRI RAVINDRA R.MANE, ADV. FOR R2)
THIS APPEAL IS FILED UNDER SECTION 173 (1) OF MOTOR
VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED
09.10.2015 PASSED IN MVC No.1062/2013 ON THE FILE OF THE VI
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER
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ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI,
AWARDING THE COMPENSATION OF RS.14,71,000/- WITH INTEREST
AT THE RATE OF 9% P.A. FROM 07.06.2013, TILL REALIZATION,
WHICH SHALL BE DEPOSITED BEFORE THE TRIBUNAL WITHIN ONE
MONTH FROM THE DATE OF THIS CASE.
THESE MISCELLANEOUS FIRST APPEALS, HAVING BEEN
HEARD AND RESERVED ON 03.06.2019, THIS DAY COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, BELLUNKE A.S., J, DELIVERED
THE FOLLOWING :
JUDGMENT
Miscellaneous First Appeal No.103566 of 2015 has been preferred by the legal representatives of the deceased owner of the offending vehicle involved in the accident being aggrieved by fastening liability on them. Miscellaneous First Appeal No.103732 of 2015 has been filed by the claimant seeking enhancement not being satisfied with the quantum of compensation awarded by the tribunal. These two appeals arise out of judgment and award dated 9th October 2015 passed by the VI Additional District and Sessions Judge and Additional MACT, Belagavi, in MVC No.1062 of 2013 and they are taken up together and disposed of by this common order.
2. Brief facts of the case leading to these appeals are:
Claim Petition under Section 166 of Motor Vehicles Act, 1988, came to be filed by the mother of deceased Sri. Shridhar Patil claiming compensation on account of untimely death of :4: her son, who is said to have died on account of injuries sustained in a road traffic accident that occurred on 08.05.2013 at 1.30 am near Basaveshwar Temple in Shiragaon village. It was contended by her that Shridhar Patil along with another coolie for discharging their duties were traveling in a tractor trailer bearing registration No.KA 23-T-9148, loaded with sand and same was being transported for the purposes of being used in construction of a farm house of 1st respondent's relative. On account of said vehicle being driven in a rash and negligent manner by its driver resulted said vehicle turtled resulting in grievous injuries to claimant as a result, Shridhar Patil died at the spot.
3. Respondent No.1-owner of the vehicle is no more and his legal representatives who came on record have prosecuted this petition. Respondent No.1 filed written statement as well as additional written statement denying the averments made in the petition.
4. Respondent No.2-insurance company filed its written statement denying the averments made in the claim petition except admitting issuance of insurance policy in respect :5: of the offending vehicle. It was also contended that tractor- trailor in question had to be used for agricultural purposes only, but as on the date of the accident, first respondent-owner of the offending vehicle had given it on hire basis to another person. The deceased who was said to be working under a contractor for construction of house, is not at all concerned with the use of tractor-trailor. It was also contended that Shridhar Patil was sitting in the tractor-trailor unauthorizedly at the time of accident. It was further contended that driver had no valid driving licence to drive the vehicle in question. Hence, on account of violation of policy conditions, insurance company sought for dismissal of the petition.
5. On the basis of above pleadings, tribunal framed issues and on the basis of evidence and documents tendered tribunal held that driver of the vehicle in question had no driving licence to drive the tractor trailor; tractor-trailor was used for non-agricultural purposes and also opined that driver of the offending vehicle had no effective driving licence and consequently, fastened the liability on the owner of the vehicle to satisfy the award by awarding total compensation of Rs.14,71,000/- with interest @ 9% per annum. :6:
6. Being aggrieved by the finding of the Tribunal fastening the liability on the owner of the vehicle, his legal representatives and claimant being dissatisfied with the quantum of compensation awarded by the tribunal, as already noticed hereinabove, are before this Court in these appeals.
7. Appellant-claimant in MFA No.103732/2015 has contended that judgment and award passed by the Tribunal is contrary to law and documentary evidence on record; it is also contended that policy issued in respect of tractor and trailor is Kissan Package policy and same was being used for own purpose and the driver-respondent No.1 had effective driving licence as on the date of accident and tribunal has erroneously appreciated the evidence on record and has not framed proper issues; the finding of the Tribunal that owner of tractor trailor is liable to pay compensation is against law and the ruling laid down by the Hon'ble High Court; tribunal has not added 50% towards future prospects to the income of the deceased; tribunal has not properly assessed just compensation payable to the claimant on account of death of her husband; the income of the deceased assessed by the Tribunal at Rs.12,000/- is too low. Hence, claimant has prayed for allowing the appeal by :7: enhancing the compensation by fastening the liability on the insurance company.
