Karnataka High Court
The Divisional Manager vs Sri Basavaraj S/O Shanmukappa on 14 March, 2018
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
DATED THIS THE 14TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
M.F.A NO.22106/2012 (MV)
BETWEEN:
The Divisional Manager
National Insurance Company Ltd.,
Sujata Complex,
P.B. Road, Hubli,
Represented by the Administrative Officer
National Insurance Co. Ltd.,
Regional Office, Sujatha Complex,
Hubli.
... Appellant
(By Sri A.G. Jadhav, Advocate)
A N D:
1. Basavaraj
S/o Shanmukappa
Age: 24 years
Occ: Hamali
R/o Yalgeri, Tq: Shikaripur
Dist: Shivamogga
Now at Motebennur,
Tq: Byadagi
Dist: Haveri.
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2. Shanmukappa
S/o Channabasappa
Age: Major, Occ: Business
R/o Yalgeri, Tq: Shikaripur
Dist: Shivamogga
Owner of the vehicle bearing
No. KA.15/T-4484
... Respondents
(By Sri Nagaraj J. Appannanavar &
Sri Laxman T. Mantagani, Advocates for R2)
This MFA is filed under Section 173(1) of the MV
Act against the judgment and award dated
06.03.2012 passed in MVC No.916/2010 on the file of
the Senior Civil Judge and Addl. MACT, I.T. Court,
Byadagi, awarding the compensation of Rs.2.96,500/-
with interest at the rate of 6% P.A. from the date of
petition till realization.
This MFA having been heard, reserved for
judgment on 15.12.2017 and coming on for
pronouncement of judgment this day, the Court
delivered the following:
JUDGMENT
The present appeal has been preferred by the Insurance Company, assailing the judgment and -3- award dated 6.3.2012, passed by the Senior Civil Judge and MACT, I.T. Court, Byadagi in MVC.No.916/2010.
2. For the purpose of convenience, parties are referred to as they are referred to before the Tribunal.
3. Brief facts are that on 19.4.2010 at about 9.30 a.m., in pursuance of the instructions given by the owner of the vehicle, petitioner along with others went to the agricultural field for unloading the fertilizer in the tractor and trailor bearing Regn.No.KA- 15-T-4483 and T-4484 and after unloading the same, when they were coming back in the said vehicle, the driver of the said tractor-trailor drove the same in a rash and negligent manner and lost the control, as a result of which, the tractor and trailor turned turtle in a ditch, due to which, the petitioner sustained injuries. A criminal case was also registered in Crime -4- No.93/2010 against the driver of the vehicle. Immediately after the accident, the petitioner was taken to Nanjappa Hospital, Shivamogga, where he got admitted as inpatient for 40 days and he has been operated.
4. It was the contention of the petitioner in the claim petition filed before the Tribunal under Section 166 of the Motor Vehicles Act, 1988 ('Act' for short) that he was doing agricultural work and earning monthly income of Rs.8,000/-. In response to the notice issued by the Tribunal, respondent No.1-owner of the vehicle appeared and filed his written statement contending that the policy was in force and the driver was holding valid and effective license at the time of accident and as such respondent No.2-Insurance Company is liable to pay compensation. Respondent No.2-Insurance Company also filed their objections denying the contents of the claim petition. They -5- contended that petitioner was travelling as a gratuitous passenger in the tractor and trailor by sitting on the right side mudguard by violating the Rules and Regulations of the Act. They further contended that the TT Unit was used against Rules and Regulations and permit conditions and as such they are not liable to pay any compensation. They further contended that the said TT unit was used to transport manure to the agricultural land of one Basanagouda and at that time petitioner was sitting on the right side mudguard of the tractor engine though the seating capacity is only for driver thereby he has violated the Rules and Regulations. On these grounds, they prayed for dismissal of the said claim petition.
