Karnataka High Court
National Insurance Company Limited ... vs Sarojamma W/O Deceased Kalaiah And Ors. on 4 September, 2007
Equivalent citations: ILR2008KAR542, 2008(2)KARLJ723, AIR 2008 (NOC) 854 (KAR.) = 2008 (2) AIR KAR R 75, 2008 (2) AIR KAR R 75 2008 AIHC (NOC) 980 (KAR.) = 2008 (2) AIR KAR R 75, 2008 AIHC (NOC) 980 (KAR.) = 2008 (2) AIR KAR R 75
Bench: K.L. Manjunath, Jawad Rahim
JUDGMENT
1. This appeal is by the insurance company challenging the liability fixed by the MACT, Bangalore in MVC 2701/1997.
2. Claim petition was filed by the widow and minor children of one Kalaiah who died in a road traffic accident occurred on 7.7.1997 at about 1-30 p.m. near Mathikere on Bangalore-Mysore Road. Kalaiah was a vegetable vendor. In order to secure vegetables to his shop in the village, by hiring a tempo bearing No. KA 05-9401 Kalaiah was proceeding in the tempo which met with an accident and died in the hospital on 12.7.1997.
3. According to the claimants, deceased as a vegetable vendor was earning a sum of Rs. 4000/- per month and that he was aged about 40 years on the date of death. The claim petition was not contested by the owner of the vehicle. On an application filed under Section 170 of the Indian Motor Vehicles Act, l988, insurance company sought permission to defend the case and the permission was granted to the insurance company by the tribunal.
4. Insurance company filed objections to the claim petition contending that though policy has been issued by the company since deceased was travelling in a goods vehicle, liability cannot be saddled on the company and requested the court to dismiss the claim petition against the insurance company.
5. Widow of the deceased was examined as PW-1, eye witness was examined as PW-2, claimants relied upon Exs. P-1 to 8. On behalf of the appellant insurance company, one witness was examined as RW-1 and the insurance policy was marked as Ex. R-1.
6. The tribunal, considering the evidence adduced by both the parties, awarded total compensation of Rs. 5,09,148/- which is inclusive of loss of dependency, medical expenses and compensation under the head loss of estate, loss of love and affection, loss of consortium and transportation of dead body and funeral expenses. Considering the policy issued by the insurance company, liability has been fixed on the company. Challenging the Judgment and award, present appeal is filed.
7. According to the counsel for the appellant tribunal has committed a serious error in fixing the liability on the appellant even though deceased was travelling in goods vehicle and such liability was not covered under the policy. Alternatively, he contends that the compensation awarded is on higher side since tribunal has applied the multiplier of 15 instead of 14 and also erred in fixing the income of the deceased at Rs. 4000/- per month.
8. According to the counsel for the respondent/claimant that the tribunal is justified in fixing the liability on the insurance company since deceased was travelling in the tempo in question by hiring the tempo only to transport vegetables to his shop and the counsel for the claimants further submits since insurance company has collected premium under the head Non-fair Paying Passengers' liability has been covered and therefore he requests the court to dismiss the appeal.
9. Having heard the counsel for the parties, following points would arise for the consideration of this court in this appeal:
1. If a goods vehicle is engaged by a person and was travelling in the vehicle in order to secure goods to be transported and if such vehicle met with an accident, whether the liability has to be fixed on the insurance company?
2. Whether the compensation awarded by the tribunal is on higher side.
10. The learned Counsel for the appellant relying upon Section 147 of the Act contends that the deceased Kalaiah was not travelling in the goods vehicle along with the goods, therefore, such a risk was not covered. Section 147 of the Act, which reads as hereunder:
Requirements of Policies and Limits of Liability.- (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2)
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) Against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required-
(i) to cover liability in respect of the death, arising out of an in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) If it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) If it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
11. By the reading of Section 147 of the Act, it is clear that if there is death or fatal injury to any person including owner of the goods or his authorised representative carried in the vehicle, the liability of the insurance company is covered, provided the owner of the goods or his authorized representative is travelling in the goods vehicle along with goods. Therefore, short question that arises for our consideration is if a person dies in an accident while travelling in the vehicle before goods were actually loaded or under transportation and if such person was travelling only to secure goods for transportation, whether the risk of such person is covered under the policy?
12. In the instant case, it is the specific case of the claimants that deceased Kalaiah by hiring the vehicle in question was travelling in the vehicle in order to bring vegetables to his shop from a village and the evidence of PW-1 clearly reveals that her husband was travelling in the goods vehicle only to secure vegetables to his shop. The evidence of PW-1 or the pleadings of the claimants are not challenged by the insurance company. In other words, hiring of the vehicle by the deceased for transportation of vegetables only and that the deceased was travelling in the goods vehicle, in order to transport the vegetables and that he was not travelling as a gratuitous passenger or a fair-paid passenger. Ex. R-1 insurance policy covers the risk of a person who was travelling either as a owner of the goods or an authorised representative of the owner of the goods. Admittedly, deceased was not travelling in the vehicle as a fair-paid passenger or a gratuitous passenger. The accident has occurred before reaching the destination to load the goods during the course of such journey. When a person by hiring the vehicle was proceeding to the place of goods with an intention to bring those goods back to Bangalore, if such vehicle met with an accident, it has to be deemed that the vehicle was hired by the deceased only for transporting the goods and that he was travelling in the goods vehicle for the purpose of transportation of his goods. Therefore, it is clear that even though goods were not in the vehicle when the vehicle met with an accident since vehicle was proceeding to reach the place of goods for the purpose of transportation, we have to hold that the risk of such passenger covered as he was neither a gratuitous passenger or a fair-paid passenger.
The next point in so far as the compensation awarded by the Tribunal is concern, after considering the entire evidence we are of the opinion that if the Tribunal has assessed the income of a vegetable vendor at Rs. 4,000/-per month. It cannot be stated to be on higher side. However, we have noticed that the Tribunal instead of applying multiplier of 14 it has wrongly applied multiplier of 15. In the circumstances, we have to reduce the loss of dependency from Rs. 4,80,000/- to Rs. 4,48,056/-. In addition, to that the claimants are entitled to Rs. 40,000/-under conventional heads. In all, the claimants are entitled for a total compensation of Rs. 4,88,000/- with interest at the rate of 6% per annum.
13. In the result, the appeal is allowed in part. The compensation awarded by the Tribunal is reduced from Rs. 5,09,148/- to Rs. 4,88,000/-. Rest of the directions contained in the award shall remain unaltered. The amount, if any, in deposit before this Court is ordered to be sent back to the Tribunal for disbursement.