Karnataka High Court
Shivaraj vs Kalavati And Ors on 7 November, 2023
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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NC: 2023:KHC-K:8473
MFA No. 202064 of 2017
C/W MFA No. 202186 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
MISCL. FIRST APPEAL NO. 202064 OF 2017 (MV-D)
C/W
MISCL. FIRST APPEAL NO. 202186 OF 2017
IN MFA NO. 202064/2017
BETWEEN:
SHIVARAJ
S/O GURUBASAPPA SOSHETTE,
AGE: 38 YEARS, OCC: BUSINESS & OWNER,
OF LORRY NO.KA-38/6348,
R/O H.NO.9-10228, ALLAMPRABHU NAGAR,
KUMBARWADA,
Digitally signed BIDAR-584101
by LUCYGRACE
Location: HIGH
COURT OF ...APPELLANT
KARNATAKA
(BY SRI. BABU H. METAGUDDA, ADVOCATE)
AND:
1. KALAVATI
W/O LATE RAMESH JADHAV,
AGE: 25 YEARS, OCC: HOUSEHOLD,
2. NIKHITA
D/O LATE RAMESH JADHAV,
AGE: 7 YEARS,
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NC: 2023:KHC-K:8473
MFA No. 202064 of 2017
C/W MFA No. 202186 of 2017
3. AJAY
S/O LATE RAMESH JADHAV,
AGE: 6 YEARS,
APPELLANT NO.2 & 3 ARE M/U/G,
OF THEIR MOTHER APPELLANT NO.-1
4. SAKUBAI
W/O LATE REKHU JADHAV,
AGE: 62 YEARS, OCC: HOUSEHOLD,
ALL ARE R/O KANTU NAYAK THANDA,
U/V GHAT BORAL,
TQ. HUMNABAD, DIST. BIDAR,
NOW RESIDING AT RAJOLA THANDA,
TQ. BASAVAKALYAN,
DIST. BIDAR- 584101
5. THE MANAGER
SRIRAM GENERAL INSURANCE CO. LTD.,
E-8, RIICO INDUSTRIAL AREA, SITAPURA,
JAIPUR, RAJASTHAN-302022.
...RESPONDENTS
(BY SRI. SANJEEVKUMAR C. PATIL, ADVOCATE FOR R1 TO R4;
SRI SUBHASH MALLAPUR, ADVOCATE FOR R5)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO, ALLOW THIS APPEAL AND SET
ASIDE THE JUDGMENT AND AWARD DATED-31.08.2017
PASSED IN M.V.C.NO.231/2015 BY THE II ADDITIONAL
DISTRICT AND SESSIONS COURT AND ADDITIONAL M.A.C.T.
AT-BIDAR SITTING AT-BASAVAKALYAN AND DIRECT THE
RESPONDENT NO/5/INSURANCE COMPANY TO PAY THE
COMPENSATION TO THE CLAIMANT.
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NC: 2023:KHC-K:8473
MFA No. 202064 of 2017
C/W MFA No. 202186 of 2017
IN MFA NO. 202186/2017
BETWEEN:
1. KALAVATHI
W/O LATE RAMESH JADHAV,
AGED ABOUT 25 YEARS,
OCC: HOUSEHOLD,
2. NIKHITA
D/O LATE RAMESH JADHAV,
AGED ABOUT 7 YEARS,
3. AJAY
S/O LATE RAMESH JADHAV,
AGED ABOUT 6 YEARS,
4. SAKUBAI
W/O LATE REKHU JADHAV,
AGED ABOUT 62 YEARS,
OCC: HOUSEHOLD,
APPELLANT NO.2 AND 3 ARE MINOR,
R/BY THEIR NATURAL
MOTHER APPELLANT NO.1,
ALL ARE R/O KANTU NAYAK THNDA,
U/V GHAT BORAL,
TQ. HUMNABAD,
DIST. BIDAR,
NOW RESIDING AT
RAJOLA THANDA,
TQ. BASAVAKALYAN,
DIST. BIDAR.
...APPELLANTS
(BY SRI. SANJEEVKUMAR C. PATIL, ADVOCATE)
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NC: 2023:KHC-K:8473
MFA No. 202064 of 2017
C/W MFA No. 202186 of 2017
AND:
1. SHIVARAJ
S/O GURUBASAPPA SOSHETTE,
AGE: 38 YEARS,
OCC: BUSINESS AND OWNER
OF LORRY BEARING NO.KA-38/6348,
R/O H.NO.9-10228,
ALLAMPRABHU NAGAR,
KUMBARWADA,
BIDAR-584101.
2. THE MANAGER
SRIRAM GENERAL INSURANCE COMPANY LTD.
E-8, RIICO INDUSTRIAL AREA,
SITAPUR, JAIPUR,
RAJASTHAN-302022.
