Karnataka High Court
Dadapeera S/O Abdul Salam Sab vs Mallesh M S/O Hanumanthappa on 15 January, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2025:KHC-D:590
MFA No. 102485 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF JANUARY, 2025 R
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.102485 OF 2014 (MV)
BETWEEN:
DADAPEERA S/O. ABDUL SALAM SAB,
AGE: 20 YEARS, OCC: STUDENT
CUM-AGRICULTURAL COOLIE,
R/O: WARD NO.5, HUVINAHADAGALI
NOW R/O: KAPPAGAL ROAD, BELLARY.
...APPELLANT
(BY SRI T. HANUMAREDDY, ADVOCATE)
AND:
1. MALLESH M. S/O. HANUMANTHAPPA,
AGE: 21 YEARS, OCC: DRIVER OF TRACTOR
AND TRAILER BEARING NO.KA-35/5-9766,
R/O: BAGALI VILLAGE, TQ: HARAPANAHALLI,
DIST: DAVANAGERE.
2. HUSSAIN SAB BAVAJI
S/O. RAJA SAB BAVAJI,
AGE: MAJOR, OCC: OWNER OF TRACTOR
AND TRAILER BEARING NO.KA-35/T-9766,
R/O: WARD NO.5, HUVINAHADAGALI,
Digitally signed by
MALLIKARJUN DIST: BELLARY.
RUDRAYYA
KALMATH
Location: HIGH 3. THE BRANCH MANAGER,
COURT OF
KARNATAKA NATIONAL INSURANCE CO. LTD.,
BELLARY.
...RESPONDENTS
(BY SRI R.S. ANGADI, ADVOCATE FOR R3;
SRI S.S. JOSHI, ADVOCATE FOR R3;
R1 AND R2-SERVICE OF NOTICE DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, PRAYING TO ALLOW THE APPEAL AND
AWARD DATED 16.06.2014, PASSED IN MVC.NO.300/2013 ON THE
FILE OF THE MEMBER, MOTOR ACCIDENT CLAIM TRIBUNAL-II,
BELLARY, THE COMPENSATION OF RS.9,15,840/- EXCEPT THE
COMPENSATION AWARDED BY THE TRIBUNAL AND ETC.,.
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NC: 2025:KHC-D:590
MFA No. 102485 of 2014
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by the claimant/appellant challenging the judgment and award dated 16.06.2014 passed in MVC No.300/2013 on the file of Member, Motor Accidents Claim Tribunal-II, Bellary (hereinafter referred to as 'the Tribunal' for short) seeking enhancement of compensation and also modification of liability to pay compensation holding the insurance company is liable.
2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Tribunal.
3. The brief facts of the case are that on 28.07.2011 at about 5.45 p.m., in the land of Buden Sab Hadagali, the claimant was proceeding on the mud-guard of tractor engine at the time of tilling the land along with driver of the said tractor engine. At that time, respondent No.1 being driver of the said tractor engine bearing Reg.No.KA-35/T-9766, drove -3- NC: 2025:KHC-D:590 MFA No. 102485 of 2014 the same in a rash and negligent manner, so as to endanger human life and turtled it by losing the control over the said tractor, due to which, the claimant, who was sitting on the mud guard of the tractor engine sustained fracture to his left femur, left thigh, left leg and all over his body and took treatment in the Government Hospital, Huvinahadagali. Therefore, filed claim petition seeking compensation.
4. The Tribunal, after appreciating the evidence on record, has granted compensation of Rs.84,160/- along with interest at the rate of 6% p.a., holding that respondent Nos.1 and 2 being driver and owner of the offending vehicle are jointly and severally liable to pay compensation to the claimant.
5. Heard the arguments from both sides and perused the material placed on record.
6. Learned counsel for the appellant submits that the Tribunal has not held correct parameters while assessing and quantifying the compensation. Therefore, the claimant is -4- NC: 2025:KHC-D:590 MFA No. 102485 of 2014 entitled to enhanced compensation. Further sought to fasten liability on the Insurance Company to pay compensation. RE. LIABILITY:
7. In the present case, the Tribunal held that the claimant had sat on the mud guard of tractor engine at the time of tilling the land along with driver of the said tractor engine and the driver lost control over the vehicle due to rash and negligent driving and caused accident. Hence the claimant sustained injuries. The Tribunal has fastened liability on the owner and driver of the tractor.
