Karnataka High Court
M/S United India Insurance Company Ltd vs Smt Gangavva on 3 December, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 3RD DAY OF DECEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MFA NO.20254/2008 (MVC)
BETWEEN:
M/S UNITED INDIA INSURANCE COMPANY LTD.,
DIVISIONAL OFFICE, LEA COMPLEX,
DHARWAD,
REP.BY ITS DIVISIONAL MANAGER,
...APPELLANT
[BY SHRI. S.S.YADRAMI, ADVOCATE]
AND:
1. SMT.GANGAVVA,
W/O SHANKARAPPA LAMANI,
AGED ABOUT 50 YEARS, OCC; COOLIE,
R/O JELLIGERI, TALUK: SHIRAHATI,
GADAG DISTRICT.
2. CHELLAPPA NELLAPPA BAGUR,
MAJOR, OCC: BUSINESS,
R/O GUDISAGAR, NAVALGUND TALUK
...RESPONDENTS
(BY SRI.G.N.NARASAMMANAVAR, ADV. FOR R1,
SRI.B.V.SOMAPUR, ADV. FOR R2)
THIS APPEAL IS FILED UNDER SECTION 173(1)
OF MV ACT, AGAINST THE JUDGMENT AND AWARD
DATED 22.04.2008 PASSED IN MVC NO.67/2003 ON
THE FILE OF THE CIVIL JUDGE (SR.DN.) & ADDL.
MACT, GADAG, AWARDING A COMPENSATION OF
RS.11,000/- WITH INTEREST @ 6% P.A. FROM
01.11.2006 TILL REALISATION.
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THIS APPEAL COMING ON FOR ADMISSION,
THIS DAY, THE COURT DELIVERED THE FOLLOWING: -
JUDGMENT
Insurance Company has filed this appeal questioning the liability fastened on it by judgment and award dated 22.04.2008 passed by Civil Judge (Sr.Dn.) & Addl. MACT, Gadag in MVC No.67/2003.
2. Heard Sri.S.S.Yadrami, learned counsel appearing for the appellant and Sri.G.N.Narasammanavar, learned counsel for R1. 2nd respondent though served and represented by counsel, none have appeared. Perused the judgment and award passed by Tribunal as also records secured from Tribunal.
3. Facts leading to filing of this appeal are as under:
A claim petition was filed by R1 herein contending inter alia that on 23.05.2002, while he was travelling from Navalgund in a mini lorry bearing Reg.No.KA- :3: 25/A-1738 driven in a rash and negligent manner by its driver, its driver lost control of the vehicle near Shirhatti on Gadag-Sortur road, on account of which, vehicle toppled resulting in grievous injuries being sustained by its inmates and claimant contended that she suffered fracture of right hand and consequentially suffered disability and as such she sought for payment of compensation of Rs.3,00,000/-. Owner of the vehicle was served and un-represented before the Tribunal and was placed ex-parte. Insurance Company appeared and filed its statement of objections and it was specifically contended by it that claimant was travelling in a goods vehicle as unauthorized passenger after attending the marriage as per FIR and all the passengers travelling in the said goods vehicle being unauthorized and gratuitous passengers in a goods vehicle, the claim of the claimant cannot be indemnified by the Insurance Company, since there is violation of the terms and conditions of the insurance policy. On these grounds, :4: Insurance Company sought for being absolved of its liability.
4. On the basis of the pleadings, several issues came to be filed. Issue No.3 related to liability namely as to whether Insurance Company was not liable to pay compensation in the plea put forward in para 5 and 6 of its written statement? Tribunal on appreciation of both oral and documentary evidence came to a conclusion that vehicle in question was goods carriage and though there is no statutory duty on the owner to insure any passenger travelling in the goods carriage or corresponding liability of the insurer to indemnify in respect of compensation for a passenger travelling in a goods vehicle, held that as per policy issued to the offending vehicle, it reflected that at the time of accident, insurer had collected a premium of Rs.50/- for two passengers travelling in the offending vehicle from its owner and as such, it concluded that Insurance Company is liable to indemnify the risk of the owner for two passengers other than two coolie persons. It is this :5: liability which has been fastened on the Insurance Company, which is called in question.