8. Respondents-owner of the vehicle in MFA No.30566/2015 have contended that vehicle in question was duly insured with the insurance company; driver had valid driving licence as on the date of the accident; tractor-trailor was used only for agricultural purpose and it was never used for commercial purposes and driver was authorized to drive the vehicle in question. There is no evidence to prove that deceased had income of Rs.12,000/- per month; appellants are not liable to pay any compensation and liability to indemnify the award should have been fixed on respondent No.2- insurance company. It is further contended that in a claim petition filed before the learned Senior Civil Judge and Additional MACT, Chikodi, by order dated 17.06.2015 passed in MVC No.1335 of 2013 arising out of very same accident, insurance company has admitted its liability and has paid the compensation and that being the case, all of a sudden, insurance company cannot deny its liability. Hence, on these grounds, appellants have prayed for allowing the appeal by :8: fastening the entire liability on the insurance company to pay compensation.
9. Heard the learned counsel for the parties.
10. In the light of the contentions raised by the learned advocates appearing for the parties, we are of the considered view that following points would arise for our consideration:
(i) Whether claim petition ought to have been filed under the provisions of the Workmen's Compensation Act? and, the liability of the insurer is to be restricted to the extent indicated in Section 147 of the Workmen's Compensation Act?
(ii) Whether the liability fastened on the owner of the vehicle by the tribunal is erroneous and, if not, on whom liability is to be fixed?
(iii) Whether the claimants are entitled for enhancement of compensation and, if so, to what extent?
RE:POINT No.1:
11. Claim petition in question came to be filed under Section 166 of the Motor Vehicles Act by mother of the deceased Shridhar Patil contending interalia that deceased was working as a coolie with 1st respondent and was engaged in the :9: job of loading and unloading sand in a tractor owned by 1st respondent and on 08.05.2013 in order to unload sand for construction of house of 1st respondent's relative and at that time, tractor-trailer driven by its driver in a rash and negligent manner got turtled and due to the impact deceased was thrown out of the vehicle and sustained grievous injuries, on account of which he succumbed on the spot. Hence, she sought for award of compensation of Rs.31 lakhs. First respondent-owner of the vehicle appeared and filed objection statement to the petition denying that the deceased was a coolie and all other averments made in the claim petition was denied except stating that the tractor-trailer was duly insured with respondent-company and the policy was in force as on the date of accident and as such, liability if any of the insured is to be indemnified by the insurer- second respondent.
12. Second respondent filed its statement of objections, denied the averments made in the claim petition and contended that the tractor-trailer was not used for agricultural purposes and risk of deceased was not covered under the policy since records disclosed that the vehicle was used for commercial purposes namely to transport sand which was not for : 10 : agricultural purposes. Until and unless a plea is raised by Insurance Company before the tribunal contending that it is not entitled to pay compensation beyond what was payable under the Workmen's Compensation Act, and the owner is liable to pay the same as it had no contractual liability on account of the insured-owner having not paid any extra premium, insurer cannot be allowed to raise such a plea for the first time before this Court.