...RESPONDENTS
(BY SRI. BABU H. METAGUDDA, ADVOCATE FOR R1;
SRI. SUBHASH MALLAPUR, ADVOCATE FOR R2.)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO, MODIFY THE JUDGMENT AND
AWARD DATED 31.08.2017 PASSED BY THE IIND ADDITIONAL
DISTRICT AND SESSIONS COURT AND ADDITIONAL MACT,
BIDAR, SITTING AT BASAVAKALYAN, IN MVC NO.231/2015, BY
FIXING THE LIABILITY TO PAY COMPENSATION ON
RESPONDENT NO.2 INSURANCE COMPANY AND ENHANCE THE
COMPENSATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC-K:8473
MFA No. 202064 of 2017
C/W MFA No. 202186 of 2017
JUDGMENT
Appeal in MFA No.202064/2017 is by the owner of the offending vehicle is before this Court disputing the liability of payment of compensation foisted on him by the II Additional District and Sessions Court and Addl. MACT, Bidar, Sitting at Basavakalyan, by its order dated 31.08.2017 passed in MVC No.231/2015. Appeal in MFA No.202186/2017 is by the claimants seeking enhancement of compensation awarded by the MACT by the aforesaid order.
2. Facts of the case which are leading upto filing of the present appeals briefly stated are that;
(a) One deceased Ramesh Jadhav, his wife kalavathi (claimant No.1) and his brother-in-law Shivaji and other laborers had been to Yadgir Sugar Factory for doing labour work about 5 months prior to the date of incident and after completion of their work of crushing sugar cane in the said sugar factory on 29.04.2014, and they were returning to their village along with their household goods -6- NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 and food grains in a lorry bearing registration No.KA- 38/6348 belonging to the appellant herein. That near Kantu Nayak Tanda, Shivagi and wife Kalavati got-down from the lorry but the deceased Ramesh Jadhav did not get-down since he was asked by the contractor of the said lorry by name Prabhu Pawar to go along with the lorry in order to leave other laborers at Zaral Tanda. At about 1 a.m., in the night the other labourer got down from the said lorry along with their respective household articles and when deceased Ramesh Jadhav was about to get- down from the said lorry, driver of the lorry abruptly drove the same in a rash and negligent manner. Due to which Ramesh Jadhav fell down and sustained severe head injuries and died on the spot. That the body was shifted to P.H.C, Ghatboral in a hired vehicle and after the post- mortem body was handed over to the claimants. That a case in Crime No.64/2014 was filed against the driver of the lorry. Thereupon the claim petition under Section 166 of the Motor Vehicles Act, 1988 was filed by the claimants claiming to be the wife and children and mother of the -7- NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 deceased Ramesh Jadhav, contending that he was aged about 25 years working as a labour in the lorry bearing registration No.KA-38/6348 for loading and unloading sugarcane. That he was earning Rs.500/- per day as a labourer and by cutting sugarcane from the nearest fields and was maintaining the family. That untimely death of Ramesh Jadhav due to the accident has caused financial and emotional distress to the claimants. Hence, sought for compensation of Rs.21,00,000/-.
3. In response to the notice issued by the MACT, respondent No.1 (who is appellant in MFA No.202064/2017) did not file any written statement, while respondent No.2-Insurance Company filed its statement of objection denying the fact that the lorry bearing registration No.KA-38-F-6348 was insured with the respondent No.2-Insurance company. The involvement of the said lorry in alleged accident resulting in death of Ramesh Jadhav is also denied. It is also contended that since driver of the lorry did not have effective driving -8- NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 license, respondent No.2- Insurance Company was not liable to pay compensation. Hence, sought for dismissal of the claim petition.
4. Based on the aforesaid pleading the Tribunal framed the issues and recorded evidence. Claimant No.1- Kalavathi examined herself as PW1 and produced 11 documents marked as Ex.P1 to P11. One Chandrakanth has examined as RW.1 and a copy of the insurance policy has been marked.
5. The Tribunal on appreciating the evidence held that claimants are entitled for total compensation of Rs.13,69,000/- with interest at the rate of 9% p.a. As regards the liability is concerned, the tribunal has absolved the insurance company of its liability to pay the compensation and has directed the respondent No.1/appellant to pay the entire compensation. Being aggrieved by the aforesaid order, respondent No.1/ owner of the vehicle has filed the above file in MFA No.202064/2017 disputing the liability and the claimants -9- NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 have filed the MFA No.202186/2017 seeking enhancement of compensation.
6. Sri. Babu H.Metagalli, learned counsel for the respondent No.1/ owner of the vehicle who is appellant in MFA No.202064/2017 reiterating the grounds urged in the memorandum of appeal submits;
(a) That tribunal erred in fixing the liability on the appellant/owner of the vehicle which is contrary to the facts and materials made available on record. He vehemently argues that deceased was traveling as a labourer for the purpose of loading and unloading sugarcane and that being the factual aspect of the matter, he submits that tribunal grossly erred in holding that the deceased was traveling as a gratuitous passenger and thereby erred in absolving respondent No.2-Insurance company of the liability to pay the compensation.
(b) He strenuously referred to Section 147 of the Motor Vehicle Act, 1988 and Indian Motor Tariff Regulations No.39 to contend that a person employed in
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 connection with the operation and or maintaining and or loading and or unloading of motor vehicle is also covered under the policy issued by the respondent-Insurance company.
