Karnataka High Court
M/S The Oriental Insurance Co Ltd vs Swamy on 11 June, 2012
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
M.F.A. No.81 OF 2010 (MV)
C/W
M.F.A.Crob.15 OF 2011
M.F.A. No.81 OF 2010
BETWEEN:
M/s The Oriental Insurance Company Limited,
1st main, Muslim hostel complex,
Opposite to Fire Brigade Road,
Saraswathipuram,
Mysore. ...Appellant
(By Sri.A.M.Venkatesh, Adv.)
AND:
1. Swamy,
Aged about 48 years,
S/o Doddanarasaiah,
2. Director,
Aged about 43 years,
W/o Swamy,
3. Jayaram S/o P.Shivanna,
aged about 45 years,
(Owner of the Tractor
No.KA-11/T-2199-2200)
All are R/o Pumpina Hosahalli Village,
Belagola Hobli,
Srirangaoatna Taluk. ...Respondents
(By Sri.Y.D.Harsha, Adv. for R3;
Sri.V.Srinivas, Adv. for R1 & R2
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This MFA is filed under Section 173(1) of MV Act
against the Judgment and Award dated 26.09.2009 passed
in MVC No.1683/2007 on the file of Principal Civil
Judge(Sr.Dn.) & MACT, Srirangapatna, awarding a
compensation of Rs.3,35,000/- with interest at 6% p.a. from
the date of petition till deposit.
M.F.A.Crob.15 OF 2011
BETWEEN:
1. Swamy S/o Doddanarasaiah,
Aged about 48 years,
2. Smt. Puttathayamma
W/o Swamy,
Aged about 43 years,
R/o Pumpinahosahalli Village,
Belagola Hobli,
Srirangapatna Taluk. ...Cross-objectors
(By Sri.V.Srinivas, Adv.)
AND:
1. Jayaram S/o P.Shivanna,
Aged about 45 years,
R/o Pumpinahosahalli village,
Belagola Hobli,
Srirangapatna Taluk.
(Owner of Tractor No.
KA-11-2199,2200)
2. M/s The Oriental Insurance Company Limited,
1st main, Muslim hostel complex,
Opposite to Fire Brigade Road,
Saraswathipuram,
Mysore. ...Respondents
(By Sri.Y.D.Harsha, Adv. for R1;
Sri.A.M.Venkatesh, Adv. for R2
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This MFA Crob. is filed under Order 41 Rule 22 of
CPC., against the Judgment and Award dated 26.09.2009
passed in MVC.No.1683/2007 on the file of the Principal
Civil Judge(Sr.Dn.) and MACT, Srirangapatna, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
This MFA and MFA.Crob coming on for Hearing this
day, the Court delivered the following:
JUDGMENT
The Insurance Company as well as the claimant, have filed these appeal and cross objections respectively against the judgment and award dated 26/09/2009 passed in MVC No.1683/2007 passed by the learned Prl. Civil Judge (Sr.Dn.) and MACT, Srirangapatna. The Insurance Company has sought for setting aside the judgment and award of the Tribunal, whereas the claimant sought for enhancement of compensation.
2. The learned counsel for the Insurance Company by referring the FIR and the charge sheet submitted that the deceased was travelling on the mud guard of the tractor. Nobody except the driver can sit on the tractor and the policy issued covers only the driver of tractor and the trailer and does not cover the risk of anybody. It is stated that the deceased was sitting on -4- the left side of the mudguard. Though the materials and policy details were available, the Tribunal has awarded compensation. Hence, it is submitted that the Tribunal has committed an error in awarding the compensation.
3. In the information to the police Chandra, who claims to be an eye witness, has stated that the deceased, himself and Jayaramu were in the vehicle and due to the rash and negligent driving of the vehicle they fell down from the tractor and the back wheel of the toppled tractor went on the deceased killing him on the spot. This piece of evidence proves that the deceased was travelling on the mudguard. Same is verified by the Investigation Officer and it is further stated that the deceased was on the mudguard. The evidence of the respondent supports that the Tribunal committed an error in considering materials on record. When the policy is issued covering only the risk of driver and the tractor, the liability cannot be fastened on the Insurance Company.
