Karnataka High Court
T. Shantakumar vs Vishalakshamma C on 21 September, 2023
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2023:KHC:34293-DB
MFA No. 8108 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
MISCELLANEOUS FIRST APPEAL NO. 8108 OF 2019 (MV-D)
BETWEEN:
T. SHANTAKUMAR
S/O. B. A. THIPPESWAMY,
AGED ABOUT 53 YEARS,
OWNER OF THE BUSN NO.KA-18-A-480,
R/O. SIDDARAMESHWARA MOTOR SERVICE,
B.H. ROAD, TARIKERE TALUK,
CHIKKAMAGALURLUL DIST. -577 228.
...APPELLANT
(BY SRI. MOHAMMED DASTAGIR, ADVOCATE)
AND:
Digitally signed
by D HEMA
Location: 1. VISHALAKSHAMMA C.
HIGH COURT
OF W/O. LATE. PUTTASWAMY,
KARNATAKA AGED ABOUT 51 YEARS,
HOUSE HOLD WORK,
R/O. AMBEDKAR BADAVANE,
AJJAMPURA TOWN, KADUR TALUK,
CHIKKAMAGALUR DISTRICT.
NOW R/O. OF KOBRARIPETE,
HOSADURGA TOWN,
HOSADURGA TALUK,
CHITRADURGA DISTRICT 577 527.
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NC: 2023:KHC:34293-DB
MFA No. 8108 of 2019
2. VENUGOPAL
S/O. LATE. PUTTASWAMY,
AGED ABOUT 29 YEARS,
R/O. AMBEDKAR BADAVANE,
AJJAMPURA TOWN, KADUR TALUK,
CHIKKAMAGALUR DISTRICT.
NOW R/O. OF KOBRARIPETE,
HOSADURGA TOWN,
HOSADURGA TALUK,
CHITRADURGA DISTRICT 577 527.
3. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
34/3, 2ND FLOOR, M.M.K. COMPLEX,
AKKAMAHADEVI ROAD,
P.J. EXTENSION,
DAVANAGERE 577 001.
...RESPONDENTS
(BY SRI. MANJUNATH N. D., ADVOCATE FOR R1 & R2;
SRI O.MAHESH, ADVOCATE FOR R3)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 06.08.2019 PASSED IN MVC
NO.742/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, MACT HOSADURGA, AWARDING COMPENSATION OF
RS.8,58,500/- WITH INTEREST AT 6 PERCENT P.A. FROM THE
DATE OF PETITION TILL DEPOSIT.
THIS MFA HAVING BEEN HEARD AND RESERVED ON 30TH
AUGUST 2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, UMESH M ADIGA J, PASSED THE
FOLLOWING:
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NC: 2023:KHC:34293-DB
MFA No. 8108 of 2019
JUDGMENT
1. Owner of the offended bus i.e. respondent No.1 in MVC.No.742/2018 on the file of the Senior Civil Judge and MACT, Hosadurga (hereinafter for short 'Tribunal') preferred this appeal challenging the judgment and award dated 06.08.2019 fastening the liability on him to pay the compensation awarded by the Tribunal.
2. To dispose of this matter, brief facts of the case before the Tribunal were as under;
It was the case of claimant that deceased Sri. Lohith Kumar was serving as conductor in the bus owned by respondent No.1 bearing registration No.KA-18-A-4890 and was drawing salary of Rs.50,000/- per month besides bata of Rs.300/- per day. On 05.02.2018, as usual he went to attend his duty in the above said bus. At Peelapura gate bus stop at 4.30 p.m., passengers had alighted and boarded the bus. Thereafter, before deceased could board the bus, the driver of the bus -4- NC: 2023:KHC:34293-DB MFA No. 8108 of 2019 negligently and suddenly drove the vehicle because of which, he fell down from the foot board of the bus and sustained grievous injuries; While undergoing treatment, he succumbed to the injuries.
