Bangalore District Court
Shekara Y.D vs Mr.Somaraju Y.S on 11 August, 2021
BEFORE THE CHIEF JUDGE, COURT OF SMALL CAUSES &
MEMBER PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL AT
BENGALURU
PRESENT: SMT.PRABHAVATI M. HIREMATH,B.A., L.L.B.(Spl.)
MEMBER, PRL. M.A.C.T.,
M.V.C. No.6488/2018
DATED THIS THE 11th DAY OF AUGUST'2021
PETITIONER: SHEKARA Y.D.,
S/o.Dyavegowda,
Aged about 21 years,
Yaladahalli Village,
C.A.Kere Hobli,
Maddur Taluk,
Mandya District.
(By K.T.Madhu, Advocate)
-Vs-
RESPONDENTS: 1.MR.SOMARAJU Y.S.,
S/o.Siddegowda,
Yaladahalli Village,
C.A.Kere Hobli,
Maddur Taluk,
Mandya District.
(Owner of Goods Mini Tempo
No.KA.11/B.5602)
2.CHOLA - MS GENERAL
INSURANCE CO., LTD.,
Legal Office,
No.1/2, 9th Floor, 59th 'C' Cross,
Golden Heights,
Near Sujatha Theatre,
Rajajinagar 4th Block,
Bangalore 560 010.
(Policy No.3392/30022573)
Valid from 29.06.2018 to 28.06.2019)
(Respondent No.1 Exparte,
Respondent No.2 by Ms.Nagarathna P.,
Advocate)
SCCH-1 2 MVC No.6488/2018
JUDGMENT
This is a petition filed under Section 166 of the of the Motor Vehicles Act, 1989.
(2) The brief facts of the petition are as follows:-
On 30.09.2018, at about 06.30 am., while the petitioner was travelling in Goods Mini Tempo Mo.KA.11/B.5602 from Mysuru towards Malavalli on Malavalli- Mysore Road and came near Banasiri Choultry, the driver of the said Tempo drove the same in rash or negligent manner and took it towards the extreme left side of the road and dashed against the wall of the bridge. Due to the impact, the petitioner sustained grievous injuries all over the body resulting in multiple fractures. Immediately, he was shifted to Government Hospital, Malavalli and then to Mandya, wherein after first aid, he was shifted to Sparsh Hospital, Bengaluru. He has taken taken treatment as inpatient for a period of 12 days and underwent multiple surgeries and implants were inserted. He has spent morethan Rs.10 lakhs towards medical treatment, food, nourishment and conveyance expenses. Now, he is under follow up treatment.
Prior to the accident, the petitioner was hale and healthy. He was doing coolie work under first respondent in his Goods SCCH-1 3 MVC No.6488/2018 Vehicle and getting Rs.12,000/- per month as wages. The accident occurred during his employment with the first respondent. He was doing the work of loading/unloading as per the instruction of the first respondent. On the date of accident, he loaded vegetables to the tempo at Malavalli Market and thereafter, unloaded the vegetables at Mysore Market and while returning from Mysure Market in the said Goods Tempo, the accident has occurred.
In view of the injuries sustained by him in the accident, he is not able to do his normal routine activities. Therefore, compensation of Rs.25 lakhs on various heads along with interest at 12% p.a. is claimed from the respondents, who are the Owner and Insurer of the said vehicle.
(3) After service of notice of this petition, respondent No.1 remained absent and placed exparte. The respondent No.2 appeared through its Advocate and filed its Statement of Objections.
(4) In brief, the contentions raised by the respondent No.2 in its Statement of Objections, are as under:-
The vehicle is insured with the second respondent and it is a goods carrying vehicle. Insurance Policy was valid for SCCH-1 4 MVC No.6488/2018 the period 29.06.2018 to 28.06.2019. Other averments in the petition are denied in toto. The driver of the goods vehicle had no valid and effective driving licence to drive the same and thereby the respondent No.1 has violated the terms and conditions of the policy. The respondent No.1 has allowed the petitioner to travel unauthorizedly in the goods tempo and he is a gratuitous passenger. The petitioner was not supposed to travel in the goods tempo. Therefore, the second respondent is not responsible to cover his risk. Mandatory requirement of Section 158(6) of the Motor Vehicles Act are not complied with by the Police. By twisting the facts, the complaint was lodged against the driver of the insured vehicle. Other averments in the petition regarding the age, avocation and income of the petitioner and that he was working under respondent No.1 are denied and prayed to dismiss the petition.
