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[Cites 7, Cited by 5]

Karnataka High Court

Shivarama Parameshwara Hegde vs Subray Honnappa Naik on 1 April, 2009

Bench: K.L.Manjunath, Jawad Rahim

_;-
IN THE HIGH COURT OF KARNATAKA

CIRCUIT BENCH AT DHARWAD

 

DATED THES THE  DAY OF APRIL;2~@§}~§2 __'_ .:'  

PRESENT

THE HONBLE ¥V1R.JUST';j CE 

 AND '
THE HONBLE MR.j"t3§T"»:CE 3A'wA"L3«VRA"H§1M
MESCELLANEOUQ ':21RS7'i'}5§;:%'r>§g;J,;"'F':=eQ.262'3A/é0o«:;{M\;3

@ 
sHivARAMA§.vPngg:.1ME§3H\§\m}~i2A'«%{'Et;aE_. 5A
A6355   _   
OCC:AGR5?.CU_:LT_§}RE;---- ,t\N't:§;§ ' . V-

COOK Hay rw:2,0{~r:i.s__s1c,>,N' ._ " "

W0 5": ANofj.r.>Qs?§;;';<A*rc;_A:, 
'{Q:KUi\1T_A V L  
[1)ISTRICIT'«:.KAR\fJAR._  

...APPELLANT

.{5fir_{ SR1. SIDDAPVVPA S SAJJAN FOR

  SR1" R_Av1~.%.(;.sAB'H'*AH:T, AD\/S.,)

 e; su3'r€A.\=T::HoNNAppA NAEK

 MAJOR, OWNER OF GOODS
'RICKSHAW Nm<A-3o/4442
AT AND POE3T:URKERI

VTQ; KUMTA

  DISTRICT:KARWAR

ficflv



-3,

". THE DIVISIONAL MANAGER

UNITED INQIA INSURANCE CO.L"?D,,

DIVISIONAL OFFICE, KARWAR
 RESPONDENTS

(BY SR1 J.S.SHETTY, AD\/., FOR Rwl;

SRI RAVINOPA R EVEANE & SR1 M ARLJN PONr\IAPP_A,,_f««.._'---_ AOvS., FOR R42) « ~ ' THIS MFA IS FILED UNDER SECTION'CA.j:I~:I"3{i)5_TOP__ iVI.\/.ACT AGAINST THE }UDC5MENT_Ai§|Dv'AWAR{)_':'A.DATED 9.1.2004 PASSED IN MVC NO.1%§1/2.001; CQKD'NC};2.7:4;4.2I'}O1)'~-._ j ON THE FILE OF THE II ADDITIONAL MA,_CT_ «.A'fJ;D..VC1.VIL JUDGE {SR.DI\J), CIM, O,K»:,-._I<Aev\.:.AR, P;A'IIIf4L\(v_AI;.Ov»'IAIIG THE CLAIM PETITION FOP'--r;O.MPENS1AT'IO2j\I ANO"'SEEKING ENHANCEMENT OP I:OMPI~:AISA"TI,OI\IV,_ " 3 THIS APPEAL I:.rjjm_II\!.:3 ;QA}"..g©é'.rP§EARING THIS DAY, JAWAO RAHIM J., IIZIELWEREDTHE__.E{3l;'E;.O\I;/ING:W :"TlTe" 'riS4V_VV'iPn:""a__T3;:5eal against the guégment and award A:o';.I%I'1I.:}f2OO1 On the file of the MACT at %<V_a'F.wa_r,' being""diSS_a.t%sfied with the grant of <:Om;3ensatiOn as ' ;,Va'i'-SOTI:h_e~OI=deI<._abSOlving insurer of its Hability. We have heard the learned counsel On both sid"eS."" A fig?» .3.

E3. The appellant filed a claim seeking compensation on material proposition that on 31.12.2008 at 14f¥30u.hours, he was travelling in autorici<shaw goods v~e-§n.icl.e'_'bearing registration No.i</3\~3O,f4442 accbmpanyir}q__icc..w':ai";d_ caifl transportation of which, the vehicle h«i_jre1d; company of his cowbrotheér ¥\Ja'ra.;'ia~.n Kl'lv.':7iv.'~"V!.f'l.A3v'VEmé'i:".,,,ll'lih"l.l'E§ they were proceeding, the was ah';-isdirieioiigerzt and by such act, lost Cont:rol_ Temple in Kumta taluk. The capsized. Due to the ii11pa;'ct':e£.f:p1'such suffered fracture of bones immediately zushed to the hospitailiilv he was shifted to KMC their best, but failed to save the_l_imb ahdv' it_was'v.atééputated below knee. The other leg sufferetl pifi/si'cva| disability despite best tr'eatmei":t in Manipai. He referred to the nature of t;ieati71ve.ici't'"1.giiren as also the e><pea{§iture incurred. The period of tr'e,a_t;-ment and e><penditure is substantiated through the vnfietlical records of the hospital.

,4-

4. Appellant contended that due to physical disability which has visited him as a consequence of the accident, he lost income. He was an agriculturist and aiso a orofessioiwai cook. from both the soiirces, he .hai"ri9V"e:¥ir<n'i'ng of Rs.8,S{}0/-- per month. The work is now inii.§'qjos,siio:lVe"

has lost the income.

