Karnataka High Court
Tata Aig General Insurance Company ... vs Smt. Lakshmamma on 7 December, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.1109/2013 (MV)
C/W.
M.F.A. NO.1110/2013 (MV)
IN M.F.A. NO.1109/2013:
BETWEEN:
TATA AIG GENERAL INSURANCE
COMPANY LIMITED
2ND FLOOR, JP & DEVI
JAMBUKESWAR ARCADE
NO.69, MILLERS ROAD
BENGALURU-560 052
DULY REPRESENTED BY ITS
CLAIMS MANAGER SRI. ALOK GUPTA. ... APPELLANT
(BY SRI A.RAVISHANKAR, ADVOCATE [THROUGH VC])
AND:
1. SMT. LAKSHMAMMA
AGED ABOUT 53 YEARS
W/O LATE MUNISHAMAPPA
R/AT VOKKALERI VILLAGE & POST
KOLAR TALUK & DISTRICT-563 101
2. MEDICARE INCIN PVT. LTD.,
NO.6-3-1089/G, 110511
RAMKY HOUSE GULMOHA
AVENUE, RAJ BHAVAN ROAD,
2
SOMAJI GUDA, HYDERABAD,
ANDHRA PRADESH - 560 082
3. SRI. NARAYANASWAMY
S/O RAMANNA
AGED 45 YEARS
VOKKALERI VILLAGE & POST
KOLAR TALUK & DISTRICT-563 101 ... RESPONDENTS
(BY SRI N.GOPALKRISHNA, ADVOCATE FOR R1;
R2 AND R3 ARE SERVED AND UNREPRESENTED)
THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.10.2012
PASSED IN MVC NO.9152/2010 ON THE FILE OF JUDGE AND
MEMBER, MACT, (SCCH-9), BENGALURU, AWARDING A
COMPENSATION OF RS.3,98,675/- WITH INTEREST @ 6% P.A.,
FROM THE DATE OF PETITIONS TILL ITS REALIZATION.
IN M.F.A. NO.1110/2013:
BETWEEN:
TATA AIG GENERAL INSURANCE
COMPANY LIMITED
2ND FLOOR, JP & DEVI
JAMBUKESWAR ARCADE
NO.69, MILLERS ROAD
BENGALURU-560 052
DULY REPRESENTED BY ITS
CLAIMS MANAGER SRI ALOK GUPTA. ... APPELLANT
(BY SRI A.RAVISHANKAR, ADVOCATE [THROUGH VC])
AND:
1. SRI NARAYANAPPA
AGED ABOUT 53 YEARS
S/O LATE CHIKKADASAPPA
3
2. KUMARI SHAMALA
AGED ABOUT 16 YEARS
D/O NARAYANAPPA
3. MASTER MANJUNATH
AGED ABOUT 13 YEARS
S/O NARAYANAPPA
THE RESPONDENT NOS.2 & 3 ARE MINORS
HENCE REP. BY THEIR FATHER AND NATURAL
GUARDIAN THE 1ST RESPONDENT HEREIN ABOVE
ALL ARE R/AT VOKKALERI VILLAGE & POST
KOLAR TALUK & DISTRICT-563 101
4. MEDICARE INCIN PVT. LTD.,
NO.6-3-1089/G, 110511
RAMKY HOUSE GULMOHA AVENUE
RAJ BHAVAN ROAD
SOMAJI GUDA, HYDERABAD
ANDRA PRADESH-560 082
5. SRI NARAYANASWAMY
S/O RAMANNA
AGED ABOUT 45 YEARS
VOKKALERI VILLAGE & POST
KOLAR TALUK & DISTRICT-563 101 ... RESPONDENTS
(BY SRI N.GOPAL KRISHNA, ADVOCATE FOR R1;
R2 AND R3 ARE MINORS REPRESENTED BY R1;
R4 & R5 ARE SERVED AND UNREPRESENTED)
THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.10.2012
PASSED IN MVC NO.9153/2010 ON THE FILE OF JUDGE,
MEMBER, MACT, (SCCH-9), BENGALURU, AWARDING A
COMPENSATION OF RS.7,15,200/- WITH INTEREST @ 6% P.A.,
FROM THE DATE OF PETITION TILL ITS REALIZATION.