(5) From the above pleadings of the parties, the XIII Addl. Judge & Member, MACT, Bengaluru, before whom the present case was pending before its transfer to this Tribunal, has framed the following issues :
1. Whether the Petitioner proves that he has sustained injuries due to RTA alleged to have been occurred on 30.09.2018 at about 06.30 am., on Malavalli Mysore Road near Banasiri Choultry, Malavalli, Mandya District due to the rash and SCCH-1 5 MVC No.6488/2018 negligent driving of the driver of the Goods Mini Tempo bearing registration No.KA.11/B.5602?
2. Whether the petitioner is entitled for compensation ? If so, what amount and from whom?
3. What order ?
(6) In support of the petitioner's case, petitioner has got examined himself as PW-1 and has also examined the doctor as PW 2 and got marked in all 14 documents as Ex.P.1 to P.14. In support of the respondent No.2's case, one witness is examined as RW1 and got marked 2 documents as Ex.R.1 and Ex.R.2.
(7) Heard arguments on both sides.
(8) For the reasons stated in the subsequent paras, I answer issues as follows:
Issue No.1 ... In the affirmative, Issue No.2 ... Accordingly, Issue No.3 ... As per final order, for the following:-
REASONS (9) Issue No.1:- It is the case of the petitioner that only due to the rash or negligent act of driving on the part of the driver of the Mini Goods Tempo, the accident has occurred.
(10) To prove the same, the petitioner has relied on his own oral evidence and Police records. Ex.P.1 is the FIR along with Complaint, Ex.P.2 is the Crime Details form / Spot SCCH-1 6 MVC No.6488/2018 Mahazar, Ex.P.3 is the IMV Report and Ex.P.5 is the Charge Sheet.
(11) From going through the Police records, it is clear that immediately after the accident, on the same day, case was registered against one Nandish, the driver of the Mini Goods Tempo.
(12) It is recited in the complaint itself that as usual, the second son of the complainant Soma Raju along with the petitioner had been to Mysuru along with vegetables loaded at Malavalli Market and it is further mentioned that they have unloaded the vegetables at Mysure Market. Thereafter, they were returning towards Malavalli. Without the interference of any other vehicle or anything, the driver of the Mini Goods Tempo dashed his vehicle to the wall of the bridge and caused the accident. After registration of the case, during investigation, Spot Panchanama as per Ex.P.2 was conducted and in the Spot Panchanama, it is mentioned that due to the dash, wall of the bridge damaged and the vehicle was also damaged. The fact that moving vehicle without interference of any other vehicle or anything, gone to the extreme left side of the road and dashed to the wall of the bridge, itself is sufficient to come to the conclusion that only due to the rash SCCH-1 7 MVC No.6488/2018 or negligent act of driving on the part of the driver of the Mini Goods Tempo, the accident occurred. The principle 'res ipsa loquitor' ie., the facts speak for themselves, is squarely applicable to the facts of the case. On completion of investigation, Charge Sheet is filed against Nandish, the driver of the Mini Goods Tempo. There is no evidence to the contra, Therefore, the petitioner has established that the accident has occurred purely on account of rash or negligent act of driving of the Mini Goods Tempo by its driver.
(13) In this case, there is no dispute that in the said accident, the petitioner has sustained grievous injuries. To prove the same, he has replied on Medical Records ie., Wound Certificate as per Ex.P.4, Discharge Summary at Ex.P.6, Medical Bills at Ex.P.7, Prescriptions at Ex.P.8, Case Sheet at Ex.P.10 and another Discharge Summary at Ex.P.12. From going through the said documents, it is clear that in the accident, the petitioner has sustained grievous injuries ie., multiple fractures. Therefore, Issue No.1 is answered in the affirmative.
(14) Issue No.2:- It is the case of the petitioner that in view of grievous injuries sustained by him in the accident, he has incurred huge medical expenses and he is suffering SCCH-1 8 MVC No.6488/2018 from permanent disability and therefore, on various heads, he has claimed, in all Rs.25 lakhs as compensation.
(15) In the decision reported in (2011) 1 SCC 343 ( Raj Kumar Vs. Ajay Kumar and another) Division Bench of the Hon'ble Apex Court has laid down on what grounds compensation is required to be awarded in personal injury case. In para 6 of the said judgment Their their Lordships have demarcated the heads in which compensation is required to be considered are reads as under:
6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages(Special damages)
(i)Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment
(b) Loss of future earnings on account of permanent disability.
(iii) future medical expenses Non-pecuniary damages(General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage)
(vi) Loss of expectation of life(shortening of normal longevity) (16) From going through the above said decision, it is clear that under the pecuniary damages expenses relating to SCCH-1 9 MVC No.6488/2018 the treatment, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure are required to be considered. In the second head loss of earning and other gains of the injured person is required to be considered. In the background of principle laid down by Their Lordships in the above said decision, we can consider what amount the petitioner is entitled for compensation.