5. In order to prove his case, the petitioner himself has examined as PW.1. He also got examined Dr.Umanath Ullal as PW.2 and got marked the -6- documents at Exs.P1 to P16. On behalf of respondents they got examined the Officer of the Insurance Company as RW.1 and got marked Ex.R1 to R6. After hearing parties to the lis, the Tribunal has passed the impugned judgment and award whereunder it has awarded total compensation of Rs.2,96500/- with interest at 6% per annum in favour of the petitioner by holding that respondent Nos.1 and 2 jointly and severally to pay the compensation. However, the Tribunal directed respondent No.2- Insurance Company to deposit the entire amount. For having fastened the liability on them, the Insurance Company is before this Court.
6. The main grounds urged by the learned counsel for the appellant-Insurance Company are that TT Unit is a special type of vehicle and the policy issued is for tractor and trailor for agricultural purpose and it does not cover the risk of coolies and hamalis. -7- Admittedly, the claimant is a hamali in the said tractor and as such he is not covered under the policy. Under such circumstances, the Tribunal ought not to have fastened the liability on the Insurer. The Tribunal has failed to consider the said aspect even though it is covered by the decision of the Hon'ble Apex Court. He contended that the petitioner was a hamali in the tractor and trailor as on the date of the accident as admitted in the petition itself. Under such circumstances, the Tribunal ought not to have fixed the liability on the appellant. He further contended that the injured was travelling in the tractor by sitting on the mudguard. Travelling of any person other than the driver is not permitted since the seating capacity of the tractor allows only the driver to drive as it has a single seat. Therefore, the persons other than the driver are prohibited to travel in the said tractor in view of Regulation 28 of the Rules of Road -8- Regulations, 1989. He further contended that in any event, the tractor being with only seat nobody else apart from the driver thereof could travel in the tractor. If any other person who travels would be unauthorized passenger or gratuitous passenger in the insured vehicle. In that light, the liability of the Insurer does not arise. This aspect has not been considered and properly appreciated by the Tribunal. He further contended that no extra premium is collected except covering the risk of the driver. In that light, fastening of the liability on the Insurer is not justifiable.
7. In order to substantiate his contention, the learned counsel for the appellant has relied upon a decision in the case of Oriental Insurance Co.Ltd., Bangalore Vs. Smt.Shobha and others, reported in 2012(1) AIR Kar R 77. By relying upon the decisions in the case of Susheelabai & others Vs. -9- Basavaraj & another, reported in (2009)17 SCC 663; and in the case of Branch Manager, National Insurance Co. Ltd., Vs. Ramalingegowda & another, reported in ILR 2011 KAR 1840 he contended that the Insurance Company is not under a statutory obligation to cover all kinds of employees of the insured as the statute does not show command eventhough under Section 147(1) of the Act, statutory liability is there on the Insurer. On these grounds he prayed for allowing the appeal by setting aside the impugned judgment and award.
8. Per contra, the learned counsel appearing for the respondent-claimant vehemently argued and contended that in view of the provisions of Section 149 of the Act, the Insurer is under a statutory liability to pay the compensation. He further contended that the said vehicle was used for the purpose of carrying the fertilizer and after unloading
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the same, when they were returning, in course of employment the alleged accident has taken place. In that light, the Insurer is not having any other remedy except to pay the compensation. He further contended that the Tribunal after considering all the materials on record, has fastened the liability on the appellant-Insurer. Appellant-Insurer has not made out any good grounds to interfere with the impugned judgment and award and therefore he prays for dismissal of the appeal.
9. On going through the above citations which have been quoted by the learned counsel appearing for the parties, two Division Benches of this Court have taken a contrary view. The case in Oriental Insurance Co.Ltd. Bangalore Vs. Smt.Shoba & others (cited supra) has been decided on 25.5.2011 and case in Manager, National Insurance Co.Ltd., Vs. Imamsab has been decided on 17.7.2013.
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Though the earlier judgment has been referred by the subsequent Division Bench, it has been observed that the said judgment has no application to the facts of the case and took a different view. But the Division Bench has taken a decision by holding that the Insurance Company has collected an amount of Rs.25/- towards the legal liability of the employee/driver. Admittedly, it is a tractor. The policy is in respect of an engine of tractor which has got only one seating capacity which is provided only to drive the tractor. The liability is in respect of driver. hence the Tribunal is not justified in fixing the liability on the Insurance Company.
