Karnataka High Court
National Insurance Co Ltd vs Saidappa S/O Malkappa Alias Narasappa on 3 April, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 03RD DAY OF APRIL, 2013
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
MFA No.30522/2009 (MV)
C/W
MFA CROB 1053/2009
MFA No.30521/2009
MFA CROB.1054/2009
MFA No.30522/2009
BETWEEN:
NATIONAL INSURANCE CO LTD
BY THE DIVISIONAL MANAGER
BILGUNDI COMPLEX, 1ST FLOOR
MAIN ROAD, GULBARGA
...APPELLANT
(BY SRI. SANJAY M JOSHI, ADV)
AND:
1. SAIDAPPA
S/O MALKAPPA ALIAS NARASAPPA
AGE: 23 YEARS, OCC: COOLIE
R/O JAMPAD, TQ & DIST. BIDAR
2. ANJAREDDY S/O DASTAREDDY,
MAJOR, OWNER OF TRACTOR TROLLEY,
NO. KA-38-T-847 & 848,
R/O JAMPAD, TQ & DIST. GULBARGA
... RESPONDENS
2
(BY SRI. K M GHATE, ADV FOR R1
R2 NOTICE NOT ORDERED)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DTD:28.03.08 PASSED IN MVC
NO.165/2005 ON THE FILE OF THE ADDL.CIVIL JUDGE (SR.DN)
& MACT-III, BIDAR, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND AWARDING COMPENSATION OF
RS.1,01,800/- A/W INTEREST @ 6% P.A FROM THE DATE OF
KPETITION TILL THE DATE OF REALISATION.
MFA CROB 1053/2009
BETWEEN
SAIDAPPA
S/O MALKAPPA @ NARSAPPA NATEKAR
AGE:26 YEARS, OCC:LABOUR
R/O:JAMPAD, TQ & DIST:BIDAR
...CROSS OBJECTOR
(BY SRI. K M GHATE, ADV)
AND:
1. ANJAREDDY S/O DASTREDDY
AGE: 55 YEARS, OCC:BUSINESS
(OWNER OF TRACTOR TROLLY NO.
KA-38-T-847 AND 848) R/O JAMPAD
TQ & DIST:BIDAR
2. THE NATIONAL INSURANCE CO.LTD
BY THE DIVISIONAL MANAGER
BILGUNDI COMPLEX,IST FLOOR
MAINR ROAD, GULBARGA
... RESPONDENTS
3
MFA CROB IN MFA 30522/09 FILED UNDER ORDER 41
RULE 22 CPC AGAINST THE JUDGMENT AND AWARD
DTD:28.03.08 PASSED IN MVC NO.165/2005 ON THE FILE OF
THE ADDL.CIVIL JUDGE (SR.DN) & MACT-III, BIDAR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
AWARDING COMPENSATION.
MFA No.30521/2009
BETWEEN:
NATIONAL INSURANCE CO LTD
BY THE DIVISIONAL MANAGER,
BILGUNDI COMPLEX, 1ST FLOOR,
MAIN ROAD, GULBARGA
..APPELLANT
(BY SRI. SANJAY M JOSHI, ADV)
AND:
1. SAILU S/O DEULAPPA AGSENERE
AGE: 21 YEARS, OCC. LABOUR,
R/O JAMPAD, TQ. & DIST. BIDAR
2. ANJAREDDY S/O DASTAREDDY
MAJOR, OWNER OF TRACTOR TROLLEY
NO. KA-38-T-847 & 848,
R/O JAMPAD, TQ. & DIST. GULBARGA
... RESPONDENTS
(BY SRI. K M GHATE, ADV FOR R1
R2 SERVED)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DTD:28.03.2008 PASSED IN MVC
NO.164/2005 ON THE FILE OF THE ADDL.CIVIL JUDGE(SR.DN)
4
& MACT-III, BIDAR, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND AWARDING COMPENSATION OF
RS.1,01,800/- A/W INTEREST @ 6% P.A FROM THE DATE OF
PETITION TILL THE DATE OF REALISATION.
MFA CROB.1054/2009
BETWEEN:
SAILU S/O DEUALAPPAAGSENERE
AGE:24 YEARS, OCC:LABOUR
R/O JAMPAD TALUK &
DIST:BIDAR
..APPELLANT
(BY SRI. K M GHATE, ADV)
AND:
1. ANJAREDDY S/O DASTAREDDY
Age: 55 YEARS, OCC:BUSINESS
(OWNER OF TRACTOR TROLLY NO.
KA-38 T-847 & 848)R/O:JAMPAD TALUK
DIST:BIDAR
2. THE NATIONAL INSURANCE CO.LTD
BY THE DIVISIONAL MANAGER,BILGUNDI
COMPLEX,1ST FLOOR,MAIN ROAD,GULBARGA
... RESPONDENTS
MFA CROB IN MFA 30521/09 FILED UNDER ORDER 41
RULE 22 CPC AGAINST THE JUDGMENT AND AWARD
DTD:28.03.08 PASSED IN MVC NO.164/2005 ON THE FILE OF
THE ADDL.CIVIL JUDGE (SR.DN) & MACT-III, BIDAR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
AWARDING COMPENSATION.
