Karnataka High Court
Shriram General Insurance Co.Ltd., vs Satyappa Balappa Metakeri, on 8 March, 2018
Author: Krishna S Dixit
Bench: Krishna S. Dixit
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF MARCH 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S. DIXIT
M.F.A.No.101054 OF 2015 c/w
M.F.A.Nos.101055 OF 2015 & 102957 OF 2015 (MV)
IN MFA NO 101054 OF 2015
BETWEEN
SHRIRAM GENERAL INSURANCE CO.LTD.,
E-8, EPIP, RIICO INDUSTRIAL
AREA, SITAPURA JAIPUR,
RAJASTHAN - 302 022.
NOW REPRESENTED BY LEGAL OFFICER.
..... APPELLANT
(BY SRI GUNDI SURESHA SHARANAPPA, ADV.)
AND
1. SATYAPPA BALAPPA METAKERI,
AGED: 42 YEARS, OCC: CATTLE
BROKER NOW NIL,
R/O: BASAPUR, TQ: HUKKERI,
DIST: BELAGAVI.
NOW R/AT: PEERANWADI,
TQ & DIST: BELAGAVI.
2. ANIL R PATIL,
AGE:MAJOR, OCC: BUSINESS,
R/O: BASAPUR, TQ: HUKKERI,
DIST: BELAGAVI.
..... RESPONDENTS
(BY SRI SUBHASH J BADDI, ADV. FOR R1
SMT. SUNANDA P PATIL, ADV. FOR R-2)
2
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT & AWARD DATED:14.08.2014,
PASSED IN MVC.NO.758/2013, ON THE FILE OF THE PRSIDING
OFFICER FAST TRACK COURT III AT BELGAUM, AWARDING
COMPENSATION OF RS.2,39,000/- ALONG WITH INTEREST AT
THE RATE OF 9% P.A. FROM THE DATE OF PETITION TIL ITS
REALIZATION.
IN MFA NO 101055 OF 2015
BETWEEN
SHRIRAM GENERAL INSURANCE CO.LTD.,
E-8, EPIP, RIICO INDUSTRIAL AREA,
SITAPURA, JAIPUR,
RAJASTHAN - 302 022.
NOW REPRESENTED LEGAL OFFICER
..... APPELLANT
(BY SRI SURESHA SHARANAPPA, ADV.)
AND
1. DODDATAMMA LAGAMAPPA GOVINDAPPAGOL,
AGED: 57 YEARS, OCC: CATTLE
BROKER NOW NIL,
R/O: BASAPUR, TQ: HUKKERI,
DIST: BELAGAVI.
NOW R/AT: SULEBHAVI,
TQ & DIST: BELAGAVI.
2. ANIL R PATIL,
AGE:MAJOR, OCC: BUSINESS,
R/O: BASAPUR, TQ: HUKKERI,
DIST: BELAGAVI.
..... RESPONDENTS
(BY SRI SUBHASH J. BADDI, ADV. FOR R-1
SMT. SUNANDA P. PATIL, ADV. FOR R-2)
3
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT & AWARD DATED:14.08.2014,
PASSED IN MVC.NO.759/2013, ON THE FILE OF THE PRSIDING
OFFUICER FAST TRACK COURT III AT BELGAUM, AWARDING
COMPENSATION OF RS.1,37,000/- ALONG WITH INTEREST AT
THE RATE OF 9% P.A. FROM THE DATE OF PETITION TIL ITS
REALIZATION.
IN MFA NO 102957 OF 2015
BETWEEN
SHRIRAM GENERAL INSURANCE CO.LTD.,
REP BY ITS AUTHORISED OFFICER,
E-8, EPIP, RIICO, SITAPURA,
JAIPUR, RAJASTHAN.
..... APPELLANT
(BY SRI SURESH S GUNDI, ADV.)
AND
1. SMT.YALLAWWA W/O BASAVANNI KUMATI,
AGE:39 YEARS, OCC:HOUSEHOLD WORK,
R/O:HAGEDAL, TQ:HUKKERI,
DIST:BELAGAVI.
2. SHRI.MARUTI S/O BASAVANNI KUMATI,
AGE:21 YEARS, OCC:HOUSEHOLD WORK,
R/O:HAGEDAL, TQ:HUKKERI,
DIST:BELAGAVI.
3. SMT.NILAWWA W/O BALAPPA KUMATI,
AGE:66 YEARS, OCC:HOUSEHOLD WORK,
R/O:HAGEDAL, TQ:HUKKERI,
DIST:BELAGAVI.
