Karnataka High Court
Iffco-Tokio General Insurance Co Ltd., vs Smt Vasantha on 3 March, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
M.F.A. NO.5164 OF 2013
C/W
M.F.A. CROB. NO.120/2014
IN M.F.A. NO.5164/2013:
BETWEEN:
IFFCO-TOKIO GENERAL INSURANCE CO. LTD.,
CORPORATE OFFICE
4TH & 5TH FLOOR, IFCO TOWER
POINT NO.3, SECTOR-29
GORAGAON, HAIRYANA-21
IFFCO-TOKIO GENERAL INSURANCE CO. LTD.
CUSTOMER SERVICE CENTRE
"SRI SHANTHI TOWERS"
5TH FLOOR, 3RD MAIN
NO.141, EAST OF NGEF LAYOUT
KASTURINAGAR, BANGALORE-560084
REP. BY ITS DEPUTY GENERAL MANAGER
SRI. V. JAGMOHAN RAO ... APPELLANT
(BY SRI. B.C. SEETHARAMA RAO, ADVOCATE)
AND:
1. SMT. VASANTHA
AGED ABOUT 41 YEARS
W/O B.L.CHANNEGOWDA
2. SRI. B.L. CHANNEGOWDA
AGED ABOUT 43 YEARS
S/O LAKKAPPAGOWDA
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BOTH ARE RESIDENTS OF BYADARAHALLI
BAGUR HOBLI, CHANNARAYAPATNA TALUK
HASSAN DISTRICT-573116
3. MR. MOHAMAD IMTHIYAZ
MAJOR
S/O MR. MOHAMD AYATH
RESIDING AT 8TH CROSS
TANK MOHALLA, SHIMOGA-577201
(OWNER OF TRACTOR NO.KA.14/T-9966) ... RESPONDENTS
(BY SRI. HALESHA R.G., ADVOCATE FOR R1 & R2;
SRI. B.S. PRASAD, ADVOCATE FOR R3)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 10.4.2013 PASSED
IN MVC NO.7/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE &
MACT, CHANNARAYAPATNA, AWARDING COMPENSATION OF
RS.3,90,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF
PETITION TILL FULL REALIZATION.
IN M.F.A. CROB.NO.120/2014:
BETWEEN:
1. SMT. VASANTHA
AGED ABOUT 41 YEARS
W/O B.L.CHANNEGOWDA
2. SRI. B.L. CHANNEGOWDA
AGED ABOUT 43 YEARS
S/O LAKKAPPAGOWDA
BOTH ARE RESIDENTS OF BYADARAHALLI
BAGUR HOBLI, CHANNARAYAPATNA TALUK
HASSAN DISTRICT-573116 ... CROSS
OBJECTORS
(BY SRI. HALESHA.R.G, ADVOCATE)
AND:
1. MR. MOHAMAD IMTHIYAZ
MAJOR
S/O MR. MOHAMD AYATH
RESIDING AT 8TH CROSS
TANK MOHALLA, SHIMOGA-577201
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2. IFFCO-TOKIO GENERAL INSURANCE CO. LTD.,
CORPORATE OFFICE
4TH & 5TH FLOOR, IFCO TOWER
POINT NO.3, SECTOR-29
GORAGAON, HAIRYANA-21
REP BY IFKO TOKIO GEN. INSURANCE
COMPANY, CUNNINGHAM ROAD
BANGALORE-01 ... RESPONDENTS
(BY SRI. B.S. PRASAD, ADVOCATE FOR R1;
SRI. B.C. SEETHARAMA RAO, ADVOCATE FOR R2)
THIS MFA CROB IN MFA NO. 5164/2013 FILED UNDER
ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD
DATED 10.4.2013 PASSED IN MVC NO.7/2011 ON THE FILE OF THE
SENIOR CIVIL JUDGE & MACT, CHANNARAYAPATNA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA & MFA CROB. COMING ON FOR ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The appellant -Insurance Company is before this court seeking for setting aside the Judgment of the Senior Civil Judge and MACT, Channarayapatna passed in MVC No.7/2011 dated 10.04.2013.