(17) From going through the Wound Certificate at Ex.P.4, it is clear that the petitioner has sustained 4 injuries and all injuries are grievous in nature. As per the Wound Certificate, it reveals that on examination of the petitioner, the petitioner had sustained 1) Fresh laceration in left foot 1cm x 6cm x 2cm, 2) Left thigh swelling and tenderness present, 3) Right knee swelling and tenderness present, 4) Right leg swelling and tenderness present below knee and as per the Report of the Orthopedician, the petitioner had sustained 1) Right Tibia Mid Shaft Fracture, 2) Left Femur Sub Trochanteric Fracture, 3) Left Tibia Mid Shaft Fracture and 4) Crush injury left foot and the petitioner has taken treatment as inpatient from 30.09.2018 to 12.10.2018 at Sparsh Hospital, Bengaluru as can be seen from Ex.P.6 - Discharge Summary. As per Ex.P.12 - Another Discharge Summary issued by Sparsh SCCH-1 10 MVC No.6488/2018 Hospital, Bengaluru, the petitioner has again taken treatment as inpatient on 25.05.2020 and 26.05.2020. Hence, considering the nature and gravity of injuries and the period of treatment, the petitioner is awarded a compensation of Rs.80,000/- under the head Pain and Suffering.
(18) From Ex.P.6 - Discharge Summary issued by Sparsh Hospital, Bengaluru, it is clear that the petitioner has taken treatment as inpatient from 30.09.2018 to 12.10.2018 for a period of 13 days and further as per another Discharge Summary at Ex. P.12, the petitioner has taken treatment as inpatient on 25.05.2020 and 26.05.2020 for 2 days. Thus, in all the petitioner has taken treatment as inpatient for 15 days.
Therefore, the petitioner is awarded Rs.15,000/- as compensation towards Food, Nourishment and Attendant Charges.
(19) It is the case of the petitioner that he sustained huge medical expenses for his treatment. He has taken treatment as an inpatient in Sparsh Hospital, Bengaluru. Ex.P.6 is the Discharge Summary of the petitioner issued by the said hospital. From Ex.P.6, it is clear that the petitioner has taken treatment as an inpatient from 30.09.2018 to 12.10.2018. To substantiate his claim in regard to medical expenses, the SCCH-1 11 MVC No.6488/2018 petitioner has relied on Ex.P.7, which are 129 Medical Bills. Sl.No.1 of Ex.P.7 is the Inpatient Bill for Rs.6,03,956.83, out of which, Rs.40,000/- is the concession given by the hospital mentioned as Relief and the paid amount was Rs.5,63,956.83. Sl.No.1(a) to 1(l) are the receipts for having paid the amount either advance or subsequent payments. To doubt the genuinity of Ex.P.7, there is nothing on record. Other Bills at Sl.No.2 to 129 are either Consultation Bill, Dressing Bill, Lab Bill or Pharmacy Bill. Sl.No.86 to 99, 114, 125 to 128 of Ex.P.7 are with reference to Pharmacy Bill during the treatment of the petitioner as inpatient. From No.1 of Ex.P.7, it is clear that under the head of consumables, amount was collected, which includes medicines and disposal instruments for the treatment. Therefore, the petitioner is not entitled to claim the amount shown in those bills. Further, Sl.No.118 and 119 of Ex.P.7 are issued by MSMC Narayana Hrudayalaya, Bengaluru. 2 Bills are dated 08.10.2018 and 07.10.2018. From the Case Sheet at Ex.P.19 produced by PW 2 the doctor, it is clear that on 07.10.2018 and 08.10.2018, the petitioner was admitted in Sparsh Hospital itself. Therefore, petitioner is not entitled for the amount of these two bills. Total of above referred bills comes to Rs.26,482/-. Therefore, the petitioner is not entitled to claim the amount shown in those two bills. Thus, after SCCH-1 12 MVC No.6488/2018 discarding Bills at Sl.No.86 to 99, 114, 118, 119 and 125 to 128 in Ex.P.7, the amount shown in other Bills comes to Rs.6,09,301/- and accordingly, after rounding off the same, the petitioner is awarded Rs.6,09,300/- under the head Medical Expenses.
(20) From going through Medical Bills, Consultation Bills and dressing bills produced by the petitioner at Ex.P.7, it is clear that even after discharge from the hospital, the petitioner has taken treatment as an outpatient and he used to visit hospital for the purpose of dressing. Therefore, the petitioner is awarded a compensation of Rs.2,000/- towards Transportation Charges.
