Karnataka High Court
The New India Assurance Co Ltd. vs Rasool Bee W/O Moulana Sab on 18 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 1617
Author: S.N. Satyanarayana
Bench: S.N. Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18TH DAY OF SEPTEMBER, 2019
PRESENT
THE HON'BLE MR.JUSTICE S.N. SATYANARAYANA
AND
THE HON'BLE MR.JUSTICE P.G.M. PATIL
M.F.A.NO.24621 OF 2012 (MV-D)
C/W. M.F.A.NO.20314 OF 2013
IN M.F.A.NO.24621 OF 2012
BETWEEN :
THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO. LTD., BELLARY,
NOW REPRESENTED BY ITS ASST. MANAGER
U.M.RAIKAR, NEW INDIA ASSURANCE
COMPANY LTD.MTP HUB
SRINATH COMPLEX, NCM HUBLI.
... APPELLANT
(BY SRI.G.N.RAICHUR, ADVOCATE)
AND:
1. SMT.RASOOL BEE W/O MOULANA SAB,
AGE: 50 YEARS, OCC: HOUSE WIFE,
R/O.BESIDE VADDAR NAGAPPA HOUSE,
BANDIMOTE, BELLARY.
2. SMT.SULTAN BEE W/O BABU SAB,
AGE: 27 YEARS, OCC: HOUSE WIFE,
2
R/O.BESIDE VADDAR NAGAPPA HOUSE,
BANDIMOTE, BELLARY.
3. SHRI.M. MARUTI S/O LATE M. RAMAPPA,
AGE: 38 YEARS, OCC: DRIVER,
R/O.MAIN ROAD, KAKKABEVINAHALLI VILLAGE,
TQ & DIST: BELLARY.
4. SANGALU TIMMAPPA S/O SANGALU KARANNA,
AGE: 68 YEARS, R/O.KAKKABEVINAHALLI VILLAGE,
TQ & DIST: BELLARY.
... RESPONDENTS
(BY SRI.MANJUNATH G. PATIL, ADVOCATE
FOR R1 & R2)
(NOTICE TO RESPONDENT NOS.3 AND 4-SERVED)
THIS M.F.A. IS FILED U/S 173(I) OF MOTOR
VEHICLES ACT, 1988, AND PRAYED TO ALLOW THE
APPEAL AS PRAYED FOR BY SETTING ASIDE THE
JUDGMENT AND AWARD DATED 23.07.2012 PASSED BY
THE LEARNED M.A.C.T.-XII, BELLARY IN M.V.C.NO.275 OF
2012 WITH COSTS AND INTERESTS IN THE INTEREST OF
JUSTICE AND EQUITY.
IN M.F.A. NO. 20314 OF 2013
BETWEEN :
1. SMT.RASOOL BEE
W/O LATE MOULAN SAB,
AGE: 51 YRS, OCC: HOUSEWIFE,
2. SMT.SULTANA BEE
W/O LATE BABU SAB,
AGE: 28 YRS, OCC: HOUSEWIFE,
3
BOTH ARE R/O BESIDE VADDARA
NAGAPPA'S HOUSE, BANDIMOTE,
BELLARY.
... APPELLANTS
(BY SRI.MANJUNATHA G.PATIL, ADVOCATE)
AND:
1. SANGALU THIMMAPPA
S/O SANGALU KARANNA,
AGE: 69 YEARS, OCC: OWNER OF TRACTOR
& TRAILER BEARING REGISTERED
NO. KA-34/TA-0863 & KA-34/TA-0864,
R/O KAKKABEVINAHALLI VILLAGE,
BELLARY DISTRICT.
2. THE DIVISIONAL MANAGER,
M/W NEW INDIA ASSURANCE
COMPANY LIMITED,
BELLARY.