3. The claimants have further contended that the deceased was aged about 32 years and claimants were depending upon the earnings of the deceased. Claimant No.1 is the mother and claimant No.2 is the brother of the deceased. They had also contended that they had spent Rs.50,000/- towards conveyance charges, Rs.50,000/- towards funeral expenses and Rs.3,00,000/- towards medical expenses. With these reasons, prayed to award compensation of Rs.31,50,000/-.
4. Respondent No.1, who is the appellant herein contended before the Tribunal that deceased was not working as conductor in the said bus and accident was taken place due to negligence of the deceased and he also denied the salary stated by the claimant and further stated -5- NC: 2023:KHC:34293-DB MFA No. 8108 of 2019 that said bus was insured with respondent No.2 and respondent is liable to pay the compensation.
5. Respondent No.2 - Insurer has denied the contentions of the petitioner. It also denied its liability to pay the compensation on the ground that the owner of the bus had violated all the terms and conditions of the policy of insurance. It has further contended that deceased was not the conductor of the bus and he was cleaner in the said bus. Risk of the cleaner of the bus was not covered in the policy. Therefore, respondent No.2 is not liable to pay the compensation and prayed to dismiss the claim petition.
6. From the rival contentions of the parties, the Tribunal had framed necessary issues to consider the contentions.
7. The claimants to prove their case had examined PW.1 and got marked Exs.P1 to P9. Respondent No.1 had examined RW-1 and respondent No.2 examined RW-2 and got marked Exs.R1 to R3.
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NC: 2023:KHC:34293-DB MFA No. 8108 of 2019
8. After hearing both the parties and on appreciating the pleadings and evidence on record, the Tribunal by impugned judgment and award dated 06.08.2019, had awarded compensation of Rs.8,58,500/- and directed respondent No.1 - owner of the bus to pay the compensation since he had violated terms of policy. Being aggrieved by the said findings, respondent No.1 preferred this appeal.
9. We have heard the arguments of learned counsel for the appellant and insurer. Learned counsel for claimants has appeared, however has not advanced his arguments.
10. It is the submission of learned counsel for the appellant - owner of the bus that according to the contention of the claimant, deceased was conductor of the offended bus. In the evidence of PW1 also, the said fact was mentioned. The appellant though denied the said fact in the written statement, however, during the course of the evidence, has accepted the contention of the claimant -7- NC: 2023:KHC:34293-DB MFA No. 8108 of 2019 bus. The Tribunal had not considered the said fact, on the contrary, it disbelieved the evidence of RW1 on the ground that his oral evidence was contrary to the contention taken in the written statement. The said appreciation of the evidence is incorrect, which needs interference.
11. Learned counsel for the appellant has further submitted that as per Ex.R1, the appellant had paid premium of Rs.150/- towards PF for owner/driver and legal liability to paid driver under the IMT 28". As per IMT 28 mentioned in the policy, it includes liability of driver and/or conductor and/or cleaner employed in connection with the operation of insured vehicle. Therefore, even if it is accepted that deceased was cleaner of the bus, then also respondent No.2 - insurer is liable to pay the compensation. Moreover, in this case, it is the admitted fact by the claimant and respondent No.1 - insured that deceased was conductor of the bus. Under those circumstances, in view of payment of extra premium of Rs.150/- (100+50) under the IMT 28, respondent No.2- -8- NC: 2023:KHC:34293-DB MFA No. 8108 of 2019 insurer is liable to indemnify the owner and pay the compensation. Therefore, prayed to set aside the said finding and direct the insurer to pay the compensation.
12. Learned counsel for the contesting respondent - insurer has submitted that the owner of the bus had not paid extra premium to cover the risk of cleaner, on the contrary he paid the premium to cover risk of driver/conductor and hence respondent - insurer is not liable to pay the compensation or indemnify the owner of the bus. The Tribunal has considered this point in the impugned judgment and rightly fastened the liability on the owner of the bus/appellant and it does not call for any interference and prayed to dismiss the appeal.