4
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 29.11.2022 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
These two appeals are filed by the Insurance Company challenging the judgment and award dated 27.10.2012, passed in M.V.C.No.9152/2010 and M.V.C.No.9153/2010, respectively, on the file of the Motor Accident Claims Tribunal, Bengaluru (SCCH-9) ('the Tribunal' for short), questioning the liability.
2. The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.
3. The factual matrix of the case of the claimants before the Tribunal is that the claimant-injured Smt.Lakshmamma in M.V.C.No.9152/2010 and the deceased Smt.Rathnamma @ Munirathnamma in M.V.C.No.9153/2010, were traveling in a goods tempo bearing registration No.AP 09 X 7751 as coolies with the second respondent after loading Radish bags at about 2:00 p.m, on 14.11.2010, the driver of the said Tempo drove the same in a rash and negligent manner and all of 5 a sudden he applied brake and lost control over the said vehicle, as a result, the tempo turtled resulting in injuries to Smt.Lakshmamma and the deceased Smt. Rathnamma died at the spot. Hence, in both the claim petitions claimed the compensation for the injuries sustained by Smt.Lakshmamma in M.V.C.No.9152/2010 and other claimants, who are the dependants of the deceased Smt.Rathnamma @ Munirathnamma in M.V.C.No.9153/2010.
4. The claimants in order to substantiate their claim, they have examined P.Ws.1 and 2. In order to prove the disability, P.W.1 has examined the Doctor as P.W.3 and got marked the documents as Exs.P1 to P16. On the other hand, the Insurance Company has examined one witness as R.W.1 and got marked the documents as Exs.R1 and R2.
5. The Tribunal after considering both oral and documentary evidence placed on record allowed the claim petition in M.V.C.No.9152/2010 granting compensation of Rs.3,98,675/- for the injuries sustained by Smt.Lakshmamma and awarded compensation of Rs.7,15,200/- in a case of death 6 of Smt.Rathnamma @ Munirathnamma in M.V.C.No.9153/2010 with interest at 6% p.a. from the date of the petitions till its realization and fastened the liability on the Insurance Company. Hence, these two appeals are filed by the Insurance Company.
6. The learned counsel appearing for the Insurance Company in a case of injury pertaining to M.V.C.No.9152/2010 urged the ground before this Court that the Tribunal committed an error in considering the future prospects even in injury case, the same is not permitted. Further, it is contended that the goods tempo was carrying gratuitous passengers, in other words, unauthorized occupants of the vehicle travelling in the body of the vehicle and those persons were not traveling during the course of employment. Hence, the Insurance Company is not liable to pay the compensation. It is also contended that even under the issuance of policy, the employees of the insured are only covered. If it is established that the claimants/coolies were traveling in the goods vehicle during the course of employment of the Insured upto the limits of liability as per the 7 Workmen's Compensation Act ('WC Act' for short) as required under Section 147 of the Motor Vehicles Act.
7. The other contention is that the goods tempo did not have the valid permit and the vehicle was plied without permit. Hence, the Insurance Company is not liable to pay the compensation and contended that no person can travel in a goods carrying vehicle. All these materials are not considered by the Tribunal in M.V.C.No.9153/2010. The Insurance Company urged the same ground that they were gratuitous passengers and no permit and liability if it is only under the WC Act and mulcting the liability on the Insurance Company is erroneous and payment of additional premium by the owner of the vehicle has nothing to do with the liability and the Tribunal committed an error in taking note of payment of Rs.240/-. Hence, it requires an interference of this Court.
