Karnataka High Court
Venkat S/O Kashinath Gayakwad vs Md.Hussain S/O Md. Yusuf Adoni Ors on 20 June, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA,
GULBARGA BENCH
DATED THIS THE 20TH DAY OF JUNE, 2014
BEFORE
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
MISCELLANEOUS FIRST APPEAL NO.31368 /2011 (MV)
BETWEEN:
Venkat S/o Kashinath Gayakwad
Age: 46 years, Occupation: Private work,
R/o Mirjapur, Taluka: Basavakalyan,
District: Bidar, now residing
At Panchasheel Nagar, Old Jewargi Road,
Gulbarga.
... APPELLANT
(Sri. Babu H. Metagudda, Advocate)
AND:
1. Md. Hussain S/o Md. Yusuf Adoni,
Age: 32 years, Occupation: Driver,
R/o Tajpura, Vegetable Market,
Taluka: Basavakalyan,
District: Bidar.
2. Feroz Anwar S/o Sajeed Anwar,
Age: major, Occupation: Owner of Ashok
Leyland Truck bearing No.KA-39/4076,
R/o H. No.2123, Near Maqdoom Ali Shaha
2
Darga, Taluka: Basavakalyan,
District: Bidar.
3. The Divisional Manager,
The Oriental Insurance Co. Ltd.,
N.G.Complex, Opposite: Mini Vidhana Soudha,
Gulbarga.
... RESPONDENTS
(Sri Sandeep Patil, Advocate for R2)
(Sri Sanjay M.Joshi, Advocate for R3)
(Smt. Sangeeta Bhadrashetty, Advocate
proposed for R5)
(Proposed R4-served.
Notice to R1 is dispensed with v/o
Dated 19.09.2013.
This Miscellaneous First Appeal is filed under Section
173 (1) of Motor Vehicles Act, 1988 against the Judgement and
Award dated 10.03.2011 passed in MVC No. 1288/2009 on the
file of the II Additional Civil Judge (Sr.Dn) and Motor
Accident Claims Tribunal, Gulbarga, partly allowing the claim
petition and seeking for enhancement of compensation.
This appeal coming on for Hearing this day, the Court
delivered the following:
JUDGMENT
Heard the learned counsel for the appellant and the learned counsel for the respondent-Insurance Company. 3
2. The appellant has sought to question the judgment and award of the Tribunal on the ground that the appellant was a gratuitous passenger in a goods carrying vehicle, the same had collided into a tractor and as a result of which she had suffered injuries. The goods lorry in which she was travelling was said to be in the wrong and therefore, the driver of the vehicle had been charge sheeted and criminal proceedings had been initiated. The appellant is the legal representative of deceased victim who was said to be travelling in the goods vehicle and as a result of the collision of the said goods lorry with the tractor, the deceased had died and since the lorry was found to be in the wrong, the driver of the lorry had been charge sheeted and criminal proceedings had been initiated. The appellant- claimant had therefore, impleaded the owner of the lorry and the insurer of the lorry in laying claim for compensation.
3. The Tribunal having held that the deceased could not have travelled in the lorry as a gratuitous passenger, has proceeded to hold that though the claimant is entitled to 4 compensation, the Tribunal has held that the liability could not be entirely on the respondents No.1 and 2 since there was contributory negligence on the part of the tractor driver and since the appellant has not chosen to implead the owner or the insurer of the tractor, the appellant could recover 50% as being the liability of the owner of the lorry on the ground of contributory negligence. It is this which is sought to be questioned in this appeal. Incidentally, an application is also filed seeking permission to implead the owner and insurer of the tractor.