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4. In support of this submission, he relied on the judgment in case of National Insurance Company Limited V Bramaranbike and others reported in 2005(4) KCCR 2359 wherein, it is held that the permitted seating capacity for tractor is only for a driver and person sitting on the mudguard of the tractor is not covered under the Policy and hence, the Insurance Company is not liable to satisfy the award of the Tribunal and it is only for the owner and driver to satisfy the award.
5. On the other hand, the learned counsel for the claimant, who filed cross objection for enhancement of compensation, contended that appeal filed by the Insurance Company on the ground that the deceased was travelling on the mudguard was not at all canvassed before the Tribunal. There is no single reference in the statement of objection filed before the Tribunal. Further at para No.4 it is stated that "the amount of compensation claimed by the petitioner vide column No.21 is too high and exhorbitant, baseless and -6- excessive". Thus the Insurance Company has admitted to the liability that the compensation claimed in column 21 is exhorbitant. In para 4 of the objection, it is stated that tractor was toppled to the left side and Purusha and Chandra fell down, Purusha died. This piece of evidence also goes to show that the Insurance Company has admitted that the claimant had fallen on the mud road sustaining grievous injures which resulted in death.
6. Learned counsel again by referring the evidence of RW1, who has been examined on behalf of the Insurance company, wherein it is stated that the petitioner and deceased Purusha and others were travelling in the tractor and trailer bearing registration No: KA-11-T-2199-2200. It is further submitted that if it is the case of the Insurance Company that tractor was only covered, the trailer number should not have been mentioned. The Insurance Company has further stated that the tractor-trailer was met with accident. In the cross-examination of PW2 a suggestion was made to the -7- effect, the deceased was not travelling in the tractor. The same is answered in the negative.
7. By referring FIR, complaint made by Chandra, learned counsel for the appellant submitted that travelling of the deceased in the tractor is established. Further it is stated that the loaded tractor was proceeding to the crusher that does not mean that sugarcane was loaded in the trailer. Hence, learned counsel further submits that in order to prove the fact that the deceased was travelling on the mudguard, no evidence is produced. Under these circumstances, case of the Insurance Company is liable to be rejected.
8. I have heard both the learned advocates appearing for the parties.
9. In order to substantiate their claim it is submitted by the Insurance Company that the deceased was travelling in the tractor on the mudguard. Hence the same is contravening terms of the policy. This contention is hereby rejected for the reason that merely -8- finding a place in the charge sheet that the deceased was traveling in the mudguard is insufficient. In order to prove, the Insurance Company should have examined the Investigating officer or any of the witnesses shown in the charge sheet and produce the materials. In the instant case FIR made by Chandra was not examined and the witness listed in the charge sheet are also not examined and the Investigation Officer also not summoned before the Court. In these circumstances, the submission of the appellant counsel that there are materials before the Tribunal to prove deceased was travelling on the mudguard is rejected.
10. The judgment referred by the Insurance Company in the case of National Insurance Company Limited Vs. Bramaranbike and others the facts are different. That is a judgment wherein travelling on the mudguard has been proved. Unless that aspect is proved, the Insurance Company has no case in this appeal. Accordingly, appeal filed by the Insurance Company is rejected.
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11. When the appeal filed by the Insurance Company is on the liability, the cross objection for enhancement of compensation does not arise. Accordingly, the cross objection filed by the claimant is also rejected. The liberty is reserved to the claimant, if he is so advised to file an independent appeal. Both the appeal and cross appeal are dismissed.
Amount in deposit made by the Insurance Company is directed to be transmitted to the MACT, Srirangapatna.
Sd/-
JUDGE Rms