Karnataka High Court
M/S The Oriental Insurance Company ... vs Smt Akkayamma on 22 April, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC:15989
MFA No. 93 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.93 OF 2023 (MV-D)
BETWEEN:
M/S.THE ORIENTAL INSURANCE
COMPANY LIMITED
CBO-2, BANGALORE NO.1/1
CONNAUGHT ROAD
QUEENS ROAD CROSS
BENGALURU-560 052
THROUGH ITS REGIONAL OFFICE
LEO SHOPPING COMPLEX
NO.44/45, RESIDENCY ROAD
BENGALURU-560 001
REP. BY ITS REGIONAL MANAGER
...APPELLANT
(BY SRI B.S.UMESH, ADVOCATE)
AND:
1. SMT.AKKAYAMMA
Digitally
signed by B W/O.YELLAPPA
LAVANYA AGED ABOUT 51 YEARS
Location: R/AT C/O.C.RAJAPPA
HIGH NO.458, 12TH MAIN
COURT OF BSK III STAGE
KARNATAKA
ITTAMADU
BENGALURU-560 085
2. MR.M.RAMASWAMY
S/O.MARAPPA
MAJOR
R/AT GOVIPALYA
KOTHAGANAHALLI
SARJAPURA
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NC: 2024:KHC:15989
MFA No. 93 of 2023
ANEKAL TALUK
BENGALURU DISTRICT-562 125
...RESPONDENTS
(BY SRI THIMMAIAH K.H., ADVOCATE FOR R-1;
R-2 IS SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 26.09.2022 PASSED IN MVC
NO.4761/2008 BY VII ADDITIONAL SMALL CAUSES JUDGE AND
ACMM, MEMBER, MACT-3, BENGALURU.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellant-Insurance Company challenging the judgment and award dated 26.09.2022 passed in MVC.No.4761/2008 by the Court of VII Additional Small Causes Judge and ACMM, Member, MACT-3, Bengaluru (for short 'the tribunal'). This appeal is founded on the premise of the judgment and award passed by the tribunal being erroneous and exorbitant compensation being awarded contrary to the materials placed on record.
2. Parties to the appeal shall be referred to as per their status before the tribunal.
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NC: 2024:KHC:15989 MFA No. 93 of 2023
3. Brief facts of the case are as under:
On 04.08.2007 at about 6.00 p.m., when one Venkatesh along with other coolie was proceeding towards Kothaganahalli near Sarjapura, Anekal Taluk, Bengaluru after loading the manure to the tractor bearing registration No.KA-07-T-3416 and trailer No.KA-07-341, near flyover on Airport, the driver of the tractor drove the tractor and trailer in a rash and negligent manner and suddenly applied the brake. Due to which, the said Venkatesh fell down and sustained grievous injuries. He was immediately shifted to Sanjay Gandhi Hospital, where he was declared as dead on the same day. Due to the sudden and unfortunate death of the deceased Venkatesh, the claimant, who is none other than the mother of the deceased, field a claim petition seeking compensation.
3.1 On service of notice, respondent No.1 appeared and filed written statement. It took up a plea that the policy was issued to respondent No.2, the vehicle was -4- NC: 2024:KHC:15989 MFA No. 93 of 2023 involved in the accident and the liability is subject to terms and conditions of the policy. It is further pleaded that the accident occurred due to the negligence of the deceased himself and also due to the negligence of the driver of the tractor. It is also pleaded that the driver of the tractor did not possess a valid and effective Driving Licence, thereby committed breach of terms and conditions of the policy and used the vehicle for hire and reward, whereas the insurance was provided for carrying agriculture produce operations and activities. Therefore, if the vehicle is used for the purpose other than what it is provided for, the Insurance Company would not be liable, so also, it is pleaded that the compensation as sought for is exorbitant and sought for dismissal of the claim petition.
3.2 Respondent No.2-owner of the tractor and trailer also appeared and filed written statement denying the claim of the claimant including age, avocation and income of the deceased, so also, the relationship of the employer and employee and pleaded that the deceased himself went -5- NC: 2024:KHC:15989 MFA No. 93 of 2023 behind the wheels of the tractor and due to his negligence, he died and there was no negligence on the part of the driver of the tractor and trailer. It is also pleaded that since the policy was issued, the Insurance Company would have to indemnify respondent No.2.
3.3 On the basis of pleadings, the tribunal framed relevant issues for consideration.
3.4 In order to substantiate the issue and to establish the case, the claimant got examined herself as PW.1, Doctor as PW.3 and another witness as PW.2 and got marked documents as Exs.P1 to P10. On the other hand, the respondents examined a witness as RW.1 and got marked documents as Exs.R1 to R3.