5. Sri.Yadrami, learned counsel appearing for the appellant would contend that, Tribunal committed a serious error by not considering the fact namely, Ex.P1- FIR and Ex.P5-charge sheet which clearly discloses that more than 20 persons were travelling in a goods vehicle and while they were returning back after attending marriage and having held so, it ought to have concluded that claimant and other passengers were unauthorized passengers travelling in a goods vehicle and policy of the insurer does not cover the risk of such persons in view of Section 147(i)(c). He would contend Tribunal has misread the terms and conditions of the policy Ex.D1 and it ought to have made difference between unauthorized passenger and non-fare paying passenger and in the instant case, claimant was an unauthorized passenger and was not travelling in the vehicle as non- fare paying passenger. Non-fare paying passenger is one who would charter the truck and proceed in the :6: vehicle in connection with the work. The Insurance Company contends that, claimant does not come within the ambit of coverage of non-fare paying passenger. He submits that premium of Rs.50/- collected related to non-fare paying passenger and Tribunal erred in not considering the wordings mentioned in Ex.D1-policy which was to the effect "passenger as per IMT-14", and contends that the award of the Tribunal is liable to be set aside and insurer be absolved of its liability.
6. He would also contend that as per terms of the policy Ex.D1 as held by the Tribunal, Insurance Company would be liable to pay compensation in respect of two passengers irrespective of the fact that they are unauthorized passengers are not and when Tribunal itself has held that claimant is a unauthorized passenger, provisions of M.V.Act do not cover the risk of unauthorized passengers travelling in a goods vehicle and submits as such the award passed by the Tribunal has to be set aside.
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7. Per contra, Sri.G.N.Narasammanavar, learned counsel appearing for R1 would support the finding recorded by Tribunal and contends that, when the premium of Rs.50/- is collected by Insurance Company, it would cover the claim of the appellant and as such Insurance Company cannot be absolved of its liability.
8. Having heard the learned advocates appearing for the parties and having bestowed my careful attention to the judgment and award passed by Tribunal as also Ex.D1, policy issued to the offending vehicle and the complaint lodged by one of the passenger travelling in the said offending vehicle after the accident, the following facts would emerge.
9. Claimant and others had proceeded to Navalgund to attend a marriage ceremony of the relative of the bridegroom party and while returning back to their village a 407 mini lorry bearing Reg.No.KA-25/A- 1738 had been arranged from the bridegroom side for :8: return journey and while so returning after attending marriage, at about 11.30 p.m., the vehicle is said to have been driven by the driver in a rash and negligent manner on account of which the vehicle turtled and claimant as also other inmates of the vehicle is said to have sustained injuries. There cannot be any dispute with regard to this fact particularly when the complaint itself states as to how the accident in question had occurred. The contents of the compliant which is part of FIR Ex.P1 has to be read in its entirety as held by the Hon'ble Apex Court in the case of Oriental Insurance Co. Ltd., Vs. Premalatha Shukla and Others reported in 2007 ACJ 1928, wherein their Lordships have clearly held, when a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to contend that only portion of it can be looked into which is favourable to it and ignore other contents and same is impermissible. In that view of the matter, Ex.P1 has to be read in its entirety and contents thereof requires to be read in toto. :9: When Ex.P1 complaint is so read, the one and only conclusion that can be drawn is that offending vehicle in question was a goods vehicle in which claimant and others were travelling and this is also evidenced from the insurance policy produced and marked at Ex.D1. In fact Tribunal also holds as such in paragraphs 12 & 13 of its judgment and award which is assailed in this appeal. The witness D.W.1 examined on behalf of Insurance Company is on the same lines and M.V. report produced at Ex.P3 also fortifies this fact. Thus, it is clear from the records that offending vehicle was a goods carriage.
