Karnataka High Court
The Oriental Insurance Co Ltd vs B Roopa on 26 December, 2023
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NC: 2023:KHC:47020
MFA No. 5690 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 5690 OF 2014 (MV-D)
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.
JAYADEVA HOSTEL BUILDING B.H.ROAD
TIPTUR THROUGH ITS HUBLI REGIONAL OFFICE
2ND FLOOR, SUMANGALA COMPLEX
LAMINGTON ROAD, HUBLI - 580 020
REP. BY ITS REGIONAL MANAGER ... APPELLANT
(BY SRI. S. V. HEGDE MULKHAND, ADV.)
AND:
1. B. ROOPA
W/O B.C.SHIVAPPA
AGED ABOUT 33 YEARS
2. HEMA
D/O B.C.SHIVAPPA
AGED ABOUT 11 YEARS
Digitally signed by 3. PUNEETH
MALA K N
S/O B.C.SHIVAPPA
Location: HIGH COURT
OF KARNATAKA AGED ABOUT 5 YEARS
4. CHANNABASAPPA
S/O BYREGOWDA
AGED ABOUT 72 YEARS
RESPONDENT NOS.2 AND 3 ARE MINORS
REP. BY THEIR MOTHER AND NATURAL GUARDIAN
THE RESPONDENT NOS. 1 TO 3 ARE THE
LRS OF THE DECEASED R4 AND ARE
ON RECORD. AND HENCE THE NOTICE
TO R4 IS DISPENSED AND R4 IS DELETED
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NC: 2023:KHC:47020
MFA No. 5690 of 2014
R4 DELETED VIDE PERMISSION GRANTED
ON 12.4.2017 FOR AMENDMENT OF CAUSETITLE
RESPONDENT NOS.2 AND 3 ARE MINORS
REP. BY THEIR MOTHER AND NATURAL GUARDIAN
THE RESPONDENT NO.1
ALL ARE R/O BYRANAIKANAHALLI
HONNAVALLI HOBLI, TIPTUR TALUK - 5772201
THE RESPONDENT NO.4 BEFORE THE MACT
IS DEAD AS PER THE JUDGMENT AND HENCE
NOT MADE PARTY IN THIS APPEAL
5. B.N. VEDAMURTHY
S/O NANJAPPA, MAJOR IN AGE
R/O BYRANAIKANAHALLI
HONNAVALLI HOBLI
TIPTUR TALUK - 572 201 ... RESPONDENTS
(BY SRI.B. K. NARENDRA BABU, ADV. FOR R1;
SRI.M.V.MAHESHWARAPPA, ADV. FOR R5;
R2 AND R3 ARE MINORS REP. BY R1;
R4 IS DELETED VIDE ORDER DATED 14.02.2017]
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 15.07.2014 PASSED
IN MVC NO.56/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, 14 TH
MACT, TIPTUR, AWARDING A COMPENSATION OF RS.5,68,000/-
WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION OF THE AWARD AMOUNT AGAINST THE
RESPONDENTS.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.12.2023 AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:47020
MFA No. 5690 of 2014
JUDGMENT
In this appeal, the Insurance Company has challenged the judgment and award dated 15.07.2014 in M.V.C.No.56/2012 passed by the Senior Civil Judge and XIV, Tiptur ('the Tribunal' for short).
2. For the sake of convenience, the parties shall be referred to as per their status before the Tribunal.
3. Brief facts of the case are, on 06.12.2011 at about 08:00 am, the husband of 1st petitioner, father of petitioners No.2 and 3 and son of petitioners No.4 and 5, by name B.C. Shivappa, the deceased, while transporting coconut load in a tractor-trailor bearing Reg.No.KA-06/T- 7347-48 from his garden to his house situated at Byranaikanahalli, on the Kengadu garden cart track at about 10:30 am, tractor fell into the ditch, due to which the deceased fell down and sustained the injuries. Though he was treated at Government Hospital, Tiptur, he succumbed to death. The petitioners being the dependants have approached the Tribunal for grant of -4- NC: 2023:KHC:47020 MFA No. 5690 of 2014 compensation of Rs.25,00,000/-. Claim was opposed by the Insurance Company. The Tribunal after taking the evidence, by impugned judgment, awarded compensation of Rs.5,68,000/- with 6% interest p.a. directing the respondent to pay the compensation. Aggrieved by the same, the Insurance Company has filed this appeal on various grounds.
4. Heard the arguments of Sri. S.V. Hegde Mulkhand, learned counsel for the Insurance Company, Sri. B.K. Narendra Babu, learned counsel for the petitioners and Sri. M.V. Maheshwarappa, learned counsel for the owner of the tractor.
5. It is the contention of learned counsel for the Insurance Company that the deceased was a passenger in a tractor-trailor, sitting on the load of coconut, sustained the injuries due to the accident and succumbed to death. The tractor was not insured with any passenger of the tractor and there is no package or comprehensive insurance covering the risk of the trailor passenger or the -5- NC: 2023:KHC:47020 MFA No. 5690 of 2014 owner of the goods travelling in the tractor, the Tribunal did not consider the liability aspect with reference to the contract of insurance entered into between respondents No.1 and 2, fastened the liability erroneously. To support his contention, he has relied upon the judgment of this Court in National Insurance Co. Ltd. -Vs.- Bramarambike and others1, Full Bench judgment of this Court in Gadhilingappa @ Gadhilinga -Vs.- K. Guleppa2 and also the judgment of the Hon'ble Apex Court in National Insurance Co. Ltd. -Vs.- V. Chinnamma and others3.
