Karnataka High Court
Smt Basamma vs Sri Channesh on 22 September, 2023
1
MFA NO. 480/2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
MFA NO.480 OF 2014 (MV-D)
BETWEEN:
SMT BASAMMA
W/O SHEKARAPPA
AGED ABOUT 43 YEARS
HOUSEWIFE, R/O KYASINAKERE
VILLAGE, HONNALI TALUK
DAVANAGERE DIST. ... APPELLANT
(BY SRI.SIDDESWARA N. K., ADV.)
AND:
1. SRI CHANNESH
S/O SHANKARAPPA
AGED ABOUT 33 YEARS
DRIVER OF TRACTOR BEARING
REG.NO.KA 28/TA-2935
R/O KATTIGE VILLAGE
HONNALI TALUK - 577 216
DAVANGERE DISTRICT
2. SRI SAHEBAGOUDA S BIRADAR
S/O NOT KNOWN TO THE APPELLANTS
MAJOR, OWNER OF TRACTOR
BEARING REG.NO. KA 28/TA-2935
R/O AT POST YANKANCHI VILLAGE
SINDAGI TALUK, BIJAPUR DIST - 587 116
3. UNITED INDIA INSURANCE CO.,LTD.,
BRANCH OFFICE,"KATAGI BLDG"
1ST FLOOR, KACHERI ROAD
JAMAKHANDI-587 301
REP. BY ITS BRANCH MANAGER
... RESPONDENTS
2
MFA NO. 480/2014
(BY SRI.P. B. RAJU, ADV. FOR R3;
VIDE COURT ORDER DATED 05.01.2023
NOTICE TO R1 IS DISPENSED WITH;
VIDE COURT ORDER DATED 23.05.2023K
SERVICE OF NOTICE TO R2 IS HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 04.09.2013
PASSED IN MVC NO.183/2010 ON THE FILE OF THE SENIOR
CIVIL JUDGE, MEMBER, ADDITIONAL MACT, HARIHAR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCMENT OF COMPENSATION.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 08.09.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the petitioners have challenged the judgment dated 04.09.2013 passed by the Senior Civil Judge and Member, M.A.C.T., Harihar ('the Tribunal' in short) in M.V.C.No.183/2010.
2. For the sake of convenience, the rank of the parties will be referred to as per their status before the Tribunal.
3. The brief facts of the case are, on 08.02.2010 at about 01:15 pm, the son of the 1st petitioner by 3 MFA NO. 480/2014 name Rudresh, the deceased was walking on the bank of Upper Thunga Canal near Nyamthi - Honnali Main Road towards Arabakatte Village, a tractor-trailor bearing Reg.No.KA-28/TA-2935 caused him the accident killing him at the spot. Petitioner No.1 being the mother, petitioner No.2 who is the father, not a party to this appeal, being the dependants have moved the Tribunal seeking compensation. Claim was opposed by the Insurance Company. The Tribunal after taking evidence, assessed the compensation at Rs.4,35,000/- with interest of 6% p.a., dismissed the claim filed by petitioner No.2 and directed the owner and driver of the tractor to pay compensation, dismissing the claim against Insurance Company. Pleading inadequacy of compensation and also dismissing the liability against the Insurance Company, the petitioner No.1 has filed this appeal on various grounds.
4MFA NO. 480/2014
4. Heard the arguments of Sri. Siddeswara. N.K, learned counsel for petitioner No.1 and Sri P.B. Raju, learned counsel for the Insurance Company.
5. It is the contention of the learned counsel for the petitioner that the deceased was aged 22 years, accident took place in the year 2010, but the Tribunal has assessed the income at Rs.4,500/- and not awarded the adequate compensation. Further it is contended that the deceased was a pedestrian, hit by the tractor, killing him at the spot. The respondent No.3 was the insurer of tractor who is liable to indemnify the owner. The Tribunal erroneously rejected the claim against the Insurance Company. In support of his argument, has relied upon the judgment of Hon'ble Apex Court in Suvarnamma and Another Vs. United India Insurance Company Limited and Another1.
6. Per contra, learned counsel for the Insurance Company has contended that the deceased was not a 1 2018 17 SCC 102 5 MFA NO. 480/2014 pedestrian, he was a passenger in the tractor, the policy of Insurance does not holds coverage in respect of the coolie or the labour, who is carried in the tractor. Even if the deceased was treated to be a coolie carried in the tractor, the claim under the Motor Vehicles Act, 1988 will not attract as it is a case for compensation to be determined under Workmen's Compensation Act, 1923 in a different forum. Hence, the Tribunal is right in dismissing the claim petition against the Insurance Company and supported the impugned judgment.