... RESPONDENTS
(BY SRI.G.N.RAICHUR, ADVOCATE FOR R-2)
(NOTICE TO RESPONDENT NO.1-DISPENSED WITH)
THIS M.F.A. IS FILED U/S 173(1) OF MOTOR
VEHICLES ACT, AND PRAYED TO ENHANCE THE
COMPENSATION FROM RS.2,03,000/- TO RS.20,00,000/-
IN M.V.C.NO.275 OF 2012 DATED 23.07.2012 ON THE FILE
OF MOTOR VEHICLE CLAIMS TRIBUNAL-XII AT BELLARY,
IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS ARE COMING ON FOR ADMISSION
THIS DAY, S.N.SATYANARAYANA, J, DELIVERED THE
FOLLOWING:
4
JUDGMENT
The claimants and insurer in M.V.C.No.275 of 2012 on the file of Motor Accident Claims Tribunal, Bellary have come up in these two appeals. The appeal in M.F.A.No.24621 of 2012 is by the insurer in challenging the liability which is saddled on the insurer to the extent of 50% to pay the compensation awarded by the Tribunal. Sofar as the appeal in M.F.A.No.20314 of 2013 is by the claimants seeking enhancement of the compensation and to remove the 50% contributory negligence saddled on the owner of the vehicle and shift the liability on the insurer.
2. These appeals are taken up for consideration at the stage of admission itself, since the lower court records are already received.
3. The accident dated 26.12.2011 involving tractor and trailer bearing registration Nos.KA-34/TA- 0863 and KA-34/TA-0864 is not in dispute. It is also not in dispute that as a result of the accident the husband of 5 the 1st claimant and father of the 2nd claimant Sri.Moulana Sab suffered fatal injuries and died in the accident, thereafter claim petition was filed by the claimants seeking compensation for his death. Where, it was stated that he was working as watchman in a shop belonging to a commission agent situated in A.P.M.C. Yard, where his income was said to be Rs.10,000/- per month. When the matter went into trial, claimants were not able to demonstrate that the deceased was earning income of Rs.10,000/- per month. Hence, the income of the deceased was taken at Rs.3,000/- per month which is 50% of normal salary in a case of death which were taken whose income and avocation is not established for the year 2011 which is normal at Rs.6,000/- per month. Since the deceased had already crossed the age of 65 years. 50% of the normal salary which appears to be correct.
4. When it comes to liability, the Court below has observed that the trailer attached to the tractor was not 6 insured and as such, the liability to pay the compensation could be restricted to an extent of 50% for the reasons that the accident is caused by the trailer and not the tractor and also taking into consideration the manner in which the accident took place. Accordingly, the Tribunal awarded compensation in a sum of Rs.2,03,000/- payable with interest at the rate of 7% per annum from the date of petition till its deposit, out of which, 50% of the compensation amount was ordered to be paid by the owner and remaining liability of 50% was saddled on the insurer as stated supra, this is subject matter of challenge by both the parties.
5. When this matter is taken up for final disposal, the learned counsel Sri.G.N.Raichur appearing for the appellant-Insurer in the appeal filed by the Insurance Company would try to rely upon the Judgment rendered by the coordinate Bench of this Court in the matter of The Oriental Insurance Co. Ltd. Vs. D.Laxman and Ors., 7 reported in 2007 (4) KarLJ 224, wherein the coordinate bench of this Court has held that when the deceased persons were found to be coolies traveling in a trailer which was not insured, the liability to pay compensation is not on the insurer, it should be on the owner of the offending vehicle on two counts. One the trailer is meant for carrying coolies and second one is at the relevant point of time the said trailer was not insured. Accordingly, the insurer would try to assert that the saddling of 50% of liability on the insurer is erroneous. Therefore, paying of entire compensation should be shifted on the owner of the offending tractor and trailer.