3.5 On the basis of material evidence produced by the parties, the tribunal awarded total compensation of Rs.3,65,000/- with interest at 6% p.a. by partly allowing the claim petition vide its order dated 27.05.2010. -6-
NC: 2024:KHC:15989 MFA No. 93 of 2023 3.6 Being aggrieved by the judgment and award passed by the tribunal, the appellant-Insurance Company challenged the same in MFA.No.5344/2011 before this Court. After notice to the respondents, though vakalath was filed as submitted by learned counsel for respondent- claimant, there was no representation on behalf of the claimant. Therefore, the matter was allowed and remitted back to the tribunal with a direction to reconsider the matter afresh reserving liberty to the parties to adduce additional evidence and the tribunal was directed to dispose off the claim petition within a period of six months from the date of receipt of a copy of the order.
3.7 Pursuant to the matter being remitted, the parties adduced further evidence and the tribunal, on considering the materials placed on record and further evidence, awarded compensation of Rs.7,18,000/- in an excess to what was awarded earlier i.e. over and above Rs.3,65,000/-. It is this second order passed by the tribunal, which is questioned by the appellant-Insurance -7- NC: 2024:KHC:15989 MFA No. 93 of 2023 Company as being erroneous and contrary to the materials on record and the law and seeks to set-aside the same.
4. It is the vehement contention of learned counsel for appellant-Insurance Company that the tribunal has committed a gross error in allowing the claim petition, whereas, the claim petition ought to have been rejected as it is contrary to the materials placed on record and also the Police records and the compensation awarded is also excessive and exorbitant. He further contends that PW.2, who claimed to be the eye witness, in his cross- examination stated that he does not know the name of the driver with whom he had worked for more than one year, which clearly goes to show that his claim itself is a concocted and fabricated and seeking to make unlawful gain. He further contends that the policy issued is a Kissan package policy. There is no liability on the Insurance Company to compensate the employees of the insured. The tribunal has not considered this aspect. He also contends that this claim petition is not filed under the -8- NC: 2024:KHC:15989 MFA No. 93 of 2023 Workmen's Compensation Act to consider the relationship between the employer and employee. It is filed under the Motor Vehicles Act where the onus is on the claimant to prove and establish the negligence on the part of the driver of the offending vehicle, which has not been established by the claimant as known to law. There is no case filed by the Police against the driver for violation of any of the Motor Vehicles Rules or for any of the provisions under IPC, which would attract the negligence on the part of the driver of the tractor and trailer. The report submitted by the Police under Section 174 of Cr.PC. clearly depict UDR and in Ex.P3, the name and address of the deceased was also shown as unknown. If that is the case, when the entire case made out by the claimant is frivolous, it does not corroborate with what is produced and relied on in the criminal investigation or UDR report. On these grounds, he seeks to allow the appeal and consequently, set-aside the judgment and award of the tribunal.
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NC: 2024:KHC:15989 MFA No. 93 of 2023 4.1 Learned counsel for appellant-Insurance Company has relied on the following decisions in support of his case:
1. Shivawwa and Anr. V. Branch Manager, National India Insurance Co. Ltd and Anr.
reported in AIR 2018 SC 1640;
2. Minu B. Mehta and another V. Balkrishna Ramchandra Nayan and another reported in AIR 1977 SC 1248;
3. Oriental Insurance Co. Ltd V. Meena Variyal and Ors reported in AIR 2007 SC 1609;
4. National Insurance Co. Ltd. V. Prembai Patel reported in LAWS(SC)-2005-4-59 [Civil Appeal 6476/1998; decided on 18.04.2005].
5. Per contra, learned counsel for respondent- claimant vehemently contends that the tribunal, on the first occasion, committed a flaw in granting inadequate and meager compensation. Though the same was not challenged by the respondent-claimant and it was
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NC: 2024:KHC:15989 MFA No. 93 of 2023 challenged by the Insurance Company, the same was remanded for fresh adjudication and to decide the matter afresh. The claimant in accordance to the earlier judgment of this Court of remanding the matter, adduced fresh evidence and the tribunal considering the law prevalent i.e. in the case of Sarla Varma and others Vs. Delhi Transport Corporation and others reported in 2009 ACJ 1298, calculated the appropriate multiplier and awarded just and reasonable compensation by enhancing the compensation to Rs.7,18,000/- and the same does not call for interference, as the claimant was satisfied with the enhanced compensation awarded on the second occasion. Therefore, the claimant did not find any need to challenge the same seeking for enhancement of compensation. Therefore, he contends that merely because he has not challenged the judgment and award of the tribunal on the earlier round of litigation, it does not mean that the tribunal granted enhanced compensation after remand is an erroneous order against the interest of the appellant- Insurance Company.
