Karnataka High Court
Shriram General Insurance Co.Ltd vs Soundarya on 13 September, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
MFA NO.7741/2017 (MV)
BETWEEN:
SHRIRAM GENERAL INSURANCE CO. LTD.
E-8, CPIP, RE CO. INDUSTRIAL AREA
SEETAPURA, JAIPURA, RAJASTHAN
BY SHRIRAM GENERAL INSURANCE CO. LTD.
5/4, 3RD CROSS, S.V. ARCADE
BELAKANAHALLI MAIN ROAD
OPP: BANNERAGHATTA MAIN ROAD
II M.B. POST, BANGALORE-560 076
BY IT'S MANAGER
... APPELLANT
(BY SRI. O. MAHESH, ADVOCATE)
AND:
1. SOUNDARYA
AGE 9 YEARS
D/O LATE SHIVALINGAPPA
2. B.S. ROOPASHREE
AGED 11 YEARS
D/O LATE SHIVALINGAPPA
3. YASHODAMMA
AGED 39 YEARS
W/O LATE SHIVALINGAPPA
4. KENCHAIAH
AGED 70 YEARS
S/O KENCHAIAH
2
5. PARVATHAMMA
AGED 67 YEARS
W/O KENCHAPPA
RESPONDENTS 1 & 2 ARE MINORS
REPRESENTED BY M/G 3RD RESPONDENT
ALL R/O. BOMMENAHALLI VILLAGE
TIRUPATHI POST, KASABA HOBLI
ARASIKERE TALUK
HASSAN DISTRICT-573 201
6. SHIVANNA, MAJOR
R/O BOMMENAHALLI VILLAGE
TIRUPATHI POST, KASABA HOBLI
ARASIKERE TALUK
(DRIVER OF T.T.)
7.MOHAMMED REFIQ,
MAJOR, S/O SHEIK RASOOL
R/O H. NO.15, 3RD CROSS
MUJAVAR MOHALLA, ARSIKERE
HASSAN DISTRICT-573 201
(DRIVER OF T.T.)
... RESPONDENTS
(BY SRI. JAGADEESH H.T., ADVOCATE FOR C/R3 AND
ALSO FOR R1,R2,R4 & R5, R7-SERVED,
NOTICE TO R6 IS DISPENSED WITH,
R1 & R2 ARE MINORS, REPRESENTED BY R3)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:01.08.2017 PASSED IN MVC NO.1560/2015 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND AMACT,
ARSIKERE, AWARDING COMPENSATION OF
RS.11,12,500/- WITH INTEREST AT THE RATE OF 9%P.A.
FROM THE DATE OF PETITION TILL ITS REALIZATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 25.08.2022, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is filed under Section 173(1) of Motor Vehicles Act, 1988 (for short, 'MV Act') by the Insurance Company challenging the judgment and award dated 01.08.2017 passed by the Senior Civil Judge and Additional AMACT, Arsikere (for short, 'Tribunal'), in MVC No.1560/2015.
2. For the sake of convenience, the parties herein are referred as per the ranks occupied by them before the Tribunal.
3. According to the respondents/claimants, on 13.04.2015 at about 6.30 p.m., the deceased, who was a coolie under the 2nd respondent was going to his fields for working in the tractor-trailer bearing KA.15.T.255 and KA.13.T.3638 belonging to Respondent No.2 and the driver/Respondent No.1 drove the tractor-trailer in rash and negligent manner on Arsikere-Huliyar Road near Aggunda, as a result, the tractor-trailer over-turned resulting in accident. 4 Due to the said accident, the deceased Shivalingappa sustained fatal injuries and died in the Government Hospital at Arsikere. The claimants being the parents, widow and minor children of the deceased, have filed the claim petition under Section 166 of the MV Act, claiming compensation.
4. The Tribunal after assessing the oral as well as documentary evidence has awarded total compensation of Rs.11,12,500/- under the following heads:
Sl. Particulars Amount (RS.)
No.
1 Loss of dependency 10,12,500/-
2 Loss of consortium to 30,000/-
petitioner No.1.
