Karnataka High Court
The Divisional Manager vs Gurushantagouda S/O Ninganagouda on 20 November, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF NOVEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
M.F.A. NO.22348/2009 (MV)
BETWEEN
THE DIVISIONAL MANAGER
THE NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, SUJATA COMPLEX, P.B. ROAD, HUBLI
... APPELLANT
(BY SRI. RAVINDRA R. MANE, ADV.)
AND
1. GURUSHANTAGOUDA S/O NINGANAGOUDA
SIDDANAGOUDAR, AGE: ABOUT 52 YEASR,
OCC: AGRICULTURE, R/O NELOGAL, TQ. & DIST. HAVERI
2. SMT. CHANNAVVA W/O GURUSHANTAGOUDA
SIDDANAGOUDAR, AGE: ABOUT 47 YEARS,
OCC: HOUSE HOLD WORK, R/O NELOGAL,
TQ. & DIST. HAVERI.
3. PARAMAPPA S/O NEELAPPA SHIVANNANAVAR
AGE: MAJOR, OCC: AGRICULTURE
R/O AGADI, TQ. & DIST. HAVERI
... RESPONDENTS
(BY SRI. B.M.PATIL, ADV. FOR R1 & R2,
SRI.MADANMOHAN M. KHANNUR, ADV. FOR R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 02/06/2009
PASSED IN MVC NO.104/2007 ON THE FILE OF THE PRL. CIVIL
JUDGE (SR.DN.) & AMACT, HAVERI, AWARDING A
COMPENSATION OF RS.3,32,000/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL THE REALISATION.
:2:
THIS MFA COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Present appeal has been preferred by the appellant
- insurer assailing the judgment and award dated 02.06.2009 in M.V.C. No.104/2007 passed by the Principal Civil Judge (Sr. Dn.) and AMACT, Haveri.
2. Though this appeal is listed for orders, with the consent of both the parties, same is heard finally and disposed of by this judgment.
3. The death of the deceased in the accident that occurred on 22.03.2006 is not in dispute, so also the involvement of the offending vehicle in the said accident.
4. It is the contention of the learned counsel for the appellant - insurer that at the time of the accident, the deceased was traveling in the tractor trailer unit by sitting on mudguard of the tractor by violating the Regulation No.28 of the Rules of Road Regulations. As :3: such, the appellant - insurer is not liable to pay any compensation. He further submitted that at the time of the accident, deceased was traveling in the tractor trailer not as a coolie, but as an unauthorized passenger so as to go to his native place after completion of his work. Then under such circumstances, the Tribunal ought to have held that the insurer is not liable to pay any compensation. He further submitted that as per the evidence of the respondent No.3, the owner, he has admitted that he used to pay Rs.45/- to the deceased and the deceased was irregular to his work, but R.W.3 has deposed that they used to receive Rs.60/- per day. But the Tribunal by taking the notional income at the rate of Rs.3,000/- has awarded the compensation on the higher side. He further submitted that in the complaint, the complainant has clearly stated that the deceased was traveling on the mudguard and when he came to be :4: examined as R.W.3, neither the owner nor the claimant have cross-examined him to substantiate the said fact.
5. Learned counsel for the appellant by relying upon the decision of the Hon'ble Supreme Court in the case of Oriental Insurance Company Limited vs. Premalata Shukla and others reported in III (2007) ACC 54, submitted that the liability of the insurer is not there, when the said vehicle is used for other than in the course of employment. He further relied upon the decision in the case of National Insurance Company Limited vs. Bramaranbike and others reported in 2006 ACJ 671 and submitted that the liability of the Insurance Company is there only in respect of driver as it has got only one seat for driver and Regulation 28 of Rules of the Road Regulations prohibits carrying of any person on the mudguard of the tractor, then under such circumstances, the Insurance Company is not liable for the death of such person who travels on mudguard. He further relied upon the decision of this Bench in :5: Gadhilingappa @ Gadhilinga and another vs. K.Guleppa and others reported in 2018 (3) KCCR 2383. He also relied upon another decision reported in United India Insurance Company Limited vs. Hanamanthappa and others reported in II (2007) ACC 192. The deceased was bachelor, under such circumstances, the Tribunal ought to have deducted 50% instead of 1/3rd of the income towards personal expenses. On these grounds, he prayed to allow the appeal.
6. Per contra, learned counsel appearing on behalf of the respondents vehemently argued and submitted that the evidence which has been produced before the Court below clearly goes to show that the deceased was returning to home as per the direction of the owner of the vehicle. At that time, the alleged accident has taken place and the said death has taken place in the course of the employment. In order to substantiate the said fact, he relied upon the decision in :6: the case of New India Assurance Company Limited, Bangalore vs. Annappa Laxman Karamoshi reported in Laws (Kar) 2003 9 64. He further submitted that the doctrine of notional extension of the work is applicable to the present facts of the case on hand. If the said doctrine is extended, then the deceased was an employee of the 3rd respondent and accident occurred during the course of employment. As such, the insurer is liable to pay the compensation. On these grounds, he prayed to dismiss the appeal.