4. The learned counsel for the appellant would submit that all along the claim petition was proceeded on the footing on the basis of the records of the case where the lorry was indicated as the offending vehicle, the driver of the tractor was not charge sheeted, there is no allegation of any contributory negligence and there was also no evidence in this regard. The Tribunal on its own initiative had formed an opinion that there was contributory negligence on the part of the tractor driver. 5 Hence, the owner of the tractor and the insurer not having been made parties, the appellant could recover only 50% of the compensation. It is in this background, the application is filed seeking to implead the owner of the tractor as well as the insurer of the tractor in order to recover the remaining amount of compensation from the owner of the tractor or the insurer of the tractor. This application is apparently filed in the alternative if the appellant's case that the entire amount of compensation could not be recovered from the owner of the lorry. It is pointed out that the Tribunal having proceeded that there was contributory negligence was without any basis. Secondly, it is pointed out that the insurer of the lorry being absolved of any liability on the footing that the deceased was travelling in the lorry as a gratuitous passenger is also unfair, as the certificate of insurance indicates that the insurer has collected a premium of Rs.75/- towards the risk to non-fare paying passenger and if the deceased was a gratuitous passenger, the risk of such a passenger is covered under the 6 policy which the Tribunal has completely overlooked. Therefore, not only was the Tribunal mistaken in holding that the insurance company is absolved of liability, it is also erroneous in holding there was contributory negligence when there is no allegation and evidence in this regard before the Tribunal and hence the learned counsel submits that judgment and award requires to be modified to hold that the insurance company is liable in respect of the non-fare paying passenger and further the question of any contributory negligence did not arise. Hence, the entire liability to pay the compensation rests on the owner and insurer of the lorry.
5. While the learned counsel for the insurance company of the lorry contends that the deceased was apparently travelling as a passenger in a goods vehicle which the law does not permit and collection of premium towards non-fare paying passenger only refers to the owner, or his agent or representative, of the vehicle, travelling in the vehicle. The law regarding collection of premium towards non-fare passenger 7 cannot be attributed to any gratuitous passenger. Therefore, the insurance company has been rightly absolved of its liability. Therefore, there was clear violation of the terms and conditions of the policy. It is on which ground, the Tribunal has absolved the insurance company of its liability.
6. By way of reply, it is pointed out that it is misleading on the part of the counsel for the insurance company that the premium collected relates to the owner of the lorry travelling in the lorry or his agent and not to gratuitous passengers. The counsel for the appellant further contends that as per the certificate of insurance, it is clear that the insurance company collected premium separately towards non-fare paying passenger and the owner of the goods and in respect of the employee of the owner, separately. Therefore, the question of reference to non-fare paying passengers being a reference to the owner of the lorry is a plea of convenience. When that is not stated so in plain language, it cannot be interpreted to mean what it does not imply. Hence, he would contend that the 8 liability of the insurance company in respect of a gratuitous passenger was clearly attracted and though the law does not permit a gratuitous passenger to be carried in a goods vehicle, the insurance company cannot absolve itself of the same. Hence, he would submit that the insurance company would be liable.
7. In the above background, the question of impleading respondents No.4 and 5 does not arise. However, as contended by the learned counsel for the appellant, the material on record would indicate that the lorry was treated as the offending vehicle. Therefore, the claim having been laid against the owner of the lorry or insurer of the lorry cannot be considered to be an incomplete claim. Secondly, the question of contributory negligence does not arise, as there was no allegation in that regard. The Tribunal having drawn such a conclusion is without any basis. Deduction of 50% of compensation on the ground that there is contributory negligence on the part of the tractor is an incorrect conclusion. 9 Thirdly, the insurance company being absolved on the ground that a gratuitous passenger could not be carried in a goods vehicle is consistent with the general law that no passenger can be carried in the goods vehicle. However, the insurance company has undertaken the liability in so far as the risk to non-fare paying passengers is concerned and has collected an additional premium in this regard. The endeavour on the part of the insurance company to contend that the reference to non- fare paying passengers is not to a gratuitous passenger, but may be with reference to the owner of the lorry or to his agent, is something, which cannot be accepted. There was no difficulty for the insurance company to name the owner of the vehicle whose risk was sought to be covered instead of ambiguously labelling him as a non-fare paying passenger. This is evidently a plea of convenience on the part of the insurance company. Non-Fare-Paying Passenger (NFPP) does not imply that it would be the owner of the lorry. It apparently indicates a reference to gratuitous passengers travelling in the goods 10 vehicle. Therefore, it can be said that the insurance company would cover the risk of the gratuitous passengers and is squarely liable. In so far as attribution of contradictory negligence to the tractor driver and holding that the claimant ought to have made a claim against the tractor etc., is a conclusion, which was without any basis. Therefore, the judgment and award of the Tribunal is modified to hold that the insurer of the lorry is liable to pay the compensation, as the additional premium was collected to cover the risk of gratuitous passengers. Accordingly, the judgment and award stands modified.
The appeal is allowed in terms as above.
Miscellaneous Civil No.153317/2011 does not survive for consideration.
Sd/-
JUDGE nsp