8. Per contra, learned counsel appearing for the claimants would vehemently contend that in spite of the Doctor has adduced evidence that there was a disability of 35%, the Tribunal committed an error in taking the disability of 25% and 8 the compensation awarded in a case of injury is very meager. The learned counsel also would contend that no future prospects has been added in a case of death and this Court can invoke Order 41 Rule 33 of CPC in order to meet the ends of justice and the same is permissible when an injustice is caused and the income taken was only Rs.4,000/-. Hence, in an appeal filed by the Insurance Company, the Court can invoke under Order 41 Rule 33 of CPC. Hence, the Court has to award the just and reasonable compensation.
9. The learned counsel would vehemently contend that though number of defenses were taken by the Insurance Company and the same has not been proved. Apart from that an amount of Rs.240/- is paid in terms of the policy - Ex.R1 and the same is considered by the Tribunal. The learned counsel also would submit that though it is contended that they are the gratuitous passengers, the same has not been proved.
10. RW.1 categorically admitted that they have not conducted any investigation and when they have not led any evidence to prove that they are the gratuitous passengers and 9 the material placed before the Court clearly discloses that they were travelling in the vehicle as coolies after loading Radish and the learned counsel also would contend that Radishes were found at the spot, which is evident from the Spot Mahazar. Hence, the very contention of the Insurance Company cannot be accepted.
11. The learned counsel appearing for the claimants relied upon the judgment of the Apex Court in the case of Ramchandra v. Regional Manager, United India Insurance Co. Ltd., reported in AIR 2013 SC 2561, the Apex Court discussed Section 147 and Section 95 - Employee of vehicle owner which caused accident and their entitlement is not limited to compensation under Workmen's Compensation Act and also entitled to compensation under the Motor Vehicles Act in case policy so provides. Further held that, no plea also raised by insurer that its liability would be restricted to that under Workmen's Compensation Act as no extra premium was paid. Insurer who fails to raise plea of limited liability and submits to non-appearance of the insured has to suffer consequences. 10 Direction in such circumstances that insurer is liable only to pay compensation under Workmen's Compensation Act is unjustified. The learned counsel referring to this judgment would vehemently contend that in the written statement no where they have contended that the liability is under Workmen's Compensation Act and for the first time they cannot raise the said plea before this Court. Hence, this judgment is aptly applicable to the case on hand.
12. Having heard the respective counsel and on perusal of the material available on record, the points that would arise for consideration of this Court are:
(i) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company and it requires interference of this Court?
(ii) What order?
Point No.(i):
13. Having heard the respective counsel and on perusal of the material available on record, no dispute with regard to the accident and the only dispute raised by the Insurance Company 11 in the written statement is that the claimants are the gratuitous passengers travelling in the goods vehicle and the liability is limited to the terms and conditions of the policy. It is contended that when they travelled as passengers, the Insurance Company is not liable. The other contention raised is that the owner of the vehicle plied the vehicle without the permit, the same violates the conditions of the policy. It is also contended that the Tempo in question was registered as goods carrying vehicle, which is constructed to carry goods alone and cannot carry any passengers, which is in violation of the rules of the Motor Vehicles Act and conditions of the Policy. The liability of the passengers travelling in the goods tempo is not covered and not required to be covered and they are the unauthorized occupants and also contended that under Section 147 of the Motor Vehicles Act, those persons cannot be covered.