(c) He further referring to proviso to Rule 100 of the Karnataka Motor Vehicles Rules, 1989 submits that owner or the hirer or the bonafide employee of the owner or the hirer of the vehicle is entitled to be carried in the goods vehicle and since there is a permissibility of such person being carried in the goods vehicle, he submits that a statutory liability provided under Section 147 of the MV Act is applicable. As such, he submits that tribunal was in error in exonerating the respondent No.2-Insurance company from payment of compensation.
(d) He refers to a judgment and order passed by the Coordinate Bench of this Court dated 08.01.2015 in MFA No.31645/2009 (WC) clubbed with MFA No.31644, 31646 and 31643/2009 (WC) to buttress his submission that
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 even a bonafide employee traveling on the vehicle which is insured is covered under the Insurance Policy.
7. Thus, on these grounds learned counsel submits that impugned order passed by the Tribunal exonerating the insurance company from liability of paying compensation is erroneous and same requires to be reversed.
8. Sri. Sanjeev Patil, learned counsel for the appellants/claimants in MFA No.202186/2017 which is filed seeking enhancement of compensation submits that the Tribunal has taken income of the deceased at Rs.7,000/- p.m. and even as per the chart prepared by the Karnataka State Legal Services Authority and in view of accident being of the year 2014, Rs.7,500/- has to be assessed as notional income. He submits that Tribunal has not awarded any amount under the heads of future prospects. Hence, seeks for allowing of the appeal by enhancing compensation.
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017
9. Sri. Subhash Mallapur, learned counsel for the respondent-Insurance company submits that the order passed by the tribunal absolving the respondent-Insurance company from the payment of compensation is just and reasonable and that the same do not warrants any interference. He submits that Tribunal after taking into consideration all the material aspect of the matter and the pleading of the parties has arrived at a just conclusion and no grounds are made out by the appellant/owner of the vehicle warranting interference. As regards the enhancement of compensation he submits that no documentary evidence is produced with regard to income of the deceased and the tribunal has assessed notional income appropriately, warranting no interference. Hence, seeks of for dismissal of the appeal.
10. Heard the learned counsel for the parties and perused the records.
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017
11. The points that arise for consideration are:
(1) Whether the Tribunal is justified in exonerating the Insurance Company from payment of compensation on the premise of its finding that the deceased was a gratuitous passenger and, as such, not covered under the terms of the policy?
(2) Whether the claimants in MFA
No.202186/2017 are entitled for
enhancement?
12. At this juncture it is necessary to refer to the pleadings in the claim petition filed by the claimants before the Tribunal, wherein, at Column No.10 of the claim petition it is stated as under:
"The deceased Ramesh and others had been to Yadgir Sugar Factory prior to the accident for doing labour work on lorry No.KA-38/6348 of loading and unloading of sugarcane. After completion of their work at said Sugar Factory, the deceased and others had came to their respective villages on 29/04/2014 through lorry No. KA-38/6348. The deceased was proceeding along with two bags Jawar, two bags wheat, two bag rice, one bag Toor and other household goods. After leaving the labours to their respective villages, the deceased Ramesh and contractor Prabhu S/o Tiku Pavar, r/o Zaral Thanda had been to Zaral Thanda for leaving the labours. On the said date at about 1.00 a.m., after getting down the labours from said lorry, the deceased Ramesh also was about to
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 get down from the said lorry, at that time the driver of the said lorry suddenly drove the said lorry in a rash and negligent manner endanger to human life, due to which the deceased Ramesh suddenly fell down from the lorry and due to which he sustained severe head injuries and died at the spot."
13. It is also relevant at this juncture to refer the contents of the complaint and the charge-sheet filed by the police at Exs.P2 and P8, respectively, which are as under:
"«µÀAiÀÄ:- £À£Àß vÀªÀÄä£ÁzÀ gÀªÉÄõÀ vÀ/A gÉÃPÀÄ eÁzsª À À EvÀ£ÀÄ ¯Áj ªÉÄðAzÀ ©zÀÄÝ ªÀÄÈvÀ¥l À Ö §UÉÎ zÀÄgÀÆ ¤qÀÄwgÀĪÀ §UÉÎ .