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NC: 2024:KHC:15989 MFA No. 93 of 2023 5.1 Learned counsel for respondent-claimant has relied on the following decisions in support of his case:
1. Mallamma vs Balaji and Others reported in ILR 2003 KAR 493;
2. Mathew Alexander vs. Mohammed Shafi and Anr. reported in 2023 LiveLaw (SC) 531.
6. Having heard learned counsel for appellant- Insurance Company and respondent-claimant, the points that would arise for consideration in this case would be:
"i) Whether the judgment and award rendered by the tribunal is liable to be set-aside and whether the claim petition has to be rejected?
ii) Whether the tribunal has committed an error in awarding higher compensation, when the matter is remanded at the request of appellant-Insurance Company?
iii) Whether the appellant-Insurance Company would be put into a worst situation for having approached this Court, succeeded in getting the matter remanded and the
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NC: 2024:KHC:15989 MFA No. 93 of 2023 tribunal awarding higher compensation than the one which was earlier awarded?"
7. Perused the impugned judgment and award and the original records, previous orders passed by this Court, it is apparently seen that Exs.P1 to P10 are exhibited in this case namely, Ex.P1-UDR report, Ex.P2-P.M.report, Ex.P3-inquest report, Ex.P5-notarised copy of election ID card, Ex.P6-notarised copy of ration card, Ex.P7- authorisation letter, Ex.P8-MLC extract, Ex.P9-outpatient card and Ex.P10-case sheet. On careful perusal of the Police records, it is seen that the UDR report came to be filed on the accident resulting in the death of the deceased Venkatesh.
8. Now coming to the first aspect, having perused the entire materials on record, UDR clearly depicts that there was a criminal case registered; Ex.R3 clearly goes to show that the accident may be treated as RTA by the Police Investigation Agency; MLC extract is produced at Ex.P8; the case sheet at Ex.P10 clearly depicts RTA
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NC: 2024:KHC:15989 MFA No. 93 of 2023 occurred on 04.08.2007; the outpatient record at Ex.P9, which also corroborates as on the date of occurrence of accident, when he was brought to the Hospital, he was declared as dead on the same day. The Hospital records clearly go to show that it is the history of RTA. Under the circumstances, it can be clearly presumed by these documents relied on by respondent-claimant that it is the case of RTA, injuries sustained due to occurrence of Road Traffic Accident and the deceased having died due to the same. The post mortem report also depicts the same. Though there may not be a clear Investigation Agency's report for cognizance having been taken for the offences punishable under Sections 279 or 338 of IPC, the report submitted by the UDR i.e. at Ex.P1 clearly shows that it is the case of the RTA.
9. It is also not in dispute that the deceased has died on 04.08.2007 i.e. when he was travelling on the said tractor and trailer on top of the manure after loading the manure goods. PW.2, one Narayana Swamy is a co-coolie,
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NC: 2024:KHC:15989 MFA No. 93 of 2023 who was working along with the deceased and also travelled along with him, who has adduced evidence before the tribunal narrating the incident as to how the accident had occurred. Therefore, it cannot be said that the accident has not occurred and no death had taken place. As per the legal maxim Res Ipsa Loquitur, the accident had occurred resulting in the death of the deceased in the Road Traffic Accident in the vehicle i.e. tractor and trailer driven by the driver and owned by respondent No.2. Under the circumstances, the liability will have to be fixed on the driver and consequently, the vicarious liability on the owner and since the insurance policy is in force, the same will have to be indemnified by respondent No.1-Insurance Company. It is not in dispute that a policy, which was issued by the appellant-Insurance Company was in force. However, it is contended that the liability cannot be fixed on the Insurance Company as the terms and conditions of the policy have been violated by the owner of the tractor and trailer. He contends that
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NC: 2024:KHC:15989 MFA No. 93 of 2023 entire liability would have to be fixed on the owner of the vehicle rather than the Insurance Company.
Whereas, learned counsel for respondent-claimant contends that the deceased was a coolie, which is corroborated by the evidence of PW.2, who is a co-coolie of the deceased. PW.2 has deposed that as they had loaded the manure and the deceased was sitting on the manure by travelling on top of manure in the tractor and to unload the said manure in a designated place. During which time, due to the negligence of the driver of the tractor and trailer, he fell down and succumbed to the injuries. Under these circumstances, the driver of the vehicle had permitted the deceased to travel on top of manure in the trailer attached to the tractor, though it may not be permissible. Therefore, this Court is of the opinion that since the policy was in force as on the date of occurrence of accident, the liability will have to be fixed on the driver or the owner of the offending vehicle for violation of the terms and conditions of the policy.
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NC: 2024:KHC:15989 MFA No. 93 of 2023 However, the appellant-Insurance Company is required to be saddled with the liability of payment/deposit of the compensation and liberty would be provided to the Insurance Company to recover the same from the owner of the offending vehicle.