3 Transportation of dead 20,000/-
body, funeral expenses
4 Loss of estate 35,000/-
5 Love and affection to 15,000/-
petitioner Nos. 3 to 5
Total 11,12,500/-
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5. Being aggrieved by the said judgment and award, the Insurance Company is before this Court by filing this appeal.
6. Heard the arguments advanced by the learned counsel for the appellant/Insurance Company and the learned counsel for the Respondents/claimants. Perused the records.
7. Learned counsel for the appellant/Insurance Company has raised defences that, traveling in the Tractor is not permissible and in case, he held to be a traveller in the trailer and the trailer was not insured and the deceased being travelled by sitting on Mudguard, he is not entitled for any compensation.
8. Learned counsel has also invited the attention of the Court to Column No.5 of the claim petition, wherein it is stated as 'Not Applicable', which clearly establish that the deceased was not traveling in the trailer as a coolie and was traveling as a 6 gratuitous passenger. Hence, he would seek for intervention of this Court.
9. Per contra, learned counsel for the claimants/respondents would support the impugned judgment and award, and further contended that, in fact the Tribunal has awarded a meager compensation and no proper compensation is awarded under the head of Loss of Consortium. However, he would submit that, cross-examination of Respondent No.2 clearly establish that the premium was collected for trailer and hence, he would argue that, now it cannot lie in the mouth of the Insurance Company that, the trailer is not insured. Hence, he would seek for dismissal of the appeal.
10. Having heard the arguments and perusing the records, it is evident that the Insurance Company has raised first defence regarding the driver of the vehicle not possessing valid and effective valid driving licence as on the date of accident and he was 7 prosecuted by the police in this regard. But, the Tribunal has considered this aspect in detail and relying on number of citations, has held that the Insurance Company cannot rely on the charge sheet when they have not led any evidence in this regard and as such, it is observed that the Insurance Company has failed to substantiate this aspect. It is also important to note here that the Tribunal has considered the provision of Section-2 of the MV Act regarding tractor and also distinguished the same regarding Goods Carriage and the importance of trailer attached to tractor, which is to be termed as a Goods Carriage.
11. No doubt, in the instant case, the Insurance Company has raised an issue regarding Driving Licence and the charge sheet discloses that the owner as well as the driver were prosecuted in this regard. To contravene the same, no counter evidence is led by Respondent No.1 or Respondent No.2. However, it does not have much relevance 8 regarding the claim of the claimant as in view of the latest decision reported in the case of Pappu and others Vs. Vinod Kumar Lamba and another reported in 2018 ACJ 690, the Insurance Company is liable to pay the compensation and then recover it from the owner/Respondent No.2.
12. All along, the respondents have contended that the deceased was travelling on Mudguard of the tractor. But, there is absolutely no piece of evidence to substantiate the said contention and no evidence is led to prove this aspect. RW.1 is examined and he is not an eyewitness and he has deposed only on the basis of records.
13. Learned counsel for the appellant/Insurance Company has invited the attention of the Court to the complaint to state that, in the complaint it is referred that the deceased was travelling in tractor. However, it is to be noted here that by using common sense, the rustic villager has 9 lodged the complaint. But, after recording the complete statement, charge sheet was submitted in detail asserting that the deceased was travelling in the trailer. Further, it is specifically asserted that, the deceased was travelling as a coolie and this aspect is not disputed and no contrary evidence is led by the Insurance Company. The contents of complaint and FIR would disclose that the deceased was working as a Loader and Un-loader in the tractor-trailer in question and to disprove the same, no evidence is led by the Insurance Company. Hence, the claim falls under Section 147 of the MV Act, as observed by the Tribunal and merely on the ground that it is referred that the deceased being travelling in tractor, it cannot be rigidly construed that he was sitting on Mudguard. Hence, when the deceased was travelling in the trailer, the statutory liability is covered under Section 147 of the MV Act, as rightly observed by the Tribunal.
