Karnataka High Court
Oriental Insurance Co Ltd vs Afreen Banu W/O Mohd.Haji Ors on 24 June, 2019
Author: B.M.Shyam Prasad
Bench: B.M. Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR.JUSTICE B.M. SHYAM PRASAD
MFA.NO.31993/2011 (MV)
BETWEEN:
Oriental Insurance Co. Ltd.,
Through Divisional Manager
Division Office, N.G. Complex,
Opp. Mini Vidhan Soudha
Gulbarga (Now, represented through
Sr. Divi. Manager, Gulbarga)
... Appellant
(By Smt. Preeti Patil Melkundi, Advocate)
AND:
1. Afreen Banu w/o Mohd. Haji
Age: 22 Years Occ: Household
R/o: Kurkunta Tq: Sedam
Now, R/o: H.No.2-11-124:4
Srinagar Colony
Uppal, Dist: Rangareddy (A.P.)
2. Gaudappa s/o Laxmappa
Age: 34 Years Occ: Driver
Vasavadatta Cement Factory
R/o: Batgera Tq: Sedam
Dist: Gulbarga.
3. M/s. Vasavadatta Cement, Prop:
Kesoram Industries Ltd.,
Laxminarayan Nagar, Sedam
Tq: Sedam, Owner of Vehicle
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4. Md. Sadiq Ali s/o Chandsab Adki
dead by his LRs.
4A and 4C are already on record
as R1 & R5 as LRs of deceased - R4
4B. Chand Sab s/o Late Md. Sadiq Ali
Age: 30 Years Occ: Private Service
R/o: Kurkunta Tq: Sedam
Dist: Gulbarga
5. Mumtaz Begum w/o Md. Sadiq Ali
Age: 62 Years Occ: Household
R/o: Kurkunta Tq: Sedam
... Respondents
(By Sri A. Vijaykumar, Advocate for R1,
Notice to R2 served
Sri Ashok S. Kinagi, Advocate for R3
Sri Naresh V. Kulkarni, Adv., for R4(A)
R4 (B) - served
R4(A) & R4(C) are already on record
as LRs of deceased R4
R5 - served)
This Miscellaneous First Appeal is filed under Section
173 (1) of Motor Vehicles Act, 1988 praying to call for the
records and allow the above appeal by setting aside the
impugned judgment and award dated 06.07.2011 in
MVC.No.1155/2009 passed by the Senior Civil Judge and
Motor Accident Claims Tribunal at Sedam, with exemplary
costs.
This appeal coming on for Admission this day, the
Court delivered the following:
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JUDGMENT
This appeal is filed calling in question the judgment and award dated 06.07.2011 in MVC.No.1155/2009 on the file of Senior Civil Judge and MACT Sedam (for short 'Tribunal'). The Tribunal has allowed the claim petition granting compensation of Rs.5,41,000/- along with interest at the rate of 6% per annum from the date of petition till its realization.
02. The facts material for the purpose of decision in this appeal could be stated as hereinafter. The deceased, Sri Md. Hazi was working as a driver with M/s. Munawar Road Lines, which had contracted with the respondent No.3 to supply laterite soil. On 23.06.2009, Mr. Md. Hazi had driven a lorry loaded with laterite soil to the premises of the respondent No.3, and he had parked the lorry in queue for completion of necessary formalities to unload the laterite soil. He was waiting for his turn lying down near a laterite soil mound within the premises of the respondent No.3. The 4 excavator owned by the respondent No.3, and insured with appellant, was being used to shift the laterite soil. The driver of this excavator without noticing that the deceased was sleeping near the mound of laterite soil dumped the laterite soil over him. The deceased died of suffocation. The jurisdictional police registered the First Information against the owner of the excavator. The respondent No.3 paid a sum of Rs.5,00,000/- to the deceased's father. The deceased's wife filed a petition under Section 166 of M.V. Act seeking compensation. The Tribunal by the impugned judgment and award granted a total sum of Rs.5,41,000/- under the different heads as follows:-
Descriptions Amount
Towards loss of dependency Rs.4,86,000/-
Towards funeral expenses Rs. 5,000/-
and transportation of dead
body
Towards loss of consortium Rs. 20,000/-
Towards loss of love and Rs. 20,000/-
affection
Towards loss of amenities Rs. 10,000/-
Total Rs.5,41,000/-
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03. The learned counsel for the Insurer
canvassed twofold submissions in support of the Insurer's appeal. Firstly, the deceased, Md. Hazi died due to culpable negligence of respondent No.3 in not providing necessary shelter to the drivers. The police have also filed the charge sheet against the respondent No.3 for such culpable negligence. Therefore, no liability is incurred under the provisions of M.V. Act. Secondly, it is an undisputed fact that the respondent No.3 has paid a sum of Rs.5,00,000/- to the deceased's father. The liability of the Insurer even if any, should only be to pay any amount payable in excess of Rs.5,00,000/-.
