Karnataka High Court
Manager Oriental Insurance Co Ltd vs Nagesh on 4 July, 2011
Bench: K.L.Manjunath, H.S.Kempanna
IO
{BY SRl.S.P.SH/JXNKAR - SR. ADV. FOR
SRl.D.l/WSURESH -~ ADV. C/'R1,
N.R.l\lAlK 8: ASSCTS. - ADVS. FOR R-2}
THIS MFA Is FILED U/S 173(1) OF Mv Ash' AGAINIST': * . 4_
THE JUDGMENT AND AWARD DATED: 26.?.~o4...i§IAssED IN" --. "
MVC NO.3l93/2000 ON THE FILE 'OE fl'liE.;«l_8m_
JUDGE, lVLACT~4, COURT OE SMALL
(SCCH4), AWARDING COMPE7NSA'l'iQN--._0F RE_;i;soIo'oo~/-'~--,,
WITH INTEREST AT 8% RA. »£sz._Ij'i-RECTING THE A.1?P-EILLIANT » *
HEREIN To DEPOSIT THE
THIS APPEAL l3'L5l;'N""..RESEl§Vl3:D FOR
JUDGMENT COMING ON ':I>ROANOuUNOEMENT' THIs
DAY, KEMPANN./3i_J., PE.O_NoIINOED THEEOLLOWING :
ThG1l{§11Ir).Cl1:l'S::A_£1ppjéal'}la¢i_lQ€:'3I1 listed for admission
beforevéis ofihe learned counsel for the
respeetiveipeII*ties.._ ._WaS.'i'taken up for final disposal.
appeel is by the insurer challenging the
liahilxityl on them on the ground that the risk of
the" elsiniéfint who is a police Constable, being a
greasiuitous passenger in the goods vehicle involved in
"'£filie'lA'3.eeicieI1t, is not COV€I'€d under the policy of the
V' "'"ilIiSuI'aI1ee issued by the appellant u/S147 of the
lVl.V,Pv:t l988I
3. 'i'he faetusi gisirix G'? the ease are as follows :-
51?;/"'
The first respondenbelairnant instituted Claim
petition u/53.166 of the M.V.Aet claiming
in respect of the personal injuries which he s3ii_Ste;i:1ed'tinf V'
a motor accident that took place
10,45 pm. near K.SathyaVare.'---- hg*ate ei';§:1iate<in
Bangalore-Hoskote road the "'i0.f'rykfl:bearing
Regn. N0.CAW 7100' vtthe,:Se.e0ndHteepondent
and insured with the relevant
Point of
It"ie"th,:ef,ca§e eieiniant that he was aged 31
years, tiaofking p'e1.i_e*e.jeonstab1e at Nandagudi police
station d1'e§V'.7ing.Ve; of Rs/1342/--« pm. as on the
'I . . . . . ._
he along with his colleague
cni1.stah1ee.i'.V'had been deputed for night beat duty at
Pi1%1aguuinba industrial estate which is situated at some
"".jdi:ste.nee from the police statien where they were
it Working. On being deputed for night duty as there was
no eonveyanceg they boarded the terry bearing No.CAW
? £00 in erdet to go te their ptaee of work ite.PiHaguinba
industrial Estate for heat duty, It is their case that after
they boarded the lorry on account of it being
high speed in a rash and negligent manner its ~
when it was near K.SathyaV.ara.__4gatie 's'it.fi1ate£l_' gor1_ V'
Bangalorew Hoskote road, it went'l'an:fldashed' agair:s't._ae:.
on coming lorry bearing .__On. the V
impact the claimantsnstair'1'edVc':'Severe on his
both legs. He was Gandhi
hospital for money for his
treatment; both legs below the
knee of amputation of his
both he prospects and also the
benefits vQ'as."entitled to by way of enoashment of
leave.'Vflmléicoordingly, he sought for grant of
coiiiiperisationirorn the respondents.
service of notice, the second respondent
V ow_ner'remained absent. Hence, he was placed exparte.
l lheillappellaiit / insurer appeared and contested the claim
l V' "of the claimant. They contended that the accident in
question has not taken place on account of rash and
negligent driving of the lorry by its driver. They further
J
€"'<%;§y/to/"X,
contended that the driver of the lorry did
valid and effective driving licence to driy'e"'4':€316i'S:3§ihee»
the time of accident, as such, the {3W11€If h:E$_~3flé3i(j)2T1ffli'tt€?j
breach of terms and COI1di'LiO1"1Si°Qf 'iVpoIiz:_§r'..,'
denied alt the other averrrietlite made' hythe 'elaimaint in; V
his petition and contendedeth:eit..e;s.._.theh'a'<:eideiiit has not
taken place due to fat_11t2;_bot thjiver of the lorry,
they are not liahleeh to compensation.