8. Learned counsel for the Insurance Company submitted that the claimant was sitting on the mud guard of the tractor engine. This is evident from the FIR at Ex.P.1. Therefore, submitted that claimant was sitting on the mud guard of engine and hence, risk is not covered under the insurance policy. Therefore, when it is proved by the complaint and FIR, which is produced by the claimant himself that he sat on the mud guard of tractor engine, Insurance Company is not liable to indemnify and the owner is held liable to pay compensation to the claimant. -5-
NC: 2025:KHC-D:590 MFA No. 102485 of 2014
9. The Full Bench of this Court in the case of Gadhilingappa @ Gadhilinga and another vs. K. Guleppa and others1 has formulated the questions of law to be considered as follows:
I) Whether a person travelling on a mud-guard of a tractor can be construed as an authorized passenger or an unauthorized passenger and liability of such person is covered or not?
II) Whether the persons who are working either on the ploughing or crushing machines attached to the tractor can be construed as employees so as to cover their risk statutorily under Section 147 of MV Act though there is only one seating capacity in the tractor apart from the driver?
III) Whether the crushing machine or ploughing machine or any other instrument attached to the tractor can be considered to be an attachment to the tractor so as to cover the risk of the insured in respect of employees and the policy taken in respect of the tractor alone?
IV) What is the effect of Section 147 of MV Act to cover the statutory risk under the said situation?
10. While answering the said referred questions of law of Full Bench of this Court, it is answered as follows: 1
ILR 2021 KAR 3377 -6- NC: 2025:KHC-D:590 MFA No. 102485 of 2014 "33. Hence, in view of the decisions of the Apex Court in the case of V. Chinnamma, Shivaraj and Darshana Devi (supra) and the analysis made above, we have no manner of doubt that a liability of a person working either on the ploughing or crushing machines attached to the tractor and who is travelling on the mud-guard of the tractor is not required to be covered by the statutory insurance as contemplated under sub-section (1) of Section 147 of the M.V.Act."
11. Therefore, it is held by the Full Bench of this Court that a person who is sitting on the mud-guard of a Tractor is not required to be covered by statutory insurance policy, as contemplated by Sub-section (1) of Section 147 of the Motor Vehicle Act. Therefore, the Insurance Company is not liable to indemnify the owner and the Insurance Company is liable to be exonerated for payment of compensation to the claimant. The Tractor and Trailer admittedly is the transport vehicle used for the purpose of carrying agricultural produce and the insurance policy is a package policy for covering the risk of transporting agricultural produce only.
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NC: 2025:KHC-D:590 MFA No. 102485 of 2014
12. From the discussion made above, it is held that the claimant was sitting over the mud guard of Tractor engine. The permit is given for the purpose of transportation of agricultural produce, but not for carrying persons on the mud guard. The insurance coverage is there for agricultural purpose only. If it is proved that the claimant had travelled by sitting on the Trailer as an agricultural coolie relating to the transportation of agricultural produce, then the risk would have been covered. But the case of the claimant is, he was sitting on the mud guard of Tractor engine, which means as a gratuitous passenger. Even though, the claimant is claiming to be as loader and un-loader, but the facts in issue remain to prove that the claimant had travelled by sitting over the mud guard of Tractor and Trailer. Upon considering these facts involved in the case, one thing is unequivocally proved that the Tractor engine is used for the purpose other than the permit as per the insurance policy. Admittedly, the Tractor and Trailer is a transport vehicle permitted for transportation of agricultural produce. Therefore, as per the submissions made by the learned counsel for the claimant as -8- NC: 2025:KHC-D:590 MFA No. 102485 of 2014 to whether an order of pay and recovery can be made is the question for consideration.
13. Sub-section (2) of Section 149 of Motor Vehicle Act reads as follows:
149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.
(1) X X X (2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:--
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:--
(i) a condition excluding the use of the vehicle--
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or -9- NC: 2025:KHC-D:590 MFA No. 102485 of 2014
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular."
14. Various defences are available to the Insurance Company for establishing the same for denying their liability as per Sub-section (2) of Section 149 of Motor Vehicle Act. As per Sub-sections (1), (5), (7) of Section 149 of Motor Vehicle Act, an order of pay and recovery can be made where the defence of the Insurance Company is shifted to Sub-section (2) of Section 149 of Motor Vehicle Act. Therefore, third parties are entitled for the benefit of pay and recovery only in case establishment of defence by the
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NC: 2025:KHC-D:590 MFA No. 102485 of 2014 Insurance Company as ingrained in Sub-section (2) of Section 149 of Motor Vehicle Act. The Insurance Company may take any defence other than those mentioned under Sub-section (2) of Section 149 of Motor Vehicle Act. If the Insurance Company has successfully established the defence even other than what is mentioned in Sub-section (2) of Section 149 of Motor Vehicle Act, but third party is entitled for the benefit of order of pay and recovery only in case of established defence under Sub-section (2) of Section 149 of Motor Vehicle Act, otherwise not.