ªÉÄð£À «µÀAiÀÄPÉÌ ¸ÀA¨s¢À ¹ü zÀAvÉ £Á£ÀÄ ²ªÁf vÀ/A gÉÃPÀÄ eÁzsª À À ªÀAiÀÄ 35 ªÀµÀð PÁ PÀAlÄ £ÁAiÀÄPÀ vÁAqÀ vÁ|| ºÀĪÀÄ£Á¨ÁzÀ zÀª¤ À zÀÄÝ ¸ÀĪÀiÁgÀÄ 5 wAUÀ¼ÀÄ »AzÉ PÀ§Äâ PÀrAiÀÄĪÀ PÉ®¸ÀPÁÌV £ÀªÀÄä vÁAqÀ¢AzÀ £Á£ÀÄ £À£Àß vÀªÀÄä£ÁzÀ gÀªÉÄõÀ CªÀ£À ºÉAqÀwAiÀiÁzÀ PÀ¯ÁªÀw ºÁUÀÆ ¥À¨ æ sÀÄ vÀ/A nPÀÄ ¥ÀªÁgÀ ¸Á: gÀhÄgÁ¼À vÁAqÀ ±ÀAPÀgÀ gÁoÉÆqÀ PÁ: CAvÀgÀ ¨sÁgÀw vÁAqÁ; ªÁªÀÄ£À gÁoÉÆqÀ ¸Á: CAvÀgÀ ¨sÁgÀw vÁAqÁ ºÁUÀÆ EvÀgg À ÀÄ PÀÆrPÉÆAqÀÄ AiÀiÁzÀVgÀ ¸ÀPg ÀÌ É PÁgÀSÁ£ÉUÉ PÉ®¸À PÀÄjvÀÄ ºÉÆVgÀÄvɪ Û É ¸ÀĪÀÄgÀÄ JgÀqÀÄ ¢ªÀ¸U À ¼ À À »AzÉ PÀ§Äâ PÉ®¸À ªÀÄÄV¢Ýzj À AzÀ PÁgÀSÁ£É PÀÆqÁ §AzÀ DVzÀjAzÀ PÀÆ° ªÀiÁqÀĪÀ d£ÀjUÉ CªÀgÀ CªÀgÀ GgÀÄUÀ½UÉ ©qÀĪÀ ¸À®ÄªÁV AiÀiÁzÀVgÀ¢AzÀ ¯Áj £ÀA.KA-38/6348 £ÉÃzÀg° À è ¤£Éß ¢| 28/04/2014 gÀAzÀÄ gÁwæ 8 UÀAmÉ ¸ÀĪÀiÁjUÉ MlÄÖ gÁwæ gÁeÉƼÀ vÁAqÁzÀ°è PÉ®ªÀÅ PÀÆ° d£Àg£ À ÀÄß ©lÄÖ £ÀAvÀgÀ £ÀªÀÄä PÀAlÄ £ÁAiÀÄPÀ vÁAqÀPÉÌ §AzÀ £ÀAvÀgÀ £Á£ÀÄ ºÁUÀÆ £À£Àß vÀªÀÄä£À ºÉAqÀw PÀ¯ÁªÀw E§âgÀÄ ¯ÁjAiÀÄ°èzÀ PɼU À É E½zÀ £ÀAvÀgÀ £À£Àß vÀªÀÄä¤UÉ PÀ§Äâ ªÀÄÄgÀzª À À DzÀ ¥À¨ æ sÀÄ vÀ/A nÃPÀÄ ¥ÀªÁgÀ EvÀ£ÀÄ G½zÀ J¯Áè PÀÄ° d£ÀjUÉ gÀhÄgÁ¼À vÁAqÁ CAvÀgÀ ¨sÁgÀw vÀAqÁ, ªÀÄvÀÄÛ «ÄgÀP® À vÁAqÀz° À è PÀÆ° d£ÀjUÉ ©lÄÖ §gÉÆuÁ CAvÁ CªÀ£À eÉÆvÉAiÀÄ°è ¯ÁjAiÀÄ°è PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃVzÀÄÝ EAzÀÄ ¢| 29/04/2014.gÀAzÀÄ gÁwæ 2 UÀAmÉ ¸ÀĪÀiÁjUÉ ¥À¨ æ sÀÄ EvÀ£À ÀÄß £À£ÀßUÉ ¥sÉÆãÀ ªÀiÁr £À£Àß vÀªÀÄä£ÁzÀ gÀªÉÄõÀ EvÀ£ÀÄ gÀhÄgÁ¼À vÁAqÁzÀ°è gÁwæ 1
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 A.M UÀAmÉUÉ PÀÆ° d£ÀjUÉ PɼU À É E½¸ÀÄwgÀĪÁUÀ CªÀ£ÀÄ PÀÆqÁ ¯Áj¬ÄAzÀ E½AiÀÄ®Ä ºÉÆÃV ZÁ®PÀ ¯Áj ªÀÄÄAzÉ vÉUz É ÀÄPÉÆArzÀj Ý AzÀ PɼUÀ É ©¢Ýzj À AzÀ vÀ¯U É É ¨sÁj gÀPÀÛ WÁAiÀĪÁV ªÀÄÄV¤AzÀ gÀPÀÛ ¸ÉÆjzÀjAzÀ ¸À¼ Ü z À ¯À Éè ªÀÄÈvÀ¥nÀ gÖ ÀÄvÁÛ£.É CAvÀ w½¸ÀPÀÆqÀ¯É £Á£ÀÄ ºÁUÀÆ CªÀ£À ºÉAqÀw PÀ¯ÁªÀw ºÁUÀÆ EvÀgg À ÀÄ PÀÆÄrPÉÆAqÀÄ £ÀªÀÄä vÀAqÁ¢AzÀ gÀhÄgÁ¼À vÁAqÀPÉÌ ºÉÆV WÀl£É ¸À¼ Ü zÀ °À è EzÀÝ £ÀªÀÄä vÀªÀÄä£À ªÀÄÈvÀ zÉúÀ £ÉÆr UÀÄgÀÄw¹zÀÄÝ CªÀ£ÀÄ ¯Áj ªÉÄðAzÀ ©zÀÄÝ vÀ¯ÉUÉ ¨sÁj gÀPÀÛ UÁAiÀĪÁV ªÀÄÄV¤AzÀ gÀPÀÛ ¸ÉÆjzÀjAzÀÝ ¸À¼ Ü zÀ °À è ªÀÄÈvÀ¥n À z Ö ÀÄ PÀAqÀÄ §gÀÄvÀz Û .É E WÀl£É £ÉÆr ¯Áj ZÁ®PÀ£ÀÄ vÀ£Àß ¯Áj ¸À¼ Ü zÀ ¯À Éè ©lÄÖ Nr ºÉÆVgÀÄvÁÛ£.É ªÀÄÄA¢£À PÁ£ÀÆ£ÀÄ PÀª æ ÀÄ PÉÊ PÉƼÀ® î Ä «£ÀAw."