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14. The other contention raised by the learned counsel for the appellant/Insurance Company is that, the trailer was not insured. However, on perusal of Ex.R2, it is evident that, Insurance Company has collected an additional premium of Rs.1,125/- towards trailer-3rd party. What was the reason for collecting this additional premium is not all forthcoming and the Insurance Company has not explained reason for collecting the premium pertaining to the trailer- 3rd party. It is argued by the learned counsel for the appellant that, the said endorsement is by mistake. However, it is a contractual liability and now the Insurance Company cannot assert that, it was recorded by mistake. However, even during the cross-examination of PW.1, no suggestion is made on behalf of Insurance Company that the deceased was sitting on the mudguard of tractor and on the contrary, during cross-examination, RW.1 has asserted that Ex.R2 policy is in no way concerned to trailer. But when it 11 was shown to him, he admitted that the premium was collected in respect of trailer also. He has also admitted that, as per Ex.R2, the policy covered the trailer and it is applicable to employees in the trailer.
15. Learned counsel for the appellant/Insurance Company has argued in regard to collection of additional premium that, it is collected by mistake. If it is so, why the Insurance Company did not take any action immediately in this regard, is not at all forthcoming. Though all along it is argued that the deceased was travelling by sitting on the Mudguard, no piece of evidence is placed on record to substantiate the said contention. In this context, learned counsel for respondents/claimants has placed reliance on a decision of this Court reported in ILR 2011 KAR 4139 [National Insurance Company Limited Vs. Sri. Maruthi and Others] arising out of MFA Nos. 6556/2006 and connected matters decided on 27.12.2010, wherein it is clearly held that the trailer is a Goods Carriage. Further, in this regard, 12 learned counsel for the respondents/claimants has also placed reliance on LAWS (KAR) -2009-3- 43:ACJ 2010 -0-1218 [Branch Manager, New India Assurance Co. Ltd. Vs. Mallamma].
16. Learned counsel for the appellant/Insurance Company has contended that, even Section 147 of MV Act, the liability is limited, but in this context, the learned counsel for respondents/claimants has placed reliance on decision reported in (2013) 12 SCC 84 [ Ramachandra Vs. Regional Manager, United India Insurance Company Limited], wherein it is held that, the limit under Workmen's Compensation Act can be increased contractually by purchase of additional Insurance coverage. Ex.R2 in this case discloses that Additional premium is also paid to the Tune of Rs.50/- for covering the risk of cleaner and since the tractor does not have any cleaner, the deceased is treated as travelling as coolie only. Hence, the liability of the Insurance Company is unlimited.
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17. The Tribunal has taken the income of the deceased at Rs.7,500/-. Admittedly, the accident has occurred in the year 2015 and this Court is consistently taking the notional income at Rs.9,000/- in respect of the accidents occurred in the year 2015. Hence, in fact the income taken is on lower side. Apart from that, Future Prospects were also not added. Further the consortium to each of claimants is not awarded by the Tribunal. Looking to these facts and circumstances, in fact the compensation awarded by the Tribunal is on lower side. However, learned counsel for Respondent No.3 would fairly submit that, he would not insist for enhancement, as claimants are not interested in seeking enhancement.
18. Considering the facts and circumstances, question of reduction of compensation awarded by the Tribunal does not arise at all. The Tribunal after assessing the oral and documentary evidence has rightly fastened the liability on Respondent 14 No.3/Insurance Company. However, since Respondent Nos.1 & 2 did not produce any material evidence to prove regarding they possessing Driving Licence, though they were chargesheeted, in view of the recent decision in Pappu's case (supra), appellant is entitled for an order regarding 'Pay and Recover'. To this extent only, the appeal needs to be allowed. Accordingly, I proceed to pass the following:-
ORDER
i) The appeal is allowed in part.
ii) The judgment and award dated 01.08.2017 passed by the by the Senior Civil Judge and AMACT, Arsikere, in MVC No.1560/2015, stands confirmed.
[ However, the appellant/Insurance Company/ Respondent No.3 is directed to pay entire compensation with accrued interest within six weeks from the date of receipt of certified copy of this order with a liberty to recover the same from Respondent No.2/Owner.
15Statutory deposit made by appellant/Insurance Company shall be transmitted to the concerned Tribunal.
Sd/-
JUDGE KGR* CT:NR