13. The following points emerges for our determination:
"Whether the Tribunal is justified in fastening the liability on the owner of the bus & exonerating insurer to indemnify the owner?"
14. The Tribunal on appreciation of evidence on record awarded the quantum of compensation. It is not disputed -9- NC: 2023:KHC:34293-DB MFA No. 8108 of 2019 by either of the parties. Therefore, there is no need to re- visit regarding the said fact.
15. In the petition, it is stated that deceased was conductor of the offended bus. In column No.4 of the petition, it was mentioned as "Forest Watchman" and it was striked out and thereafter it is mentioned as "Bus Conductor". It does not appear that after passing of the impugned judgment it was striked out. On the contrary, in paragraph 22(b), it is mentioned that deceased was conductor of the bus and was earning Rs.300/- per day as Bata and drawing Rs.50,000/- as salary.
16. It is not in dispute that the name of the deceased was Mr.Lohith Kumar. However, in the said paragraph, it is mentioned as 'Samaya Naik'. It is also not in dispute that the deceased was the son of claimant No.1. However, in the said paragraph, it is mentioned as husband of petitioner No.1. Therefore, the draftsman of the petition had made lot of mistakes in the petition, which were not rectified during course of hearing of the case before
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NC: 2023:KHC:34293-DB MFA No. 8108 of 2019 Tribunal. The learned counsel for the insurer submitted that occupation of the deceased was stated in the petitioner a 'Forest Watchman" and it was scratched out and mentioned as conductor and in the criminal case papers, it was stated as 'Cleaner of bus' and hence contention of appellant that deceased was conductor of bus is not believable. Appellant though denied the said contention in the written statement & later on came to know that risk of cleaner was covered in the policy, had been contending that he was conductor of the bus and not cleaner of the bus. Hence said contention of appellant needs to be discarded. The Tribunal has rightly disbelieved the same.
17. It is nobody's case that deceased was serving as a Forest watchman. If that was the case, then there was no need for Tribunal to direct the owner of the vehicle to pay the compensation on the ground that his risk was not covered in the policy of insurance. In that event, he would become passenger of the bus and his risk is covered. In
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NC: 2023:KHC:34293-DB MFA No. 8108 of 2019 view of the said reasons, submission of learned counsel for insurer that earlier occupation of the deceased was mentioned as 'Forest watchman' and thereafter it was corrected as conductor; and in the prosecution papers, it was mentioned as 'cleaner'. Therefore, his occupation itself was not proved and hence insurer is not liable to pay indemnify the owner is not tenable.
18. It is true that there are several mistakes in the petition, that itself cannot be considered to deny rights of the claimant to claim the compensation & on that ground insurer cannot disown its liability.
19. It is the consistent case of the claimant in the pleadings as well as in the oral evidence that deceased was serving as a conductor in the offending bus and he was earning Rs.50,000/- per month and Rs. 300 per day as bata. It is true that in the written statement appellant/respondent No.1-owner of the bus had denied that he was the conductor of the bus, however, he had admitted the said fact during his evidence. The Tribunal
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NC: 2023:KHC:34293-DB MFA No. 8108 of 2019 while appreciating the evidence of RW1, held that evidence of RW1 was not consistent; during the evidence he has stated that deceased was serving as the conductor of the bus though denied in the pleadings. Therefore, the said evidence was not believed. The said reasons assigned by the Tribunal is not tenable. Burden of proving occupation of deceased is on the petitioners. Petitioners had deposed that deceased was serving as conductor. The said fact was admitted by RW1 during evidence, that supports the case of claimants. The Tribunal ought to have accepted the same. Inconsistent pleading and evidence of RW1 cannot be ground to hold that contentions of claimant was false.