7. I have given my anxious consideration to the arguments advanced on both sides and also perused the materials on record.
8. There is no dispute as to the petitioner No.1 is the mother, petitioner No.2 is the father of the deceased. There was an accident on 08.02.2010 involving the tractor bearing Reg.No.KA-28/TA-2935 which killed the deceased at the spot. The deceased 6 MFA NO. 480/2014 was aged 22 years. He was a bachelor and mother being the dependant, entitled to claim the compensation. As we see from the material on record, the Tribunal has taken notional income of the deceased at Rs.4,500/-, without adding future prospects, determined the compensation by applying the age of the parent, which is not proper. In a case of this nature, determination of the compensation is settled by the Hon'ble Apex Court in National Insurance Co.Ltd. -vs- Pranay Sethi and Others2 and Sarla Varma (Smt.) and Others -vs- Delhi Transport Corporation and Another3. The deceased was an agricultural coolie and in the year 2010, a notional income for a person with no proof of income shall not be taken less than Rs.5,500/-. The future prospects of 40% ought to have been added, the Tribunal ignored the same. The age of the deceased is relevant for selection of the multiplier and the 2 (2017) 16 SCC 680 3 (2009) 6 SCC 121 7 MFA NO. 480/2014 Tribunal has committed error in selecting the age of the petitioner No.1 for selection of multiplier. Hence, by applying these principles, calculation of loss of dependency will be Rs.5,500/- + Rs.2,200/- (40% future prospects) = Rs.7,200/- - Rs.3,850/- (50%) = Rs.3,850/- x 12 x 18 = Rs.8,31,600/-. Petitioner No.1 being the mother, entitled to a sum of Rs.20,000/- towards loss of love and affection and Rs.10,000/- each towards funeral expenses and loss of estate. Then, the total compensation comes to Rs.8,71,600/- as against Rs.4,35,000/- awarded by the Tribunal, which is the just compensation that the petitioner is entitled to.
9. As regarding the liability is concerned, there is no dispute that the respondents No.1 and 2 are driver and owner of the tractor in question. It is the contention of the Insurance Company that the policy of Insurance having a limitation as to its use. The policy is only with respect to the use of the tractor 8 MFA NO. 480/2014 towards agriculture and forestry purpose. The driver of the tractor is holding the effective driving licence. The material on record did point out that the tractor was also used for construction of canal work. The finding recorded by the Tribunal that the tractor was used for the commercial purpose. A tractor meant for agricultural purpose is no doubt has to be used for agricultural and forestry purpose. Using the tractor for construction of canal cannot be treated as commercial activity. Unless the canal is built, there is no agriculture. Therefore, construction of canal is also part and parcel of agricultural activity.
10. Adverting to evidence on record, as deposed by RW-1, the accident took place at the bank of Upper Thunga Canal. RW-2 is the servant of the tractor, examined on behalf of the Insurance Company has categorically stated that the tractor was not used for construction of canal on the date of accident. Even otherwise, if it is accepted that the 9 MFA NO. 480/2014 tractor was used for construction of canal, I do not found force on the argument of Insurance Company that it was a commercial activity.
11. There is no evidence on record to show that the deceased was a coolie, working under the owner of the tractor nor he was travelling on the tractor at the time of accident. The material on record did point out that the deceased was working on the ground, hit by the tractor killing him at the spot. Even though the tractor is covered under agricultural policy, it covers the risk of third-party as per the terms of the policy at Ex.R2. The Insurance Company has collected a premium of Rs.1,475/- as third-party premium. Therefore, I do not found any acceptable legal reason in the finding recorded by the Tribunal that the tractor is not insured for the third-party risk. When the Insurance Company has collected the premium to cover the risk of the third-party, I do not found any reason to throw away the claim of the petitioner. 10 MFA NO. 480/2014
12. In Suvarnamma's case (supra), the Hon'ble Apex Court held at paragraph No.8 as follows:
"8. Having given our anxious consideration to the rival submissions advanced by the respective counsel and having perused the material on record, there is no dispute about the fact that at the time of occurrence the tractor which involved in the accident was being driven by the driver-owner in a rash and negligent manner. The evidence of PW 3, an independent eyewitness to the incident, in all probabilities, makes it clear that the deceased had died because of the accident caused by the tractor that was being driven in a rash and negligent manner while the victim was going to his home as a pedestrian on the footpath. The FIR also discloses the very fact. At the same time, we find no material on record except the deposition of RW 1, the Divisional Manager of the Insurance Company, to establish that the victim was a passenger of the tractor. A mere statement that the victim was unlawfully travelling on the tractor, without any probable evidence cannot be taken into consideration, when the evidence to the contrary is available, in the form of deposition of an independent eyewitness. Notably enough, the driver-owner-insured of the tractor was not examined as witness. It is also manifest that he did not prefer appeal against the verdict of the Tribunal which in other words supports the case of appellants/claimants. Considering the circumstances stated above, in our opinion, the conclusion reached by the Tribunal is a possible view, which could not have been reversed by the High Court by merely making sweeping observations in a casual manner without there being any reliable evidence. We, therefore, afford our concurrence to the judgment arrived at by the Tribunal."11 MFA NO. 480/2014
Identical is the situation in the case on hand. Evidence speaks that the tractor hit against the deceased at the time of accident and he was not a passenger in the Tractor.