2. The claim petition had been filed stating that on 28.12.2009 at about 10.30 p.m. the son of claimants was travelling in a Tractor bearing No.KA-14-T-9966 from Hosudi kere to Hosudi village, when the Tractor 4 came near the house of Suresh Bhatt on account of the driver of the Tractor driving in a rash and negligent manner, the Tractor turned turtle, the son of the claimants and two others were caught between the earth and the Tractor, on account of which the son of the claimant and another person expired and others sustained grievous injuries. FIR came to be registered on the same date alleging that the deceased was travelling on the engine of the Tractor and that around 10.30 p.m. when the Tractor turned turtle, the son of the claimants had expired. The said FIR was lodged by one Dinakaran as per Ex.P2, spot panchanama was also conducted as per Ex.P4 on 29.12.2009 wherein it is recorded that the Tractor bearing No.KA-14-T-9966 along with its Trailer was found on the spot. On the basis of the above, the claim petition was filed before the MACT.
3. The claim petition was opposed by the Insurance Company on the ground that:
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i. The vehicle viz., Tractor could be used only for agricultural purposes, it could not be used to ferry people, therefore any injury caused to persons travelling on the Tractor would not be the liability of the insurer; ii. The seating capacity of the Tractor was one, however, there were four people travelling on the Tractor. Therefore, there is violation of Regulation 28 of the IMV Regulation, in view thereof, insurer is not responsible to pay any amount as compensation;
iii. It was contended that the driver of the Tractor did not have any valid and effective driving licence apart from various other general defects which were raised in the written statement.6
4. On the basis of the claim petition and the written statement filed, the MACT framed the following issues:
i. Whether the petitioners prove that on 28.12.09 at about 10.30 p.m. when their son was going in a Tractor bearing No.KA-14-T-
9966 near the house of Sureshbhatt, Hosudi village then at that time the driver of a above Tractor drove the same in a rash and negligent manner and turned turtled his vehicle into a ditch and as a result of it their son fell under the wheels of above Tractor and has succumbed to the injuries?
ii. Whether the petitioners are entitle to the compensation? If yes, what amount and from whom?
iii. What Order or award?
And answered the same in favour of the claimants and directed the appellant-Insurance Company to pay total compensation of Rs.3,90,000/- along with interest at the rate of 8% p.a. from the date of filing of the petition till realization on certain conditions.
5. The Insurance Company on appeal has not questioned the quantum and or the calculation, the 7 only ground on which the insurance Company is on appeal is that there is no liability on the part of the Insurance Company on account of deceased having travelled on the Tractor and the Tractor being incapable of being used for ferrying people, the Insurance company is not responsible for the same. Thus, it is contended that the Judgment of the MACT directing the Insurance company to make payment of compensation is not sustainable in law. In this regard, the learned counsel for Insurance Company relied on the Order of this Court in MFA 7468/2002 DD 5.07.2005 (United Insurance Limited -v- Channawwa and others) and contended that it is only the driver of the Tractor who was covered under the Insurance Policy and since there were other workmen who had travelled along with the driver on the mudguard of the Tractor, it was held that the Insurance policy was not applicable to those persons by further relying on Regulation 28 of the Road 8 Regulations of 1989 formulated under the Motor Vehicles Act.
6. Reliance is also placed on Judgment of this Court on the Judgment of this Court passed in MFA No. 779/2009 DD 12.06.2012 (The New India Assurance Co. Ltd. -v- Sri.Y.Bheemanna). It is contended that the said decision is also rendered in similas set of facts, in that the deceased was travelling on the mudguard of the Tractor engine. Therefore, it is contended that the Insurance Company is not liable.
7. Per contra, learned counsel appearing for respondent
-owner of the vehicle would contend that reference made that the deceased and other injured were travelling in the Tractor would not mean that they were travelling on the Tractor. The usage of the word 'travelling in a Tractor' is colloquial and would mean that the deceased and others were travelling in the Trailer attached to the Tractor. He further 9 submits that four persons could not have been sitting on the mudguard of the Tractor. In support of this contention reliance is placed on the spot panchanama which has been conducted, which shows that it is the Tractor-Trailer which was found turtled on the spot. On this basis, the counsel for respondent No.3 submits that the Insurance policy covering both Tractor-Trailer, it is the liability of the Insurance Company to compensate any death or injury that would be caused in an accident.