5. His claim was V contending that the accident«.:_has» not o_cc'urre_dV"i~--nith'e":manner stated bY.l".h€? DetitiQra5..? an€jl"'sri§K>nV'{i-!>./._' elven-if~i't§ were to be presumed that not due to the negiigence of contended that the driver dio"no't""h'a-viei or"ii;iio's.sess effective driving iicence as on the date"o_fiaccident.. = fl"-ihe insurer also questioned the claim 'petitio'rie.rvwith regard to his loss of earning and the .A johgysicalldisability that he suffered. ownei of the vehicle had also resisted the <:l'a'im"'ivisn"v'vhich, defence is denial siiholicitoz' without any "s*oecific plea. However, the insured has elaoorateiy averred ii i F U:

O that the vehicle was insured validly and liability if any is on the insurer to discharge the award.
7' Based on material proposition in _'r;h"e of the parties, the Tribunal raised rel.e\./,.a";~2.r'*--.i:ssues"for-.._ consideration and applying the E3\/:i,C'lerj.1C€.ug 'te'ri-de'i<evvd_.'Vby :'the"---_i[ petitioner as P.W.1 and_doCa:i"ne'ntai'y1.~"ét,<i.t£<e.iiCe '.Vv=¢i'i'i"c,h comprised the copy of FIR, Metor_'Jeh'§cl--e_Rlrijspegttor's Report and other ii1VE3Stig'a;..t_.i?"i.<3 the claimant had substantiated the aCciVd_e'i"it_ negligent driving by the driverofltiweiofferidinlg who was respondent No.1 in ithge-:fi_p3arti,./' "'*%*rheV"'gVsaic£ finding has not been C;Liie3sV"i.iAoi'i-.et§ or the insurer. Tlierefore, it has reaChed'"*fi¢_nalvivtg?'.' _ A' it Inna-..th_is 'appeal, the claimant has sought for » ige-n_V%3ancen74er*it__of compensation on the basis that there is no ' 2reai§'ist'i<:u.C§et'e;i*i4nination of the cornpensation. The tribunal has haxsimproper approach to grant comeensation under 2 " various heads notiona£ly_ 132/ -5-
9. In supoort of the aopeal, the learned counsel for the apoellant would contend the following:
The claimant was travelling in '[Il'l'E?.:'."«."V\';'-E3§'2lCl€ accomoanying the goods and therefore, covered. The compensation wa_s....Iia_ble_-to"be.oa~id'_¥.Vby_the insured and the insurer together'-:dand"in" vi'e.w"~o_F thvecistillririency 'A of the policy, the insurer dis'c»hai'ge is urged due to amoutation -the physically invalid and incapabletot"n_ot'--V_or'a:_iyil'ivi'iVig:"a.g»normal life, out also has suffered total logs. Thirdly, he had incurred medical treatment, ctonveyaiiice1.vvlldie't.:::ai"id4"iin:<:'i-dentaI which, the triomial has not granted,'g_'_4Lavstlhglléwiltg that despite the claimant having=establis»--hed that insurance policy was valid as on the .A the tribunal unjustlfiably absolved the H ~.ins_ura'nce~--_co;npany on the ground that cow and calf carried iiiutlie"---§QAe|fii"cle do not come within the definition of goods and 'h=e..nceVv,"'he cannot be said to have accompanying the goods.
10. Per Contra, learned counsel for the insurer wotsld contend that the Tribuna! has justifiably abso__lver:i the insurance company 0;' its liability noticing that .ti2e:'"c_la--i,Vmant was not one of the gaerson covered UflCfE'.'i;:*-théV*th3l,l.i*ah"Qe policy. Learned counsel further_Co.n.tend_s"tha't.ji3a'seti=Vonthe material evidence and record, it':.'isi,'_niotViced. that greispoiriident "

No.1 did not have effect'iive""~..valid"5i/:§e.fl_§év:,'_'AtAo._;"d~r.i.v'e goods vehicle as on the date thelcilgaigivfnant, on his volition, has stated poiice that he was Sitting with thgrrlvrivet.*i'n"t.he 'C"a.b.f,;_r_,1v.g5a.::'ffi'¢'}e:oie, mere was a clear vioiatior) ,.teriI?T}S anflltonditions of the insurance gyolicyv asV,"ohfl.y oii*!fe'p_e'és,or1 waswpermitted to be seated in the vehicle i.e-., the u;'t~i¥,. l*nl'eV...i/vvoui_rJ ftstthet contend that the insurance .A 1policyiis.pel4Vls~«.out that the EMT endorsements 13 and 14 have H anot:bvveein-i__nv,oked by the parties Concerned and no premium has b--eenfcoliected to cover the ris§< of non~fare paying V " passengers like the ciaimant in this case. Lastly, he wouid 27-Vcontend that viewed from any angle, violation of terms and &Q2, 3;-

conditions of the insurance policy are apparent and therefore, even if there be validity of the isolicy, it is vitiateci by violation and breach of covenants. Supporting the _i.._n_npugned gudgment absolving the insurance company-;._"*-.hfe'_V:"*s4eel<s dismissal of the appeal.

12. Keeping in mind what'i's»u.rge-d b.'oth.x'svi4ijes';itsis necessary to first deai with the1"c:ue..stion ~.iii!1"-a':tne?'--:the trieunal is justified in abso|vi.ng~.t_the i"r'.sur'ance "c..oi*r"ipa'ny ofits liability.