10. The next aspect is with regard to the compensation awarded by the tribunal on the second occasion after remanding of the matter over and above any enhancement to the earlier compensation awarded by the tribunal, there was no appeal or cross-objection filed in the earlier round of appeal or in the present appeal. To answer this question, it would be relevant to extract the portion of the remanding of the matter in the earlier round of litigation:
"Accordingly, the appeal is allowed. The judgment and award passed by the Tribunal is set aside. The matter is remitted back to the Tribunal with a direction to reconsider the matter afresh reserving liberty to the parties to adduce additional evidence. Since the accident is of the year 2007, the Tribunal is directed to
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NC: 2024:KHC:15989 MFA No. 93 of 2023 disposed off the appeal within a period of six months from the date of receipt of copy of this order."
On going through the aforesaid extract, it is nowhere mentioned that respondent-claimant is provided or given liberty to seek for enhancement of compensation earlier awarded or lead any evidence further with regard to quantum in favour of the respondent-claimant. The remand was made at the request of the appellant- Insurance Company having approached this Court in the first appeal in the earlier round of litigation.
11. Learned counsel for respondent-claimant submits that due to March of law in the case of Sarla Varma stated supra, it cannot be said that the claimant should be deprived of just and reasonable compensation as the very purpose of object of the Motor Vehicles Act is awarding just and reasonable compensation.
12. Though I am in agreement with arguments put- forth by learned counsel for respondent-claimant with
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NC: 2024:KHC:15989 MFA No. 93 of 2023 regard to principle of just and reasonable compensation and the object of the Motor Vehicles Act, the fundamental rule of law is that a person cannot be put into a negative or worst situation for having approached this Court and having been successful in the appeal, thereby, because of his efforts and challenge made to the judgment and award, the opponent or claimant gets the benefit. Such proposition cannot be accepted.
13. If the respondent-claimant had approached this Court by way of a cross-appeal or cross-objection, then answer would have been different with regard to the enhancement of compensation thereafter made by the tribunal. However, the same is not done in the present case. Under the circumstances, the tribunal having enhanced the compensation in favour of the respondent- claimant cannot be sustained as it gives advantage to the respondent-claimant over the appellant-Insurance Company. When the respondent-claimant has not approached this Court or moved even a little finger
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NC: 2024:KHC:15989 MFA No. 93 of 2023 challenging the judgment and award of the tribunal in the earlier round of appeal preferred before this Court or in the present appeal by filing cross-objection or cross- appeal, the appeal preferred by the appellant-Insurance Company certainly warrants merit for consideration and the judgment and award rendered by the tribunal by taking up the matter after remand and enhancing the compensation in favour of the claimant is erroneous and the same is required to be set-aside. Accordingly, it is set- aside. However, this Court is of the opinion that the entire award cannot be set-aside as the earlier compensation amount awarded by the tribunal to an extent of Rs.3,65,000/- awarded in favour of the claimant is sustainable and the same requires to be retained.
14. This Court is of the opinion that the respondent- claimant has established and proved the negligence on the part of the driver of the offending vehicle i.e. the tractor and trailer. Therefore, the owner of the offending vehicle and the Insurance Company are jointly and severally liable
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NC: 2024:KHC:15989 MFA No. 93 of 2023 to pay the compensation. However, the policy being in force, the appellant-Insurance Company is liable to pay the compensation to the respondent-claimant and shall be at liberty to recover the same from respondent No.2-the owner of the offending vehicle.
15. Accordingly, I pass the following:
ORDER
i) The appeal is allowed-in-part;
ii) The judgment and award dated 26.09.2022 passed in MVC.No.4761/2008 by the Court of VII Additional Small Causes Judge and ACMM, Member, MACT-3, Bengaluru, is modified;
iii) The compensation awarded to an extent of Rs.7,18,000/- over and above Rs.3,65,000/- is set-aside;
iv) The claimant is entitled to a total compensation of Rs.3,65,000/- along with interest @ 6% p.a.;
v) The balance amount, if any, due shall be paid by the Insurance Company within a period of four
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NC: 2024:KHC:15989 MFA No. 93 of 2023 weeks from the date of receipt of a copy of this order in favour of the respondent-claimant. If any excess amount is paid, the same shall be refunded to the appellant-Insurance Company, upon proper identification;
vi) The Insurance Company shall be at liberty to recover the compensation amount paid from respondent No.2-the owner of the offending vehicle;
vii) The amount in deposit, if any, before this Court shall be transmitted to the jurisdictional tribunal; In view of disposal of the appeal, the pending interlocutory application, if any, does not survive for consideration and the same pales into insignificance.
Sd/-
JUDGE LB List No.: 1 Sl No.: 74