Karnataka High Court
Smt Lakkamma W/O Pojari Thippanna vs Akbar Ahamed Khan on 10 February, 2011
Author: Subhash B.Adi
Bench: Subhash B.Adi
IN THE HIGH COURT OF KARNATAKA AT BANGALQRE
OATEO THIS THE 1oT" DAY OF FEBRUARY, 2Oej1f:. «rV%A
BEFORE 9 V
THE HOEWBLE MR. JUSTICE.SUBHASH"B;';i§.'I;»IV'."'
MISCELLANEOUS FIRST APPEAlO3E$3O:;_Z¥3:§37f2{]O? {I:V1V'J3~-C1*vW
MISCELLANEOUS F:e\s;r';\.r§>PEA'L. :é'3'§g.F..O43§9 %
ANO 4400/_200}'_ rev) '- %
BETWEEN:
1. Smt. La E<_k4armrna, H
vv/'o';~ ri 'rt: :53 pa on-a,
Aged about'.38«yea;s;...___ . '
2. Sri"E~!._ingrann'a,V"en
S/O. Peojari T.hip:3anna,
';'A'ged about 21 years.
" «S/o,"P_oo3'a--ri Thippanna,
AgvEfd.vV,ab.o'e=E 19 years.
4'3. Ra__vi',-9:70. Poojari Thippanna,
Aged about 17 years,
Since minor represented by
AA "~His mother Appeifant No.1.
A1; are residents of Gopanahaity,
Chaiiakere Taluk,
Chitradurga District.
,. .r?x?PELLA!\$TS
(in MFA f\EOk4»397/2007)
A~r'e::'a 5.p=a
1. Smt, Eramma,
W/0. late Rajappa,
Aged about 22 years.
2. Male Baby,
S/0. late Rajappa,
Aged about 3 years, ' A
Since minor by his mother
Smt. Eramma -- 15% appellant.
3. Kuida Sannappa,
F/0. late Rajappa,__
Aged about 53 years,
4. 'Thémmakka, .
M/0. late R_aja__ppa;,-"' * .
Aged abd'Lit'f;8' years;
All are'i'esl,deriil:s offiopanahally,
Cl'v;ail'akere"w€"a-l.u'k,l _ l '
Chétradurga EJ5js;":.riCi:_,_ "
" A 2 ...APPELLANTS
(in MFA NCL4398/2007)
» _S-/Q. N_aga«n_fi"a,
Aged_ab_oLztj2V3}~years,
'-Re-sEdin'gT'.'a.t Gopanahally,
C~h_allaE<eref..--'Falu l<,
Ch'étfa"durga District
v " ...APPELLANT
(En MFA 520.4399/2007)
ldindiramma,
W/0. late Kenchallngappa,
Aged about 25 years,
21 Radhika,
D/0. late Kenchaléngappa,
Aged about 6 years,
Since minor by his mother
Appeliaiit No.1,
Both are residents 0fGopana;i1aIIi3:/g' 3 '7 '
Chaliakere Taluk, '
Chitradurga District.
Q (in"'ii_FA ?iiO.~4:f300/2007)
(By S ri B. M . Sid d a ppa;4_'fi..dv . 'a._p.;§ve~a.I%s)
AND:
1.
Akbar Kriani
S/0. Ayu"E:~.4__K'ha'n," _ .
Age: ir_}ajpr'_.,» res':din'g§[at'2~~3-S;
Pan.t.:g_Q"n.dar1o:a.d,--._' '
i-iindupi'ur;,Anantha';iur District,
Alndifira Pradie-~SLhi.., _ i '
Owner' of thVe5' i.;VGrr'y~._A_ "
Bearmgi' i"i0.AP-0.2/V._§.'3917.
DivisiOnaVEv__"M&anager,
A DE-visibnai Office,
_VMIMh€'.C7§'..iVefi'¥!taE Insurance
C.o.:m_p'an",<Limited, Enkay Comptex,
"'---.i'Kesiiava'pur, Hubli,
Sri O,Mahesh, Adv. for R2)
Dha~r\_(\}ad District.
RESPONDENTS
(common in an appeals)
MFA N0.4397/2007 is filed under Section 173(1) of
MV Act against the judgment and award dated 29.12.2806
passed in MVC N0,1S2/2004 on the fiie of the Civii Etrdge
{Sr. Ba.) and Addi. WET, Ciiaiéakere, partiy aliowing the
T' .}fgP'F3EL'LANTS~ L'
claim petition for compensation and seeking enhaneement
of compensation. 9
MFA No.4398/2007 is fiied under SeCtio.n._'44'iV7:3i{'i;iof
MV Act against the judgment and award dated.
passed in MVC No,1S3/2004 on the file of__the Cijvii eiiicige
(Sr. E)n.), MACT, Chaliakere, p_a.rt,i_y ai_i'owir'1-33,';.th'e@c|a~im'V '
petition for compensation and 1:S€e_ki§ig "«enha.nc--e;>oerit of
corflfiensation. i *
MFA No.4399/2007 i'si._f'i*ied under .se'<§t'ihoiri=--i1.73-5(1) of.'
