Karnataka High Court
Mallamma W/O Late Vishwanath Goura vs The United India Insurance Co.Ltd. on 17 September, 2014
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
ON THE 17TH DAY OF SEPTEMBER, 2014
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
M.F.A.No.30606/2009 (MV)
BETWEEN:
1. MALLAMMA
W/O LATE VISHWANATH GOURA
AGE: 38 YEARS, OCC: HOUSEHOLD
2. SMT. ERAMMA W/O TAMANNA
AGE: 65 YEARS, OCC: HOUSEHOLD
3. TAMANNA S/O MADAPPA GOURA
AGE:70 YEARS, OCC:AGRICULTURE
ALL R/O MANGALGI, NOW AT PATARPALLI
TQ. AND DIST. BIDAR
...APPELLANTS
(BY SRI BASAVARAJ R. MATH, ADV.)
AND
1. THE UNITED INDIA INSURANCE CO.LTD.
13, JAHANGIR BUILDING
4TH FLOOR, M.G.ROAD
MUMBAI REPRESENTED BY ITS
DIVISIONAL MANAGER
GULBARGA DIVISION
SUPER MARKET, GULBARGA.
2
2. VIJAYA N. OZA,
AGE: MAJOR, OCC:BUSINESS
R/O H.NO.15-7-241
BEGUM BAZAR, NEAR MUSLIM JUNG POOL
HYDERABAD, A.P.
... RESPONDENTS
(BY SRI SANJEEV PATIL, ADV. FOR
SRI R. V. NADAGOUDA, ADV. FOR R1
NOTICE TO R2 DISPENSED WITH V/O DTD.5.10.2010)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 31.12.08 PASSED IN MVC
NO.436/1999 ON THE FILE OF THE PRESIDING OFFICER, FTC-IV
& MACT, BIDAR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The case of the claimants is that the deceased on 27.08.1999 had gone to Karpakpalli village and collected two bags of jawar from his relatives. On 28.08.1999 he took the two bags of jawar in a bullock cart and went to Chincholi bus stop in order to return to his village Mangalagi. At that time, a lorry baring No.AP-9-T-1015 3 came from Chincholi. The driver stopped the lorry. He boarded the vehicle along with his goods and paid a fare to the driver. He was made to sit in the cabin. At about 6:00 p.m., the driver lost control of the vehicle and he dashed against the roadside tree. The deceased succumbed to the injuries. A claim petition being filed by his wife and parents, the Tribunal awarded 4,24,000/- along with interest and the owner was held liable to satisfy the award. Questioning the liability foisted on the owner and seeking enhancement, the claimants have filed this appeal.
2. Learned counsel for the appellant contends that the impugned award of the Tribunal is erroneous. That the Tribunal drew an adverse inference against the claimants, that the deceased was a gratuitous passenger and therefore the Insurance Company was not liable to pay the amount. It was of the view that the claimants have not placed any material for having paid the fare. 4
3. On the other hand, Sri Sanjeev Patil, learned counsel appearing for respondent No.1 contends that there is no error committed by the Tribunal which calls for interference. That the vehicle in question is a goods vehicle and the deceased was travelling as a passenger. The same is prohibited. Hence, it is a violation of the terms of the policy. Therefore, the insurer is not liable to satisfy the award.
4. Heard learned counsels and examined the records.
5. The finding that the claimants have not produced any material to show that the deceased was travelling along with goods by paying fare is incorrect. PW.2 was a co-passenger of the deceased. He has stated that he was travelling along with the deceased in the lorry. That they loaded two bags of jawar and travelled in the vehicle. Ex.P9 is the copy of the statement of one Laxmi who is also a co-passenger. She has stated that she was already in the vehicle when the deceased boarded the lorry along 5 with his goods. The evidence of these two co-passengers namely Subhash-PW.2 and Laxmi-PW.9 whose statement was recorded in terms of Ex.P9 has not been considered by the Tribunal. On considering their evidence it is apparent that the deceased was travelling along with his goods.
6. Under these circumstances, the Hon'ble Supreme Court in the judgment of AIR 2008 SUPREME COURT 2871 - United India Insurance Co. Ltd. vs. Suresh K. K. & Anr. held whether the deceased can be considered as an owner of the goods carried in the vehicle as provided under sub clause(i) of Clause (b) of Section 147 of the Act and if so whether his risk is covered by the policy? In so answering the said issue, the Hon'ble Supreme Court held at para 13 that if the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of the insurance. It means 6 that if the owner of the goods is travelling in the vehicle along with goods, the policy would cover him.
7. In the instant case, the fact that the deceased was travelling as an owner of goods, has been established. They have discharge their burden. Therefore, the Tribunal by not considering all these materials, wrongly held that there is no material to show that the deceased was travelling along with goods. For the aforesaid reasons, the judgment and award of the Tribunal is modified. The liability held on the owner is set aside. The insurer is liable to satisfy the amount awarded.
8. So far as the enhancement is concerned, the deceased was said to be a coolie by profession. The accident took place on 27.08.1999. The Tribunal held his notional income at Rs.3,000/- per month. On granting a deduction of 1/3rd and applying a multiplier of '17' awarded Rs.4,08,000/- on dependency. The deceased was aged 32 years, hence, the multiplier should 7 be 16 and not 17. Hence, loss of dependency is worked out as follows:
1/3rd of Rs.3,000/- x 12 x 16 = Rs.3,84,000/-
9. A sum of Rs.1,00,000/- is awarded towards loss of consortium to the wife and Rs.25,000/- is awarded towards funeral expenses. A sum of Rs.15,000/- each is awarded towards love and affection to claimants 2 and 3.
10. Hence, the compensation is enhanced by a sum of Rs.1,15,000/- (Rs.5,39,000/- less Rs.4,24,000/-) which shall carry interest at the rate of 9% per annum from the date of the petition till the date of payment to be settled within eight weeks from the date of receipt of a copy of this order. The compensation shall be satisfied by the insurer.
11. The amount awarded towards loss of consortium with interest shall be exclusively paid to the 1st claimant the wife of the deceased. The amount awarded towards loss of love and affection with interest shall be paid 8 exclusively to claimants 2 and 3. The balance amount shall be divided in the same manner as held by the Tribunal.
The appeal is disposed off accordingly.
Sd/-
JUDGE sdu