(21) It is the case of the petitioner that due to the injuries sustained by him in the accident, he is left with permanent disability, on account of which, now he cannot work as a coolie or loader. To substantiate the same, the petitioner has relied on the evidence of PW 2, who is the doctor. PW 2 in his chief examination evidence, by referring to the injuries sustained by the petitioner and considering the restriction of movements, he has assessed the percentage of disability of right lower limb as 39% and left lower limb as 64% and for whole body, he has assessed 31% disability. SCCH-1 13 MVC No.6488/2018
(22) During the course of his cross-examination by the learned Advocate for the respondent No.2, it is suggested to him that he is not the treated doctor. For that, he answered that he was in the team of doctors, who have treated the petitioner.
(23) From the cross-examination of PW 2, he is unable to say what is the duration of healing of multiple fractures. For that he answered that he cannot say duration of healing of fractures, since it is a case of multiple fractures. Further admitted that the condition of the petitioner improved from admission to discharge. The chief examination affidavit of PW 2 was filed on 19.12.2019 and on the same day, documents were got marked and thereafter, PW 2 was cross- examined on 20.10.2020. The reason for such huge gap between chief examination and cross-examination of PW 2 may be due to lockdown on account of covid 19 pandemic and the time taken by the parties. For that reason, in his cross- examination, PW 2 has deposed that he cannot say at this stage whether implants are removed or not and he further admitted that he is not aware of the present condition of the petitioner. In the chief examination affidavit, at Para No.6, PW 2 has averred that the petitioner walks with limping gait, SCCH-1 14 MVC No.6488/2018 there is unhealthy scar over left foot and ankle and disfigured foot, restricted left hip, knee and ankle movements with wasting of left thigh, calf muscles, right knee restricted movements and wasting of calf muscles. This evidence of PW 2 in the chief examination is not categorically denied during the course of cross-examination. On the contrary, PW 1 in the chief examination has explained his physical disabilities by stating that now he is suffering from severe pain in his left leg, difficulty to move freely, cannot stand for long time, difficulty to claim stairs and totally disabled to perform his work as labourer.
(24) Considering the physical condition of the petitioner as deposed by PW 1 and 2 in their chief examination and the above referred admission given by the doctor PW 2 during the course of his cross-examination, it is clear that now the petitioner cannot work as labourer in view of restriction of movement. Even though the fractures are united, in view of loss of muscles and limping, he cannot carry weight. Therefore, the percentage of disability assessed by PW 2 is considered and to assess the loss of earning capacity, the percentage of disability is taken as 30%. Even though the SCCH-1 15 MVC No.6488/2018 petitioner cannot work as a labourer, but he can do any other work in sitting posture.
(25) It is the case of the petitioner that at the time of the accident, he was earning Rs.12,000/- per month as labourer. Even though there is no documentary evidence to prove the same, but the fact remains that at the time of accident, he was travelling as loader/unloader in the Mini Goods Tempo. As the accident has occurred in the year 2018, considering the year of accident, the income of the petitioner is assessed notionally at Rs.12,000/- per month. 30% of the same comes to Rs.3,600/- per month, which is required to be converted annually, which comes to Rs.43,200/-. As per Ex.P.9
- Aadhaar Card of the petitioner, his date of birth is 03.05.1998 and thereby, at the time of accident, the petitioner was aged 21 years. Therefore, as per the principles laid down by their Lordships in 2009 ACJ 1298 (Sarla Verma Vs Delhi Transport Corporation), the multiplier applicable to the present case is 18. Therefore, under the head loss of earning capacity on account disability, the petitioner is entitled for a compensation of Rs.7,77,600/-.
(26) Considering the multiple fractures sustained by the petitioner in the accident, the petitioner may not have SCCH-1 16 MVC No.6488/2018 been in a position to attend to his avocation during treatment period and also during follow up treatment, for a minimum period of 2 months. Therefore, the petitioner is awarded Rs.24,000/- towards loss of income during laidup period, at the rate of Rs.12,000/- per month for 2 months.
(27) The details of compensation, to which the petitioner is entitled to is as under:-
Sl. Head of Compensation Amount
No.
1 Pain and Sufferings Rs. 80,000-00
.2 Food and nourishment, attendant Rs. 15,000-00
charges
3 Medical expenses Rs. 6,09,300.00
4
. Transportation charges Rs. 2,000-00
5 Loss of income during laid up Rs. 7,77,600.00
period
6 Loss of income during laid up Rs. 24,000-00
period (Rs.12000X 2)
Total Rs 15,07,900.00
(28) The petitioner is awarded a total compensation of Rs.15,07,900.00 together with interest at 6% p.a., from the date of petition till realisation.