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THESE APPEALS AND MFA CROB COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
M.F.A. Nos.30522/09 and 30521/09 are by the insurance company, while the cross objections are filed by the claimants. As common questions of law and fact arise, they are clubbed and taken up for final disposal.
2. Heard Sri.Sanjay Joshi, learned counsel for the insurance company and learned counsel for respondents- claimants.
3. Records reveal:
a) Two individuals by name Sailu and Saidappa lodged claim in MVC Nos.164/2005 and 165/2005 respectively seeking compensation on the allegation that on 21.5.2005 they boarded trailer attached to the tractor bearing Reg.No.KA-38/T-847 and 848, on instructions of their employer-Sheshrao for loading and unloading material in the vehicle. They left Jampad village at 3.30 6 p.m., and while proceeding towards "Adath shop" of Gandhi Gunj Bidar, the vehicle involved in an accident due to rash and negligent manner driving by its driver. Due to it he lost control and the vehicle capsized. Both fell suffering injuries and despite treatment they have not been restored to their original form. They thus sought compensation towards loss of earning, reimbursement of medical expenses and also non-pecuniary like pain and suffering.
b) Insurance company resisted the claim while the insured owner did not do so. The specific contention of the insurance company was, there was no negligence in the driver of the tractor and the second defence was, the policy issued covers only if the vehicle is used for agricultural purpose and not for any other purpose or for transportation of any goods. Third defence was, no person is permitted to accompany in the goods vehicle and therefore there is breach of terms of the policy. 7
c) The learned member of the Tribunal did not accept any of the propositions in defence against enforcement of the insurance policy. Having determined the amount of compensation payable to the claimants, it directed the insurance company to discharge the liability fixed on the owner-insured.
d) The insurer is in appeal but the insured has not questioned it.
4. The occurrence of the accident, involvement of the vehicle insured by the appellant and sufferance of injury by the two individuals who lodged claim is not brought in question and has reached finality.
5. The contention of the insurance company is, there is violation of insurance policy as the owner had allowed the claimants to be carried in the vehicle which is not permissible. In this appeal additional ground is urged that there is contravention of Rule 100(4) of the Motor Vehicles Rules framed by Karnataka Government and therefore there is violation of the terms of policy. As far as the 8 claimants are concerned, they are dissatisfied with the award and seek enhancement through their cross objections. Thus, both the appeals and cross objections are clubbed and taken up for disposal.
6. As noted in paragraphs supra, the only issue is, whether the appellants had established there is violation of the terms of insurance policy. The facts not in dispute would show claimants were travelling in the trailer portion along with rice bags. They suffered injuries as the vehicle capsized. The appellant has used this part of the evidence to show claimants were sitting on rice bags which is impermissible under Rule 100 of the Karnataka Motor Vehicles Rules.
7. Rule 100 of the Karnataka Motor Vehicles Rules Act which reads thus:
100. Carriage of persons in goods vehicle:
1) subject to the provisions of this rule, no person shall be carried in a goods vehicle:
Provided that the owner or the hirer or a bona fide employee of the owner of the hirer of the vehicle 9 carried free of charge or a police officer in uniform traveling on duty may be carried in a goods vehicles, the total number of persons so carried,-
(i) in light transport goods vehicle having registered laden weight less than 990 kgs. Not more than one;
(ii) in any other light transport goods vehicle not more than three; and
(iii) in any goods vehicle not more than seven:
Provided that the provisions of sub-clauses (ii) and
(iii) of the above proviso shall not be applicable to the vehicles plying on inter-State routs or the vehicles carrying goods from one city to another city.
(2) Notwithstanding anything contained in sub-rule
(i), but subject to the provisions of sub-rules (4) and (5), a Regional Transport Authority may, by an order in writing permit that a larger number of persons may be carried in the vehicle, on conditions that no goods at all are carried, free of charge in connection with the work for which the vehicle is used, and that such other conditions as may be specified by the Regional Transport Authority are observed, and where the vehicle is required to be covered by a permit, the conditions of the permit.
(3) Notwithstanding anything contained in sub-
rules (1) and (2), but subject to the provisions of sub-rules (4) and (5),-
(a) for the purpose of celebration in connection with the Republic Day or Independence Day or any other public congregation, the Regional Transport Officer;10
(b) For the purpose of enabling a co-operative society or class of co-operative societies owning or hiring a goods vehicle to carry its members under its authority in such goods vehicle when used for the purpose of carrying goods of the society in the ordinary course of its business, the Secretary of the Regional Transport Authority;
(c) where it considers expedient in public interest in respect of vehicles owned or hired by it, and in respect of other vehicles on such inescapable grounds or urgent nature to be specified in the order, the Stage Government may, by general or special order, permit goods vehicle to be used for the carriage of persons for the purpose aforesaid, and subject to such conditions, as may be specified in the order.