According1y§.'.:veo:»;:gh t of the petition.
The the above pleadings
framed
111} VW"hethe=f»"the'«Petitioner proves that he
_ _ s.ttstained A'grvie"z}ous injuries in the road
V ifafiic that occurred on 31.01.2000
it VA..at:"-..qbout 10.45 pm. while he was
it on work to Piiiagumhaa
V. .iftt:£Ltsi7"ial area in the lorry hearing
it Regn.N0.CAW 7100 and while the said lorry
' was proceeding near K.S«:2thyo;vczra gate,
Hosakote road, due to the rash and
negligent driving ofzihe lorry by its driver?
/X'
6
2} Vv'he1iher the Petitioraer :1 a ll
entitled for eon1peflnsaiieri'?-- {f yV.ls7:;.?': eehigtl V
gjrnl?/%i§€f?0rder or
The claimant .l'l3,i'e~.Vl"case got himself
examined as including the
doctor 2 to 4. He
produced lrr came to be marked
as behalf of the respondents,
they rlidylnot or got marked any
docamenle hf their case.
??l'he" ..'TriblLrfialV on considering the oral and
on record held that the accident
'lira.---queVsti'e§_irhas taken place on account of the rash and
nelgligvlerrty driving' of the lorry bearing No.CAW 7100 by
life-..clriver and accordingly, the claimant has establiehed
laerlionable negligence, Further, the Tribunal leaking to
e eviclerrce ff 1:516 claimant, his wit efees and th
ocuments p ace en record, awar e a sum 0
34,80,068/av with interest at 8% pa. from the date of the
petition till realisation. it further saddled
payment of compeneatioh on therappellahtljl
4. The appellaht:i1ieurarir:vel" Company l:)eihgl"e.
aggrieved by the judgrner1tll'a:ri(i erdler. Tribunal
fastening the liabilitgeen thernt ar_eV.ih«.appeal hefore this
court. - ..
5. The appellant insurer
submittecl was a gratuitous
passehguerlll issued is an Act policy
u/3.121'?! is not covered under the
policy anti'-.i:h'erefs3re--.,_bthe Tribunal has erred in saddling
'~ _ tlietiiaihiility oh lihe------appella11t.,
submitted that though Rule 100 of the
KaLrnarfLal<ial"ll\/later Vehicles Rules 1989 permits a police
i.0fficer""en duty to be carried in a goods V€hlCl€i as the
l'~_ls3'a:i::"l: rules are not framed u/$.14? ef the AC': earning
= V.--iinder Chapter Xi by Virtue of the delegated powers
11/ S.2l.2 of the i\./i.V.Aetl the risk of the claimant: is not
Covered as he is a gratuiieus passenger and therefore,
/'
€:?'§:i//"
8
the impugned judgment and order
fastening the liability on them
However, the learned eou_nse1"._di'{i no't"V.a:ssaiI; the',
impugned judgment and"V"e«2s;§x2oard in._: "of the
quantum of compen3'a:1en.ih'a1',eAbeen e{VVaf'fiied to the
claimant. In support' ofhhe relied upon
the following decisions :1?
a) Cthers Vs. National
I n_s z.m:orafiee" Others, reported
irio_ILR 2¢2:;;2 w
lo») 4' :_Z'i'zeZid'.Assurance Co. Ltd., Vs.
Avsha reported in AIR 2003 SC
eeeee
._ej", Oriental Insurance Co. Ltd., Vs.
