Karnataka High Court
The National Insurance Co.Ltd vs Manjunath on 23 August, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1 MFA NO.3853/2016
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.3853/2016 (MV)
BETWEEN:
THE NATIONAL INSURANCE CO.LTD.,
TUMKUR BRANCH OFFICE,
AT KASTHURI MANSION,
M.G.ROAD, KRISHNA TALKIES ABOVE,
CORPORATION BANK,
TUMKUR-572101.
REPTD. BY ITS MANAGER
... APPELLANT
(BY SMT. SUMAN HEGDE, ADVOCATE)
AND:
1. MANJUNATH,
AGED ABOUT 31 YEARS,
2. LINGARAJU,
AGED ABOUT 34 YEARS,
BOTH ARE SONS OF
LATE. KARIBASAVAIAH,
R/O. SHIVAPURA,
HASALAVADI HOBLI,
GUBBI TALUK-572216,
TUMKUR DISTRICT.
2 MFA NO.3853/2016
3. RAJAKUMAR,
S/O SIDDAIAH,
AGE:MAJOR,
RESIDENT OF SHIVAPURA,
HASALAVADI HOBLI,
GUBBI TALU-572216,
TUMKUR DISTRICT.
... RESPONDENTS
(BY SRI N.R.RANGEGOWDA, ADVOCATE FOR R1 AND R2
SRI SHASHIDHARA, ADVOCATE FOR R3)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:06.01.2016 PASSED IN MVC NO.1086/2012 ON
THE FILE OF THE SENIOR CIVIL JUDGE, GUBBI,
AWARDING COMPENSATION OF RS.6,45,000/- WITH
INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL
REALIZATION AND ETC.,
THIS M.F.A. COMING ON FOR HEAERING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant-Insurance Company challenging the judgment and award dated 06.01.2016 passed in MVC.No.1086/2012 by the Senior Civil Judge, Gubbi, on the ground of liability. 3 MFA NO.3853/2016
2. Brief facts of the case are as under:
On 30.06.2012 at about 7.30 am., the claimant No.1 has taken the Tractor Trailer bearing Reg.No.KA-
06-TA-9520-9521 to shift the manure to the garden of claimant No.1 on hire basis. To load the manure, the claimant No.1 has taken the labourers of Mallesh, Ramaiah, Sanjeevachar to the said manure pit of Obalaiah of Shivapura Village. By that time, the driver of the said tractor drove the vehicle in a rash and negligent manner and taken back side, without any caution and signal and dashed against the Mallesh and Dodaiah, as a result of which, the said Mallesh has sustained injuries all over the body, immediately, Mallesh was taken to the hospital in a Maruthi van of Karibasavaiah and on the way to hospital near Kenchanahalli at about 9 am., the said Mallesh died due to the injuries sustained in the accident.
3. Learned counsel for the appellant -
Insurance Company vehemently submitted that the 4 MFA NO.3853/2016 Tribunal has wrongly fastened the liability on the Insurance Company, but as per Ex.R1-insurance policy, the risk of the deceased who is stated to be the loader and unloader is not covered. Further submitted that the claimants themselves submitted in the claim petition and in the evidence that they have taken the Tractor Trailer on hire basis. Therefore, submitted that when the Tractor Trailer was taken on hire basis and as per the conditions of insurance policy, the Insurance Company is not liable to pay compensation. It is further submitted that there is no restrictions in the insurance policy and it can be seen from Ex.R1- insurance policy that the vehicle shall not be utilized for hire purposes, but the claimants themselves stated that the vehicle was taken on hire basis. Hence, the appellant - Insurance Company is not liable to pay compensation. Therefore, submitted that the above said facts are not discussed by the Tribunal in its judgment. Therefore, submitted that the impugned 5 MFA NO.3853/2016 judgment and award is illegal and perverse. Therefore, prays for exonerating the Insurance Company from payment of compensation by allowing the appeal.
4. Learned counsel for the appellant-
Insurance Company places reliance on the judgment of the High Court of Judicature at Madras in the case of United India Insurance Company Limited Vs., Sathish Kumar in C.M.A.No.2696/2018 and C.M.A.No.20384/2018 decided on 28.02.2019 and the judgment of Punjab-Haryana High Court in the case of The New India Assurance Company Limited Vs., Sohan Lal and Others in FAO Nos.135/1994 and 1677/1993 (O&M) decided on 10.12.2012 . Therefore, prays to allow the appeal by setting aside the judgment of the Tribunal.
5. On the other hand, learned counsel for respondent No.3-owner of the Tractor Trailer 6 MFA NO.3853/2016 submitted that the Tractor Trailer was taken on hire basis. The owner is the uncle of the claimants. Hence, for transportation of manure as the manure was situated in some other place has taken the Tractor Trailer and the deceased was engaged as a loader and unloader. Further submitted that the deceased was standing on the ground outside the Tractor Trailer. Therefore, the deceased is the third party so far as Tractor Trailer is concerned. Therefore, it is submitted that the appellant-Insurance Company is liable to pay the compensation.