6. Per contra, learned counsel for the petitioner has contended that no doubt the deceased was travelling along with the goods, the policy of insurance covers the risk of the passenger of the tractor; even in case of no liability, it is a case for pay and recovery and requested that the Insurance Company has to be directed to pay the compensation and recover it from the owner. 1 2006 ACJ 671 2 LAWS (KAR)-2021-4-6 3 2004 ACJ 1909 -6- NC: 2023:KHC:47020 MFA No. 5690 of 2014
7. Learned counsel for the owner of the tractor has contended that there is a coverage of policy for the passenger and therefore the Insurance Company has to indemnify his liability and concept of pay and recovery is not applicable to this case.
8. I have given my anxious consideration to the arguments addressed on both sides and also perused the materials on record.
9. There is no dispute as to the accident that took place on 06.12.2011 at 10:30 am while the deceased was transporting coconut in the tractor in question met with an accident near Kengadu garden cart track injuring him. He died at Government Hospital, Tiptur, the petitioners being wife, children and parents as dependents, entitled to claim compensation. The Tribunal has awarded a compensation of Rs.5,68,000/-. The petitioners have not questioned the assessment of quantum of compensation. Hence, correctness of quantum of compensation cannot be considered in this appeal.
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NC: 2023:KHC:47020 MFA No. 5690 of 2014
10. The deceased being the passenger of the tractor along with goods, is he covered under policy of insurance as per Ex.R2. On perusal of Ex.R2, it is pertinent to note that it is a 'Kissan Package Policy' for the tractor having seating capacity of '1'. The premium collected for various coverages such as; fire contents cover for Rs.40,000/-, burglary for Rs.40,000/-, P.A. for Rs.1,00,000/-, own damage Rs.1,19,000/-, P.A. for owner driver of Rs.2,00,000/-, total coverage of Rs.9,50,000/- for which premium has been collected. Additional premium of Rs.25/- is collected to the employees. Admittedly, the deceased was the owner of the coconut garden, hired the tractor for transporting coconut to his house when he met with the accident. The coverage to the employee i.e., driver is only covered by paying premium of Rs.25/-. No other passenger or the employee of the tractor-trailor is covered under the policy. Now, in view of the policy, it did not cover any of the passenger in the tractor or owner of the goods travelling in the tractor. In this regard, the -8- NC: 2023:KHC:47020 MFA No. 5690 of 2014 emphasis is placed by the Insurance Company in Bramarambike's case (supra), the Co-ordinate Bench of this Court held that when a person who is travelling on a mudguard of the tractor, the Insurance Company has no liability to pay the compensation. The Full Bench of this Court in Gadhilingappa's case (supra) at para No.23 and 33 of its judgment laid down that a person travelling on the mudguard of the tractor is not required to be covered by the statutory insurance as contemplated under sub-section (1) of Section 147 of the Motor Vehicles Act.
10.1 The Hon'ble Apex Court in V. Chinnamma's case (supra) at para No.15 laid down as follows:
"15. A tractor fitted with a trailer may or may not answer the definition of 'goods carriage' contained in section 2 (14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The in trailer attached to the tractor, thus, necessary is required to be used for agricultural purposes, unless registered otherwise. It may be, as has been contended by Mrs. K. Sharda Devi, that carriage of vegetables Uving ugrivulinmul producs would ivati to 1 an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods -9- NC: 2023:KHC:47020 MFA No. 5690 of 2014 by another person for his business activities. The deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to market for the purpose of sale thereof and not for any agricultural purpose. Tractor and trailer, therefore, were not being used for agri- cultural purposes. However, even if it be assumed that the trailer would answer the description of the 'goods carriage' as coNtained in section 2 (14) of Motor Vehicles Act, the case would be covered by the decision of this court in Asha Rani, 2003 ACJ 1 (SC) and other decisions following the same, as the accident had taken place on 24.11.1991, i.e., much prior to coming into force of 1994 amendment."
10.2. Contrary reliance is placed by the petitioners in R. Ranganathan -Vs.- Branch Manager, United India Insurance Co. Ltd.4 laid down that the deceased who was travelling in the tractor sitting on the mudguard, the Insurance Company has no liability to pay the compensation, but at the same time, it has held that the Insurance Company has to pay and recover from the owner. The judgment of the Hon'ble Apex Court is on the facts and circumstances of that case and is not applicable to the facts of this case. Here in this case, in view of the judgment of this Court and also the Hon'ble Apex Court, 4 LAWS (SC)-2022-10-111
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NC: 2023:KHC:47020 MFA No. 5690 of 2014 the mudguard passenger or a passenger of the tractor is not covered under the statutory policy. As discussed above, referring to the Ex.R2/policy, there is no coverage for any passenger or a goods passenger travelling in the tractor. Hence, the Insurance Company cannot be directed to indemnify the owner.
11. On perusal of the impugned judgment, the Tribunal though referred to the aspect of the deceased being the traveller of the tractor, on the ground that the policy is a 'Kissan Package Insurance Policy' and the tractor is used for agricultural purpose, directed the Insurance Company to pay the compensation. The Tribunal has misconstrued the Kissan Package Insurance Policy as there is no premium is paid to the passenger of the tractor except an employee driver. Hence, the finding recorded by the Tribunal is erroneous and the Insurance Company can avoid its liability. Hence, the appeal merits consideration, in the result, the following:
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NC: 2023:KHC:47020
MFA No. 5690 of 2014
ORDER
i) Appeal is allowed-in-part.
ii) Impugned judgment is modified.
iii) The Insurance Company is exonerated
from its liability to pay the compensation.
iv) The owner of the tractor is liable to pay the compensation and he is directed to deposit the amount of compensation within eight weeks from the date of receipt of certified copy of this judgment.
v) Amount in deposit by the Insurance
Company shall be returned to it.
Sd/-
JUDGE
PA
CT:HS
List No.: 1 Sl No.: 56