Reddy & Others , reported in
A A152 20.93 SC 1009; and
" df National Insurance Co. List, Vs. Baijit
1 Vh"»Kaur & Others, reported in .2004 (1) TAC 366
6. Per contra SrieS,P.Shankar, learned senior
counsel who assisted the court as Amieus curiae
supporting the impugned judgment and award passed
by the irihnnei enhmitied then? as ihe eiaimani
/_,,_/»>'"'&
admittedly was travelling in the goods polices u
personnel in discharge of his
100 of the M.V.Rules l9_89, 110:'?~g1~a£h'iiohs,_
passenger as contended ir1surer;v._lotherl
hand, he would be aE"i...authlO'fl2€.t§(l lrjassehlgler'rti*avelling in
a goods Vehicle or in awfould be a third
party in ter1r1s:Tof_ u ,/ s. l45(g)
of the .lfIe.._further__eoriter1ded that as the
E1989 which is a replica
of Rule __ Motor Vehicles Rules,
1963 liamed Act of 1939 which is holding
field. ever has not been challenged so far
' by..ar1y:or1e, it isbiriding on the insurer' Therefore, as
travelling in the goods vehicle in
disehargeefln his duties as a police officer he cannot be
eor1s~ide;?'ed to be a gratuitous passenger as contended
appellant-insurer. He further submitted in Vl€W'
of the juolgrneni: of this Court reported in lLR H398 Kar
'H523 in the ease of United lridia iris. Co.Ltdr - vs -
Charrdrarrima and others wherein it has been held by
this Court that the insurance Company is liable to pay
Sig,/"""l
10
eornpensation for the death of police eonst;a'ble..eon;<iufty
while being Carried in a goode Vehicle v2hieh'e.%;Eeeiei_on
holding field fer over a decade in "Vi.ex,Vu .:f5if7_i7v:1e
principles of stare deCisis'aS'--~heldl"by th_el'lApveX~v-.Court inf'
the ease of Shanker Raju (2011) 2
Supreme Court now cannot
thwart its liability Voi;:v,r;ompensation on
the ground: 44 a gratuitous
passenger in the accident.
for'~d_ism_issal of the appeal.
7. Vleariaedalcounsel for the responder1t~
el,_a'f'man't VVVado1jting__.i'the submission of learned Senior
I .{foLins.e_l'e'ut§ported the impugned judgment and award
the
Taking the rival submissions into consideration,
l 'g_the=papers that were made available to us at the time of
V. _..hearir1gl the points that arise for our consideration are
i} Whether the first respondent~elairnant is a
gratuitous passenger, as contended by the insurer
/l
ii
and as such his risk is not covered
policy issued by them;
ii) Whether the impugned jurigrneunft
Tribunal fastening tioie.___liabVilit'y' on
insurer is sustainable orgealgls for--interference'?"
9. Re. Point _ . . .
Facts are not elairnant being a
police of his duties was
travelling in the accident is
not 'Further, the claimant having
met sustained, treatment taken
anociitilie amountvlspent is also not disputed before us.
The having taken place on account of the rash
1 of the lorry bearing l\io,CAW 7100
its" 'driver and the claimant having established
..aetion'ahle negligence is also not disputed before us.
it prop eontention of the appeliantdnsurer is that as
= ...-the claimant is a gratuitous passenger in the vehicle
involved in the accident, his risk is not Covered under
the poliey issued as it is an Act policy issued ti/s, 147' of
/'
the Act and therefore no iiahilityp eanyhe
them.
l0. Therefore the ques'ti_on that i3l'lS€f:'3"lfiv.l:1"lllS;C8.Si3 '
is, the (:laimar1t~ police who was
travelling in the discharge of his
duties can be e_onstr u.er.l_ aspassenger and
as such the policy issued
38:; is 147 of the M.V. Act
ll, As alzreadylpoiiitled out, the claimant being a
police eonsta.h_le' travelling in the vehicle involved in
in discharge of his official duty is not
.dispfutef<:l.vVto.ljl:>ei'ore us. It is also not the ease of either
the or the insurer that the claimant was
travellirig in the goods vehicle as a fare paid passenger
or as a r1or1~fare paying passenger.
12. Rule 100 of the Karnataka Motor Vehicle
2 "Rtllesi I989 authorises a police officer on duty in
uniform to travel in a goods vehicle. The said Rule
reads as foilows :~ ':'i2iw/V
......