14. In order to prove the factum of the defense taken in the written statement, the Insurance Company also relied upon the evidence of RW.1, who is the Assistant Manager of the third respondent - Insurance Company. In the affidavit similar 12 grounds are urged and got marked the documents viz., copy of policy with terms and conditions and copy of 'B' register extract. This witness was subjected to cross-examination. In the cross- examination, he admits that he has gone through the Police documents. It is elicited in the complaint that, it has been mentioned that the deceased and the injured person were travelling along with the bags of Radish. It is also admitted that they have not conducted any private investigation pertaining to this accident. But claims that in the police records, it has been shown that the injured and the deceased person were traveling in the said goods tempo as unauthorized passengers. It is further elicited that they have not enquired nor recorded any statement of the inmates of the said vehicle and the eye witnesses. Further, admits that in the police records, it has not been shown that the said goods tempo has no permit. The Police have not mentioned the same wrongly but admits that in terms of Ex.R1 - Insurance Policy they have collected Rs.240/- towards P.A. benefits of passengers. It is specifically suggested that the injured and the deceased were travelling in the said Tempo as Coolies but not as passengers.
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15. Having considered the evidence available on record, particularly, the documentary evidence, Ex.P1 - FIR with complaint, wherein, it is specifically mentioned that on the date of the accident, the injured as well as the deceased and others went as Coolies to pluck the Radish, after plucking loaded the same and they were returning along with goods of Radish, at that time, an accident had occurred. The Spot Mahazar, which is marked as Ex.P2, discloses that Radish was spreading all over the accident spot. Hence, it is clear that they were working as coolies and they were involved in plucking of the Radish belongs to the second respondent and travelling in the goods vehicle. When such being the material available on record, the very contention that the Court cannot invoke Section 147 of the Motor Vehicles Act, cannot be accepted. In a case of goods vehicle if the coolies had travelled, it is statutorily covered. No doubt, the Tribunal also considered the premium paid Rs.240/- and the same is towards P.A. claim towards the passengers in case of passengers are travelled in terms of Ex.R1.
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16. I have already pointed out that when there were coolies travelling in the goods tempo, it is statutorily covered. The very contention of the Insurance Company is that fastening the liability on the Insurance Company cannot be accepted. The main contention is that they are the unauthorized passengers or otherwise called as gratuitous passengers and in order to prove that they are the gratuitous passengers, no material is placed before the Court. R.W.1 categorically admitted that in the police records and in all the materials, it discloses that they travelled as Coolies in the goods carriage vehicle. When such being the case, the said contention cannot be accepted.
17. The other contention is that there was no permit. Though RW.1 was examined nothing is placed on record that there was no permit. Mere taking of defense is not enough and the same has to be proved and only RC is produced before the Court as Ex.R2. In order to prove that no permit, no steps were taken to prove such defense.
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18. The other contention in a case of injury is that the Tribunal has erred in considering the future prospects. Even in an injury case, an additional ground is urged and the same also cannot be accepted. Now, it is settled law that even in a case of an injury, future prospects has to be added. Hence, the very contention of the Insurance Company cannot be accepted.
19. The other contention is that if any liability as per the WC Act, the said contention cannot be accepted and no such plea was taken in the written statement filed by the Insurance Company before the Tribunal for the first time. The said ground is urged in an appeal.
20. Having gone through the written statement, not admitted the liability and it is contended that it is a clear case of violation of policy conditions and no permit other than no such defense was taken that the liability should be under the WC Act. The judgment, which has been relied upon by the learned counsel for the respondents/claimants referred supra, also held that the Employee of the vehicle owner which caused accident 16 and his entitlement is not limited to compensation under Workmen's Compensation Act and held that also entitled to compensation under the Motor Vehicles Act in case policy so provides. Further held that, no plea also raised by the insurer that its liability would be restricted to that under Workmen's Compensation Act as no extra premium was paid. Insurer who fails to raise plea of limited liability and submits to non- appearance of the insured has to suffer consequences. Hence, held that direction in such circumstances that the insurer is liable only to pay compensation under Workmen's Compensation Act is unjustified. Hence, the contention of the Insurance Company also cannot be accepted and no merit in the appeals. Point No.(ii):
21. In view of the discussions made above, I pass the following:
ORDER
(i) The appeals are dismissed.
(ii) The amount in deposit, if any, be transmitted to the concerned Tribunal forthwith.17
(iii) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.
Sd/-
JUDGE cp*