13. The judgment of this Court in Oriental Insurance Co. Ltd. Vs. Thippeswamy and Others4 is applicable only in a case where the deceased was an employee under the owner of the tractor and the dependants of the deceased has to claim compensation under Workmen's Compensation Act.
14. Adverting to the argument of the Insurance Company that for violation of policy conditions and applicability of the concept of pay and recovery this Court in The Divisional Manager Vs. Smt. Akkavva and Another5 in paragraphs No.27 and 28 held as follows:
"27. Thus, to conclude, the policy in question that is Ex.R-1 is a policy in the nature of farmer's package policy insurance, covering the risk of only those persons mentioned in the 4 ILR 2003 KAR 3485 5 ILR 2007 KAR 1382 12 MFA NO. 480/2014 policy and the said vehicle was used in contravention of Section 66 of the Motor Vehicles Act.
28. For the foregoing reasons and having regard to the law laid down by the Apex Court and also by this Court in respect of a policy which is issued for the use of vehicle for agricultural purpose, in the instant case, as there has been a violation of the policy conditions by the insured and as the claimants having failed to establish that they were the employees engaged in connection with use of the tractor-cum-trailor for agricultural purpose only, the Tribunal could not have saddled the liability on the appellant-insurance company."
The Hon'ble Apex Court in Oriental Insurance Co. Ltd. Vs. Brij Mohan and Others6 in paragraph No.8 held as follows:
" 8. The Tribunal in its award has, inter alia, noticed that the appellant herein had raised a specific defence, namely, the trolley was not insured. It does not appear that the said contention of the appellant had been gone into. There is nothing on records to show that the owner of the tractor had produced any insurance cover in respect of the trolley. It is furthermore not disputed that the tractor was insured only for the purpose of carrying out agricultural works. The representative of the Insurance Company Mr. Hari Singh Meena on cross-examination merely accepted the suggestion that cutting the earth and levelling the field with earth would be an agricultural work but respondent no.1 himself categorically stated in his claim petition before the Tribunal stating that the earth had been dug and was 6 (2007) 7 SCC 56 13 MFA NO. 480/2014 being carried in the trolley to the brick-klin.
Evidently the earth was meant to be used only for the purpose of manufacturing bricks. Digging of earth for the purpose of manufacture of brick-klin indisputably cannot amount to carrying out of the agricultural work."
15. As seen from the materials on record, the Tractor is covered with third-party insurance. The deceased was a third-party. The driver of the Tractor holds valid driving licence. There is no scope to record a finding that there is a violation of terms of the policy. Hence, I do not found any force in this argument. When the material on record clearly points out that the deceased was a third-party, his risk is also covered by the policy of Insurance, the order of the Tribunal in rejecting the claim petition against Insurance Company is erroneous and calls for interference. Therefore, the appeal merits consideration, in the result, the following:
ORDER
i) Appeal is allowed in part.
ii) Impugned judgment is modified.14 MFA NO. 480/2014
iii) Appellant/Petitioner No.1 is entitled to total compensation of Rs.8,71,600/-.
iv) The Insurance Company is held liable to indemnify the insured and directed to pay the entire compensation with interest of 6% p.a. from the date of petition till the date of deposit.
v) Amount in deposit, if any, shall be transmitted to the Tribunal along with records forthwith.
Sd/-
JUDGE PA CT:HS