4. SRI.ANIL S/O RAJARAM PATIL,
AGE:MAJOR, OCC:BUSINESS,
4
R/O:AT & POST BASAPUR,
TQ:HUKKERI, DIST:BELAGAVI.
..... RESPONDENTS
(BY SMT GEETHA K M @ PAWAR, ADV. FOR R1-R3
SMT. SUNANDA P. PATIL, ADV. FOR R-4)
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT & AWARD DATED:30.04.2015,
PASSED IN MVC.NO.550/2014, ON THE FILE OF THE XI
ADDITIONAL DISTRICT JUDGE AND MEMBER ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, AWARDING
THE COMPENSATION OF RS.9,47,000/- ALONG WITH INTEREST
AT THE RATE OF 9% P.A. FROM THE DATE OF PETITION TIL ITS
REALIZATION.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This judgment and award dated 14.08.2014 is challenged by the insurance company in these Appeals. The award arises from two claim petitions viz. M.V.C.Nos.758/2013 and 759/2013. Since there is no dispute as to the happening of the incident and the consequential injuries sustained by the claimants, the finding recorded by the MACT in this regard is left undisturbed.
2. Brief facts alleged are that; in a vehicular accident that happened on 03.02.2013 due to rash and 5 negligent driving of a goods truck carrying the bullocks, thee persons were injured and one of them fatally, who later succumbed to the same. In the subject MVCs, the claim is by the injured persons.
3. The claimants' side examined 4 witnesses as PW-1 Satyappa, PW-2 Doddatamma, PW-3 Dr. S.R. Angadi and PW-4 Dr. Suresh Shivalingappa Karalatti. From the claimants' side as many as 31 documents came to be marked as Ex.P-1, P-1(a) to P-26(a). From the side of the Respondent-Insurer, one witness namely Rajashekarappa was examined as RW-1 and as many as 5 documents were marked as Ex.R-1 to R-5 to support the defence version taken up in the Written Statement.
4. The MACT, after considering the pleadings of the parties, oral evidence of the witnesses, evidence of the medical experts and other documentary evidence, rendered the impugned judgment and award whereby a sum of Rs.2,39,000/- was awarded as compensation in MVC No.758/2013 and a sum of Rs.1,37,000/- was 6 awarded as compensation in MVC No.759/2013, with usual conditions as to rate of interest and deposits.
5. In M.F.A. No.101054/2015 and 101055/2015, the insurance company challenges the very fastening of the liability on it and also the quantum of compensation. The learned counsel for the insurance company contends that there is a breach of provisions of Rule 74 and 100 of Karnataka Motor Vehicle Rules, 1989.
6. I have carefully considered the intent and content of Rule 74 of K.M.V. Rules which focuses on the welfare of the animals carried in a goods vehicle in a public place. The welfare is the focal point of various provisions of Rule 74. It has nothing to do with the factors wherefrom the liability of the insurance company arises. Therefore, the invocation of Rule 74 by the insurance company is misplaced. More specially, when there is no provision brought to the notice of the Court to the effect the violation of the provisions of Rule 74 will eventually 7 result into repudiation of the liability of the insurance company.
7. The learned counsel for the insurance company loudly reads the provisions of the Rule 100 and more particularly, the second proviso to Rule 100. Rule 100(1) 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;
(2) Notwithstanding anything contained in sub-rule (i), but subject to the provisions of sub-
rules (4) and (5), a Regional Transport Authoritymay, by an order in wirting permit that a larger number of persons my 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."8
8. The counsel for the Appellant submits that the vehicle in question is a goods vehicle falling in the description of Clause 2 of the unnumbered first proviso which was carrying 8 bullocks on the eventual day and bullocks being the goods as defined under Section 2(13) of M.V. Act, 1988, the counsel submits the unnumbered proviso to the proviso is invocable. His submissions that the proviso to Rule 100(1) prohibits the light transport goods vehicle plying on interstate roots and therefore, the owner of the goods or the employees of the owner of the goods could not have traveled in the light transport goods vehicle described in Clause 2 of unnumbered first proviso to the said Rule.
8A. He also points out that going by the pleadings of the parties and evidence led in the cases, there is no dispute as to the vehicle being a light transport goods vehicle that was plying on interstate root when the accident took place. He submits that there is gross violation of this penal provision of law i.e. Rule 100 and Clause 1 and therefore, asking company to pay 9 compensation virtually amounts to placing premium on illegality. In other words, he submits that those who committed offence by violating mandatory provisions of the Act and the Rules made thereunder, should not be favoured with an award of compensation.