10. The question now that would arise for consideration is whether the Insurance Company is liable to indemnify the claim of the insured are not. Section 147 stipulates requirement of the policies and the limits of liability. Proviso to sub Section i(b)(ii) absolves the Insurance Company. Under the contingencies enumerated therein, namely: : 10 :
(i) xxxx
(a)
(b)
(c) if it is a goods carriage, being carried in the vehicle, or Tribunal while fastening the liability of Insurance Company in the instant case and directing them to indemnify the claim of the insured though has taken note of the conditions stipulated in the policy at para 12 has specifically held as under:
"It is specifically mentioned that it has to be used only for carriage or comes within the meaning of MV Act. For all these aspects it can be made out that it was a goods vehicle, meant to be used as a vehicle for carrying passengers or meant for use of the passengers for travelling purpose."
(emphasis supplied)
11. This finding is erroneous inasmuch as the conditions stipulated in Ex.D1 policy is diametrically opposite to the said findings. The conditions stipulated in the policy reads as under:
i) xxxx : 11 :
ii) xxxx
iii) Use for carrying passengers in the vehicle except employees (other than driver) not exceeding six in number coming under the purview of the W/A Act, 1923. Use for carriage or goods within the meaning M.V.Act, 1988.
12. A reading of the above condition stipulated in the policy-Ex.D1 would clearly establish the fact that the liability agreed to be covered by the Insurance Company under the policy relates to six passengers namely, coolies or hamals or labourers or loaders travelling as passengers along with the vehicle. The said condition cannot be extended to passengers travelling unauthorizedly in a goods vehicle. By giving such an extended meaning would result in the provision of the Act being truncated or frustrated. Hence, findings of the Tribunal at para 12 is contrary to the conditions stipulated in the policy issued to the offending vehicle as per Ex.D1 and same cannot be sustained.
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13. Learned counsel appearing for claimant would draw the attention of the Court to the additional premium said to have been collected by Insurance Company namely Rs.50/- as premium under the head "Add: passenger as per IMT-14" under Ex.D1, to buttress his argument that claimant and any one passenger would be covered under additional clause. Tribunal has accepted said contention raised by claimant in this regard and has arrived at a conclusion that insurer has agreed to indemnify risk of the owner and two passengers other than two coolie persons. As to the basis on which said finding has been arrived at, no reasons are forthcoming from the award. Two passengers referred to in the policy - Ex.D-1 has been qualified namely Insurance Company has agreed to indemnify claim of two additional passengers subject to Indian Motor Tariff Condition No.14. ITM-14 is referable to the use of vehicle confined to particular sites. In other words, if two passengers are carried in the vehicle apart from six coolies for the purpose of loading or : 13 : unloading at a particular site and if there were to be claims raised by them on account of an alleged accident, then in such an event, Insurance Company cannot be absolved of its liability by contending that claim of employees is to be restricted to only six persons only. Hence, to cover these two additional persons, this extra premium of Rs.50/- has been collected and it does not relate to coverage of unauthorised passengers travelling in a goods vehicle. No where in the claim petition it is contended claimant was travelling in the offending vehicle either as a coolie or hamal along with the goods In that view of the matter, finding of the Tribunal cannot be sustained and liability cannot be fastened on the appellant - Insurance Company and as such judgment and award has to be set aside insofar as liability fixed on it.
14. For the reasons aforesaid, following order is passed:
ORDER
i) Appeal is hereby allowed.
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ii) Judgment and award passed by Tribunal in
MVC No.67/2003 dated 22.04.2008
fastening the liability on appellant Insurance Company is set aside.
iii) Liability fixed on respondent No.1 namely, owner of the vehicle is affirmed.
iv) No order as to costs.
v) Registry to draw the decree accordingly.
vi) Amount in deposit made by appellant -
Insurance Company is ordered to be
refunded to it forthwith on proper
identification by the Registry.
Sd/-
JUDGE
MBS/SP