13. The arguifnegats :the"~.Vl.ea..rjVned counsel for the insurer oncrthe as'pec_ts»..referred" to above are seemingly very impressing, b*L:Vt"oAfi'._c|'oser.examination, the gtounds are only wortlj: reje'ctiVon~for téiesfollowing reasons:-

i.,T:he'*driving"'l'icence issued to respondent No.1 has been "sje'r'iou's».!.py"5it;.es.tiooeo. We have examined the copy of the Eic4ei1Ce~~i/Vihi'ci'2 is at E><.R.3. its perusal reveals that respsonsdent No.1 has been issued with a permanent driving ..,,4'_"'V!l,ce'.a'ice valid from 28.1.2000 to 27.1.2020 with further -9- endorsement that it permits him to drive transport vehicle for the period up to 5.1.2004. Learned counsel for thle"'»i.nstirer, referring to the other entries in Ex.R.2, conte~nd'ed__'__'thatuthe autoricl<shaw in Question was a transportiv-ehi:c.l'e,' §'3t.lt" theg_ licence granted to respondent;No.1"'wa«s 'toV._:cJ'r.ivve'"a__honé, transport vehicle. He has been perrhitted .clr'iv"e t'ra"risoe.rt vehicle only from 6.1.2001. "Tshy:e"i»'efore.' it h'as-I construed that he had no valid ':q.¢i_vinji.'l'iV¢§s.{i.ceV'.vt"o..driveuiaHdoods vehicle like the one in Ciuestiofi;

14.5 referred above spells out issued has valid from 28.1.2000 and it is undoubtedly issued to the claiihaynt the occurrence of the accident in ThnisV--d:ocun1ent also substantiates undoubtedly that , :i=espoVhdent"'i\lo.1 is authorized to drive transport vehicle up to is only a condition on which licence with a va4l'iditydfrdm 28.1.2000 up to 27.1.2020 is issued, which '*m.e1ariVs" that respohtleht No.1 was duly authorized to drive a '"gt'ra'ns;>ort vehicle for the period indicated above. The ate ~20- accident in this case has occurred on 31.12.2000 which is certainly after the issuance of the driving lic'e»nce to respondent No.2. Theeefore, the contention..~«o«f.'ut~h._e"'msuyrer that 6.1.2001 should be taken as the'date-..tVo:.A_l.r'ec_ko0n"ilthlédn validity of licence is untenable and

15. We also l'e]'eC*€fl'..E3u conltention as per the Regulations of vreh'i~cies' ':Aci::',f§ licences are issued initiaily for a' aiftler which, the license e><pires.' ihis'AiVsy_Vljesca~¥..iVse thei'AriVsjt.1rV'ance company has on its own%_" iiiri-K'"ivtsigevidence for alacing reliance i:tp;_ ;[t'V"lSilfiig-réf'Q--i;€ V"i;3o'i.ind by the dOC%.%l"i'1E'fltai'y evidence. 'whvivchf-.it4'iha's._0;;ro'd;iced. Since the same is not, bi'ought'i4_nto_ as no official from the Motor Vehicles Deoaiitnient has been E*_'XE}i'TT§i3EEd by the insurance .0 :comp.aid..y--.i;Ao"~-.e_licEt as to whether such an issuance is iegaliy ~.o'e.r.ii1ivss«Vi"b»Fe'*ors.not, we reject the arguments to the contrary ad4'van"cAed"in this case and hold that there was a valid driving "iicence possessed by respondent No.1 effective as on the 3 is -13- date of the accident i.e., 31.12.2090. This point is therefore answered in favour of the appellant and against the insurer, :6. The other issue to be considered is wViti°..'.[reg_aVrd_ the position of the claimant. Was he a fare payiV_'n'g_vp'a.ssenge'r,cg9"t,_ a n0n~fare paying passenger orfiga perm ':acvc_oi:ip._a'nyginAg goods. It is assertively urged on be'h_aif of therinsiirer t'i":at'g the ciaimant has to be con.stru_Ved_ aslla. paying passenger because the' lperflthe permit, has oniy one seating ~fij-(';V.l:lf'JVlA'i'7:1...:vv».,?lwh€%'€fOF'€, it was urged that pegi-fsoinh is averreci and no other vehicle. It was also urged that 'even.'ii-fit'it'i's__:p~re'suiTied that the claimant was accornpanyiijg Apex Court has held that he S|'iOL!.l§g travel only:Vin the cabin. Since in this case, he could »no't-.hav_e rt.ra.\/e-!.led in the cabin as there was only one seating not be covered under the policy. Reliance _V is p'l"acet§_o'ri":the decision of the Apex Court in the case of ""A4'"K._gri1Ty_i£o""'Ir\iom INSURANCE CO.tTD., vs SURESH i<.K. AND

-- (2008 AC} 1741). He has also placed reliance on -19- the decision lo the case of ORIENTAL INSURANCE COMPANY LTD, vs oeviiaeoov KONDA REDDY AND OTHERS i,w1p"('2oo3) ACC 214]. Reliance is also placed on the oecision«..i.n_A»t'h_e",jcase of NEW INDIA ASSURANCE co,i.To., vs_H\!Eowig:i'Ti'4 %A'i§.;5"

omens (CD3 2oo7 SC 187) and themdeciasion'iinttf'ieV.,ca'se or NATIONAL INSURANCE co.L"rb._, vs4t?Ho.1_i_ET::,.r:iiArtAt;a;ivii§iA.,T AND omens (co; 2oo7 sc to co,nt'end tat except driver and cleaner wh0i_"a,_re _;'3ermi~t:te,d"-tyo be carried in the vehicle, no other person is'i~c_ov",e'red u.n'cie:'r.t'i.ie policy, be it a fare paying or;ho'n.:fareiioayinro pas'se'n..g_eVrf.' :7 .... _W've_V"i1a-:~g:e,, i;e'st.oVwed..__our?serious concern to these points V':.;rg*e{§.. V'Vl'\i'fe:Aessa'r.iVliy*,.. ezwminatioa of the terms and conditions""a_'nld,vcovenants;-'of the insurance policy becomes imp.o.ijtant to det:i--de the issue.
is no dispute that the policy issued in this caseiis a. policy and not Act policy. The said policy is Reading of E><.R.1 reveals that, apart from V."v'.co1l_e:t:'ting the basic premium prescribed by the ?RCA, the __i_r§surer has collected additional premium to enlarge its (34% i -13- liability and to cover certain category of persons. One such endorsement that we notice reads as follows:
Add:for LL to persons employed in conner§t.i'on'r'.'.j'L:'---- 'V' with the operation andflor loading, LJHlO.a.dV_l:F'l=§x . ,_ Motor Vehicle wt 17, premitilh c'ollepcted.;-is.
19. The learned co__Lin..sel, r_ef"e,rrihg':_:""i:o this"

endorsement, contends lihat tpretmmrri collected is for the purpose of the driver of the vehicle and none:'el_se. is advanced on the not covered under the Act premium was collected.