9. The learned counsel for the Respondents/claimants submits that whether Rule 100 or Rule 74 is violated or not, insofar as the liability of the insurance company is inasmuch as the escape root for the company to repudiate the liability arising under the contract of insurance is too narrow to be mentioned in view of the limited defence clause enacted by the Parliament in Section 149(2) of the M.V. ACT, 1988, as interpreted by the Apex Court and also by this Court. Both the learned counsel for claimants' side point out the violation of the provisions of the M.V. Act and the Rules is one thing and the liability of the insurance company is another. They further submit that in fixing the liability of the insurance company and absolving the insurance 10 company from the liability, the only provision relevant for adjudication is Section 149(2) which reads as under:
"149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.--(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the procdeedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely;--
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely;--
(i) a condition excluding the use of the vehicle--
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organized racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or 11
(d) without side-car being attached where the vehicle is a motorcycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular."
10. Both the counsel stress on the expression employed by the Parliament under sub clause (i)(a) of clause (a) of sub-Section (2) of Section 149 i.e. "a breach of a specified condition of the policy being one of the following conditions". In other words, the counsel submit that the breach of a provision of the Act and Rules may or may not amount to an offence but to escape from the liability, the company has to bank upon breach of condition of the policy that should necessarily relate to items a, b, c 12 and d that are enumerated under clause (a) of sub-Section (2) of Section 149. The counsel hasten to act that these items enumerated under clause (a) of sub Section 2 are exhaustive in nature and nothing can be added by the insurance company without making violence to the said provision.
11. The learned counsel for the claimants also submit that accepting the contentions of the Appellant insurance company to repudiate the liability virtually amounts to rewriting the text of Section 149(2) and also Rules 74 and 100 of Karnataka Motor Vehicle Rules, 1989, which is impressible in the process of interpretation.
12. The learned counsel for the insurance company read out from the insurance policy certain terms which limit the liability in given circumstances. I have carefully perused the terms and conditions of the contract of insurance as written in the insurance policy. I don't find any conditions which fell within the limited defence clause enacted under Section 149(2) of MV Act, 1988, and 13 therefore, I reject the contentions of the learned counsel for insurance company.
The learned counsel for insurance company draws my attention to a specific limiting clause in the insurance policy which reads-
"Limitations as to Use Use only for carriage of goods within the meaning of the Motor Vehicles Act. The Police does not cover; 1) Use for organized racing, pace-making, reliability trial or speed testing. (2) Use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanically propelled vehicle. (3) Use for carrying passengers in the vehicles; except employees (other than the driver) not exceeding the number permitted in the registration document and coming under the purview of Workmen's Compensation Act 1923."
13. Even this clause specifically referred to by the learned counsel for the company does not come to his aid, since the text and architecture of this clause shows a different intention that the one propounded before this Court.
14
14. Learned counsel for the Appellant-insurance company vehemently contended that the contents of the FIR which was marked as Ex.P-1 in the evidence of the claimants themselves do not support the version of the claimants as to establishing ownership of the bullocks that were being carried in the goods vehicle. He also points out from the cross examination of PW-1 and PW-2 and submits that there is no sufficient material to relate the injured and the deceased to the ownership of the goods namely bullocks. Learned counsel banks upon the paragraph No.15 of the judgment of the Apex Court in Civil Appeal No.2526/2007 decided on 15.05.2007 which reads-
"15. A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefore consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon. In Hukam 15 Singh (supra), the law has correctly been laid down by the Punjab and Haryana High Court stating;
"8. Mr. G.C. Mittal, learned counsel for the Respondent contended that Ram Partap had produced only his former deposition and gave no evidence in Court which could be considered by the Additional District Judge. I am afraid there is no merit in this contention. The Trial Court had discussed the evidence of Ram Partap in the light of the report Exhibit D.1 produced by him. The Additional District Judge while hearing the appeal could have commented on that evidence and held I to be inadmissible if law so permitted. But he did not at all have this evidence before his mind. It was not a case of inadmissible evidence either. No doubt the prodecure adopted by the trial Court in letting in a certified copy of the previous deposition of Ram Partap made in the criminal proceedings and allowing the same to be proved by Ram Partap himself fwas not correct and he should have been examined again in regard to all that he had stated earlier in the statement the parties in order to save time did not object to the previous deposition being proved by Ram Partap himself who was only cross-examined. It is not a 16 case where irrelevant evidence had been let in with the consent of the parties but the only objection is that the procedure followed in the matter of giving evidence in Court was not correct. When the parties themselves have allowed certain statements to be placed on the record as a part of their evidence, it is not open to them to urge later either in the same Court or in a court of appeal that the evidence produced was inadmissible. To allow them to do so would indeed be permitting them both to appropriate and reprobate."