15. Learned counsel for the claimant submitted that the defence of the Insurance Company is established as per Sub-clause (c) of Clause (i)(a) of Sub-Section (2) of Section 149 of Motor Vehicle Act. Therefore, pay and recovery can be ordered.
16. Considering the above submissions, it is to be considered as to whether the tractor is a transport vehicle or non-transport vehicle, if the tractor is attached with trailer, then it can termed as a transport vehicle or non transport vehicle and as to whether for tractor permit can be given or
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NC: 2025:KHC-D:590 MFA No. 102485 of 2014 not, these are all to be considered for coming into conclusion as to whether Sub-clause (c) of Clause (a)(i) of Sub-Section (2) of Section 149 of Motor Vehicle Act is applicable or not.
17. There are two keywords used in the said Sub- clause (c) which are "permit" and "transport vehicle".
18. The word used "permit" is a certificate to be issued by the transport authority and it cannot be used as a general term. The word "permit" used in the said Sub-clause
(c) is a certificate to be issued by the transport authority. Therefore, if the said certificate that means permit is issued and if the transport vehicle is used other than for the purpose allowed in the permit, then only it can be said that the Insurance Company has established its defence, then the claimant is entitled for the benefit of order of pay and recovery.
19. Section 2(31) of Motor Vehicle Act reads as follows:
"2(31)-"permit" means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act
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NC: 2025:KHC-D:590 MFA No. 102485 of 2014 authorising the use of a motor vehicle as a transport vehicle;"
20. Rule 28 of Rules of Road Regulations, 1989 reads as follows:
"28 Driving of tractors and goods vehicles --A driver when driving a tractor shall not carry or allow any person to be carried on tractor. A driver of goods carriage shall not carry in the driver's cabin more number of persons than that is mentioned in the registration certificate and shall not carry passengers for hire or reward."
21. Rule 2(b) and Rule 2(c) of the Central Motor Vehicle Rules, 1989 reads as follows:
(b) "authorisation fee" means the fee to be paid by the permit holder of one country to the other country for obtaining authorisation ;
(c) "bus crew" means driver, conductor and the liaison officer;
22. Therefore, upon combined reading of these definitions, agricultural tractor is a non-transport vehicle when it is not attached to trailer. It can be said that the tractor and trailer combined together is a transport vehicle
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NC: 2025:KHC-D:590 MFA No. 102485 of 2014 because of having characteristic of transporting agricultural materials.
23. The Division Bench of this Court in the case of National Insurance Co. Ltd. Vs. Sri Maruthi and Others2 has held at paragraph No.33 as follows:
"33. As per the table agricultural tractor and power tiller are shown in the non-transport classification, but power tiller and tractors using public roads are shown as transport vehicle. The tractor-tiller is a non-transporting vehicle but when used on roads, is considered as a transport vehicle from the gist of the judgments referred to above. It is crystal clear when the tractor-trailer combined would constitute a goods carriage, therefore permits are necessary for its use on the roads. Under Motor Vehicles Act, by Sections 2 (44) and 2 (46) the definitions of tractor- trailer would definitely indicate when the trailer drawn or intended to be drawn by motor vehicle, it becomes a goods vehicle."
24. According to this, a tractor is attached to trailer can be said as a transport vehicle, but definitely no person can be permitted to travel or allowed to travel by sitting on the mud guard of tractor engine. In the present case, as held above, it is proved that the claimant was not allowed to sit on the mud guard of the tractor engine. Therefore, it is the 2 ILR 2011 KAR 4139
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NC: 2025:KHC-D:590 MFA No. 102485 of 2014 violation of Regulation 28 of Rules of the Road Regulations, 1989. Therefore, in the present case, defence available for the Insurance Company is violation of Regulation 28 of Rules of the Road Regulations, 1989, but not as stated under Sub- section (2) of Section 149 of Motor Vehicles Act. Therefore, order of pay and recovery cannot be made.
25. If tractor and trailer is combinedly used for transporting agricultural materials and if there is any violation or the said Tractor and Trailer is used other than the permit given, then it can be said that the Insurance Company has established its defence under Sub-clause (c) of Clause (i)(a) of Sub-Section (2) of Section 149 of Motor Vehicle Act. Therefore, under those circumstances only, third party is entitled for the statutory benefit of pay and recovery.