(29) It is not in dispute that the respondent No.1 is the Owner of the Mini Goods Tempo, whereas, the respondent SCCH-1 17 MVC No.6488/2018 No.2 is the insurer of the same. However, the respondent No.2's case is that at the time of accident, the petitioner was travelling in the Mini Goods Tempo as gratuitous passenger and risk of such gratuitous passengers is not covered under the Policy. Witness examined by the respondent No.2 has also reiterated the said fact in his chief examination affidavit. (30) The learned Advocate for the petitioner vehemently argued that it is an admitted fact that at the time of accident, the petitioner was travelling in the Mini Goods Tempo. In this case, the respondent No.2 - Insurance Company has already satisfied the claim made by the owner of the vehicle with regard to the damages caused to the vehicle. Therefore, the respondent No.2 - Insurance Company has admitted its liability. Therefore, the Insurance Company - Respondent No.2 cannot construe the petitioner as a gratuitous passenger and the risk of the petitioner is not covered. On this point, he relied on the judgment of the Division Bench of the Hon'ble High Court of Karnataka in MFA No.7830/2005 (United India Insurance Co., Ltd., Vs Smt.Jubeda and others), decided on 18.08.2010. Learned Advocate for the petitioner vehemently argued that from the evidence on record, it is proved that on the date of the SCCH-1 18 MVC No.6488/2018 accident, the petitioner had been to Mysuru in the Mini Goods Tempo for loading and unloading purpose. The Insurance Company is liable to pay compensation to loaders or coolies travelling in the goods vehicle for loading and unloading purpose. In support of his arguments, he relied on the decision reported in 2018 ACJ 2081 (United India Insurance Co., Ltd., Vs Muni Anjinappa and others), wherein the Single Bench of the Hon'ble High Court of Karnataka, has held as under:-
"Motor Vehicles Act, 1988, Section 147(1) and Karnataka Motor Vehicles Rules, 1989, Rule 100 - Motor Insurance - Goods Vehicle - Passenger risk - Liability of Insurance Company - Coolies/Loaders travelling in a goods vehicle for loading/unloading vegetables sustained injuries when vehicle turned turtle due to rash and negligent driving.....Dominant nature of work of the claimants was loading/unloading vegetables in the goods vehicle and even through they have been appointed for a limited period, they become employees on the goods vehicle for loading/unloading of vegetables - Rule 100 statutorily covers the risk of loader/unloader working on the goods vehicle - Whether insurance company is liable - Held : yes; Insurance Company cannot escape its liability as policy covered the risk of employees engaged for loading/unloading". SCCH-1 19 MVC No.6488/2018
(31) He further argued that the vehicle is a goods vehicle and its laden weight is morethan 990 kgs. Therefore, as per Rule 100 of the Karnataka Motor Vehicles Rules, the seating capacity of the vehicle is 3. The laden weight of the goods tempo is more than 990 kgs at the time of accident. At the time of accident, the respondent No.1 driver and the petitioner were the only inmates of the vehicle. Therefore, under Rule 100 of the KMV Reules, the petitioner cannot be construed as gratuitous passenger as he accompanied the respondent No.1 for the purpose of loading and unloading vegetables from Malavalli Market to Mysuru Market. In support of his argument, he relied on the decision of the Hon'ble High Court of Karnataka in MFA No.3600/2017 (Smt.Narasamma and others Vs M/s.Magma HDI General Insurance Co., Ltd.), decided on 28.02.2020. (32) The learned Advocate for the petitioner further argued that even though for a moment, if it is construed that the respondent No.1 violated the terms and conditions of the policy, under Section 149 of the Motor Vehicles Act, in such an event, Insurance Company can be directed to pay the compensation and recover the same from the Insurer. In support of his arguments, he relied on the principles reported SCCH-1 20 MVC No.6488/2018 in 2020 ACJ 2560 ( Full Bench) (New India Assurance Co., Ltd., Vs Yallavva and another), wherein the Full Bench of High Court of Karnataka, has held as under:-
"Motor Vehicles Act, 1988, Section 149(2) (a) - Motor Insurance - Goods Vehicle - Gratuitous Passenger - Liability of Insurance Company - Pay and recover Order - Whether Tribunal after holding that there was fundamental breach of policy as per Section 149(2) (a) was justified in directing insurance company to pay and recover - Held:
Yes."