"¥ÀP æ gÀ t À zÀ ¸ÁgÀA±Àª£ É AÉ zÀg,É ¥ÀP æ gÀ t À ªÀg¢ À AiÀiÁUÀĪÀQAÌ vÀ ¸ÀĪÀiÁgÀÄ 5 wAUÀ¼À »AzÉ F zÉÆõÁgÉÆ¥ÀuÉ ¥Àvz Àæ À PÁ®A £ÀA.6 gÀ°è £ÀªÀÄÆzÀÄ ªÀiÁrzÀ ¸ÁQë £ÀA.2 EªÀgÀÄ ¸ÁQë £ÀA.3 jAzÀ 6 ªÀgU É É ºÁUÀÄ gÀªÉÄñÀ vÀAzÉ gÉÃPÀÄ eÁzsª À À ªÀAiÀĸÀÄì 25 ªÀµÀð G|| PÀÆ° PÉ®¸À ¸Á|| PÀAlÄ£ÁAiÀÄPÀ xÁAqÁ gÀªg À ÀÄ F zÉÆõÁgÉÆ¥ÀuÉ ¥Àvz Àæ À PÁ®A £ÀA. 4 gÀ°è £ÀªÀÄÆzÀÄ ªÀiÁrzÀ DgÉÆævÀ£À ¯Áj £ÀA PÉJ-38/6348 £ÉÃzÀg° À è AiÀiÁzÀVgÀ f¯ÉAè iÀÄ°ègÀĪÀ ¸ÀPg ÀÌ É PÁgÀSÁ£ÉUÉ ºÉÆÃV ¸ÀĪÀiÁgÀÄ 5 wAUÀ¼ÀÄ PÀ§Äâ PÀrAiÀÄĪÀ PÀÆ° PÉ®¸À ªÀiÁr ¸ÀPg ÀÌ É PÁgÀSÁ£É §AzÀ DzÀ £ÀAvÀgÀ ªÉÄîÌAqÀ J¯Áè ¸ÁQë d£ÀgÀÄ ªÀÄgÀ½ vÀªÀÄä vÀªÀÄä vÁAqÁUÀ½UÉ ºÉÆÃUÀĪÀ ¸À®ÄªÁV ¸Àzj À DgÉÆævÀ£À ¯Áj £ÀA. PÉJ.38/6348 £ÉÃzÀg° À è ¢£ÁAPÀ 28/4/2014 gÀAzÀÄ gÁwæ CAzÁdÄ 8 UÀAmÉUÉ AiÀiÁzÀVgÀ ¢AzÀ ©lÄÖ CªÀgª À g À À HgÀÄUÀ½UÉ ©qÀÄvÁÛ §AzÀÄ gÀhÄgÁ¼À vÁAqÁzÀ ºÀwg Û À ¸ÁQë £ÀA.3 EªÀjUÉ ¯Áj¬ÄAzÀ E½¹zÁUÀ CªÀgÀ ®UÉÃd E½¹zÁUÀ ¢£ÁAPÀ 29/4/2014 gÀAzÀÄ gÁwæ CAzÁdÄ 1.00 UÀAmÉUÉ gÀªÉÄñÀ vÀAzÉ gÉÃPÀÄ eÁzsª À À ªÀAiÀĸÀÄì 25 ªÀµÀð eÁ|| ®A¨ÁqÁ ¸Á|| PÀAlÄ£ÁAiÀÄPÀ vÁAqÀ WÁl¨ÉÆÃgÀ¼À FvÀ£ÀÄ PɼU À É E½AiÀÄĪÁUÀ ¸Àzj À ¯ÁjAiÀÄ ZÁ®PÀ£ÀÄ vÀ£Àß ¯Áj MªÉÄäÃ¯É ¤¸Á̼f À vÀ£¢ À AzÀ ªÀÄÄAzÉ vÉUz É ÀÄPÉÆAqÀÄ ºÉÆÃzÁUÀ gÀªÉÄñÀ FvÀ£ÀÄ ¯Áj¬ÄAzÀ PɼU À É ©zÁÝUÀ CªÀ£À vÀ¯U É É ¨sÁj gÀPU ÀÛ ÁAiÀĪÁV ¸À¼ Ü z À ° À Aè iÉÄà ªÀÄÈvÀ¥n À g Ö ÀÄvÁÛ£É ºÁUÀÄ ¯ÁjAiÀÄ ZÁ®PÀ£ÀÄ WÀl£É ¸ÀA¨s« À ¹zÀ vÀPt Àë vÀ£Àß ¯Áj ©lÄÖ Nr ºÉÆÃVgÀÄvÁÛ£.É ¸Àzj À DgÉÆævÀ£ÀÄ PÁAiÉÄÝ PÀ®A 279, 304(J) L¦¹ eÉÆvÉ 187 LJA« JPÀÖ CrAiÀÄ°è C¥ÀgÁzsª À ¸ É V À ²PÉU ë É CºÀð£ÁVzÀÄÝ PÉù£À vÀ¤SɬÄAzÀ zÀÈqs¥ À n À g Ö ÀÄvÀz Û .É PÁgÀt ¸Àzj À DgÉÆævÀ£À «gÀÄzÀÞ F zÉÆõÁgÉÆ¥ÀuÉ ¥ÀvÀæ vÀAiÀiÁj¹ ¸À°¸ è ¯À ÁVzÉ."