26. Therefore, under these circumstances only, the third party is entitled for statutory benefit of pay and recovery. But in the present case, the claimant is allowed to travel on the mud-guard of tractor engine which is prohibited under Regulation 28 of the Karnataka Motor Vehicle
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NC: 2025:KHC-D:590 MFA No. 102485 of 2014 Regulations, 1989 and therefore, for this establishment of defence, an order of pay and recovery cannot be made. The benefit of pay and recovery is a statutory benefit and protection given to the third party. The benefit of pay and recovery is not an absolute right, but it is a statutory right of the third party. In the present case, the claimant by sitting over mud-guard of tractor engine, cannot claim to be a third party. Therefore, for the persons who are not third parties, benefit of pay and recovery cannot be given. Benefit given to third party by giving statutory protection as per sub- section (1), (5) and (7) and as per Judgment of the Hon'ble Supreme Court in PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND ANOTHER (2018) 3 SCC 308; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS (2020) ACJ 2560 and also as per the full bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER (2020 ACJ 2560). The benefit of third party claim is available only on establishment of defence available under sub-section (2) of Section 149 only,
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NC: 2025:KHC-D:590 MFA No. 102485 of 2014 but not otherwise. Therefore, in the present case, the Insurance Company is not liable to pay compensation and at the same time, the claimant is not entitled for the benefit of an order of pay and recovery for the reasons above discussed.
27. Hence, it is ordered that the owner of the tractor engine shall pay compensation to the claimant. Thereby, the Insurance Company is exonerated by indemnifying the owner and to pay compensation.
RE. COMPENSATION:
28. The accident was caused in the year 2011. From the evidence on record including that of the doctor, the claimants have suffered the following injuries:
1) Swelling and pain left thigh of the patient present.
2) Abnormal movement present middle of the left thigh.
29. Considering the nature of injuries sustained by the claimant, the compensation granted for the injuries is on the
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NC: 2025:KHC-D:590 MFA No. 102485 of 2014 lesser side. Therefore, the claimant is entitled for Rs.40,000/- towards injuries, pain and suffering. The compensation awarded towards medical expenses of Rs.17,000/- is as per the actual bills and receipts produced; therefore, the same is kept intact. Further, Rs.20,000/- towards incidental expenses like food, nourishment, traveling, attendant charges, etc., Rs.35,000/- towards loss of amenities awarded and Rs.18,000/- towards loss of income during laid up period for a period of 3 months, is awarded.
30. The doctor has stated that the claimant had suffered 20% of physical disability to the whole body. Therefore, considering the evidence of the doctor, 8% of functional disability is taken into consideration as the claimant had suffered injuries like swelling and pain left thigh of the patient present and abnormal movement present middle of the left thigh. The accident is caused in the year 2011. Therefore, notional income of Rs.6,000/- per month is taken into consideration, which is recognized by the Karnataka State Legal Service Authority. The claimant was
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NC: 2025:KHC-D:590 MFA No. 102485 of 2014 aged 16 years at the time of accident. Therefore appropriate applicable multiplier is 18. Hence, loss of future income due to disability is hereby reassessed and quantified as Rs.1,03,680/- (Rs.6,000/- x 8% x 12 x 18).
31. Thus, in all, the claimant is entitled for compensation under various heads as follows:
Sl. Heads. Amount in
No. (Rs.)
1. Towards pain and suffering. 40,000/-
2. Towards medical expenses. 17,000/-
3. Towards incidental expenses like 20,000/-
food, nourishment, travelling,
attendant charges.
4. Towards loss of amenities. 35,000/-
5. Towards loss of income during 18,000/-
treatment period.
6. Towards loss of earning capacity. 1,03,680/-
Total: 2,33,680/-
32. Therefore, the claimant is entitled for total
compensation of Rs.2,33,680/- along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.84,160/- awarded by the Tribunal. Respondent No.2/owner of the tractor is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment.
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NC: 2025:KHC-D:590 MFA No. 102485 of 2014
33. Hence, I proceed to pass the following:
ORDER i. The appeal is allowed in part.
ii. The judgment and award dated 16.06.2014 passed in MVC No.300/2013 on the file of Member, Motor Accidents Claim Tribunal-II, Bellary, is hereby modified and the claimant is entitled for total compensation of Rs.2,33,680/-
along with interest @ 6% p.a., from the date of petition till its realization, as against Rs.84,160/- awarded by the Tribunal.
iii. Respondent No.2/owner of the tractor is directed to deposit the compensation within eight weeks from the date of receipt of certified copy of this judgment.
iv. No order as to costs.
v. Draw award accordingly.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
SRA
List No.: 2 Sl No.: 14