6. Per Contra, the learned counsel appearing for the claimants who are appellants in M.F.A.No.20314 of 2013 would bring to the notice of this Court that in an unreported Judgment rendered by another coordinate bench of this Court in the matter of Smt.Suvarna W/o. Rajendra Huddar and others Vs. Murtujsab S/o. Aslam 8 Mugalolli and another in M.F.A.No.513 of 2007 which was disposed of on 03.08.2011, wherein the view taken by the coordinate bench of this Court is as under :
"11. It is well settled that it is the truck which can be driven by the driver and the trailer by itself is not a vehicle unless it is attached to the tractor and the averments made in the petition, it has to be held that the accident occurred due to rash and negligent driving of the tractor by its driver and when the tractor is insured as on the date of the accident, it is not open to the insurance company to contend that the second trailer was not insured as in this case, the claimants cannot be terminated as third parties, as the deceased was riding his motor cycle and the accident occurred due to rash and negligent driving by the driver of the tractor which was admittedly insured as on the date of the accident and wherefore the finding of the Tribunal that since trailer was not insured, liability of the insurance company cannot be imposed, is perverse and arbitrary and is liable to be set aside."
7. When the Judgment impugned is seen in the background of aforesaid two Judgments, this Court is of 9 the considered opinion that the Judgment referred by the learned counsel for the claimants in an unreported Judgment dated 03.08.2011 in the case of Smt.Suvarna's (supra) would apply to the facts of the case on all fours. In the present case, admittedly, the deceased-Moulana Sab who was watchman in a shop situated in A.P.M.C. yard was unconnected to the vehicle involved in the accident. According to the complaint, when he was proceeding in the compound of A.P.M.C. Yard the accident is caused due to the rash and negligent driving of the driver of tractor in moving the tractor backward and hitting the deceased by the trailer which was attached to the tractor, as could be seen, it is due to rash and negligent driving of the driver of tractor. The trailer which was attached to the tractor has hit the deceased resulting in his death. Therefore, to say that the accident is caused due to use of the trailer is without any basis. As observed by the coordinate bench of this Court in the case of Smt.Suvarna's (supra) as rightly contended by the learned counsel Sri.Manjunath G. Patil 10 appearing for the claimants referred an unreported Judgment in the case of The Oriental Insurance Co. Ltd. (supra), which is totally on a different set of facts that the persons who died were inmates of the tractor-trailer as coolies.
8. It is in this background the finding which is referred in the said Judgment cannot be applied as a ground by the insurer to avoid the liability to pay the compensation awarded to the legal representatives of the deceased-Moulana Sab. In that view of matter, this Court would dismiss of the appeal filed by the insurer in M.F.A.No.24621 of 2012 and while doing so, the appeal which is filed by the claimants before the Tribunal is required to be considered, accordingly, the same is taken up for consideration.
9. In the instant case, amount of compensation awarded towards loss of dependency has arrived at Rs.1,68,000/-, it appears to be just and proper. Sofar as 11 compensation which is required to be awarded towards conventional heads is concerned, the same is erroneously applied to the case on hand by the Tribunal in awarding Rs.35,000/- as against Rs.70,000/-, which is required to be considered towards compensation payable under the conventional heads. If it is taken into consideration, the claimants would be entitled to compensation of Rs.2,38,000/- as against Rs.2,03,000/- awarded by the Tribunal.
10. In the instant case, in the light of discussion as above, the entire compensation amount is required to be paid by the owner and insurer of the offending tractor and trailer jointly and severally. In other words, the claimants are entitled to receive entire compensation which is refixed in this appeal is required to be paid by the respondent- insurer along with interest at the rate of 8% per annum from the date of petition till the date of deposit of the 12 entire amount. Accordingly, the appeal in M.F.A.No.20314 of 2013 which is filed by the claimants is allowed.
11. In view of the appeal filed in M.F.A.No.24621 of 2012 by the insurer being dismissed, the amount in deposit is ordered to be transmitted to the Tribunal for disbursement.
12. If additional amount is required to be deposited by the insurer, same shall be deposited within a period of six weeks from the date of receipt of a copy of this Judgment.
SD/-
JUDGE SD/-
JUDGE ckk/-