Karnataka High Court
Sri Rajegowda vs Sri Basavaraju on 15 February, 2017
Author: B.Manohar
Bench: B.Manohar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2017
BEFORE:
THE HON'BLE MR. JUSTICE B.MANOHAR
MFA.NO.2359/2011 (MV)
BETWEEN:
SRI RAJEGOWDA,
S/O OF HUCHEGOWDA,
RESIDENT OF K.N.KOPPALU,
MAKODU POST,
PERIYPATNA TALUK,
MYSORE DISTRICT - 571 107. ... APPELLANT
(BY SRI.SHARAN B.TADAHAL, ADV FOR
SRI P.M.SIDDAMALLAPPA, ADV.)
AND:
1. SRI BASAVARAJU
SON OF RAMEGOWDA,
AGED ABOUT 25 YEARS,
RESIDING AT MAKODU VILLAGE,
RAVANDURU HOBLI,
PERIYAPATNA TALUK,
MYSORE DISTRICT - 571 107
NOW RESIDING AT D.NO.200,
KYATHAMARANAHALLI,
MYSORE.
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2. THE UNITED INDIA INSURANCE
COMPANY LIMITED,
BALLAL CIRCLE,
MYSORE.
REP. BY ITS MANAGER. ... RESPONDENTS
(BY SRI.P.NATARAJU, ADV. FOR R.1, SRI.JANARDHAN
REDDY, ADV. FOR R2,
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:11.12.2010 PASSED
IN MVC NO.1039/2010(OLD MVC.NO.272/2007) ON THE
FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
MACT, MYSORE, AWARDING A COMPENSATION OF
Rs.2,37,240/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL REALIZATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING: -
JUDGMENT
Appellant is the owner of the vehicle. Being aggrieved by the judgment and award dated 11-12-2010 made in MVC No.1039/2010 passed by the Motor Accident Claims Tribunal, Mysore (hereinafter referred to as "the Tribunal" for short) he has filed this appeal, challenging the liability fastened on him to compensate the claimant. 3
2. The facts leading to filing of this appeal are as under:
The first respondent herein filed a claim petition contending that on 18-02-2007 at about 11 p.m., while the claimant was proceeding in a goods auto bearing Registration No.KA-45/248 towards his village from Tobacco Board near Kampalapura, the driver of the said goods auto drove the same in a rash and negligent manner and lost control over the said vehicle, due to which, the vehicle was capsized. In the said accident, the claimant has sustained grievous injuries to his left leg and other parts of the body. Immediately after the accident he was shifted to K.R. Hospital at Mysore and taken treatment therein as an inpatient for a period of 70 days. The claimant claims that he has spent more than Rs.1,00,000/- towards his treatment. Prior to the accident, he was doing coolie work and earning Rs.300/- per day. In view of the injuries he has sustained and permanent disability suffered, he cannot do the work of a coolie and sought for compensation of Rs.10,00,000/-.4
3. In response to the notice issued by the Tribunal, the first respondent entered appearance and filed written statement denying the rash and negligent driving of the auto rickshaw. Further, as on the date of accident, the insurance policy was in force, hence the insurance company is liable to compensate the claimant. The second respondent-insurance company filed written statement contending that they are not liable to compensate the claimant since the claimant was traveling in the goods auto as a gratuitous passenger. Further, the driver of the offending auto was not having valid and effective driving license. Hence sought for dismissal of the claim petition as against the insurance company.
4. On the basis of pleadings of the parties, the Tribunal framed necessary issues.
5. After trial, the Tribunal held that the accident occurred due to the actionable negligence on the part of driver of the goods auto. Hence the claimant is entitled for compensation. With regard to quantum of compensation is concerned, in the 5 accident, the claimant has sustained compound fracture of both bones of left leg, internal fixation has been made, surgery has been conducted on 6-3-2007. He took treatment as inpatient for a period of 2 ½ months, thereafter, once again he was admitted for a period of 14 days. In view of fracture of both bones of left leg, the claimant cannot move. The Tribunal taking into consideration the injuries sustained and suffering undergone, awarded a sum of Rs.40,000/- towards pain and suffering; Rs.60,000/- towards medical expenditure; Rs.20,000/- towards incidental expenses, food and nourishment, attendant charges and a sum of Rs.84,240/- towards future loss of income, taking the monthly income as Rs.3,000/- p.m. and disability to an extent of 13% and a sum of Rs.33,000/- towards loss of income during the laid up period. In all, the Tribunal has awarded a sum of Rs.2,37,240/- with interest at 6% p.a.