(33) Per contra, the learned Advocate for the respondent No.2 vehemently argued that the petitioner was travelling as a gratuitous passenger and therefore, the respondent No.2 - Insurance Company cannot be held liable to pay compensation. In support of his arguments, he placed reliance on the Full Bench Judgment of the Hon'ble High Court of Karnataka in MFA CROB No.100001/2016 IN MFA No.102649/2015 Connected with MFA No.22106/2012 and other Cases ( Gadhilingappa @ Gadhilinga and another Vs K.Guleppa and others), decided on 20th April'2021. In that case, the Hon'ble High Court of Karnataka has held that person travelling on mudguard of a tractor can be construed as an unuathroised passenger and the Insurance Company is not liable to cover his risk.
SCCH-1 21 MVC No.6488/2018(34) In support of his arguments, the learned Advocate for the respondent No.2 further relied on the decision reported in MANU/KA/0278/2003 = 2003 ACJ 1992 = 2003(4) KarLJ 545 (New India Assurance Co., Ltd., Vs Smt.Kusum and others), wherein the Single Judge of the Hon'ble High Court of Karnataka has held as under:-
"...'gratuitous passenger' did not figure as one of persons under policy under Section 147 - Insurance Company not liable to indemnify owner of offending vehicle in respect of death/bodily injury caused to 'gratuitous passenger' with respect to policy under Section 147."
(35) On the same point, the learned Advocate for the respondent No.2 further relied on the judgment of the Supreme Court in Appeal (Civil ) No.3659 of 1993 (Smt.Mallawwa and others Vs Oriental Insurance Co., Ltd.) (Division Bench of Supreme Court of India) Decided on 27.11.1998, wherein, in Para No.22, the Supreme Court has held as under:-
"(22). Therefore, it is not required that a policy of insurance should cover risk to the passengers who are not carried for hire or reward. As under Section 95, the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured the plea of counsel for the insurance company will have to be accepted and the insurance company held not liable under the requirements of Motor Vehicles Act."SCCH-1 22 MVC No.6488/2018
(36) In the light of the above said principles laiddonw by their Lordships, now we can consider whether the Insurance Company is liable to pay compensation to the petitioner or not.
(37) In the Full Bench judgment of the Hon'ble High Court of Karnataka relied on by the learned Advocate for the respondent No.2, Their Lordships have considered three questions referred to Full Bench, as there was conflict in the decision rendered by the co-ordinate benches of the Hon'ble High Court of Karnataka. First question referred reads thus:
i) Whether a person travelling on a mud-guard of a tractor can be construed as an authorised passenger or an unauthroised passenger and liability of such person is covered or not?
(38) In this case, the respondent No.2 is relying on the finding of the Full Bench on Question No.1. There is no need to consider other 2 questions.
(39) The Full Bench of the Hon'ble High Court of Karnataka has answered the first question referred to it in terms of Paragraph No.23 and 33 of the said judgment.
(40) In paragraph No.23, Their Lordships observed that tractor could lawfully accommodate only one person ie., SCCH-1 23 MVC No.6488/2018 driver. Insurer was not liable to indemnify the owner of the tractor for the liability of a gratuitous passenger on the tractor.
In paragraph No.33 of the said judgment, Their Lordship observed by referring to Hon'ble Apex Court judgment in V.Chinnamma, Shivaraj and Darshan Devi's case and held that "we have no manner of doubt that the liability of a person working either on ploughing or crushing machine attached to tractor and who is travelling on the mudguard of the tractor is not required to be covered by statutory insurance as contemplated under Sub Section 1 of Section 147 of the MV Act".
(41) On the contrary, in the Full Bench judgment of the Hon'ble High Court of Karnataka, reported in 2020 ACJ 2560 (New India Assurance Co., Ltd., vS Yallavva and another), relied on by the learned counsel for the petitioner, Their Lordships held in Paragraph No.147 as under:-
"147. In the instant case, the appellant insurance company was directed to discharge its liability, subject to the result of this reference. The vehicle involved in the instant case is a goods vehicle and the injured-claimant was travelling in a goods carriage..."SCCH-1 24 MVC No.6488/2018
(42) In paragraph No.81 of the said judgment, Their Lordships have discussed about the principle of "Pay and Recover" by referring to the Apex Court Judgment which reads as under:-
"81. Be that as it may, as we have found that even in Baljit Kaur's case, 2004 ACJ 428 (SC), under similar set of facts and circumstances, the Apex Court ordered for 'pay and recover' and subsequently in Shamanna's case, 2018 ACJ 2153 (SC), it was held that even the Tribunals and the High Courts have the power to order for 'pay and recover'......."