MV Act against the judgment"i'aVrid awar'd._d'ated 29.12.2006
passed in MVC No.154/2004_.._onathe_.fiie o'f.t,he_CZivi| Judge
(Sr. Dn.) and Addi. v:\'_/iAe_C""{",_'Ch_aEi*~;1i§er'e._E partiy aitowing the
dam petition for com"pensa--tiovn:.an'dfsee--k_ing enhancement
of compensation. '- 1
_.M.EA"'iJio'.4'i§;{)Q/2607' iijswfiled' under Section 173(1) of
MV Act agiaidsvt the judgrnent. and award dated 29.12.2086
passed MVCVNo;t1s5'5/pe2'0O4' on the file of the CEVEE Judge
(Sr. Do.) and' "'*M~ACT, Chaiiakere, awarding a
compensation of_Rs..2",4.fi.r',0O0/-- from the 15* respondent.
uT'*heseV"ap.peais, coming on for orders this day, the
'i it - eCou'rt3»-.de!§'v.ered themfoiiowingz
JUDGMENT
,__Trser'eAiis deiay of 3 days in fiiing the appeai. Though _ contesting respondent is served and represented, no "i.VV'o-ejections are fiied. Cause shown is accepted. Delay 5eondoned.
2, All these cases arise out of a common judgment and award dated 29.12.2006 in MVC E\ies.1S2,..:1Si3.:l_'~1V5-4 and 155 of 2094 en the file of the MACT., appeiiahts are the claimants" "}_"_he impugned judgment dated 29.1:;;'2A.2C3_'_£JE"2§V insurer is not liable to lnde'rh:r'l~i.fY the ground that the risk pf the VAc!.aVirharivtusn is..htit:,.C'o\{ered under the policy. -..t_hough awarded c:oi"npensation,_*'th__e owVr'1"e'r'* the-..veh'.ic.!.e*is made iiable. It is .f:lr,«.§j_'inqs,."vthe cialrraants are before this Ceurtie 2 "
3. cdainsel for the cialmarits submits that ' Ati'!'€':.CEi.Ei'5F}"i8.ijtS weréitraveiilng along with their geods in a igerryf»Wilen_they were traveiilng, as the owners at goods, ti»_ri_der.~S'eti:tibii :47 of the Motor Vehicles Act, 1988 ('the A Act" short), the risk of the owner of the goods is x"'.egg;tafi;ut0riiy Covered and as such, the Tribunal was not jtistified in fixing the iiabliity on the owner of the vehicie. It is in this regard, learned counsei relied on a judgment of the learned Single Judge of this Courl: lh the case of NATIONAL ENSURANCE CO.LTD., vs. AMeAoAs-r._y'_Al\lp OTHERS (ILR 2008 KAR 168).
4. Sri O.Mahesh, teamed Counsel for the' insurer submitted that, the polloyy lthe rlyskd fare passengers and Cl8.yi4'lflahts." .ere_V'-not:"""'ho'h~»fare'V passengers. Admittediy gthe:y'gv«.a''l~l..ege ' "t'he.t they were travelling along withatsheeps._Viyhg?th'§f,tlor%r\,*_, As such their goods are rrot.:oov_ere_dW_of NFPP. He also subrnitted thVa'tr'the"ca's-e_"'of'c:laimants is that they boarded the lorl*y.__4 "v.rVhixeh_ *}yasy'::_"..'tralready loaded and they were tra.i{elll'l:g ohV"t'l*~..etJ_od.y of the lorry and risk of such persons r ;'l's,r}otv_c:ove'rec__i statutorily or otherwise. Hence, he further H there is no contract between the owner, the torn; "'ahd"nthe cialmahts to transport sheeos. However, nth-ey yvere travelling in between the journey and they "tcrannot be treated as persons travelling along with the goods or the persons of hon-fare passengers. He relied on the decision of the Aoex Court in the case of NATIGNAL \ l§%5w-
INSURANCE C0.LTD,f VS. CHOLtcE§T"I BHARATAMEVEA AND omens (CA NO.4845~484?/200"?) dated 1O.12,iZQ{i<7:"aVhd submitted that no person shall be carried _i'n vehicle or otherwise Ruie 4 of th.e.tRTA."én§"poTwérs'not--to ailow large nurnber of persons to"=be?'_caré'ield. éeajtiivnig capacity of the lorry is only'l3_L"*ii.he riAs'lr_oi'» on:..y the-~owner 0'? the goods is covered. Her_...sqijbtnitted 'tha.t_ine.:§this case claimants having trave'il'edi l5o¢~,{«V'o»f_Vthe vehicie, they are hot covered"t:_hder"theVt§oi_i'c\,rjoVr the Act. r it .ii:nl'-s.s:d'isrio'te that the claimants were travellin§si_in the i.oi*fy; is aiso come in the evidence that th»eyVvwere t'r"a~vevl__l__i__ng along with the sheep. FIR also ' Vidciisclosesl 't.h"at_they were aiso traveliing with sheep for the H rfnarketing them and they had made payment towards transportation of sheeps. Section it-<i7{b)(l) covers tn-e_ risk of 'including the owner of the goods or his 'taiithorised representative' carried in the vehicie,