10. The Hon'ble Supreme Court in Susheelabai's Case, (cited supra) has observed that the tractor being a vehicle with only one seat, nobody else apart from the driver could travel in the tractor and keeping in view the said aspect the appeal was
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dismissed by holding that the insurer is not liable. By relying upon the decision in the case of Manager, National Insurance Co.Ltd., Vs. Imamsab (mentioned supra) co-ordinate Benches of this Court in the case of United India Insurance Co.Ltd., Vs. Basavarajaiah Swamy, in MFA.No.30081/2008 c/w. MFA.No.30080/2008, decided on 16.12.2015 and in the case of Smt.Shailabai Vasant Magadum & others Vs. Peermohammad Ahmedsab Mahasuri in MFA.No.21326/2008 c/w.
MFA.No.20362/2008, decided on 16.11.2016 and in the case of United India Insurance Company Ltd., Vs. Smt.Anasawwa and others in MFA.
No.20386/2009 C/w. MFA.No.20385/2009, decided on 21.4.2017, have upheld the ratio laid down in the case of Manager, National Insurance Co. Ltd., Vs. Imamsab (mentioned supra). But, other co- ordinate Benches of this Court in the case of United
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Insurance Co. Ltd., Vs. Channawwa in MFA.No.7468/2002 decided on 5.7.2005, in case of United India Insurance Co. Ltd., Vs. Sri Arun & another, in MFA.No.1397/2004 decided on 16.1.2006 and in the case of Branch Manager, National Insurance Co. Ltd., Vs. Ramalingegowda & another (cited supra), have taken the decision by holding that said issue being no more res integra and held that the insurer is not liable to pay the compensation as the seating capacity of the tractor engine is only one and the liability is in respect of the driver and as such fixing the liability on the Insurance Company is not justified.
11. On going through the aforesaid decisions, it makes it very clear that two Division Benches of this Court on the similar question of law and facts have given contrary views so also the co-ordinate Benches of this Court have given divergent views. Hence, at
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this juncture, I feel it just and proper to refer the case in National Insurance Co. Ltd., Vs. Pranay Sethi & others, reported in AIR 2017 SC 5157, wherein at paragraph-61 it has been observed that it is advisable to refer the matter to a Larger Bench as it was taking a different view than what has been stated in Sarala Verma's Case (AIR 2009 SC 3104), a judgment of co-ordinate Bench. It is further observed that it is because a co-ordinate Bench of the same strength cannot take a contrary view than what has been held by another co-ordinate Bench.
12. When already the Hon'ble Apex Court has held that the tractor being a vehicle with one seating capacity, nobody apart from the driver thereof could travel in the tractor and the said fact has also been approved in the case of Dhanraj Vs. New India Assurance Co.Ltd. & another, reported in 2004(8) SCC 553, then under such circumstances, I
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feel that in order to maintain the uniformity of law laid down by the Courts that when a person travels on the mudguard of the tractor, it does not cover the risk of such person, that too, when Regulation 28 of the Rules of the Road Regulations, 1989 is prohibiting carrying passengers more than the number of persons provided. For the purpose of brevity, I quote Regulation 28 of the Rules of Road Regulations, 1989, which reads as under:-
"28.Driving of tractors and goods vehicles:- A driver when driving a tractor shall not carry or allow any person to be carried on tractor. A driver of goods carriage shall not carry in the driver's cabin more number of persons than that is mentioned in the Registration Certificate and shall not carry passengers for hire or reward."
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13. Under the aforesaid facts and circumstances and the decisions referred to above, the insurer cannot be made liable. I am of the considered opinion that the passengers cannot travel in the tractor as per the policy conditions and the regulations.
14. Having heard the learned counsel for both sides and in view of the observations made and views expressed by me in MFA.Crob.No.100001/2016 in MFA.No.102649/2015 & connected matters, wherein similar facts and circumstances came up before me for consideration, this matter also requires to be referred to the Larger Bench since so far the Larger Bench is not constituted and no decision is taken in respect of the aforesaid matters.
Accordingly, the matter be placed before the Hon'ble Chief Justice by the Registry to constitute a
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Larger Bench in order to resolve the views expressed in the aforesaid matter.
Sd/-
JUDGE *ck/-