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017
14. A perusal of the contents of the claim petition as well as the complaint and charge-sheet reveals that deceased along with the other members had gone to a sugar factory at Yadgiri about 5 months prior to the date of incident i.e., 28.04.2014 to work in the sugar factory and since the work at sugar factory was completed and factory was closed 2 days prior to the incident, they had decided to return to their village and thus they were traveling in the said lorry.
15. From the statement in the complaint, it is clear that the deceased along with other members of his Thanda had been to Yadigiri sugar factory 5 months prior to the date of incident to work as Coolies in the said factory and their work at the factory was completed two days prior to the date of accident. From this undisputed averment in the complaint and the charge-sheet it is clear that deceased was not working as an employee/labour under respondent No.1. As rightly taken note of this by the Tribunal, though an attempt is made in the claim petition
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 to suggest that the deceased along with other members was carrying food grains in the offending lorry, in the mahazar drawn on the spot of accident there is no reference with regard to existence of such food grains in the lorry or with regard to handing over of food grains to any persons. It may also be necessary to refer at this juncture that even as per the claim petition the family members of the deceased had got down in their village and upon instructions of the contractor of the deceased, namely Sri Prabhu Pawar deceased had proceeded further to Zaral Thanda to ensure the other laborers had got down in their village. The Tribunal taking note of these inconsistent stands taken in the claim application and reading the same with the averments made in the complaint at Para No.12 of the impugned judgment, has held as under:
"12. Respondent No.1, owner of the lorry, as pointed out earlier has not come forward to file his pleadings as to in what capacity deceased Ramesh was traveling in the lorry. No material evidence is placed on record to show that either Respondent No.1 being owner of the lorry himself had taken the service of deceased and others as
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 a contract labour and had taken these persons in his lorry to Yadgir Sugarcane factory and that all these workers were working in the said factory under the direct employment of Respondent No.1 as contractor. At the same time the petitioners are also not definite as to whether petitioner No.1 and her husband deceased Ramesh , her brother-in-law and others were working for and on behalf of Respondent No.1 owner of the lorry or they were directly working under sugar factory where they had gone. Just because they have taken this lorry to transport for their conveyance that in itself do not cloth them as labours engaged by Respondent No.1. Another contention taken by petitioners is that deceased Ramesh along with his wife and others were returning after completing the crushing work of sugar cane in Yadgir Sugar Factory along with their food grains i.e. 2 bags of jawar, 2 bags of wheat, 2 bags of rice and one bag toor and other household goods in the above said lorry, so as to contend that as if they had hired this lorry for the transport of their goods and that they were incidentally traveling along with the goods. Even for that also absolutely there is no evidence. The Spot Panchanama drawn discloses that the lorry was very much there on the spot, but nothing is said about any goods of the nature of food grains were loaded in the said lorry and same have been either seized or handed over to the inmates of the vehicle. Therefore as rightly canvassed by the learned counsel for the Respondent No.2 in the absence of any such material to show that deceased and petitioner No.1 for that matter along with her brother-in-law were working as a contract labour under Respondent No.1 or that the sugar factory itself had hired the lorry and the labours, it has to be concluded that the status of deceased in the lorry was gratuitous passenger. Therefore notwithstanding the fact that the vehicle is insured with Respondent No.2, it is not liable to answer the claim of the
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 petitioner for the simple reason that deceased was a gratuitous passenger and as such his risk is not covered. Hence, it is Respondent No.1 alone who is liable to answer the claim of the petitioners."