6. With regard to liability is concerned, the specific contention of the insurance company is that the claimant was 6 traveling as a gratuitous passenger in the goods auto. Further, owner of the auto has not paid any additional premium covering the risk of a gratuitous passenger or hamali. Hence, the liability was fastened on the owner of the vehicle to compensate the claimant on the basis of judgment of the Hon'ble Supreme Court reported in (2008) 5 SCC 403 in the case of SATPAL SINGH v/s ASHARANI. Being aggrieved by the said judgment and award fastening liability on him to compensate the claimant, the owner of the vehicle has filed this appeal.
7. Sri.Sharan B. Tadahali, learned counsel appearing for the appellant contended that the judgment and award passed by the Tribunal is contrary to law. On 18-02-2007, after loading the tobacco bales from his village, the claimant went to Tobacco Board and after unloading the said tobacco bales, the claimant was returning to his village in the very same auto, he was the representative of the said goods. As per Section 147(1) of the Motor Vehicles Act, either the owner of 7 the goods or the authorized representative of the owner of the goods can travel in the goods vehicle. In the instant case, after unloading the tobacco bales at Tobacco Board, the claimant was returning in the very same auto, he was not an unauthorized passenger. Since the said vehicle was capsized, the claimant has sustained grievous injuries. Hence, the insurance company is liable to compensate the claimant. Hence, the judgment and award passed by the Tribunal is contrary to law.
8. On the other hand, Sri.Janardhan Reddy, learned counsel appearing for the second respondent argued in support of the judgment and award and contended that the claimant is not the owner of the tobacco bales or representative of owner of the tobacco bales. Even the owner or representative of owner of the tobacco bales, after unloading the same at Tobacco Board cannot travel in the goods auto, unless additional premium is paid to cover the risk of the passenger or hamali. In the instant case, 8 additional premium has not been paid. The insurance policy covers the risk of only the driver of auto rickshaw. Further, while lodging a complaint before the jurisdictional police, the claimant himself has stated that after unloading the goods at Tobacco Board, while he was waiting for the bus to go to his village, the offending auto rickshaw came and he boarded the same. On the way, the vehicle met with an accident. These documents clearly establish that the claimant was traveling in the goods auto as gratuitous passenger. The insurance policy does not cover the risk of such persons. The Tribunal after appreciating the oral and documentary evidence fastened the liability on the owner of the vehicle. Hence sought for dismissal of the appeal.
9. Sri.Nataraj, learned counsel appearing for the first respondent/claimant contended that after unloading the goods at Tobacco Board, while the claimant was returning in the very same auto, the accident occurred.
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10. I have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgment and award, oral and documentary evidence adduced by the parties.
11. The evidence on record clearly disclose that on 18-02-2007 after loading the tobacco bales, the claimant went to Tobacco board in said goods auto for unloading the same. After unloading the said tobacco bales, while the claimant was returning in the very same auto, the vehicle met with an accident. As stated earlier, under Section 147(1) of the Motor Vehicles Act, owner of the goods or the authorized representative of the goods can travel in the goods vehicle. When once the goods has been unloaded, neither the owner nor the authorized representative of the said goods cannot travel in the said goods auto. The goods auto is meant only for transportation of goods, none of the persons are allowed to be traveled in the goods vehicle. In the instant case, after unloading the tobacco bales at Tobacco Board, the claimant 10 was traveling in the said goods vehicle. The Insurance policy of the said vehicle does not cover the risk of gratuitous passenger. Further, the owner of the vehicle has not paid any additional premium to cover the risk of either the loader or unloader or hamali. In the instant case, the claimant never claimed that he was loader or hamali, on the other hand, he claimed that he was the representative of goods and taken the goods to Tobacco Board, after unloading the same, he was returning in the very same goods auto. The status of the claimant is that he was treated as gratuitous passenger in the goods vehicle. The Insurance policy does not cover the risk of such person.
12. The Hon'ble Supreme Court in a judgment reported in (2008)5 SCC 403 in the case of NATIONAL INSURANCE COMPANY LIMITED v/s PREMA DEVI AND OTHERS after examining the provision of Sections 2(8), 2(25), 2(29), 2(33), with the corresponding provisions i.e. Sections 2(35), 2(14), 2(40) and 2(47) of the Motor Vehicles Act and also relying 11 upon SATPAL SINGH case (cited supra) has held that gratuitous passengers traveling in the goods vehicle are not covered under the Insurance policy. The records produced by the parties and the evidence on record clearly disclose that after unloading the tobacco bales at Tobacco Board, the claimant was traveling in the goods vehicle as a gratuitous passenger and he has sustained injuries in the accident while he was returning to his village. Hence, the owner of the vehicle has to compensate the claimant.
13. I find no infirmity or irregularity in the judgment and award passed by the Tribunal, fastening liability on the owner of the vehicle. Accordingly, the appeal is dismissed.
The amount in deposit before this court is directed to be transferred to the Motor Accident Claims Tribunal, Mysore.
Sd/-
JUDGE mpk/-*