13. The division bench of this Court in the matter of RAMAKRISHNA REDDY VS. THE MANAGER, PURCHASE, HMT LIMITED, BANGALORE AND ANOTHER reported in ILR 2002 KAR 1905 has held that no new plea can be permitted to be raised in an appeal particularly by Insurance Company in support of its defence or to the effect that risk was not covered under the policy, inasmuch as opportunity to the claimant to reply to the said contention would be lost. Thus, the statement of objections filed by the Insurance Company should disclose all such defence, plea or contentions it intends to raise to stave off its claim. It has been held:
"19. We may also at this stage refer to the pernicious habit of some branches of insurance : 11 : companies in filing stereotyped written statements denying all and everything. They routinely deny the Insurance, then alternatively plead that even if there was an Insurance, there was a breach of terms of the policy, that driver did not have a valid driving licence, and lastly there was no negligence on the part of driver of the insured vehicle. They do not bother to verify whether the insurance policy covered the risk or not and whether driver had a licence or not. We recognise that insurers are sometimes handicapped for want of full information, while giving instructions to their Counsel, and therefore the objections may be general in nature. We are also conscious that we cannot frown upon a party taking all permissible defences. But, applications for motor accident claims are not to be treated by insurers as normal private adversary litigation, where technical contentions can abound in pleadings and the sole intention is winning the lis. Under the policies of Insurance, the insurers discharge statutory obligations towards third parties. They should do so keeping in view the object and spirit of the Act, and the position of hapless victims of motor accidents. Insurers should balance their concern to safeguard its financial interest, with their obligations as instruments of social justice under the Motor Vehicles Act.: 12 :
19.1 The claimants are not litigants by choice, but are constrained to approach the Tribunal, because of the death of the breadwinner or injury to self, and because the owner and insurer of the vehicle involved, fail to pay the compensation. The insurer should bear in mind that the claimants are also handicapped in obtaining particulars of the insurance policy held by owner or driving licence held by the driver of the vehicle, and they solely depend upon the police for these particulars. The insurer should therefore verify whether there was any Insurance policy or not, whether the insured was covered by insurance policy in regard to the claim or not, and whether the driver had a licence or not before filing its statement of objections and narrow down the area of controversy. If the insurer were to file 'play it safe' written statements, without verifying these aspects and mechanically denying all petition averments, the trial gets delayed and the claimants are put to misery and unjustly kept away from the direly needed compensation. It is time that insurers get rid of "Deny Everything and Await the Award Syndrome" and become responsible and responsive opponents in motor accident claims. We make it clear that the above observations are intended only for those officers of Insurance companies who refuse to recognise their statutory : 13 : obligations to third parties, under the insurance policies issued to the insured."
14. In the light of the above judgment of the co- ordinate bench, we have examined the case papers in general and particularly, statement of objections filed by the insurer of offending vehicle and find that no such plea has been raised by the insurer. Thus, it is too late in the day for the insurer to raise such a plea in these appeals namely, appeals filed by the insured as well as the claimants. Hence, we answer Point No.1 by holding that in the instant case, there is no necessity to restrict the liability of the insurer to indemnify the award passed to the extent indicated in Section 147 of the Workmen's Compensation Act.
RE: POINT No.2:
15. As could be seen from the judgment and award passed by the tribunal, liability has been fastened on the owner of offending vehicle namely appellants in M.F.A.No.103566/2015 on the ground that driver of the offending vehicle was not possessing a valid and effective driving license and in violation of policy condition offending : 14 : vehicle was used for commercial purposes namely to transport sand for construction of a house of 1st respondent's relative.
16. The ground on which insurer sought to stave off its liability to indemnify the award is on the ground that the offending vehicle was not used for agricultural purpose or it was used for commercial purposes. In this background, finding of the tribunal requires to be tested. Perusal of the claim petition would disclose that deceased was discharging his duties in the said vehicle as coolie, according to the averments in the claim petition. It is also specifically pleaded that deceased and another loader had loaded sand in the said tractor-trailer in order to unload the sand for construction of house of the relative of respondent. Mother of the deceased has reiterated this fact in her deposition and has denied the suggestion made to her in the cross-examination that deceased was traveling as a gratuitous passenger in the offending vehicle. RW-1, namely son of owner of the offending vehicle has also deposed that for purposes of construction of a farm house in the agricultural land bearing Sy.No.663 measuring 1 acre 46 guntas owned by Sri. Shivaji Ganapathi Patil, which had been neglected and he (RW1) was carrying out agricultural operations in said land. He : 15 : has also deposed for the purposes of constructing a farm house to store implements and livestock, farm house construction was carried out and for the said purpose sand was procured or transported in the offending vehicle. Nothing worthwhile has been elicited in the cross-examination.