8. Heard Sri.B.C.Seetharama Rao, learned counsel for the appellant, Sri.Halesha.R.G, learned counsel for respondents No.1 and 2 and Sri.B.S.Prasad, learned counsel for respondent No.3.
9. The question that would arise for consideration of this Court is, whether the Tractor-Trailer could be used for ferrying people and if so, what would be the responsibility of the Insurance Company ? 10
10. As a corollary, the other question that would arise is whether in this case, the Insurance company would be liable to pay compensation for the death of the deceased, who were traveling in the Tractor-Trailer ?
11. The spot panchanama would categorically indicate that there was a Tractor-Trailer which was found turtled, it can be safely concluded that the Trailer was attached to the Tractor at the time of the accident. The decision relied on by the learned counsel for respondent No.3 in MFA No. 5195/2007 and other connected matters DD 31.05.2013 (The Branch Manager -v- Yellamma D/o Basayya) would have a bearing on the present matter wherein this Court has categorically held that the combination of Tractor-Trailer is nothing short of a goods carriage and therefore, once it is held that the Tractor-Trailer combination is a goods carriage vehicle by virtue of Section II-1(1) of fully worded policy and also provision of Section 147, the 11 claimants' claim would be covered for any injury that they might have suffered while travelling in the said Tractor-Trailer.
12. Admittedly, in the present case, the Tractor was being used for agricultural purposes and the persons travelling in the said Tractor suffered injuries, as also the persons who died were working for respondent No.3-owner as JCB Driver and loader. The JCB as also the Tractor was used for agricultural purposes and activities of respondent No.3. Thus, all the injured were working for respondent NO.3 and were also helping him in agricultural activities. It is undisputed that after finishing work on 28.12.2009, the driver and the said workers left the place of work to go back to the village and for this purpose made use of the Tractor-Trailer. The Tractor-Trailer was essentially, therefore, used for ferrying people who worked for respondent No.3 in furtherance of his agricultural activities and such ferrying was not for 12 any reward or hire. Hence, the Insurance policy would cover death of two persons as also the injured on account of an accident relating to a vehicle covered by the appellant.
13. The contention raised by the appellant is that the deceased and injured were travelling on the mudguard of the Tractor-Trailer which is impermissible to do so and the injury and death having occurred while they were so sitting would not be covered by the Insurance policy as held by this Court in MFA No.779/2009 (referred to supra). This contention is based on the contents of the FIR where there is a statement made that the deceased and injured were sitting on the engine. Apart from the said statement, there is no other statement or material which is on record which would establish this contention of the appellant. In fact, the appellant has not even taken up this contention in its written statement nor is any issue framed in this 13 regard. More so, when the Insurance Company is seeking to claim exclusion of liability on account of breach committed by the insured and or the driver. If an exclusion is sought to be availed of by the Insurance company, the burden and onus of proof would be on the said Insurance company to establish such exclusion and or the breach alleged to have been committed by the insured. Short of this, the Insurance Company would not be eligible to seek for exclusion.
14. As aforestated the written statement did not contain any statement as regards in what manner the Insurance company was excluded of its liability. The cross-examination of PW-1 and PW-2 by the Insurance Company also does not take the case of the Insurance Company forward nor does the evidence led by the Insurance Company in any manner establish that the liability of the Insurance Company is excluded on account of the deceased and 14 the injured were sitting on the mudguard of the Tractor. In fact, it is not even established that the deceased and the injured were sitting on the mudguard of the Tractor.
15. What is only established is that the deceased and injured were travelling in the Tractor. As aforestated colloquially travelling in the Tractor would also include travelling in Tractor and Trailer, it being established that a Trailer was connected to the Tractor and it not being possible for four people to sit on the mudguard of the Tractor.
16. In view of the above reasoning, in not being established by the Insurance company that they are excluded of the liability, I find no infirmity in the Judgment rendered by the Senior Civil Judge and MACT, Channarayapatna passed in MVC No.7/2011 dated 10.04.2013.
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17. Consequently, the appeal is dismissed and the aforesaid Judgment of the MACT is confirmed.
18. Learned counsel for the cross-objector in MFA CROB No.120/2014 has filed a memo seeking to withdraw the said cross objections. Memo is taken on record. MFA CROB is dismissed as not pressed.
Sd/-
JUDGE ln