20. If we consider the defence of respondent No.1 & 2 in the written statements/ objections, it appears to be denial of the case of the claimant. Even respondent No.2 has denied issue of policy of insurance on offending bus and when it had produced the copy of insurance policy as per Ex.R1, the Court cannot reject the said documents on the
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NC: 2023:KHC:34293-DB MFA No. 8108 of 2019 ground that respondent No.2 had denied said facts in the objections/written statement. Therefore, the reasons assigned by the Tribunal for disbelieving the evidence of RW1 is not tenable and it calls for interference by this Court.
21. Respondent No.2 has not denied that deceased was serving with respondent No.1 - appellant. Respondent No.2 had contended that deceased was a cleaner of the bus and not a conductor in the said vehicle. In the cross examination of RW2, he has stated that respondent No.2 had obtained investigation report of this accident and the said report was not placed on record before the Tribunal. The offending bus was a passenger bus and its trip route was from Terikere towards Hiriyuru. Respondent No.2 did not place materials on record to show that some one was serving as a conductor of the said bus on the date of incident. Even it was not brought out in the cross examination of RW1 that some one was conductor of the said bus on that day. Respondent No.2 could place the
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NC: 2023:KHC:34293-DB MFA No. 8108 of 2019 investigation report on record to prove the said facts. However, respondent No.2 suppressed material evidence from the Tribunal. Hence, adverse inference has to be drawn against respondent No.2. Under those circumstances, RW2 is not competent person to deny the fact that deceased was serving as conductor of the bus on the date of incident.
22. Learned counsel for insurer - respondent No.2 has submitted that as per prosecution papers, the deceased was cleaner of the said bus and had served as such for a period of 10 years. It also shows that he was not conductor. Hence his risk is not covered in the policy. The said contention is also not acceptable. The prosecution papers also reveal that at the time of the accident in Peelapura Gate bus stop, deceased facilitated for alighting and boarding of the said bus and before he could board the bus, the driver drove the vehicle negligently because of which the deceased fell down and sustained head injury and later succumbed to the injuries.
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NC: 2023:KHC:34293-DB MFA No. 8108 of 2019 Normally, it is the duty of a conductor to facilitate alighting and boarding of passengers; and to give signals to driver to 'Stop' and start the bus at a bus stop. It is not the duty of a cleaner to perform said duty. Exs.P1 and 2 reveal that at the time of accident, the deceased was performing the duty of conductor which corroborates the case of the petitioner/claimants.
23. The complaint was lodged by the younger brother of the deceased, who is claimant No.2. Admittedly claimant are rustic and illiterate villagers. Due to shock, he might have given wrong information to the police and on that basis, the investigating officer might have referred the deceased as the cleaner of the bus, that cannot be ground to disbelieve the case of the claimant. However, in the claim petition they have contended that deceased was the conductor of the bus. In support of the said contention, PW1 gave evidence. There are no reasons for disbelieving the evidence of PW1 that the deceased was conductor of the bus. In her cross-examination, she had
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NC: 2023:KHC:34293-DB MFA No. 8108 of 2019 stated that she had no idea as to what had written in the prosecution papers. It shows the innocence of the claimants. Therefore, the Tribunal has failed to appreciate evidence properly and erred in holding that liability of the deceased was not covered under the policy of the insurance.
24. It is not in dispute that liability of conductor is covered in the insurance policy. Even in written statement of respondent No.2 at paragraph No.11, it is mentioned that "the policy of insurance covered liability of 48 passengers, one driver and one conductor. In Ex.R1 - Respondent No.2 had collected additional premium for compulsory PA for owner driver is Rs.100/-, LL to paid driver IMT 28 as Rs.50/- and legal liability to passenger Rs.37,030/-. IMT 28 is explained in Ex.R1, which reads as under:
"IMT 28 . legal liability to paid driver and/or conductor and/or cleaner employed in connection with the operation of insured vehicle (for all classes of vehicles.)