It is to"t_alh/i of the conspectus of the provisions of-.i;he Act. A'To*:remind ourselves, we need to refer to tt}'e3'«:.pro:vis%ioris"ofSection :47 of the Motor Vehicles Act. It V'V re psi': K' "*147.'.V-v'Re.i}iliremerits of policies and limits of V'.""!ial)Vi:lit'y".f~ (1) in order to Comply with the to recygirements of this Chapter, a policy of V' V. _ fiinsurance must be a policy which-

3% ..{.1..

(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent.

specified in subwsection (2}~ U) V 'pp bjl place;

against any liability;...which_--'¥na';,{'_jbe"~l incurred by him in re.spé:ct-clef.' death or bodily _in}ury..to--._any ypte;rs:on', including owner'-v.yp4o'f..ythe "globes authorised reprye.se'nta'tiye carried _in the vehi'cl._effyor c--l_an§a§lje~.._toy"any property of a third par_tyl'y"c'ausedlV"by:ojr arising out' of the »lu_'s.:e ..o'ff"_the' vehicle in a , by [§1:é"{§_€a_tl'l of or bodily ingliry to = a'ri_y"':_pas's--enge--r of a public service \i'ehi:;|e'.c:ae...sled by or arising out of the Iuseof the vehicle in a public place:

a policy shall not be required-
(i)_"'toyA:cover liability in respect ef the death, arising out of and in the course of his it lkemployment, of the employee of a person "insured by the policy or in respect of bodily gs?»
-15..

injury saistainea by such an employee arising oat of and in the course of his employment'-"'--.g other than a liability arising under Workmen's Compensation Act, 1923 -1- 1923) in respect of the tieath of, in}'ury to, any such employeey"

(a) engaged in driving the yehicieylor
(b) (C (d ) if it is a public service y"e.h"iicIe engaged as con:~dg::ct0r.Alo'f the it vehicle or in exa'mfiign.in'g._tii--.t:l<et'sta,i3AFl.d the vehicl_e, or ' l if it is;algolods'cama*ge';~=b'eing._.....:A ca rri ed ;'i n the' "vein i cl ego r~~.

\ J V to,gvcoy_e"r ;c';.:;g_y_ co_n't.ra'ctua.l_"_ iiiiabilitylfgg_s__ » E><pla"n._atiovnV.°~For removal of doubts, it is herebyad'ecV_lar'edx'that the death of or bodily v-i._.i'n}'2,,L'1ry"i-to any"""person or damage to any a third party shall be deemed to

-.__l'ia"ve'A_'jbeegn"caused by or to have arisen out of, "'~..the_*'t:s'e of a vehicle in a public: place n"o.ti/igeithstandirig that the person who is {lead or it Vll"'én;':ired or the preperty which is damaged was "not in a public: place at the time of the gab

-1!)-

acciaeht, if the act or omission which led to the accident occurred in a public place.

{2) Subject to the proviso to sub--section policy of ihsL.iraht:e referred to in subwsectiiimei"7" (1), shaii cover any liabiiity ihc.u.r_red i of any accident, up to foe?-lioy\ivin'g,..'liiré*é--its',=if-,__. namelyr

(a) save as provided in claiiselibe), the amount of liability iriiciii-'Vredz;

(b) in respectvof cla'i'"éiage:tVo' by p ropert§:..V ofée' t.tii.Vrt'i. pa_rty,_ il.in*iit of rupees"'S_i><. t.fiG»u4.S'"rii:li€§i ivProvi_dee..'vVthat.Aaiw.v"';3__oli_cy' of insurance issued with anvlimited'l:_iVa_bilit«v'r»ar*id in force, immeaiately before 'the =e:ornrr§en'c.ellmei1t of this Act, shall C.Q'i':1t'vii"i'L!€ to'"b.eV effective for a period of four «.Arnont'h}s after such COlTlfTi€'flCEEi}"é€flt or till the date ofu._su,ch policy whichever is earlier.

(3) A .._;jol~i.Ac::i,/A shall be of no effect for the purposes df,q__t3i1is Chapter unless and until that is issued Vl"~.l3y the insurer in favour of the person by whom "the policy is effected a certificate of insurance §t'Qv/ (4) ..]'7..

in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any otherfh-,T prescribed matters; and different for;"i"i'sV:,"z""-V particulars and matters may be prescribed"iAn"V--.,i'L:'~--..f 'V' different cases.

Where a cover note issued by,ftjhe--_ under the provisions of this4'iCh'a_pter >o;rA"the rules made thereunder--.i__s*..;_jot foEl_ow.ed'-.2by"a'"

policy of insurance V\!l'C|"lllj___l:'tVl"".».FjZ'_ p.r_escri'b'-edv_tiin?e, the insurer shal'ly_4_."t»with'iAn §.se'ven.VVl"t§ays of the expiry of the period ofthe'ya%idii_ty'iAA.of'li't_he cover note, notifyiithe ra:'€i:o r'evg.iVsteri'v;i'cj'authority in whos.e=.retjo_rc;s-tiie'v_ehi¢;.lej;to v\i'h'i'ch the Cover note relates.__has*..b'e»e_riregistered or to such other State Government may prescribe.- V A 'Notyvithstandin-g--«'anything contained in any law ._fo.r the.._t'i'm_e being in force, an insurer issuing a "7___g)o'li:ciy,_of:'ir'i"suran<:e under this section shall be lia_bi~e_3t.oA indemnify the person or classes of persons specified in the policy in respect of any if 'lanliability which the policy purports to cover in -13- the case of that person or those classes of persons."

