Karnataka High Court
M/S United India Insurance Company ... vs H G Virupakshappa on 10 November, 2023
-1-
NC: 2023:KHC:40459
MFA No. 8313 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 8313 OF 2012 (MV-I)
BETWEEN:
M/S UNITED INDIA INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE, B.H.ROAD, SHIMOGA
REP. BY ITS DIVSIONAL MANAGER. ...APPELLANT
(BY SRI. LAKSHMINARASAPPA, ADV. FOR
SRI. A M VENKATESH., ADV.)
AND:
1. H G VIRUPAKSHAPPA
S/O.GANGADHARAPPA
AGED ABOUT 35 YEARS
OCC: AGRICULTURIST &
COOLIE WORK, R/O BELALAKATTE
VILLAGE, SHIVAMOGGA TALUK
2. NANDYAMMA
W/O.GANGADHARAPPA
AGED ABOUT 50 YEARS
OWNER OF PWOER TILLER-TRAILOR
Digitally signed by MALA BEARING REG.NO.KA-14/TA-697-698
KN R/O.BELALAKATTE VILLAGE
Location: HIGH COURT SHIMOGA TALUK
OF KARNATAKA
3. JAYAPRAKASH
S/O.MALLESHAPPA,
AGED ABOUT 28 YEARS,
DRIVER OF POWER TILLER-TRACTOR
BEARING NO.KA-14/TA-697-698
R/O.BELALAKATTE VILLAGE
SHIVAMOGA TALUK ...RESPONDENTS
(BY SRI.T.RAJA RAM, ADV. FOR R1;
R2 AND R3 ARE SERVED)
-2-
NC: 2023:KHC:40459
MFA No. 8313 of 2012
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 14.06.2012
PASSED IN MVC NO.334/2009 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND CJM, SHIMOGA
AWARDING A COMPENSATION OF RS.1,21,187/- WITH
INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15.09.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the Insurance Company has challenged the judgment dated 14.06.2012 passed in M.V.C.No.334/2009 by the Principal Senior Civil Judge and CJM., Shimoga ('the Tribunal' in short).
2. For the sake of convenience, the rank of the parties shall be referred to as per their status before the Tribunal.
3. The brief facts of the case are, on 10.11.2008 at about 2.45 p.m., power Tiller - Trailor bearing No.KA-14/TA-697 and 698 loaded with banana bunches from Belalakatte agricultural land to -3- NC: 2023:KHC:40459 MFA No. 8313 of 2012 Shimoga Banana Mandi, met with an accident near Abbalagere new channel bund and capsized on the road, due to which, the petitioner, who was travelling on the Trailor, sustained grievous injuries. After taking treatment, he has approached the Tribunal seeking grant of compensation of Rs.7,50,000/-. Claim was opposed by the respondents. The Tribunal after taking the evidence of both sides, by the impugned judgment awarded compensation of Rs.1,21,187/- with interest at 6% per annum with a direction to the owner and the insurer to deposit the compensation. Aggrieved by the same, the Insurance Company has filed this appeal on various grounds.
4. Heard the arguments of Sri.Lakshminarasappa, learned counsel on behalf of Sri.A.M.Venkatesh, learned Counsel for Insurance Company and Sri.T.Raja Ram, learned counsel for the petitioner.
-4-
NC: 2023:KHC:40459 MFA No. 8313 of 2012
5. It is the contention of the learned counsel for the Insurance Company that, first respondent is the mother of the petitioner. She is the owner of the Tiller-Trailor. There is no question of son working as coolie or labourer under his own mother. The Tiller- Trailor met with an accident while transporting banana bunches from agricultural land to Shimoga Banana Mandi. The petitioner was sitting by the side of driver and he was an unauthorized passenger in the Tiller. The Tiller-Trailor having the capacity of carrying only one person, the policy of insurance does not cover the person other than the driver. There is no insurance cover for a person sitting by the side of driver or mudguard. Inspite of explaining, the Tribunal ignored them, under wrong impression that the policy of insurance is a 'Farmer's Package Policy' covers the risk of the coolies and fastened the liability against the Insurance Company erroneously.
-5-
NC: 2023:KHC:40459 MFA No. 8313 of 2012
6. Per contra, learned counsel for the petitioner has contended that there is no rule of law, which debars son from working as coolie under his mother. Admittedly, he was a coolie engaged for loading and unloading banana bunches which being transported from the land to Banana Mandi; the tiller-trailor has been used for the agricultural purpose and the insurance taken by the owner is a Farmers' Package Policy, which covers the risk of the coolies apart from the driver. Considering all these aspects, the Tribunal has fastened the liability against the owner with a direction to the Insurance Company to indemnify the insured. It is further submitted that Tribunal did not consider the nature of injuries, huge money spent towards treatment, loss of income suffered, meager compensation is awarded and he sought for enhancement.
-6-
NC: 2023:KHC:40459 MFA No. 8313 of 2012
7. I have given my anxious consideration to the arguments advanced on both sides and also perused the materials on record.
8. The main contention of the petitioner as well as the owner of the Tiller-Trailor is that, the vehicle having covered with Farmer's Package Policy, it covers the risk of the petitioner as coolie and there is no violation of permit or policy conditions and the liability is on the insurer to indemnify the insured. As being coolie, the petitioner is entitled to travel along with goods for unloading the Banana bunches at Shimoga mandi.