U.) "100.Carriage of persons in goods' vehicles (1) Subject' to the provisions of rule, no person shall be carried in a: ;gooLj£s_h' vehiciez Provided that the OL£)fié?"O?f the bona fide employee of the:"=ou;rie:"
of the vehicle carriedfree of eharge or"a'.po_Z_iee_.l officer in unfiyrm travelling on be carried in a goods vehie'Ze',hVe.:the"'total niirriber of persons so carried,» "
(0 in Zig'h't-::tra'z1sport; aoijas vehicle hauzngi"fé\;;aozsit»r;;cz than 990 kgsf K V """ - {iii} iii'anyV"other"iiyht transport goods 'izehzkjle nof:rno:e"tthan, three; and
(iii) iri.'any'goods vehicle not more ' than se.ve'n:'1 A.ProvHideci'V that the provisions of sub
(ii) and (iii) of the above proviso shall ' applicable to the vehicles piying on i.nte~.r»State routes or the vehicles carrying " goodsfrom one City to another city. {2} Noiioithstanding anything contained in suorute {i}, but subject to the provisions of suorutes {4} and (5), a Regionai Transport Authority may, by an order in writing permit that a larger ntirnber of persons may be egg//'y I4 Carried in the vehicle, on condition that ho__ goods at all are Carried, free of Charge connection with the workfor which the 5 ;_. is used, and that such other COfl§l_titO}flS:VA_1ClSl:
may be specified by the Regienaf, Authority are observed, anbl to.he;'e 7 A is required to be C-:vi;e«zfecl by a conditions of the permit} _ (3) NotwithstartCliIlég:'ahythitig.contained in sttb--ru'les {1;}""a:1e}1 (2}g:'s.but'. sytlbject to the provtsi.ons5'of. sab~ritles _( '{5}, 1' _ "for of celebrations in V'lCofiz'ieeC}:iort:?§ivilthl' tiie"""'Republic Day or Indelpertaetiee ; or any other public Coragregatiori, A ytfiehlfiegional Transport Officer;
.03} ljiiflvthe purpose of enabling a Co~ " society or class of co~operat1'ue ' societies owning or hiring a goods vehicle to carry" its members under its authority in such goods vehicle when used for the purpose of H carrying goods of the society in the ordinary Course of its business, the Secretary of Regional Transport Authority:
(5) where it Considers expedient in public irzterest in respect of oehieles owned or ;,~\%e///,¢ 15 hired by it, and in respect ofother vehicles on such inescapable grounds of urgent natur_eV..to.._4l_l'~._ be specified in the order, the Government may, by general or spec_idl~--order,l._ permit goods vehicle tog'l5e"'u,se.d carriage of persons for aforesaid, and subjeetto such conditioh;sV,.....a$.3 may be specified in _ V (4) No petso_ns shall: i "carried V "in" any goods vehicle;- _ l 1 .V __
(a) vunles's"o,h area not less than 0.40 '_Vmeiteloj'llthe floof'of:the vehicle is kept op_e"n__fof-eac'hjper'son;"and """ (Z?) lV'7§é:*i-sitcPi-mahIier§ ' ('1') 'sxlch person when carried on goods is danger of falling from ~ -the vehicles';
bill') '""i'ha't any part of his body, when a sitting position is at a height A exéeedihy three metres from the surface upon afirhirsth the vehicle tests. (5) The pI'GUiSiOi'iS of this rule shall not apply to motor vehicles registered under Section 60.
{6} No person other than an attendant or attendants required by Rule 226 shall be carried on a trailer whieh is a goods vehicle. e%/ V_ . Vehlel 'Rules E6
18. These rules have been Karnataka in exercise 'R the powers'{_"e--o.:1ferredw.' 11/ s.96(X>Qd) of the Motor Vehi-e.les__Act;' J}The said section 96 txxxi) person shall be earried in a goods is authorised to make Rulesii 'S't-elite of Karnataka in exercise i_.ts_.ldelegéttredl°powers Ru/s.96 (xxxi) of the M.V.AVetW"1 soifereign powers has framed Karne{t.a1{ia Niotor 1989 which comprises Rule 1090.19' the 'vKé~rhate1ka Motor Vehicles Rules. The sa.i§l. Rules are replica of Rule 163 of Karnataka. Motor Ru';-es, 1963. In other words Rule 100 of M.V. eorresponds to Rule 163 of Karnataka Motor 'v¢hic1é'1'é::;;é:;.,' 1963. A. l4;""l'he said Rule has stood the test of time and has
-rlielel the field from the year 1968 till this date. The yvjiralidity of Rule $00 of the Motor Vehicle Rules, 1989 or Rule l63 of the Karnataka Motor Vehicle Rules 1983 has met been challenged by any one so far. Therefore, y , V 2.2"
ere/' l7 Rule lO0 of the MN'. Rules is insurer. __ V . _ l5. A reading of Rule 1989 permits a police offie'er_"'eri travel in a goods Vehicle. ,_The owrier. deny a police in his vehicle i.e. goods he will be Committing breach" _ police officer is not permitted his agent to travel in the goods vehicle', be placed in the shoes of a pevr.S5oni..rpiaeed llir1"'-between the deep sea and the devil. Virtue of that Rule they have to permit a poliee iri uniform on duty to travel in the goods vehicles if that is so, in our Vl€W, he becomes an authorised person to travel in the goods vehicle and he "Would be a third party in terms of the definition u/53,145 l of the l\/l.V.Aet, i988. Therefore, he cannot be construed as a gratuitous passenger in the vehicle.