20. From the extracted portion of the pro-x/i<si,_o-«ns*,,A'of Section 147, it is clear that in respect of the .g'ootls::"y,éhi,cl--'e,2 the insurance company is statutori.!y~l.i.a,ble.'_'toVvV'cotker."th'e', against death or bodily injury to the dnriver,:dt:le'a.ner, tznloader anti employees offthe iotszirettf Vizioextenth provided under the,' Woryk-then-Ts"--~..,' Conép-ensation Act. Undoubtedly, the di'iver'kUf,the_v\}eliic'le.f_a,nd other employees named in the pr_o'vi._sioh_"VaVrie' "Vstat?J'toi'ily". Once the insurance po'licy.__is:..i.s;sueo_._a;s--»..i_s 'r'etV§uirVed under Section 146 of the Act, the.Vinsti-:fa'nce*~_:co.rripany has no escape, but to indemnify the"insuretl,'ag,aiiist the claim from driver and other categ{oryi*~of persons mentioned in the provision. Hence, V_.there ES',li'C)r"~-£'§iJ€StlOl'l of any additional pramizgm being co|l'e.cted'to--__c'o,ver the such risk. Of course, the insurance con1x4pan'y,'c'a"n collect extra premium to enlarge its liability otherwise statutorily restricted to the claim under

-- ti1e"Wo;*kmen's Compensation Act. To this extent, collection 49- of extra premium is §}el'§'?"llSSlb|E. For the test to find out whether the premium collected is to enlarge '{h§S'_l"i"Eibl|ity more than the statutory limit provided or does other category of persons, we need to examine"'tsheaclaéusein the policy itself. The insurance "o,ei'ng-Via transaction, terms and conditions 'ofhthe 'bin'd"'the=, parties. In the instant case'V,2a"s refeVr'red"=tVo above, the insurance company has;:coyllect'eHcl'i;4y5;.j_Vl§V,i"i:y.additional premium specifically indicating employed in connection wit;'ti"oip_e'rat%:on unloading of the motor category of persons coverecvi'iV"l'3<y"rtihfeu cuovllvecéting additional premium excluding. thedr'-iyver:y,:_ho--.V_:i:s»»:si:-atutorily covered under the Act as referred4°toV_V'aii:io've;'i. Therefore, it is for the insurance 'lV'"comipany-ii.to"--spell oi..i"t;'"as to cover the risk of which category had collected Rs.§5/--. The insurance coni.p'Vanyv.i.s'totally silent on this aspect. It is for this reason, ha'ye__A'3~to apply the doctrine of contra proferentum to ,,,.i'1nter.pret this clause. Since an attempt is made to contend thiat this clause refers only to the risk of the driver, we are §.Q»/ -20- constrained to hold that it is to be interpreted in favour of the insured and also to hold that it covers the riS§< of peitsons other than the driver like those who are e;:i~,ol'oy.ed'.j'_fo.r loading, unloading and for the purpose of {i'i<":_1.l'yr_i_?t':(§iJa'iiA.A_(t.::'el.'('}i" trie vehicle.

21. At this juncture, 'it.uis._i'hateriVaiVto'l..vi'iQ.fé....r.hajt their' insurance conwany avaified full_.!.i:oAerty'i..§efore'the Vfiiiriburial to resist its liability who has been examined as l?{.W:.'1,__ hytisttociilar testimony before the stotmunexplariatory in his version restriction in the gaolicy to absolvefiythe' in fact, he makes no mention oi"the additione;al.:'ij.»i'eihium coliected and the purpose for c~ollectio"n..:mihoiigh it may not be necessary, for the [?Ll:F'pQS:3.'Ofv¢lE.i'_l{y, we feel it appropriate to extract the by hirn, which is as follows:

'j"The vehicle in question insured with the respondent insiirance company was a goods carrying vehicle meant for carrying 527/ -35- out of goods and the petitioner was an unauthorised passenger in the said vehicle and his risk is not covered under theft'. relevant policy. The vehicle in qeestio_ri'_:"is"U-..l' meant solely for carrying of goods person is allowed to travel "in the vehicle."

22. It is therefore cleartlnat the in'-suilrasncei company itself has not placetl V --héfr'Qrei._ "C_O%li2r'ti_»€ltliel' a specific defence or substantive ev!.cl.e:nce-.toy p'o'int"'oL;t' that this policy is only to the l..p'i'ovi'd'es. It is to our the policy is uncioubtedly a e><amination -we. :'foun:i «..t'li'a"ti«. package polir:y'l'a.'nVd.V_once._it'=i,s_ seen that it is a package policy, then subwlsectiion "filial? comes into operation which mandates': "Ilia-tint/it'l1stérnding anything contained in any law 'l'f:1r:"'.lt:l:e"«ijime being in force, an insurer issuing a ' Apoiicfyli under this section shall be liable to V V' _ indemnify -the person or classes of persons specified in Vlyflzewsypolicy in respect of any liability which the policy -33- purports to cover in the case of that person or those classes of persons. "

23. Thus, it is clear that the categoryg..._o4f.V,'p'ei:so'n.s merztioned in the policy for whose risi< aC§ditiOJfi3:|:

collected are of different category";/Mcilasse-as i«t_i1e"'d«'ri\n/'er and hence, in terms of the ,po|icyr','s._the_ insurer"i.5'~|ia=?oie,v'to,, indemnify the insured against a;'n§,5":!aini iron': H