16. In the background of the aforesaid factual aspects of the matter, reference made by the learned counsel for the appellant/owner of the vehicle to Proviso 100 of the Karnataka Motor Vehicle Act, 1989 and IMT 39 of the Indian Motor Tariff guidelines are of no assistance. The proviso 100 to the Motor Vehicle Rules, 1989 reads as under:
"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 or the hirer of the vehicle carried free of charge or a police officer in uniform travelling on duty may be carried in a goods vehicle, 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
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017
(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 routes 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 condition 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 celebrations in connection with the Republic Day or Independence Day or any other public congregation, the Regional Transport Officer;
(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;
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017
(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 of urgent nature to be specified in the order, the State Government may, by general or special order, permit goods vehicle to be used for the carriage of persons for the purposes aforesaid, and subject to such conditions, as may be specified in the order. (4) No persons 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."
17. As rightly taken note by the Tribunal the appellant/owner of the vehicle neither filed any statement
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 of objections nor has entered into the witness box nor examined any witness on his behalf.
18. It is not brought on record that the deceased was traveling in the offending lorry as bonafide employee as contemplated under Rule 100 of MV Rules referred to hereinabove. IMT 39 of Indian Motor Tariff reads as under:
"IMT. 39. Legal Liability to persons employed in connection with the operation and/or maintaining and/or Loading and/or Unloading of Motor Vehicles. (For goods vehicle) In consideration of the payment of an additional premium of *....... it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the insurer shall indemnify the insured against his legal liability under the Workmen's Compensation Act, 1923 and subsequent amendments of that Act prior to the date of this Endorsement, the Fatal Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver (or cleaner or conductor or person employed in loading/or unloading but in any case, not exceeding seven in number including driver and cleaner) whilst engaged in the service of the insured in such occupation in connection with the.... and not exceeding seven in number and will in addition be responsible
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 for all costs and expenses incurred with its written consent.
Provided always that :
(1) this Endorsement does not indemnify the insured in respect of any liability in cases where the insured holds or subsequently effects with any insurer or Group of Underwriters a Policy of Insurance in respect of liability as herein defined for his general employees.
(2) the insured shall take reasonable precautions to prevent accidents and shall comply with all statutory obligations.
(3) the insured shall keep a record of the name of each driver cleaner conductor or person employed in loading and/or unloading and the amount of wages salary and other earnings paid to such employees and shall at times allow the insurer to inspect such record.
(4) in the event of the Policy being cancelled at the request of the insured no refund of the premium paid in respect of this Endorsement will be allowed.
The premium to be calculated at the rate of Rs.25/- per driver and/or cleaner or conductor and/or person employed in loading and/or unloading but not exceeding the number permitted by the Motor Vehicles Act, 1988 including driver and cleaner.
Subject otherwise to the terms exceptions conditions and limitations of this Policy except so far as necessary to meet the requirements of the Motor Vehicles Act, 1988."
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017
19. Thus, in the absence of any pleadings and material evidence to establish the fact that the deceased was indeed working either as a Coolie or Loader or Unloader or was traveling in the vehicle as a owner of the goods, there is no other alternate but to treat him as a gratuitous passenger of the vehicle as done by the Tribunal. Since the Tribunal has arrived at this conclusion based on the pleadings and evidence, which in the considered view of this Court is just and proper, no fault, infirmity or irregularity can be found with the said conclusion. As a consequence of the said findings, exonerating the Insurance Company from payment of liability also cannot be found fault with.
20. The reference made by the learned counsel for the appellant/owner of the vehicle to the judgment of this Court in MFA No.31645/2009 and connected matters dated 08.01.2015 is also of no avail inasmuch as facts of the said case are completely different and vary from the facts of the present case. Indeed, the facts involved in the said
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 judgment are that the claimant/respondent No.1 in the said cases was employed to load and unload the sugarcane in the lorry who had met with accident. Under the said undisputed fact of the matter, the Co-Ordinate Bench of this Court in Para No.6 of the said judgment has held that he was the bonafide employee in the vehicle and Insurance Company shall thus liable to pay the compensation though there was no contract of the same. In the instant case the very element of the status of the deceased being labourer not having pleaded or established, the Insurance Company cannot be held liable to pay the compensation.
21. For the aforesaid reasons the appeal filed by the appellant/owner of the vehicle requires to be dismissed confirming the award passed by the Tribunal to the said extent.
22. As regards the appeal filed by the claimants seeking enhancement of the compensation, the Tribunal
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 has assessed monthly income of the deceased at Rs.7,000/-. In the absence of any documentary evidence, this Court takes into consideration chart prepared by Karnataka State Legal Services Authority, in terms of which notional income of victim of road traffic accident of the year 2014 is determined of Rs.7500/- and in the instance case accident being of the year 2014 the notional income of Rs.7500/- is taken. The age of the deceased being 25 years at the time of accident, the multiplier of '18' is made applicable. Further, 40% of Rs.7,500/- is added to income towards future prospects, which comes to Rs.10,500/- per month and on deducting 1/4th of Rs.10,000/- i.e., 2,625/- towards living and personal expenses of deceased, it comes to Rs.7,875/-/-.