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NC: 2023:KHC:34293-DB MFA No. 8108 of 2019 In consideration of an additional premium of Rs.50/- notwithstanding anything to the contrary contained in the policy it is hereby understood and agreed that the insurer shall indemnify the insured against the insurer's legal liability under the workmen's Compensation Act, 1923, the Fatal Accident Act, 1855 or at Common Law and subsequent amendments of these Acts prior to the date of the Endorsement in respect of personal injury to any paid driver and/or conductor and/or cleaner whilst engaged in the service of the insured in such occupation in connection with the vehicle insured herein and will in addition be responsible for all costs and expenses incurred with its written consent".
25. According to terms of IMT 28, liability of the conductor is covered in the said policy. Hence, respondent No.2- insurer is liable to indemnify the owner of the bus to pay the compensation.
26. Learned counsel for the appellant has relied on the judgment of Co-ordinate bench of this Court in MFA.No.10738/2010(MV) in the case of Sri. T.S. Subramanya Vs The Divisional Manager, United
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NC: 2023:KHC:34293-DB MFA No. 8108 of 2019 India Insurance Company Limited dated 08.08.2013. In that case also the premium was collected to cover the risk of the driver/conductor and or cleaner. Considering the terms, IMT 7, 21, 38 and 40, it is held that under the said IMT, the liability of the conductor is also covered, under the said policy.
27. Learned counsel for the appellant has relied on the judgment rendered in the case of National Insurance Company Limited Vs. Balakrishnan and Another1. He also relied on the judgment rendered by the co-ordinate Bench of this Court in MFA.No.11023/2010 (MV/INS) dated 16.07.2019 in the case of The Legal Manager, Royal Sundaram Alliance Insurance Co., Ltd., Vs. Sadiq S/o Nisar Ahmed, wherein reliance is placed on a judgment of this Court in the case of The New INDIA ASSURANCE COMPANY LTD., VS. R. THIPPESWAMY AND OTHERS 2, wherein it was held as under:
"16......If the claim is under the provisions of Workmen's Compensation Act, the liability of 1 (2013) 1 SCC 731 2 ILR 2007 KAR 533
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NC: 2023:KHC:34293-DB MFA No. 8108 of 2019 the insurance company will be only to that extent as provided under the Workmen's Compensation Act. If the claim is under the provisions of Motor Vehicles Act, as a third party, then the liability would be unlimited as provided under Section 147(2) of the Act. It is to be remembered that both the Workmen's Compensation Act and the Motor Vehicles Act are beneficial legislation which are enacted to protect in the interest of victims to the accident either in the course of employment or on account of use of motor vehicle. Any interpretation to be placed on these provisions should be in consonance with the object with which these enactments are enacted. Any other view would defeat the very purpose of the act. If the victim of an accident is entitled to compensation under both the aforesaid enactments then that enactment which is more beneficial to him is to be adopted...."
28. The claimants had proved before Tribunal that deceased was conductor of the bus. Ex.R1 cover the risk of conductor since additional premium was collected under the clause IMT 28. The Tribunal had erroneously held that risk of cleaner was not covered under Ex.R1 and hence fastened the liability only on the owner of the bus that needs to be interfered.
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NC: 2023:KHC:34293-DB MFA No. 8108 of 2019
29. Accordingly, we answer the above said question in the 'Affirmative' and pass the following:
ORDER i. The appeal is allowed.
ii. The impugned order passed by the
Tribunal in MVC.No.742/2018 dated
06.08.2019 to the extent of fastening of liability only on respondent No.1 is set aside.
iii. Respondent No.1 is liable to pay the compensation and as the insurer of the offended bus respondent No.2 shall indemnify respondent No.1/owner of the offended bus and pay the compensation to the claimant. iv. Respondent No.2 - Insurance Company shall deposit the compensation within a period of 8 weeks from the date of receipt of certified copy of this award.
v. Apportionment, deposit and release of amount are as ordered by the Tribunal.
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NC: 2023:KHC:34293-DB MFA No. 8108 of 2019 vi. Amount, if any, deposited by appellant/owner of the bus shall be refunded to him.
Sd/-
JUDGE Sd/-
JUDGE AG List No.: 2 Sl No.: 2