16. it is brought to our notice that in almost ail the States Rules have been framed similar to Rtiie EQO ;« E9 entitled to compensation as he z,o.or;{:i_v ._ come within the exeiuded c§oieQory.iT_ -1' . V "' ' A perusal of what 'hes-...Vheen held eibove-L' decision it discloses fthat e,poiivee".oAffichef'itieiveiling in a goods Vehicle as a' Enforcement Machinery is he would not come In this case, as alreadyHpoiniefiignoni,'_giiflis' that the claimant was the""-'goods vehicle involved in the acciden:.V_gé.so 3. in the discharge of his offieial Th'erefofe, by Virtue of rule 100 and What . mh2é:s':'b5eien"e'i.§1id in the aforementioned decision, it . 118$ toebeuneld that he cannot be construed to be a Vpassenger, on the other hand, he would be ein.4_s.ui.i'io_1*i';sed person to travel in ihe goods vehicle and he ufonid not come Within the excluded category. This rendered by this Court is holding fieid over a htiecadei The same has not been assaiied by the aggrieved parties before the Apex. Court. In that View of the matter, the principles of stare oieeiezis as held by the Supreme Court in the decision reported in (2811) 2 $12 yxffl 20 Supreme Court Cases 132 {Shanker Raju of India) would squarely apply. T he in said decision has held as followsi :~ 9' V "The doctrine of stare A' it
10. It is a settled ;izji:'t_eipleA'vq/j"
judgement, which u'§f'l€.' fol? a long time, shoiiid .iinsettled.Vl'A $The doctrine of stare in the maxim" moisere", and not to Lord Coke aptly English version its '' have been so often oiight rest in peace"., The lundetlyingl V' logic of this doctrine is to A. ii*ia.intoLin consistency and avoid uncertainlg. T. philosophy is that a view which A the filed for a long time should not z éiiisturbed only because another' view is possible. This has been aptly pointed out by Chcindroehiid, Cd'. in Woman Rao 1). Union oflndio thiis: [SCC p.393, para 40)"
The Apex Court in the aforementioned decision has held that the guiding philosophy ie that a View which has heid the field for a long time shoulé not he ,-
ga - M"
* iii/"
, 77' 147(2) (a) would reflect the requirements of a p0liey...and aiso the iimit of liability. Report ef the Law was faithfully implemented in making the H insurer both eeneurrent and e0:¥e3>%ite'nsixiie i;vithi._that:?0f' the owner of the Vehicle i.e._ insured;'.V_ The 'v;t'1f1fC(fI}ii(fiifi"Gf law is clear that whatever "i'ia:hilityv. the insured is the liability except in two instances, viz," Workmerrs Compensatieii under a "Liability respect of third party propertir liability could also be enlarged Insurer can collect higherfextra and undertake unlimited liability ,even in respect of those twe instances.
A 19:' p the present case as the "i.,pelairnarit;:' respondent was travelling in the vehicle x*Vi.if¥.\Z"(}i\A_'€Cl in the accident as an authorised person as the Winisured is made liable by virtue of What is contemplated u/s.l47 [2){a) ef the Act, the liability of the insured wiii have to undertaken by the insurer. g igfl///ywrsv I at 23
20. Thus, in our View as the elairnant/ H was traveling in the vehicle involved in the lasaf _ 9 police constable in discharge of his he construed as a gratuitousV.passenger'-- as (_'orltende{:?; by the appellant/ insurer. On thelfother he be an authorised person
21. Apart from We View that a policy of in any manner to defeafp 1 iiorofirisions of the social legislation and 11 of the M.V.Act, 1988. Therefore;___we_clo any merit in the contentions _ A the llearineflclrsounsel for the appellant / insurer. as the proposition of the learned counsel' forfhe appellant-insurance Co. that the risk of V a Vrgratvnifous passenger travelling in a goods Vehicle is "'no'i"eovered under the Act policy and the law laid down l' V' "by the Apex Court relied upon by the counsel for the appellant is well accepted and it was also not disputed before us. But in this case as the elairnani respondent