(43) In paragraph No.145, questions referred for Full Bench are recited to in the answers given in Paragraph No.
146. Answer No.2 is relevant for this case, which reads as under:-
"(ii) The insurer is liable to pay the third party and recover from the insured even if there is breach of any condition recognised under Section 149(2), even if it is a fundamental breach (that is, breach of condition which is the cause for the accident) and the insurer proves the said breach in view of the mandate under Section 149(1) of the act. But, no such order can be passed against the insurer, if, on the facts and circumstances of a case, a finding is given by the court that the third party (injured or deceased) had played any fraud or was in collusion SCCH-1 25 MVC No.6488/2018 with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss to the insurer".
(44) Two decisions are rendered by Full Bench of the Hon'ble High Court of Karnataka. Two decisions are result of reference made. In the first decision of the Full Bench reported in 2020 ACJ 2560 (New India Assurance Co., Ltd., Vs Yallavva and others), Their Lordships have considered the fact of gratuitous passenger. In that case, the liability of the Insurance Company to pay and recover with reference to the passenger travelling in the goods carriage sustained injuries when the vehicle turned turtled due to its rash and negligent driving. In the second judgment referred above ie., MFA CROB No.100001/2016 in MFA No.102649/2015 connected with other Matters (Gadhilingappa @ Gadhilinga and others Vs K.Guleppa and others), Their Lordships have considered about the person who was travelling on the mudguard of the tractor is whether covered under the Insurance Policy or not. As the first judgment referred above is directly covered by the point involved in this present case, the facts of the present case and the facts of the case of the judgment of the Full Bench in 2020 ACJ 2560 (New India Assurance Co., Ltd., Vs SCCH-1 26 MVC No.6488/2018 Yallavva and others), are similar and hence, the principles laiddown by Their Lordships in the decision reported in 2020 ACJ 2560 (New India Assurance Co., Ltd., Vs Yallavva and others), are applicable to the case on hand.
(45) Now, the question is whether in view of the Full Bench Judgment referred above, whether the respondent No.2
- Insurance Company is required to be directed to pay first and then recover the same from the owner, is required to be seen. If facts finding are that the petitioner is a gratuitous passenger, then the Insurance Company is entitled to pay at the first instance and then recover the amount from the owner as per the above referred Full Bench Judgment of the Hon'ble High Court of Karnataka. If the facts finding is to the effect that the petitioner is a coolie or labourer travelled for the purpose of loading and unloading vegetables, then the Insurance Company cannot escape its liability. (46) From going through Ex.R.1 and during the course of cross-examination of RW 1, he has admitted that Ex.R.1 is a Comprehensive Insurance Policy. In paragraph No.2 of his cross-examination, RW 1 deposed that it is true that Ex.R.1 Insurance Policy is a Goods Vehicle Comprehensive Policy and he further admitted that Gross Vehicle Weight is mentioned as SCCH-1 27 MVC No.6488/2018 GVW 2536 kgs. As per Rule 100 of Karnataka Motor Vehicles Rules, no person is allowed to be carried in the goods vehicle. As per the proviso to the said Rule, owner or hirer or bonafide employee of the owner or the hirer of the vehicle could be carried free of charge in the goods vehicle. Total number of persons so carried would not be more than one in light transport goods vehicle having registered laden weight less than 990 kgs, not more than three, in any other light transport goods vehicle and not morethan seven in any goods vehicle. (47) From Ex.R.1, it is clear that the vehicle insured is a goods carrying vehicle. In the Policy type, it is mentioned as Package - Goods Carrying Vehicle. During the course of trial also, it is not disputed that the vehicle involved in the accident is a Mini Goods Carriage Vehicle. As per Ex.R.1, total seating capacity including the driver is two. In this case, it is an admitted fact that at the time of accident, including the driver, three persons were there in the vehicle. In the Police records and the evidence of PW 1, in the chief examination, he has categorically stated that at the time of accident, he was travelling in the vehicle as a labourer for the purpose of loading and unloading vegetables. The learned Advocate for the petitioner, on this point, relied on the above referred SCCH-1 28 MVC No.6488/2018 judgment in MFA No.3600/2017. In that case, PW 2 has specifically stated that along with other coolie including the deceased, he was travelling in the lorry as a coolie/labourer and they have been working as such for the past 2 years. He has stated that they were going from their village towards Rayara Palya for loading wooden poles. Based on that evidence, Their Lordships held that there was a clear evidence of co-employee to the effect that deceased being an employee as a coolie was travelling in the vehicle and he fell down from the lorry. In paragraph No.23 of the said judgment, Their Lordships observed that since Rule itself permits carriage of persons in the vehicle, it is not material whether person travelling within the cabin or outside the cabin. So long as number of members travelling in the goods vehicle is specific under Rule 100 of KMV Reules, goods vehicle is permitted to carry passengers.