24. We must furth*'e_r, r--iot§.jCe :a'p_art from an that is referred to, the case to" rhore than simpler. The C|€iii'HE3J.«'.t"*».'|1i:§i%.§_-.'_ sp:e_i:ifi,Ca||.};fconteréded that he was accoiripao§i'ng:i,5»tVhe'»;'i;jVoo_§is...:'_i.e., rm and Calf for transporting from one destin'a.ti'onf.to'--~a:no.ti'ier. It is during transit that the unfortunate '"ar:_r:ider2t occtirred. He therefore claimed to have 'V'«.flCC'o.|hpianie*('1&thehgoods. The provisions of Section :47 't._,e'S<t.era'ct:ed.._h"Vh'a,ho;ue undoubtedly covers the person ac{;o_h1pa~ny_i'n--g the goods as also his representative. V"»»ThereFo.ij_e, statutorily also, the person accompanying the ° .g'oor§_fs is covered.

3.97 -23-

25. The question now is whether cow anti calf carried in the vehicle can be taken as goods. An attempt is made by the insurer to contend that carrying of small size avnimlals or small quantity of goods does not give benefit'flof._:_Vsocix_ protection. It is relevant to refer to the clefi_o~iti»o_r§'~ol"*g:ooos_as.. found under Section 2 clause (13) \:A{?3lC:h.,i:éa"Cl,,S f "Goods" iocliioes Ii\vre.st'o._ck, and'-an'g{t?é~--5;ré"g"" it (other than ec;__uiprnenVt_._ol=vdinarily .osed_AAvyitl1 the vehicle} ciarr-ied--'_xbyVla~..__veh!c|e except living oersons, butgoesnot_-~i«.n%:lA:j'Vdegluggage or pei'son'avl_eff;acts r"riotor car or in ai...t'-;ailé:lr__«.attache§ to .motor car or the passengers travelling in It clear that goods statutorily include l.ivestocl§.~.. I.Ijx"'~EhE3 instant case, cow and calf carried in the i}ehi.c.le V"be'i_'e.g stock is covered under the definition of V--Vgooos 7"

av
27. -34- When this provision was confronted to the learned counsel for the insurer, he responded relying vor":,Rule 74 or the Motor Vehicle Rules which reads thus:
74.

t (al Carriage of animals in goods cattle shall be can'ie<:i::';in »a"go"ocls' --veli.iVcl,e""iVVn_ a public place LIWESS." i it it (A) in the case olfigoat, sheep._dleer'-:or«.p.ig--f~ {l} a mihimt.iml"'~«§loo_r C132 square metre stitch' cattle is p ro d ed i'i:.,th§9 l.e"s~;.

(ll) _é'.atle_;i_aVnd A. l' V' V proper'-a'rjra'rig"e_rheVnts"for ventilation are "double decked goods V A I: e it:l:é. -

'deck flooring is covered with VV:":e_e4t:a|»~sheets with a minirmgm height of 'V tmzs. raised on all four sides so as to piavreilt the animal waste matter such as urine, litter, etc., falling on the animals on ."'V"t§"ie lower deck;

proper arrangerhents for drainage are made on each floor;

wooden battens are provided on each floor, (C) to prevent slipping of hoofs of the animals. air { 1} V.» .'"?-1 {8} in the case of any other cattien

(ii) a minimum fioor space of 2m><1m per head of cattie and half of sa.:c_h floor space for a young one of cattle is weaned is provided in the ve.hi,Cl»e.}'a-"r~

(ii) the lead body of rm?' Velhviclie::_""isi"» constructed ofhistrong _vv"ooc§--ej;~.. 'p*%ar1.ksvs.Vo'r"» of iron sheets::,with..a f}rn'i:ni"'ii.ji_3*i'h"h'ei_g htof 1.5 metres me€:.sui*ed fr£}'i'.'IjI:'t'lie floor, of, the vehicIe_,,:'on__all sicies' tVi'i,e'V'b'ac:k;

(iii) floor' i3atta__ns'»v,_ai"e_, prolvieciecl prevent sli';§.o'i':i=ig _

(iv) every 'proj'ectioi'i_.-.l_ilVi<e'lfyto cause suffering if -._to and cattle a--rc?f .p'roVoeVr|y secured by ropes X" V3'«tyie'{%,:Vto,,__th.esides of the vehicle. Exolanatioii.,_"\i{Eatt4|"e.fl."for the gorooses of this setvrule Vinclzgdesyigoat, A's_he"e@, buffalo, bail, ox, cow, deer, ~~i,hq;_?se, ponAy,«ri11_tii,-a, ass, pig or the young ones thereof. '-{Ell "I'\".l:V(4Z1"'~AV&.'3Vlll|17é3l belonging to or intencieti for a circus, , 4 Q"-.,'i-nena"g_e'rfie' or 200 shall be carried in a goods vehicle in a .:)'tiE3li«-c place unless:

air ~l()~
(i) in the case of wiid or ferocious animai, a suitabfe cage, either separate fr"o.m or integrai with the read body of used of sufficient strength the anirnai secureiy at ali ti_i':n.e_s'=i.sV';:i:royide'd;._ and
(ii) reasonable f§oo"rs;i~ac'e for'-each arai_f:m.afI'f-i.s providedm-«the venicie (3) No goods ve"hi_c|e wh'er'i t_c'ar'r,r_i.'ng any"'ca"ttie or any animal shaft be driyen-att_a}.spee'dV:i_inexcess of 24 krns.