15. The Apex Court in the said case was considering the issue of rashness and negligence on the part of the driver in question. In deciding that issue, the Court referred to the contents of the FIR and repel the contentions of the counsel for the other side that the only part of the FIR should be relied upon and this part of the FIR should be left out. This judgment does not come to the aid of the counsel for the Appellant insurance company since fact matrix of this case is completely different from the one sided by him.
17
16. The learned counsel for the insurance company vehemently contended that going by the pleadings of the claimants, there is scanty pleading as to how they were related to the case in question on the eventful day. He also point out what was elicited in the cross examination as to the absence of relevant documentary evidence such as the tax receipts and the purchase list of the goods in question contending that when the oxen are sold generally the local authority will levy the tax and the said tax receipts are not forthcoming in this case nor any explanation is offered by the claimants side as to what happened to the said receipts and therefore, he contends that the version of the claimants without being owners of the goods in question should be disbelieved.
17. I am not impressed by this contention for the reason that PW-1 is the widow of Mr. Basavanni who had accompanied the other two claimants from the village to the place of fair where from they had bought 8 bullocks together. PW-2 in his cross examination has specifically 18 stated that the deceased Basavanni had also bought one bull on the eventful day. There is no suggestion by the insurance company to the effect that deceased Basavanni had not bought any bull on that day. There is no effective cross examination of the claimants by the insurance company. Here is a case which adjudge on the preponderance of probabilities, since even CPC is not made applicable stricto sincu to these proceedings. The counsel for the claimants point out Section 169 of the MV Act, 1988 which incorporates only few provisions of CPC as applicable to the claim petitions before the Tribunal. I find a lot of force in the submission of learned counsel for the claimants and therefore, reject the submission of the counsel for the insurance company.
18. The learned counsel for the claimants side brought to my notice the judgment of the Apex Court reported in LAWS (SC) 2016-122 in support of her contention. The Apex Court has held the numbers specified in the policy is irrelevant and when more number of people 19 are injured then the specified number does not go to the breach of the terms and conditions of the policy and therefore, the insurance company cannot repudiate it's liability which otherwise is fastened on it. Para 14 of the said judgment reads as under:
"14. The National Commission upheld the order of dismissal of the complaint of the Appellant passed by the State Commission. The National Commission however, did not consider the judgment of this Court in the case of B.V. Nagaraju v. Oriental Insurance Co. Ltd Divisional Officer, Hassan, 1996 4 SCC 647. in that case, the insurance company had taken the defence that the vehicle in question was carrying more passengers than the permitted capacity in terms of the policy at the time of the accident. The said plea of the insurance company was rejected. This Court held that the mere factum of carrying more passengers than the permitted seating capacity in the goods carrying vehicle by the insured does not amount to a fundamental breach of the terms and conditions of the policy so as to allow the insurer to eschew its liability towards the damage caused to the vehicle. This Court in the said case has held as under:-20
"It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry six workmen, excluding the driver. If those six workmen when traveling in the vehicle, are assumed not to have increased risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the pose, keeping apart the load it was carrying.
In the present case the driver of the vehicle was not responsible for the accident. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which by themselves, had gone to contribute to the causing of the accident."
19. The counsel for the Appellant insurance company sought to content that the policy in question reflects number of person to be permitted to travel in the vehicle in question and here is a case where number is exceeded the number permissible limit and therefore, 21 there is violation of the terms and conditions of the policy even the scope of Section 149(2) of the Act and therefore, the company is entitled to repudiate its liability.
20. The learned counsel for the claimants opposed the said contention on the ground that no foundation is laid in the Written Statement of the insurance company. Learned counsel for the company cannot point out from its Written Statement as to where the foundation is laid warranting such an argument. Therefore, the said argument is unsustainable.
21. The counsel for the insurance company next contends that the MACT has taken higher income basis and consequently higher compensation has been awarded.
22. I have verified from the records keeping in view the notional income values chart originally operated by the Lok Adalath in said matters. There is nothing worth mentioning and therefore, this contention too is rejected 22 more specially, when no effective cross examination on this point is made by the insurance company.
23. For the said reasons, the appeals of the insurance company being not meritorious, fails.
Sd/-
JUDGE Naa