Karnataka High Court
Sri Khadar Basha S/O Late Hyder Sab vs Sri K V Lakshmana Gowda S/O Venkataram on 25 June, 2018
M.F.A.NO.8948/2009
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JUNE 2018
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
MISCELLANEOUS FIRST APPEAL No.8948 OF 2009 (MV)
BETWEEN:
SRI KHADAR BASHA
S/O LATE HYDER SAB
AGED ABOUT 40 YEARS
R/AT RAJIVNAGAR
LINGAPURA ROAD, MALUR TOWN
KOLAR DISTRICT ...APPELLANT
(BY SRI N.GOPALKRISHNA, ADV.)
AND:
1. SRI K.V.LAKSHMANA GOWDA
S/O VENKATARAM
MAJOR IN AGE
R/AT KEMPASANDRA VILLAGE
TEKAL HOBLI, MALUR TALUK
KOLAR DISTRICT
2. THE NEW INDIA ASSURANCE COMPANY LTD.
D.O.-XI, TOWER BLOCK,
UNITY BUILDING COMPLEX
J.C.ROAD, BANGALORE - 2
REP. BY ITS MANAGER ...RESPONDENTS
(BY SRI NAGENDRA SHETTY, ADV. FOR R1;
SRI M.NARAYANAPPA, ADV. FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:23.09.2009 PASSED
IN MVC NO.3672/2007 ON THE FILE OF THE I ADDITIONAL SCJ,
COURT OF SMALL CAUSES & MEMBER, MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION & SEEKING
ENHANCEMENT OF COMPENSATION.
M.F.A.NO.8948/2009
2
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This claimant's appeal arises out of judgment and award dated 23.9.2009 passed by the 1st Additional Small Causes Judge and M.A.C.T., Bangalore, ('the Tribunal' for brevity) in M.V.C.No.3672/2007.
2. On 20.4.2007 at 7.00 a.m. when the claimant Khadar Basha was proceeding on his scooter bearing registration No.KA-03/Q-2090 near Balaji Circle, Malur Town, the driver of Tractor bearing registration No.KA-08/T-3308 hit against the claimant and caused the accident. The claimant suffered fracture of right humerus. On the complaint filed by the claimant against the driver of the Tractor, Malur Police, charge sheeted him for the offences punishable under Sections 279 and 338 of IPC read with Section 177 of the Motor Vehicles Act.
3. Claimant filed M.V.C.No.3672/2007 claiming compensation of Rs.6,00,000/-. The insurer alone contested the petition contending that there was unauthorized use of M.F.A.NO.8948/2009 3 the Trailor toed to the Tractor which was not registered and insured. Thereby there is breach of policy condition, therefore, it is not liable to pay compensation.
4. The Tribunal on recording the evidence and hearing the parties awarded compensation of Rs.1,38,200/- with interest @ 6% per annum against the owner of the vehicle. The Tribunal absolved the insurer of the liability on the following grounds:
(i) That the Trailer, which was being pulled by the offending Tractor, was not insured and not registered;
(ii) The Trailer in question was carrying water for commercial purpose.
(iii) For the aforesaid two acts, there was breach of policy condition, therefore the insurer is absolved of its liability.
5. Sri.N.Gopalakrishna, learned Counsel for the appellant submits that accident was caused by the Tractor, not the Trailer, therefore, whether Trailer was registered or insured is an irrelevant fact. He further submits that the insurer had not taken the plea of carrying water for commercial purpose in the Trailer, for the first time in the M.F.A.NO.8948/2009 4 evidence of RW-1 such plea was taken without proving the same, therefore, the Tribunal committed error in dismissing the petition against the insurer.
6. In support of his contention, he relies upon the following judgments:
(1) Noor Baig -vs- Syed Anwer @ Anwer Sab and Others (ILR 2003 Kar 3203) & (2) Fahim Ahmad & Others -vs- United India Insurance Co.Ltd. & Others (AIR 2014 SC 2187).