17. The insurer got examined one of its official as RW-
2. He has admitted in his cross-examination dated 21.08.2015 that complainant had stated that sand was being transported in the offending vehicle for purposes of construction of house. In the light of said evidence, it cannot be inferred that said construction of house is not relatable to the construction of farm house or in other words, it has to be necessarily some other house and thereby the offending vehicle was being used for commercial purposes. No such inference can be drawn in the absence of positive evidence in that regard. That apart, Smt.Jayashree Shivaji Patil whose husband owned land bearing Sy.No.663 of Kurni village, Kagal taluk, Kolhapur district, has been examined as RW-3 and she has also reiterated the fact that sand was being transported in the offending vehicle for purposes of construction of a farm house in the agricultural land owned by her husband. In fact, she has reiterated her : 16 : stand in the cross-examination and has also denied the suggestion that tractor was used for commercial purposes. Thus, finding recorded by the Tribunal at paragraph-23 to the effect in the complaint filed at undisputed point of time, there is no reference to farm house and as such presumption having been drawn that sand was transported in the offending vehicle for commercial purposes is an erroneous finding. We have perused the complaint Ex.P2, in which there is a clear reference to construction of house at Kurni village of the relative of 1st respondent. Thus, finding of the Tribunal is contrary to documentary evidence
18. In the light of aforestated, material evidence available on record it would lead us to the irresistible conclusion that offending vehicle was not used for commercial purposes at the time when it met with an accident but it was being used for agricultural purposes namely for construction of farm house and such there is no violation of the policy conditions. It is also necessary to hold that the deceased was not an unauthorized passenger in the offending vehicle.
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19. Insofar as the finding of the tribunal with regard to driver of the offending vehicle not possessing valid and effective driving license has to be rejected in limine for two reasons namely (a) the driving license produced at Ex.R3 would clearly indicate that Ramanath driver of the offending vehicle was having driving license to drive agricultural tractor and trailer (NT) valid from 6.9.2011 to 5.9.2013. Accident in question having occurred on 8.5.2013, it cannot be held that license issued to the driver of the offending vehicle was not valid as on the date of the accident. Hence, finding recorded by the tribunal at paragraph-24 of its judgment is liable to be set- aside.
20. Yet another important factor which cannot go unnoticed is the fact that the insurer has admitted its liability in respect of claim arising out of same accident and has paid the compensation and as such, it could not dispute its liability. Hence, we are of the considered view that appeal filed by the owner of the offending vehicle deserves to be allowed by setting aside the finding recorded by the tribunal that insurer is not liable to indemnify and we hold that insurance company is liable to indemnify the award.
: 18 :RE POINT NO:3
21. The tribunal has awarded a total compensation of Rs.14,71,000/- under the following heads with interest at 6% p.a.:
Sl.No. Heads Amount
1. Loss of dependency Rs.12,96,000/-
2. Loss of love and affection Rs. 50,000/-
3. Loss of estate Rs. 1,00,000/-
4. Towards transportation of
dead body and funeral
expenses Rs. 25,000/-
Total Rs.14,71,000/-
22. The compensation awarded towards loss of
dependency in a sum of Rs.12,96,000/- is contended to be on the lower side. Tribunal has considered the income of the deceased at Rs.12,000/- p.m. The accident in question occurred on 08.05.2013. By taking note of the fact that the deceased was a collie and was earning Rs.400/- per day. The main grievance of the claimant is tribunal has not added 50% towards future prospects. Since tribunal has taken income at Rs.12,000/- p.m. for a coolie which is marginally on the higher side, we do not propose to interfere with the quantum of compensation awarded. Even if income of coliee is construed as Rs.8,000/- p.m and 50% is added towards future prospectus as : 19 : held by the Hon'ble Apex Court n the matter National Insurance Co. Ltd., Vs. Pranay Sethi and others reported in 2017 ACJ 2700 the income of the deceased would be Rs.12,000/- p.m. for this reason also we refrain from interfering with the compensation awarded by the tribunal towards loss of dependency. The said finding arrived at by the tribunal would not call for any interference as it is based on sound appreciation of facts. Likewise we find the compensation awarded under other heads is also just and reasonable, not calling for interference. Hence, we do not propose to enhance the compensation under other heads.
For the reasons aforestated, we proceed to pass the following:
ORDER
(i) MFA No.103566 of 2015 is allowed.
(ii) Judgment and award dated 9th October 2015
passed by the VI Additional District and
Sessions Judge and Additional MACT,
Belagavi, in MVC No.1062 of 2013, is modified and it is ordered that the compensation awarded shall be indemnified by the second : 20 : respondent Insurance Company by absolving the liability of the owners.
(iii) The entire compensation amount with interest shall be deposited by United India Assurance Company Ltd., respondent Nos.2 and 3 respectively in these appeals within six weeks from the date of receipt of copy of this order.
(iv) MFA No.103732 of 2015 filed by the claimant is hereby dismissed Registry is directed to transmit the original records to the jurisdictional Tribunal forthwith.
SD/-
JUDGE SD/-
JUDGE Kmv/jm/-