Karnataka High Court
Smt. Mahadevi W/O Alte Hanmanth And Anr vs Jagannath S/O Hanmantha & Anr on 21 July, 2016
Author: L Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF JULY 2016
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
MISCELLANEOUS FIRST APPEAL No. 31693 /2013 (MV)
BETWEEN:
1. Smt. Mahadevi
W/o Late Hanmanth
Age: 47 years, Occ: Household
2. Kumari Chandrakala
D/o Late Hanmanth
Age: 19 years,
Both are R/o Pala village
Taluka and District Gulbarga
... Appellants
(By Sri Amareshwar Shankarayya, Advocate)
AND:
1. Jagannath
S/o Hanmantha
Age: 32 yers, Occ: Owner of Pick up van
Bearing No. KA-32/A-2841
R/o Village Pala,
Taluka and District: Gulbarga - 585 102.
2. The Shriram General Insurance
Company Limited
S-5, 2nd Floor, Monarch Chambers,
Infantry Road, Bangalore- 560 001,
2
By its Authorized Manager
... Respondents
(By Sri Bapugouda Siddappa, Advocate for R1;
Smt Sangeeta Bhadrashetty, Advocate for R2)
This MFA filed under section 173(1) of MV Act,
against the judgment and award dated, 16.11.2011
passed in MVC No. 585/2010 on the file of Prl. Senior
Civil Judge & M.A.C.T. at Gulbarga, partly allowing the
claim petition and seeking enhancement of
compensation.
This appeal coming on for hearing this day, the Court
delivered the following:
JUDGMENT
Appeal by the claimants being aggrieved of fastening the liability on the owner on the ground of violation of policy conditions by allowing more passengers to travel in the goods vehicle as against the permitted capacity of one driver and one employee. The appellants have also sought for enhancement of compensation.
2. It is stated in the complaint that he was proceeding along with father and another brother and 3 also one more person from the village to bring the fodder and there is no mention of hiring the vehicle from anybody. PW-1 has admitted in the cross-examination that the vehicle was a family vehicle.
3. It is the case of the respondent that policy covers only the risk of driver and one employee. In the instant case, it is admitted that they were going to bring fodder and policy was a W.C. policy. The deceased was not an employee in the vehicle. The deceased was aged about 70 years. Thus he prays that respondent insurance company is not liable to indemnify the owner.
4. Heard both.
5. The basic requirement to hold liability on the insurance company is that driver and owner are to be made parties and finding has to be recorded that there was rash and negligent act on the part of the driver and then vicariously the owner is liable to make good the liability. In the instant case, neither the driver nor the owner entered appearance and they were placed 4 exparte. The claimants have not discharged their duty to secure the presence of the owner and the driver. Under Section 169 of the Motor Vehicles Act, the Tribunal has got powers of Civil Court for the purpose of procedure to record evidence on oath and secure presence of any witness by issuing summons. No such coercive steps were adopted by either of the parties. However, it is observed, invariably the Tribunals also fasten liability on the insurance company in most of the cases without recording a finding on the tortuous acts of the driver. It is to be mentioned here that actually insurance company is not a necessary party but it can get impleaded as a party respondent u/s 170 of the Motor Vehicles Act, if it is found that there is collusion between the owner and the claimants. In the instant case, there is no finding as to whether driver has committed tortuous liability for which the owner is vicariously liable. However, the liability is rightly fixed on the owner.
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6. The learned counsel for the respondent placed reliance on decision in National Insurance Co. Ltd., vs., Swaroopa & others reported in 2006(2) T.A.C 483 (S.C.) to advance the contention that in a goods vehicle, gratuitous passengers are not admissible to compensation.
7. The learned counsel for the claimants relied upon decision in National Insurance Company Ltd., vs., Sarojamma & others, reported in ILR 2008 KAR 542 and United India Insurance Co. Ltd., vs., Suresh K.K. & another reported in 2008 ACJ 1741 to contend that person who is going to procure goods, is also covered as prospective owner of the goods.
8. In this regard, Rule 100 of the Karnataka Motor Vehicle Rules exempts driver, owner of the goods and police personnel in the uniform to travel in the goods vehicle. The above judgments on behalf of the claimants cannot be followed for the simple reason that the space made for goods is only for goods and not 6 carrying human beings. At no stretch of imagination, human beings can be compared to goods or solid wastes. Even if the owner of the goods is to be permitted, he has to travel in the cabin and not on the goods in body of the goods vehicle.
9. The R C of the vehicle in question Ex.R2 permits only one employee in the cabin. In the instant case, more than one person in addition to driver, were traveled in the vehicle contrary to Rule 100 of Karnataka Motor Vehicle Rules.
10. In the circumstances, I am of the view, the impugned judgment and award passed by the Tribunal fastening the liability on the owner are sound and proper. No ground to interfere. Accordingly, the appeal is dismissed.
Sd/-
JUDGE akd