28. 'T§jis;:_"'Ruie'* »i:o"5'.'jwfi'ichi' the" éearned counsei has referred; oniy"§.é.Stti%']ates'a..;§'d deais in what manner §ive stock couid befcarried.' fit:.fdVoe's._n'o.t~"refer to prohibition of carrying of livestock in _ariy.f--ve'hici'e in any circumstance except the ' "mini".°riiJi'h*.re'*:;.tiiremeyfnfthat is necessary for the gaurpose of 'x'tra'rtiysb'or:t:i'n:g"tVh*e:iji.r\/estoci<. This proposition in defence by the insLir.anc:e-~co4ji:rripany certain§y is of no avail because the 'q.uestio"ri.that we are deciding is whether cow and ca§f carried i'i'n't_ifie}'vehicie comes under the definition of goods. Being .jsva__Eisfied that iivestock comes under the definition of goods, -37- this COl"lt€lltiOi1 which was admittedly not taker: before the tribunal and is urged for the first time in this appeal is also worth rejection.

.29. Having thus Concluded that livestocirwCa.r';vf-egg} the vehicle was "within the rraeaning of_-goo..cis.'f'~iirmtadg:i's'~. rnutandis, the provisions of SectienM}?b1ece.i'ne's"-apn'iié,.Ca~i?;ie and a gserson &3CC{}lT"l;3€jl'.\,/ii'"lg' zzueh goods V'oeco:.*n'efs's_tatr.;toriE\,r_ covered.

30. A iast <':1t'C£3fTV"ll'3'_E..V:5.S' rnaoie.l'b'\;.._'th.e~iiearned counsel to contend that as held byvgtih-e'_Aoe--><A {jourt vi'r'i--.?._t-i'i"e decision cited by him,,'a goods would be covered under thevpolicy «to travel in a cabin in a seat provided a;34aurt,_:Vfrorr': theV"'driver's olace. Since the seating 'lit"c:.apalei'ty1f'of 'this vehE'c'l'eV was only one, he submits that the ""p.eVl'sio'Vncr a:'c-eo'n3ipa"ri.vrrig goods couid not have travelled and there,4fore,,.- ~the,re is no statutory coverage.

" In the decision relied upon by the iearned
-- clounsiei, what is considered by the Apex Court is different set gigs c -33- f'a<:ts. The Apex Court noticed that along with goods, the person was found to have carried a luggage. Besides,_.-he was not travelling in the cabin along with the driver, ljiJ'tl_w.a"s.,'in the carrier portion. In such circumstances, t--'--ii'e' £\p,ex:"'Co:1--rtl'v. held that if a aerson were to claim»-.orotéectyioni,';,i%é'déii thex' statute, he must not only accompany ";:goi'odsi"'-as also must be shown to ha--v,e'-._sat'"in__ vv.eh"i,cl'e'r~rwith an permissible seating capacity. j_T.-n-t.h_a.t"c.o.nte}<t','~t.he..iipe>< Court held that seating capaciityhgo-f .imp0rtaht. In the instant case, conscious of the fact that only' vehicle, then it has to _c.ollVect extra premium to cover different" like loaders, unloaders and ernployees in._,con§éec.t-ion': with the vehicle. Therefore, the fi"c'orét'ei1tl=oin that coveirage of insurance is relatable to the the vehicle is certainly untenable.
32',' For the reasons discussed above, we are satisfied theiiclairhant COEEWES under the category of persons aw -30- agricultural activity is impossible so also his avocation of cook. He does not claim to have any income from thelaoded property, but has assertively contended that hei'~.$/:iral_s~~.Vvan agricultorist which invoiye physical fitness. We satisfied that the claimant has es_ta.bl_i_she;-1"t}ia-t'.';Vthere.. is--.a°V relatable diminishirag effect in |"iis~.'eariring'*ca'p:a'city:'itr~..A.'i1.ije doctor has assessed the pliylsieazl disability A=«E3_®--9z.'r~;H the"

whole body and therefore, y_|.ORS:s,__o§_v income has to be determined keeping iii"'-rni.ifio'.y '4f"uccr'ir;:t':io,nal incapacity to which, the claim_a--nt tias"becomei.._yic'tir'n.7tiaviiig noted that loss of limb..hra"s44tlie:_ _effect__o'r_1. ea;-"nfi'n_ci through, manual labour is impovssiblel'The c:§§aii:*i'a'o§_' WOlJ.|dWb€ entitleo to 100% loss of income throtigh ._ag:ricilil~tu're:" Since Coo§<ing also requires physical fitness', 'thatljobwsis also now impossible. We are . ."'ther'etoi'»e'A satisfiedthat even though the doctor has stated

-physical::'d._i%s'ab";s.|_it.$/ of 80% of one limb, the earmng capacity inust ber~pro43portionate to it. =We find sufficient force in the V"'»conten"t»é.Qn of learned Counsei for the claimant that the "-y"tr'i'b_o_n'al has been totally irrationa|- in taking 6% as the (},Qr "39- accornpanying the goods, covered statutorily under Section 147 of the Act.

33. The tribunal fell totally an error in a.h.§;gi.{ri.%.'gy't<he insurance comgxany, without taking into consid"e.ratio*nlallthe factors discussed above. The directivoln'directi'ng_" to discharge the award is unsustainarble--._and we'.'fasten'"vthe.y insurance combany with iiabil§tyV'to inde'i'n_nify.'.tliev;insnéed in respect of the award in 'ta.your"lof the c'l'a-%.rnant.VV"f

34. With this, we"s%%a'll Vconsidleir "determination of coinpensationi, -.f:l'ia._i_ni.a"int1:.2 has fA'.sL.ic'ceVssfi;lly established suffei'in{;;s ifof~.j5injni3§i4es_"a.n'd thus, has established nexus betweenvthe acciydent.'a'n.d*:%%"e injuries suffered by him and glermfiliyelit b'§'iysical.v"iiicaijahlcitation. The fact that the claimant ' "has*suff.ered..an":putation of one lower limb below knee and limb and injuries to other parts of the body' is fL;!.|\/4:{3\Lfld€l1C€Cl frorri the testimony of the claimant as theft/iedical Officer P.W.2 ~Dr.Suresh G. E:3hat. The "'«§:§'vid_e'iE;ce is so clear that it fully establishes the claimant is _n_o5w physically wrecked. Having lost one lower limb, a,.l.'»~ ~3i~ percentage of physical disability in respect of the injuries suffered by the claimant.