7. Sri.M.Narayanappa, learned Counsel for the insurer/respondent No.2 seeks to justify the impugned award on the ground that admittedly, trailer was not insured and registered, which amounts to violation of Section 146 of the M.V.Act. He further he submits that the Trailer was carrying tank containing water for commercial purpose, therefore the Tribunal has rightly exonerated the insurer.
8. In support of his contention, he relies upon the following judgments:
(1) The Oriental Insurance Co.Ltd. -vs- D.Laxman and Others (ILR 2006 KAR 4355);M.F.A.NO.8948/2009 5
(2) Oriental Insurance Co.Ltd. -vs- N.Chandrashekara and Others (1997 ACJ 512) & (3) Venkataiah -vs- Ramesh & Another (M.F.A.No.139/2010 (MVC) DD 5.1.2015).
9. The claimant was not the inmate of the Trailer or the Tractor. It was the Tractor, which hit the claimant and ran over his hand and caused injury. The said vehicle was duly insured. In Noor Baig's case and Fahim Ahmad's case referred to supra, it was held that where the accident occurred due to the use of Tractor and not by use of the Trailer, non-insuring of the Trailer attached to the said Tractor will not absolve the insurer of its liability.
10. In D.Laxman's case referred to supra relied upon by the learned Counsel for the insurer, the claim was by the persons, who were traveling in the Trailer. Therefore, it was held that non-insuring of the Trailer absolves Insurance Company of its liability. In N.Chandrashekara's case (supra), the facts of the case are not forthcoming. Therefore, that judgment is not of much assistance to the insurer. In Venkataiah's case (supra), the claimant was traveling in M.F.A.NO.8948/2009 6 Trailor, which was not insured. Therefore, said judgment is also not applicable to the facts of the case.
11. So far as the contention that the Trailor was carrying water for commercial purpose, as rightly pointed out by the learned Counsel for the appellant, the insurer did not raise such plea in its statement of objections. Not even such suggestion was made to PW-1 in his cross-examination. For the first time, RW-1, an official of the Insurance Company comes up with a contention that the Trailor was carrying water for commercial purpose. But again in his cross- examination, when it was suggested that water has to be carried in the Tractors for agricultural purpose, he expresses his ignorance and says he does not know about agricultural operations.
12. In Fahim Ahmad's case referred to supra, a similar contention was taken alleging that in the Trolley of the Tractor, sand was being carried for commercial purpose. The Hon'ble Apex Court in the said context held as follows:
"5. A perusal of the records shows that, at the time of the accident, a trolley was attached with the M.F.A.NO.8948/2009 7 tractor, which was carrying sand for the purpose of construction of underground tank near the farm land for irrigation purpose(s). However, merely because it was carrying sand would not mean that the tractor was being used for commercial purpose and consequently, there was a breach of the condition of policy on the part of the insured. There is nothing on record to show that the tractor was being used for commercial purpose(s) or purpose(s) other than agricultural purpose(s), i.e., for hire or reward, as contemplated under Section 149(2)(a)(i)(a) of the said Act.
6. Although the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor any evidence led to prove the same. In our opinion, it was mandatory for respondent No.1-Insurance Company not only to plead the said breach, but also substantiate the same by adducing positive evidence in respect of the same. In the absence of any such evidence, it cannot be presumed that there was breach of the conditions of policy. Thus, there was no reason to fasten the said liability of payment of the amount of compensation awarded by the Tribunal on the appellants herein."
(Emphasis supplied) M.F.A.NO.8948/2009 8
13. This case is also squarely covered by the judgment in Fahim Ahmad's case. Having regard to the facts and circumstances and the judgments discussed supra, the Tribunal fell into error in holding that there was breach of policy condition and therefore, the insurer is not liable. Therefore, the appeal is allowed. The judgment and award dated 23.9.2009 passed by the 1st Additional Small Causes Judge and M.A.C.T., Bangalore, in M.V.C.No.3672/2007, is modified as follows:
Respondents-1 and 2 in the claim petition are jointly and severally liable to pay compensation of Rs.1,38,200/- to the claimants with interest @ 6% per annum from the date of the petition till its realization.
Second respondent shall deposit the said amount within one month from the date of the receipt of copy of this order.
Sd/-
JUDGE KNM/-