04. Per contra, the learned counsel for the claimant-respondent No.1, who is the wife of the deceased, submits that from the undisputed facts it is obvious that death of the deceased was brought about by the use of the excavator insured with the Insurer. The Insurer cannot avoid its liability on the ground of 6 the respondent No.3 was negligent in not providing the shelter to the drivers who visited the premises. The learned counsel for the claimant - respondent No.1 further submits that payment of a sum of Rs.5,00,000/- by the respondent No.3 to the deceased's father cannot absolve the liability of the Insurer as such amount is paid in settlement of the other claims that the respondent No.3 was liable to pay because of the accidental death of the deceased Md. Hazi.
05. It is obvious from the rival submissions that there is no dispute that the Insurer would be liable to indemnify the owner of the excavator for any liability under the Motor Vehicles Act,1989 arising out of the use of such excavator. However, the dispute is because the appellant - Insurer contends that the owner of the premises/facilities (who is also the owner of the excavator) was negligent in not providing the necessary facilities to the workmen of the different transferors who 7 supplied laterite soil, and this negligence resulted in the death of the deceased by suffocation. Therefore, the liability is not because of the use of the vehicle.
06. The undisputed facts are that the excavator was being used to shift the laterite soil that was stored in the premises, and in the process of such shifting of the laterite soil, the driver of the excavator dumped the laterite soil on the mound where the deceased was sleeping. In the light of these undisputed facts, the reason for the death of the deceased cannot be examined de hors the negligent use of the excavator. It would not be reasonable to conclude that the deceased died of suffocation only because the deceased was compelled to rest on the mound of laterite soil as the respondent No.3 had not provided necessary shelter facilities to the workmen. Therefore, the first fold submission cannot be accepted.
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07. As pointed out by the learned counsel for the appellant - Insurer, the claimant- respondent No.1 has admitted that a sum of Rs.5,00,000/- was paid by the respondent No.3. She has been categorical in stating that such sum was paid to the father of the deceased. The claimant-respondent No.1 has also stated that the father of the deceased would be entitled for compensation that would be awarded by the Tribunal. In a given case, the liability in tort arising out of the accidents involving the use of a vehicle could different liabilities including the liability under the Motor Vehicles Act, 1988. However, as a social measure, the tortious liability arising out of the use of a vehicle in public place is made statutory under the provisions of the Motor Vehicles Act, 1988 inter alia with the Insurer being liable to indemnify the Insured as against the third parties except under specific circumstances provided under the said enactment. The Insurer cannot contend that because the tortious liability arising from 9 the use of the vehicle in public place is made statutory, the other tortious liabilities, even if established in the facts and circumstances of a given case, would be eclipsed or that any and every settlement between the injured and tortfeasor would be a settlement of the statutory obligation under the provisions of the Motor Vehicles Act, 1989.
08. In the facts and circumstances of the present case, the liability under the tort could also be, even as stated by the learned counsel for the appellant- Insurance Company, because the respondent No.3 did not provide shelter facilities and therefore was negligent. But, as already opined the accident cannot be seen de hors the negligence in use of the excavator. The liability of the respondent No. 3 is because of multifold causes. Importantly, the liability to pay damages/compensation payable under the law of tort is a much wider responsibility, and it could include the liability to pay 10 punitive damages in the case of egregious conduct depending on the facts and circumstances of a case. If indeed the respondent No. 3 was also guilty of some tortious liability outside the use of the vehicle (excavator) and the respondent No. 3 has settled such liability, the Insurer cannot contend that every payment by the respondent No. 3 should be accounted for settlement of the liability under the Motor Vehicles Act, 1989. Further, the payment from the respondent No. 3 is to the deceased's father and the terms on which such amount is paid is not part of the record. For these reasons, in the considered opinion of this Court, the Insurance Company cannot avoid or restrict, its liability under the Motor Vehicles Act, 1989. As such, there no grounds for interference in this appeal.
Accordingly, the appeal is dismissed.
11The amount in deposit before this Court be transmitted to the Tribunal for disbursement in terms of its award.
Sd/-
JUDGE KJJ/LG