6. Further submitted that as per the evidence on record, the Tractor engine had hit the deceased while reversing the Tractor and in that process, the Tractor engine dashed the deceased. Therefore, the Tractor engine was insured as per Ex.R1-insurance policy. Therefore, the deceased being the third party, the Insurance Company shall indemnify the owner and pay the compensation. In this regard, learned 7 MFA NO.3853/2016 counsel for the owner relied on the judgment of this Court in the case of The New India Assurance Company Limited Vs. Shri R.Thippeswamy and Others reported in ILR 2007 KAR 533.
7. In the present case, the Tribunal has awarded total compensation of Rs.6,45,000/- with interest at the rate of 8% per annum from the date of petition till realization by holding both the owner and Insurer of the Tractor Trailer are jointly and severally liable to pay compensation and directed the appellant- Insurance Company to deposit the entire compensation amount.
8. Considering the rival submissions of the learned counsel appearing for both the parties, as canvassed above, in the present case, the admitted fact revealed that claimant No.1 has taken the Tractor Trailer bearing Reg.No.KA-06-TA-9520-9521 to shift the manure to the garden of claimant No.1 on hire 8 MFA NO.3853/2016 basis. The Tractor Trailer along with the deceased and others have reached the place called manure pit of Obalaiah of Shivapura Village. At that time, the deceased had got down and was standing on the ground, by that time, the driver of the Tractor Trailer drove the same in a rash and negligent manner while reversing the Tractor and in that process, the Tractor engine hit the deceased, in result of which, the deceased sustained grievous injuries and admitted to the hospital and subsequently, succumbed to the injuries. Therefore, upon these facts, the evidences are considered. Claimant No.1 is examined as P.W.1. He has stated that he has taken the Tractor Trailer to shift the manure to his Garden on hire basis and to load the manure, he has taken the help of deceased and other persons and the deceased met with the accident as above discussed. Ex.P.2 is the complaint, Ex.P.1 is the FIR. The complaint is to the effect that the Tractor was stopped at the manual pit of one 9 MFA NO.3853/2016 Obalaiah of Shivapura Village and the deceased and others have got down from the tractor and in order to load the manure to the Tractor, at that time, the driver of the tractor while reversing the tractor drove the same in a rash and negligent manner and by which act, the Tractor engine dashed the deceased, in result of which, the deceased sustained grievous injuries and succumbed to the injuries. The charge sheet is filed after investigation by the police to the effect that the Tractor engine had hit the deceased while the deceased was standing on the ground. Therefore, under the factual matrix involved, the question to be considered as to whether the Insurance Company is liable or not to pay the compensation.
9. The judgment relied on by the learned counsel for the appellant-Insurance Company in Sathish Kumar's case (stated Supra), the facts are that the insurance policy was issued as a "Act Policy"
and the claimants were traveling as pillion riders and 10 MFA NO.3853/2016 therefore, it was held by the High Court of Judicature at Madras that extra/ additional premium is to be paid so as to cover the risk of the pillion rider, then even in the Act Policy, the Insurance Company is liable to pay compensation. It is further held that, if the policy is an "Act Policy", if an extra/additional premium is not paid, then under the Act Policy, the Insurance Company is not liable to pay compensation. The facts and circumstances cited in the above judgment and the facts and circumstances in the present case are different. Therefore, the above said judgment is not applicable/not helpful to the Insurance Company.
10. In the case of Sohan Lal (stated supra), the facts are that the Tractor Trailer had hit the injured, but the Tractor alone was insured and Trailer was not insured, but the Trailer had hit the injured and the Trailer was not insured, then the Insurance Company is not liable. But in the present case, it is the fact that as per the complaint averments and the 11 MFA NO.3853/2016 charge sheet papers, the Tractor engine had hit the deceased while the deceased was standing on the ground. Therefore, this makes difference in the above cited case and in the present case regarding factual matrix involved. Therefore, this judgment is not helpful to the contention raised by the Insurance Company.
11. As above discussed, the Tractor engine had hit the deceased while the deceased was standing on the ground. Even though, the deceased had gone in the Tractor as a loader and unloader, but after reaching the place of manure pit, all the loaders and unloaders including the deceased have got down and standing on the field. Therefore, when the Tractor engine had hit the deceased and the deceased was standing on the ground and was not inside the Tractor Trailer, therefore, the deceased has become the third party. Therefore, the deceased was standing on the 12 MFA NO.3853/2016 ground, which means outside the Tractor Trailer and Tractor engine had hit the deceased. Therefore, the deceased is the third party as covered under clause (i) of Proviso to Sub-section (1) of Section 147 of the MV Act. Even though, the deceased was engaged as an employee in the Tractor, but at the time of accident, the deceased was not in the Tractor Trailer when the Tractor engine hit the deceased when the deceased was outside the vehicle. Therefore, the deceased can be categorized as third party.