6. The statute itself recognises the owner of the goods travelling aicmg with the goods or his reoresentative as statutorily Covered under the Act. The TrEbiinal,,_:'v,:hiie considering the claim petitions only on seating Capacity of the vehicle,_h,ei,ng only':
driver/owner and a cleaner, h'eid:,'th.at«'othe.V'risi<Vf€l_f'*trtl'ie claimants is not covered. 'There ':s*no findri'ngA~..jv:rEthV r3'egard:l' to seating capacity of the vehlitzlie.-.._» Fact that in? a case of goods vehicle, if the"'~o:i}vne--r, of',th'eVjg:o'o.ds could travel, it presupposes that a ,p'r'o»'.rislon._is "r*nad'eCEor the owner to travel in oféection 147 refers to the :,Vowner~t'o_,r .rep'resentative. It may be with an intent'i'on"to pegrlrrlit.llo'n_l:v~tl'ie owner of the goods and not many singUl.ar'word."'-i.e"}, owner or representative of owner Avé§,s._"rhe't:tion,ed. lllllvéltléiraliy, as the vehide being the goods for transportation of passengers and be~ing::'manufactured for transportation of passengers, it AA doesnot permit for carrying the passengers However, the remains that one person could he travelled in the vehicle, cannot be disputed. As far as the contention that they were travelling on the body of the vehicle is concerned, it is pnly an information aileged to have been given, but as it is a clear case of the claimants that they were travelling in the goods vehicle. There is a_.v;3o"sis'_Eh.Evlity that there were many and some of them travelling on the body of the vehiciet To"'tl'i'e'.';e${te;*_itVthat. one owner is covered cannot andu .fe,i?n_at extent, the Tribunal shoul'dl__h--ave held th_at.:vth.e'4--vi.nsLrrer indemnify the compensation,._....u:'2. '
7. As far as' 'dnon'+fa§'re passenger is concerned, 14 relaVt:es~:,to,:the.'person who travel in the \/ehitcée in' journey is not paying any fare.
But in this "case,,it'i's"n,'o_.hody's case that they had travelled ae.3,,non'~fare o'asse_ng,ers and as such, I do not find there is r co'n,ne,Ction with the journey of the claimants as non- * yifaayme'ii.t",:g3aSs¢engers.
it x tlence, in so far as compensation awarded in MVC 153/2094 Le, in MFA 4398/2007, the insurer is held liable. In so far as quantum of compensation is concerned, it is a case of death and the year of the accident is 2004. Even if the deceased is treated as a eoelie, his income fee .»»':""''A 10 could not have less than Rs.3,000/~ pm: if the"inco'_nie of the deceased is taken as Rs.3,000/~-- p.m. the_.r;}:iairn.a;nit_s entitled to the compensation towards loss"*o-tf;le'pen-dency~ialc- as under:
Rs.2250/-- x 12 x 17 -R_s.4,VSa.,'ooo/~ai'§aa;a.rd; ilosés oft:
dependency and correspond_ii:ngl_y,--.._»they efntitied for Rs.40,000/-, in all Rs.2,42,400/-
awarded by the Ttibiaaailai are entitled for additEonai__ _ag=;«.Ai"i9.:a;'2i;56,6oo/- in MFA 4392;/2o%o'7+;.i5~a%cA;Eai%canally, tiiaiasurer is liable to pay the entire"comperisation 'a~:a_:A'aw~arded in this case. " I.nsofa''rmasv otter claimants are concerned, i.e., in l _:4fi9?4:/'2OG7, 4399/2007 and 4400/2007, the award of T'i--:iA'bti_na:§'"is confirmed. Liability is held against the o'%;ii'nev.% ofvt'i9ie vehicle in these apeealsi i<s};!~«