9. From the material on record, it is culled out that the deceased is the son of the owner of Tiller- Trailor, he was travelling by sitting beside the driver seat though Tiller was having seating capacity for the driver alone. In an identical facts and circumstances, Full Bench of this Court in -7- NC: 2023:KHC:40459 MFA No. 8313 of 2012 Gadhilingappa and Another -vs- K.Guleppa and others1 while referring to the judgment of Hon'ble Apex Court in Shivaraj -vs- Rajendra and Another - (2018) 10 SCC 432 at para-33 held as follows:
"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 the liability of a person working either on the ploughing machine or crushing machine attached to the tractor and who is traveling on the mudguard of the tractor is not required to be covered by the statutory insurance as contemplated under sub- section (1) of section 147 of the MV Act."
By virtue of such pronouncement, it is thus clear that a person travelling on a mudguard of Tractor cannot be construed as an authorized passenger and the driver of the Tractor is not permitted to carry or allow any person to be carried on the Tractor 1 2021 ACJ 2588 -8- NC: 2023:KHC:40459 MFA No. 8313 of 2012 including on its mudguard and there shall not be coverage under the statutory insurance.
10. The Hon'ble Apex Court in United India Insurance Co.Ltd. -vs- Serjerao and Others2 while dealing with a passenger traveling in Trolley attached to Tractor held that the Insurance Company is not liable to pay compensation and the order was set aside and matter was remanded back to the Court to decide the claim in the light of the law laid down in Smt.Yellawwa and others -vs- National Insurance Co.Ltd. and Another3. From the above proposition of law, it is clear that in a case of Tiller- Trailor, the Insurance Company has no liability to indemnify the owner if the passenger or coolie being carried either in Tiller or Trailor or on the mudguard of the Tiller. Even the concept of 'Pay and Recovery' will not come into picture as there is no coverage under the statutory insurance.
2(2008) 7 SCC 425 3 (2007) 6 SCC 657 -9- NC: 2023:KHC:40459 MFA No. 8313 of 2012
11. In view of the above, let me examine the policy of insurance at Ex.R2. Ex.R2 is titled as 'Farmer's Package Policy' and schedule of premium indicates that it has a coverage of own damage for premium of Rs.1,273/- is paid, third party premium of Rs.925/-, towards fire allied perils and Terrorism for stock of food grains at Rs.21/- for Rs.30,000/-, towards Burglary, House breaking, Stock of food grains Rs.72/- for Rs.30,000/- and Baggage Rs.23/- for Rs.3,100/- is collected. Whether this collection on third party premium of Rs.925/- covers the risk of the petitioner is the question for consideration.
12. There is a specific mention in the policy that collection of Rs.925/- is to cover the risk of the third party liability. On perusal of the impugned judgment, the Tribunal has recorded that the type of risk of the policy is not properly mentioned for the reason that the policy is Farmer's Package Policy,
- 10 -
NC: 2023:KHC:40459 MFA No. 8313 of 2012 liability is fastened against the Insurance Company. One of the grounds urged in the appeal is that Regulation 28 of the Motor Vehicles Regulations has been contravened and under such circumstances, no liability can be fastened against the Insurance Company. This contention is supported by the judgment of this Court in National Insurance Co.Ltd. -vs- Bramaranbike and Others 4. It is held that Regulation 28 of Rules of the Road Regulations, 1989, prohibits carrying of any person on the mudguard of a Tractor. Para-2 of the said judgment reads thus:
"2. The provisions of regulation 28 in Appendix 2 pertaining to the Rules of the Road Regulations, 1989, formulated under Motor Vehicles Act, categorically declares that the driver when driving a tractor shall not carry or allow any person to be carried on the mudguard of a tractor. The effect of the regulation makes any person travelling in a tractor apart from the driver as illegal and would be an unauthorised passenger. The policy of insurance issued does 4 2006 ACJ 671
- 11 -
NC: 2023:KHC:40459 MFA No. 8313 of 2012 not cover the risk of an inmate of the tractor. The permitted seating capacity for the tractor is only that of a driver and no other person. In the instant case, the vehicle being only a tractor at the time of accident, there is no legal possibility of coverage of the risk of an inmate of a tractor. In that view of the matter, the award passed by the Tribunal against the insurer is illegal."
13. Division Bench of this Court in The Oriental Insurance Co.Ltd. -vs- D.Laxman 5 held that the coolies carried in a trailor which is not covered by insurance policy, the Insurance Company is not liable to pay any compensation. As culled out from the facts and the evidence on record, the petitioner was travelling by sitting beside the driver of the Tiller. Such travelling is prohibited under Regulation 28 of the Road Regulations. In view of the law laid down in Gadhilingappa's case (supra), I am of the considered opinion that the petitioner is not a third party nor the risk of the passenger in a Tiller-Trailor is covered with the policy of insurance. 5 ILR 2006 KAR 4355
- 12 -
NC: 2023:KHC:40459 MFA No. 8313 of 2012 Hence, the petitioner being the passenger will not come under third party. Under such circumstances, the Insurance Company has no liability to indemnify the owner.
14. The concept of 'Pay and Recovery' will also not come into picture as there is no policy of insurance to cover the risk of the petitioner and it is not a case of violation of terms and conditions of the policy. It is interesting to note that the petitioner is none other than the son of the owner of the Tiller- Trailor. Hence, it is not the case to direct the Insurance Company to deposit the compensation and to recover it from its owner. The Tribunal has not discussed nor recorded any finding whether the policy of insurance covers the risk of petitioner or not. Under the circumstances, the impugned judgment is not sustainable and calls for interference. In the result, the following:
- 13 -
NC: 2023:KHC:40459
MFA No. 8313 of 2012
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment is modified.
(iii) The petitioner is entitled to recover the compensation from the owner of the Tiller-
Trailor i.e., respondent No.1 before the Tribunal.
(iv) The claim against the Insurance Company stands dismissed.
(v) The amount deposited by the Insurance Company shall be returned to Insurance Company.
(vi) The records shall be transmitted to the Tribunal.
Sd/-
JUDGE KNM/-
CT:HS