7. Learned counsel appearing on behalf of the respondent No.3 - owner of the vehicle vehemently argued and submitted that the principles of doctrine of notional extension of the work is applicable to the present case on hand. Learned counsel for the respondent No.3 by relying upon the decision in the case of The Assistant Executive Engineer, N.H. No.13, Bijapur vs. Shantavva and others reported in 2001 (2) ACC 439 submitted that the wider :7: interpretation has to be made not only at the work place, but also a person is said to have been on duty of work while he is returning to his home or resident and at that time, if the accident occurs Insurance Company is liable.
8. Learned counsel for the respondent No.3 further submitted that the deduction of 1/3rd of the income by the Tribunal is not correct. He further submitted that as per the terms and conditions, an additional amount of Rs.25/- has been collected for one labourer and the said aspect is not disputed by the respondent - insurer. Under the said facts and circumstances, the insurer is liable to pay the compensation which has been awarded by the Tribunal. On these grounds, he prayed to dismiss the appeal.
9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing :8: for the parties and also the decisions quoted by the learned counsel for the parties.
10. The first and foremost contention which has been taken by the learned counsel for the appellant - insurer is that the deceased was traveling on mudguard and as such, there is violation of Regulation No.28 of Rules of the Road Regulations and the appellant - insurer is not made liable to pay the compensation.
11. This Court by relying upon the catena of decisions of the Hon'ble Apex Court and this Court in the case of Gadhilingappa @ Gadhilinga and another vs. K.Guleppa and others reported in 2018 (3) KCCR 2383 has come to the conclusion that if a death of a coolie occurs while traveling by sitting on the mudguard of the tractor, as the tractor is having only one seat for the driver and the other instruments including the seat on the mudguard are not covered. As such, the insurer is not liable to indemnify the loss. :9:
12. Keeping in view the above said facts and circumstances, I am of the considered opinion that the records which has been produced clearly goes to show, especially Ex.P-2, the complaint, that the deceased was traveling on the mudguard at that time the alleged accident. Though it is brought to the notice of this Court that in the evidence of R.W.3, he has specifically stated that the deceased was traveling in the tractor trailer, but as could be seen from Ex.P-2, the complaint, it makes it very clear that he was traveling on the mudguard.
13. It is well established principles of law that the records of the criminal Court can also be looked into for the purpose of deciding the case. In the decision quoted supra in the said decision it has been clearly stated that the contents of the complaint are also binding on the claimants. Even as could be seen from the records, though R.W.3 was examined by the insurer, who came to be treated as hostile, but nothing has been : 10 : elicited from the mouth of the said witness to substantiate their case by cross-examination. Neither the claimants nor the respondent No.3 - owner cross- examined the said witness. In that light, the said contention of the learned counsel for the respondent No.3 - owner is not sustainable in law.
14. The second contention taken up by the learned counsel for the appellant is that the income which has been taken up by the Tribunal is on the higher side and the compensation awarded is also on the higher side. But as could be seen from the records, though the evidence discloses the fact that the deceased was paid Rs.60/- per day and he was not going for work on daily basis, but the Tribunal by taking notional income at the rate of Rs.3,000/- after deducting 1/3rd towards personal expenses has awarded an amount of Rs.3,12,000/- towards loss of dependency. But it is well settled principles of law that admittedly the deceased was a bachelor and under such circumstances, the : 11 : Tribunal ought to have deducted 50% of the income towards personal expenses and after taking into consideration the age of the deceased, as the deceased was aged about 21 years, the appropriate multiplier i.e., 18 and in that light the compensation ought to have awarded. As could be seen from the records, if the entire compensation is reassessed as suggested by the learned counsel appearing for the parties, the over all assessment which has been made by the Tribunal appears to be just and proper and by reassessing, a meager amount is going to be enhanced.
15. In that light, this contention is also not accepted. But insofar as the liability is concerned, as per the judgment of this Court and the Apex Court, if a person travels by sitting on the mudguard, then under such circumstances, the Insurance Company is not liable to pay any compensation. As such, the finding given in this behalf by the Tribunal is not correct and : 12 : the same is liable to be set aside and accordingly it is set aside.
16. But however, in view of the decision of the Hon'ble Apex Court, the appellant - Insurance Company is directed to pay the compensation awarded by the Tribunal and a liberty is given to the Insurance Company to recover the same from respondent No.3 owner of the vehicle by filing an Execution Petition in this behalf.
17. Accordingly, the appeal is allowed in part. The judgment and award dated 02.06.2009 in M.V.C. No.104/2007 passed by the Principal Civil Judge (Sr. Dn.) & AMACT, Haveri is modified, as indicated above.
The amount in deposit may be transmitted. In view of the disposal of main case, I.A. No.1/2018 filed for early hearing does not survive for consideration and it stands disposed of.
Sd/-
JUDGE Rsh