(4) No person shall be carried in any goods vehicle.-
(a) unless an area of not less than 0.40 square metre of the floor of the vehicle is kept open for each person; and
(b) in such manner-
i) that such person when carried on goods is otherwise in danger of falling from the vehicles;
ii) that any part of his body, when he is in a sitting position is at a height exceeding three metres from the surface upon which the vehicle rests. (5) The provisions of this rule shall not apply to motor vehicles registered under Section 60. (6) No person other than an attendant or attendants required by Rule 226 shall be carried on a trailer which is a goods vehicle.11
On perusal of the written statement of the insurance company before the trial court and the plea advanced before this court, all that is contended is, the insured had violated the terms and conditions of the policy by allowing the claimants to travel in the trailer portion which is a goods vehicle. It was not pleaded or urged they were sitting on the load of Rice bags.
8. Be that as it may, evidence does not convincingly establish they were sitting on rice bags. Rule 100(4) postulates no person shall be carried in goods vehicle in such manner as it is in danger of falling, whereas the facts in this case are, he did not fall when the vehicle was in motion; he has fallen only when the vehicle turned turtle and capsized. Fall is relatable to the vehicle falling on the side by which he was spilled over. In the circumstances, fall is not from the goods vehicle but only when goods vehicle capsized. Therefore I do not find on facts also the situation comes within mischief of Rule 100 of the Rules. 12
9. The second ground is, claimants were not permitted to be carried in the vehicle. This ground must necessarily fail because the evidence on record establishes they were employed by the insured owner of the vehicle as loaders to load and unload rice bags from the fields where it was grown. It was during course of their employment in relation to the insured vehicle.
10. In the result, the appeals filed by the insurance company merit no acceptance and they are accordingly dismissed.
11. So far as claimants' cross objections are concerned, it is seen, Saidappa-claimant in MVC No.164/2005 has suffered compound fracture of right femur and was taken to Government hospital on 21.5.2005 and despite treatment, the injury left him totally disabled. As far as claimant in MVC No.165/2005 is concerned, the doctor has found he has sustained fracture of right wrist, right hand and right femur. Apart from ocular testimony they have produced medical records consisting of wound certificates 13 at Ex.P.4 and P.19 of these two claimants. The Medical Officer has not been examined to speak of physical disability, but discharge summary is filed which supports the version of the claimants.
12. The Tribunal has taken physical disability at 15% to calculate loss of income, but while doing so the Tribunal has taken his earning as Rs.70/- per day, consequent to which the meager grant has been given. There is no reason assigned by the learned member of the Tribunal to take Rs.70/- per day as the earning of the claimants. Accident is of the year 2005. The claimants are proved to be working as loaders and unloaders at the relevant point of time and therefore, the avocation is well established. The earning of a person engaged in such avocation should have been realistically assessed by the Tribunal. As in the year 2005, the wages per day would not have been less than Rs.100/- 150/- which comes to Rs.4500/- p.m. and they should be given that benefit. 15% of the physical disability suffered by them gives us monthly loss as 14 Rs.675/- annually it will be Rs.8,100/-. Age of the claimant in MVC.164/05 is 21 years, while the age of Saidappa-claimant in MVC 165/2005 is 23 years. Multiplier would be '18' in both the cases.
13. In the result they are entitled to Rs.1,45,800/- each as loss of future income. Towards pain and suffering Tribunal has awarded Rs.8,000/- which is on the lower side. The same is enhanced to Rs.35,000/-. Towards medical treatment and incidental charges the Tribunal has awarded Rs.1250/- and 1800/- respectively which is on the lower side. While reimbursement of medical expenses of Rs.9,000/- is affirmed, they are awarded sum of Rs.15,000/- towards incidental expenses. Loss of income during period of treatment has been considered by the Tribunal, but only Rs.3,170/- has been awarded. The Tribunal has taken a period of 45 days which is also on the lower side. Therefore, they are entitled to loss of for a period of 3 months which will be Rs.13,500/-. Towards loss of amenities there is actually no direct medical 15 evidence, but the Tribunal has taken disability at 15%. Considering the fracture of bones and other injuries, they are awarded Rs.20,000/- each towards loss of amenities. There is no evidence that they require further medical treatment and no grant is made under this head.
14. In the result, claimant in MVC 164/2005 is awarded a sum of Rs.2,38,300/- as against Rs.1,01,800/- awarded by the Tribunal. Similarly claimant in MVC No.165/2005 is awarded a sum of Rs.2,38,300/- as against Rs.1,01,800/- awarded by the Tribunal.
15. In the result the appeals by the insurance company i.e. M.F.A. Nos.30522/09 and 30521/09 fail. Cross objections filed by the claimants, viz., MFA.Crob.1053/09 and 1054/09 are allowed in terms of this order. Enhanced compensation shall carry interest at 6%. Claimants are not entitled to interest for the period the appeal is belatedly filed.
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Statutory amount in deposit is directed to be transmitted to the Tribunal for disbursement.
Sd/-
JUDGE sdu