23. Calculated as above, the loss of dependency would be:
7,875/- x 12 x 18 = Rs.17,01,000/-
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017
24. In terms of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram and others - (2018) 18 SCC 130, the 1st claimant being wife and 2nd and 3rd claimants being children and 4th claimant being mother of the deceased are entitled for Rs.40,000/- each towards loss of consortium. In total Rs.1,60,000/-. That apart, the appellants are also entitled for Rs.15,000/- each towards funeral expenses and loss of estate. The appellants are also entitled for 10% extra on the conventional heads.
25. Calculated as above the claimants are entitled for total compensation of Rs.19,10,000/- instead of Rs.13,69,000 awarded by the Tribunal.
26. Learned counsel for appellants-claimants relying on the judgment of Apex Court in the case of Shivaraj Versus Rajendra and Anr., passed in Civil Appeal Nos.8278-8279/2018 dated 05.09.2018 submits that even in respect of claim by gratuitous passenger the
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 Insurance Company has been directed to pay the compensation in the first instance and to recover the same.
27. In response Sri Subhash Mallapur, learned counsel for respondent-Insurance Company relies upon the judgment of the Apex Court in the case of BALUKRISHNA CHAVAN versus THE RELIANCE GENERAL INSURANCE COMPANY LTD. & ORS passed in Civil Appeal arising out of SLP (C) No.33638/2017 dated 03.11.2022, and submits that it is not in every cases there shall be direction to pay and recovery, as such, he submits that since the Insurance Company is absolved from payment of any liability, there cannot be any direction to pay and recover in the instant case.
28. It is necessary to note that the Hon'ble Apex Court in the case of Shivaraj Versus Rajendra and Anr., at Para No.10 of its decision has held as under:
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 "10. At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs. Swarna Singh & Ors., Mangla Ram Vs. Oriental Insurance Co. Ltd., Rani & Ors.
Vs. National Insurance Co. Ltd. & Ors. and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others. In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner (respondent No.1)."
29. The Hon'ble Apex Court in its decision in the case of BALUKRISHNA CHAVAN versus THE RELIANCE GENERAL INSURANCE COMPANY LTD. & ORS at Para Nos.9, 10, 11, 12 and 13 has held as under:
"9. In the instant case, the appellant has relied on the judgment dated 21.02.2017 passed by this Court in Civil Appeal No(s).3047 of 2017 titled as "Manuara Khatun & Ors. Vs. Rajesh Kr. Singh & Ors". In the said case also, a Bench of this Court, having referred to the earlier decisions in Para-15 and 16 of that Judgment, has concluded that normally, there would be no order to "pay and recover". However, in the
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 said facts, this Court, to meet the ends of justice, had taken into consideration the fact situation though, the claimant therein, was a 'gratuitous passenger' and had kept in view that the benevolent object of the Act and had directed the payment by the Insurance Company and to recover the amount.
10. Therefore, on the legal aspect, it is clear that in all cases such order of "pay and recover" would not arise when the Insurance Company is not liable but would, in the facts and circumstances, be considered by this Court to meet the ends of justice.
11. If this aspect of the matter is kept view, in the instant facts, it is noticed that the appellant, as on the date of the accident, was aged about 19 years and due to the injuries suffered in the accident by him, his left leg was amputated below the knee.
12. Even, if the contention that the appellant was in the vehicle getting trained to be as a cleaner, is not taken into consideration, the fact remains that any other avocation that is to be undertaken by the appellant would involve physical labour which the appellant will not be able to perform and in such circumstance, if the appellant is not able to realise the amount of compensation awarded in his favour at this stage from the owner of the vehicle, the appellant would be prejudiced. However, the Insurance Company, if ordered to pay to the appellant and recover it from the owner of the vehicle, it would not be prejudiced to that extent.
13. Therefore, keeping all aspects in view, and not making this case as a precedent, but, only
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017 to serve the ends of justice in the facts of this case, we direct that respondent no.1 (Insurance Company) to deposit the compensation amount before the MACT within eight weeks from the date of the receipt of a copy of this judgment, whereupon, the MACT shall disburse the amount of compensation to the appellant."
30. Considering facts of the present case that the deceased comes from Yadgiri, aged 25 years having died living behind his wife aged 23 years, two minor children aged 7 and 6 years, respectively, and mother being 62 years age, cannot be put to hardship of recovering the compensation amount from the owner of the vehicle, if so, the purpose of granting compensation would be defeated.
31. Hence, in the light of the observation made by the Hon'ble Apex Court in the aforesaid cases, this Court in the facts and circumstances of the present case is of the considered view that it is fit case to direct the respondent- Insurance Company to pay compensation amount in the first instance and thereafter recover the same from the appellant/owner of the vehicle.
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NC: 2023:KHC-K:8473 MFA No. 202064 of 2017 C/W MFA No. 202186 of 2017
32. The compensation awarded shall carry interest at 6% per annum from the date of petition till realization instead of 9% awarded by the Tribunal.
33. The Insurance Company shall pay the compensation within a period of 6 weeks from the date of certified copy of this judgment.
34. The appeal in MFA No.202064/2017 is dismissed.
35. The appeal in MFA No.202086/2017 is partly allowed.
Sd/-
JUDGE RU, SBS List No.: 1 Sl No.: 20