35. At this stage, the learned counsel for wouid submit that be it as it may,.even cl-l'a4ii%é'an:tc suffered any physical disability, rheaisabriiilityfiii'mvLis.i§ he terms of the schedule prox/ici~ed tinder_tiaVe"'v._;V\i"oVrl<'§21en'scV Compensation Act.

36. We regrettallzlij/--.raota} insurers have misconstrued the'- yery;"Vc'o'r'icent graht" of compensation under the it/l:e';hicle3_A_ 'Act -..anti indulged in litigus is either deliberately or intentionalvly'--ign'o.rin§i'wtih'e_:1l'a.c~t that the claimant / appellant has SQlI_ght cl'ete'rr'ninati'ono? compensation under Section 166 "of thie':'Miotor-yehiclieshct and not under the provisions of the ~Cforn"_i:ensation Act. They seem to ignore the p;~o'v._isioii,s.'?lf"kction 168 of the Motor Vehicles Act which T3"~'«i___"-mandates: that éetermination of compensation and aware 7V."2:I"7iJS't:'A.'A-be "just", Therefore, the tribunal was required to gggir -32- ' award Compensatior: just'. Compensation, neither high nor low.

3?. We therefore disapprove the --'-th'e_ insurance Company in trying to impede the "pii«e.{jess"'wof-- _gz'antA of 'Just' compensation by uiitenabie de«fencee..as. taken'-ss._abA-ave which we have rejected.

38. Coi'nir1Q tdytiijs zaélic-i~,--;a,?'ifdéte'rniin"atio.nfiwe notice that 80% physicai disa4'i'3i'i'ity evaiuated in reiation to whovie.::§3o.dv the ciaimant to Carry out business with the disabiiif:VV\,'r' wi:§.Li':'ti"Viae appropriate to take his loss ofvearniing We have to determine the ii1COiT:H'3_VWhi"Cuf1 _the..'i:§aii'ifria"nt had prior to the a<:<:ident. The "vi"vrwo"b:t..a:vdACati"ot.ns w§ii'C'h"Vhe has stated has not been disputed _ai*.d,itrsisjwerii"e.st_abiished, at the modest caicuiation he wouid iiot._.hVave.h--ad_.eilarnitzg of less than Rs.3,OOO/A per month. The V'-»tribunai_hIas again uereaiisticaiiy taken his income at Rs.70/» """pero_dfi.ay and on that basis, determined the compensation. set aside the said mode and rnethodoiogy and we take Ni ~33» the income at Rs.3,008/» pm. and 36,080/» pa . The age of the claimant at the time of accident was 53 years the multiplier applicable would be 11, Therefore, income wiél be Rs.2,77,2{}O/»- which we 3Wa.l".d'_"lfii}.Od~Al'fy'¥.'ljgntl'leV "~.__ award of the tribunal.

39. Since it is a case_.relatin'gto.. personal"irijur--y,"the-g claimant has to be compensateds.,fo»r loss of aeéeiiillties, loss of enjoyment of iife, towards'f. rei-nfibearsementii of medical expenditure, future rnedicaltrveatiineovtawsalso the artificial iimb, conveya:'i'c*e.,V,:p,'diet, attend'antf_"e.haVrfges and above all, towards pain a_l-it}. su'ffer4i"rl,'fi:_';V,,'"\4\l§: a"r,e"'satisfied from evidence and other «attentJiif'i'-cg,'4ci.,rc'u{n'g.tances that the Tribuiéal has not awarded a'ro_'oorvtio'n_a4t'e fC):""'L_,L"c3'll"I and suffering the claimant has endmfed as a£so"o.nVother heaas. Therefore, we award to the cla'im,an_t: a --:;,,u"m__ of Rs.30,000/w towards pain and suffering, ?<s.V'S--O,,O'{}G,?_'%-__'towards medical expehditare, conveyance, .q attelndanvce"charges and special diet, Rs.25,{}OO/W towards ':'s.l,o"sst..of alnwenities of life, Rs.-40,000,/-- towards future medical efrolenlses and replacement of artificial limb, In all, the at» .34- claimant wouid be entitied to a sum of RS.43r,22,2OO/- with interest @6% on the enhanced compensation as against the sum of Rs.1,28,840/~ awarded by the Tribunai.

40. We set aside the direction of the regard to payment of compensation by the"_in"s..i}re:d'»and"yye' direct the amount of compensaVtiion"toVRae-3 the insurance cczmpany within a T._oeriod'..oi'-._si:< w'.€iyei<s "fro*fn"vthe. date of receipt of copy of this 4}. Out of the'aymounjtoftc'o.ij'ht5'e-hsation" ayvarded, we direct 70% amount withp'ro_po.rtViriirzateiin't:-erwest to be kept in Fixed of five years, but the baiancevvihannoant' ~i3bir'0i3:.:C5'»rt%~onate interest to be {laid over to the ciai.n}Aant'f A V V "ii%'Aj3'peaE..ystandsmdiisposed of in terms of this order, it _ V 1 y - _ Sd/I-

JUDGE Sd/-

JUDGE