12. In this regard, the counsel for the respondent No.3 - owner has rightly placed the judgment of this Court in Sri R.Thippeswamy's case (stated supra). In the above cited case, the facts are that the claimant was working as a cleaner in passenger bus and in the course of his employment as a cleaner, he got down from the bus and was regulating the movement of the people in front of the 13 MFA NO.3853/2016 bus. At that time, the driver of the bus suddenly moved the bus resulting in running of left front wheel of the bus over the right foot of the claimant. Therefore, under these circumstances, this Court in the above stated case has held that even if the claimant is an employee of the said bus, but on the moment he got down from the bus for regulating the movement of the people even in the course of employment, but since he was outside the bus, the claimant was categorized as third party. Hence, it was held that the Insurance Company is liable. At paragraph No.16 in Sri R.Thippeswamy's case (stated supra), this Court held as under:
"16. From the aforesaid judgments it is clear, if the injured is an employee and in the course of his employment if he is injured, whether he is inside the bus or outside the bus, under the provisions of the Workmen's Compensation Act he is entitled to compensation. Thus, to be entitled to compensation what has to be established is that the injured was an employee of the insured, he was injured in the course of employment and then he is entitled to compensation. But that is not the position in respect of cases arising out of Motor Vehicles Act of 1988. For being entitled to compensation 14 MFA NO.3853/2016 under the Act, the claim for compensation should arise in respect of accidents involving the death of or bodily injury to persons arising out of the user of the motor vehicles. The relationship of master and servant is not necessary. If such a relationship exists it enures to the benefit of an employee to a limited extent as provided under proviso (ii) to Sub-section (1) of Section 147 i.e., if the insured had taken a policy covering only third party risk, even then the driver of the vehicle which is insured and if it is a public service vehicle the employee engaged as a conductor of the vehicle or employee employed in examining the tickets on the vehicle and if it is a goods carriage employee being carried in the vehicle are also entitled to compensation to the extent it is provided under the provisions of Workmen's Compensation Act even though the insured had not paid any additional premium. However, the said benefit is not available to other categories of employees of the insured. But if other categories of employees at the time of accident though in the course of employment are outside the vehicle, then they would become 'third party' under the Act, notwithstanding the fact that such a person is also an employee of the insured. Such an employee has the option of either claiming compensation under the provisions of Motor Vehicles Act as a third party or as an employee of the insured under the provisions of Workmen's Compensation Act. If the claim is under the provisions of Workmen's Compensation Act, the liability of 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 15 MFA NO.3853/2016 enacted to protect 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 Page 0447 enactment which is more beneficial to him is to be adopted. In those circumstances, I am of the view that there is no substance in the contention of the appellant that the tribunal had wrongly foisted the liability on them. In that view of the matter, I do not find any merit in this appeal. Hence I pass the following order.
Accordingly, the appeal is dismissed.
13. Therefore, upon considering the factual matrix involved in the above cited case and in the present case, both are having similar facts and circumstances expect the class of vehicle and the nature of employment. In the above stated case, the claimant was an employee in the bus, but when he got down from the bus for regulating movement of the people in front of the bus, at that moment, the bus hit the claimant. As discussed above, the cleaner become 16 MFA NO.3853/2016 the third party soon after he was out of the vehicle and met with an accident. Therefore, the above stated judgment is squarely applicable to the case on hand as discussed above.
14. In the present case also, the Tractor engine had hit the deceased when the deceased was standing on the ground and the deceased died. Ex.R.1 is the insurance policy, which is "Miscellaneous and Special Type of Vehicles Policy B Package". As per this insurance policy, the policy was issued in respect of Tractor No.KA-06-TA-9520 only. Therefore, the appellant -Insurance Company is liable to pay the compensation by indemnifying the owner of the Tractor Trailer bearing No.KA-06-TA-9520-9521.
15. Considering the contention raised by the learned counsel for the Insurance Company that, since the tractor was used on hire basis, therefore, the Insurance Company is not liable, since there is 17 MFA NO.3853/2016 violation of conditions of policy under the head limitation as to use. It is proved that in Ex.R1- insurance policy, the limitation as to use of the vehicle is barred when the vehicle is used for hire or reward or for racing face etc., but here as per the claimants the Tractor Trailer was hired, but that cannot affect the rights of third party. Here, the deceased at the time of accident was not in the tractor by sitting over the mud guard or trailer, but the deceased was standing on the ground field. Thus, becomes the third party so far as Tractor Trailer is concerned. Therefore, this clause of limitation as to use is not applicable so far as third party is concerned. Whatever may be the nature of vehicle or nature of purpose of taking or using the vehicle whether for own use or on hire basis or for any other purpose, but the claim of third parties are not affected. Therefore, even though, the Tribunal has not considered this point in its judgment, but the Tribunal has correctly held that the Insurance 18 MFA NO.3853/2016 Company is liable. Therefore, for the aforesaid reasons, the appeal filed by the Insurance Company is found to be devoid of merits as the contention raised are not sustainable. Therefore, the appeal is liable to be dismissed. Hence, I proceed to pass the following ORDER The appeal is dismissed.
The impugned judgment and award dated 06.01.2016 passed in MVC.No.1086/2012 by the Senior Civil Judge, Gubbi, is hereby confirmed.
The amount in deposit made by the Insurance Company shall be transmitted to the Tribunal along with TCR and a copy of this order forthwith.
Sd/-
JUDGE PB