(48) During the course of cross-examination of PW 1, except denial suggestions, nothing is elicited. On the contrary, the evidence of PW 1 is substantiated from the Police records. In the complaint itself, it is mentioned that as usual, the petitioner along with the second son of the complainant had travelled in goods vehicle along with SCCH-1 29 MVC No.6488/2018 vegetables loaded at Malavalli Market to transport to Mysuru Market. After unloading the vegetables at Mysure Market, they were returning and at that time, the accident occurred. Therefore, it cannot be said that with an intention to fix the liability of the Insurance Company, they have falsely mentioned in the complaint itself, which is at an undisputed point of time. Therefore, from the evidence of PW 1 along with Police records, the petitioner proved that on the date of accident, he was travelling in the vehicle as loader of vegetables.
(49) Under Rule 100 of the Karnataka Motor Vehicles Rules and the principles laiddown by Their Lordships in the above referred two judgments, it is clear that the respondent No.2 - Insurance Company is liable to pay the compensation.
(50) The learned Advocate for the respondent No.2 vehemently argued that as per Ex.R.1, seating capacity is only two including driver and it is an admitted fact that three persons travelled at the time of accident in the goods vehicle. As in the judgment in MFA No.3600/2017 referred above, Their Lordshps observed that Rule itself has provided carriage of persons ie., labours, then it cannot be said that as three persons were travelling in the goods vehicle, Insurance SCCH-1 30 MVC No.6488/2018 Company is not liable to pay compensation. Even if it is construed that three persons were travelling in the goods vehicle at the time of accident, but the claim made by only person ie., the petitioner and under Ex.R.1 Insurance Policy, two persons are covered. Therefore, it cannot be said that the liability of the insurance company is exonerated.
(51) The respondent No.1 is the RC owner and the respondent No.2 is the Insurer of the Mini Goods Vehicle, are jointly and severally liable to pay compensation to the petitioner. However, the respondent No.2 - Insurance company is liable to pay the compensation amount with interest at 6% p.a. from the date of the petition till realisation. Respondent No.2 is directed to deposit the compensation amount within 2 months from the date of this order. For the above said reasons, Issue No.2 is answered accordingly.
(52) Issue No.3 : In view of the discussions made above, I proceed to pass the following: -
ORDER The petition filed by the petitioner is allowed in part against the respondents.
The petitioner is entitled for compensation of Rs.15,07,900.00 with interest at the rate of 6% per annum from the date of petition till realisation. SCCH-1 31 MVC No.6488/2018
The respondent No.1 and 2 are jointly and severally liable to pay the compensation amount with interest at 6% from the petition till realisation and the respondent No.2 - Insurance Company shall indemnify the respondent No.1 and pay the compensation amount within two months from the date of this order.
Out of the compensation amount, 50% with proportionate interest is ordered to be invested in high
yielding fixed deposit in the name of the petitioner in any of the nationalized or scheduled bank of his choice for a period of 5 years. Remaining 50% with proportionate interest is ordered to be released to the petitioner.
Advocate's fee is fixed at Rs.1,000/- .
Draw an Award accordingly.
(Dictated to the Judgment Writer, transcription thereof corrected, revised, signed and then pronounced by me in the Open Court on this the 11th day of August'2021) (SMT.PRABHAVATI M.HIREMATH) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.
ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : Shekara Y.D., P.W.2 : Dr.Nagaraj B.N.,
Documents marked on behalf of the petitioners:
Ex.P-1 : Copy of FIR and complaint Ex.P-2 : Copy of Crime Details Form/Spot Mahazar Ex.P.3 : Copy of IMV Report SCCH-1 32 MVC No.6488/2018 Ex.P-4: Copy of Wound Certificate Ex.P-5 : Copy of Charge Sheet Ex.P-6 : Copy of Discharge Summary Ex.P-7 : 129 Medical Bills Ex.P.8 : 43 Prescriptions Ex.P.9 : Aadhaar Card Ex.P.10 : Case Sheet Ex.P.11 : X ray Ex.P.12 : Discharge Summary Ex.P.13 : 20 Medical Bills Ex.P.14 : 7 Prescriptions Witnesses examined on behalf of the respondents : RW - 1 - Mahesh Prasad Documents marked on behalf of the respondents: Ex.R.1 - Policy copy Ex.R.2 - RC Extract ( PRABHAVATHI M.HIREMATH) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.