Oreintal Insurance Co Ltd vs Mangala Bai on 20 April, 2010

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Karnataka High Court

Oreintal Insurance Co Ltd vs Mangala Bai on 20 April, 2010

Bench: A.N.Venugopala Gowda

IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA

DATED THIS THE 20%} DAY OF APRIL 2<31eW_ 7  

BEFORE

THE HGNBLE MR. JUSTICE AJN. VENUGop;L:gi.:C:~Qv;é?;>A "

M.F.A.N0.7873 of me {Mm 
BETWEEN: V '

Oriental Insurance
Company Limited,
Branch Office, Sandhana, .  

3"} Floor, 198~Sanipada, " A
Gramankar Naka,  
Bhiwandi~421302, Tame Distri:et.,f V
New represented   V. 1. 
Regional Office, 'LCD (3ei3r1_1p1e"x, 
Residency Road Cm--sé';"  b  
Banga1ore~=56O GIVES  . .
Rep. By its'AéesisAtée;nt "'jiA:«:{r1agef;-
K. Jayararn. "  .   

: Appellant

(By Sri, Veefeefi B. 'Pa£ii;.AP,<:_1{s'ae'a€e)

AND: '  ' "
 V  'A,   ' " . . . . . ..
V"  ' W / .X7v':<;If1:a1*:. Birjadar,
  - Gee: Heusebold,

'  2. Vén1;a:,_.~~ 

S / 0. e\V3;:21ah Biradar,

 '   'Ag€d 12..3?ears,

  

' Sfe. Waman Biradar,

   __Aged 8 years,



4. Manakawati,
D/D. Waman Biradar:
Aged 6 years,

AII residing at Bhosaga village,
Basavakalyan 'I'aIuk,

Respondent Nos. 2 ti: 4 being minors
Reprasented by mother and "
Nai;uraI guardian IS' respondent

5. Nﬂesh Keshavaji Bhamsali,
000: Business and owner of
Truck N0. MH»---4/P4808, V
Trilok --- Bhawan, Shiwaji .Naga:?.;'"" - 
Wagle Estate. I   'I

6. Balaji, _   I
S/0. Babu Harijan', vI\/Iajcir, I , _  
Driver of TmcL:{ NC};I'JII~IjO'f£/I?~'Zi8O8   " 
R/0. viI1age;HaI"e:.i,Ni1:;1riga--1faIuk';' ' f H ~
Nilanga Dist}r.ic:ti§_' L_atu'r I   I :Respondents

(By Sri. Héi1fshaV*arI<flIIIf1:{1:., Advocate for R-1
Notice to'  dispe13.sed'w_it'h VCO Dt. 1.1208
Respondefr; ND, 5 servifd .1I:1vrepresented)

THIISE.-."DMFIA IS FILED U/S. 173 {1} OF THE MOTOR

"VEHIC--L_E; .,Ac'rj2:».GA1NsT THE JUDGMENT AND AWAFGD

DATED'D5;'D5.2<::Q6_:..PAssED IN Mvc. N043/2000 ON THE
FILE. 0;}? '*D~i_~F._. QCIVIL JUDGE {SENIOR DIVISION} AND

  ADDITIONAL. "  IMACT} BASAVAKALYAN, AWARDING

(EOMPEELNSATION OF RS.1,7G,OOO/~ WITH INTEREST AT 6%

~   FROIYJTIIE DATE OF PETITION TILL REALISATION.

"'v.7D+i1s APPEAL COMING ON FOR ORDERS THIS DAY,

"  {COURT DELIVERED THE FOLLOWING:



3

JUDGMENT

Challenging the liabiiity fastened en the appe1ie.h*:_4'_teVV pay the eompensation awarded by the ~ insurance company has preferred th\ie~»eppea'1. " '

2. The 1'€SpOI'lC1€I1'{S"},{O .4 fiied"--a e];:;i:-'ed [M8, 166 of the Motor the appellant and respendehee§'*5_A8;6§' eoxhpvensation for death of one Warhan df the injuries sustained in H. occurred on 22.0-4.2OQQ.__ ' contested by the insurer--ahpeiieediehiieeeind.'"V».A:.:"»~--._'1'he issues were framed on 23.01.2003.°*._ "The elejzhant deposed as PWC1, one V_.--vSadaI}»aihei_dAdepoeed.e;e_MPW.2 and one Jeetendra deposed iv to 13.9 were marked.

Ke'epi:*ig in view, the rival contentions and after "'.v.4'a;§preeiati11.g. the evidence on record, it was held by the {hat the deceased proceeded in the lorry bearing i /"

,;

4 registration N<:>.MH-O4fP~48{)8 from Ujaiaiinb viiiage along with others in the said ierry which was driven rashiya',_and negligently by its driver, who lost enntroi and t1i_rti'e«' it ditch, which resulted in Warnan Biradar "

injuries and succumbed to the said in;-uri1es'aaQi1.'the"Sp_0i:;T h It was held by the Tribunal years old and he was earning which he was eontributirérd to It was held that, the of the untimely death' MAST further held that the. has failed to prove that the nffending vehicle did not possess a license and that there is no "\'«7i.<:yiatix§):i'%: Q'f_fv.CQi'lC1it'ii)'i1»..Qf policy. in View of its findings on issue "\E<1)s~...._"i the Tribunal passed an award fer idriwith interest at 8% per annum.

-..t.t'_j3.«..Q1.iestioning the said award, the insurer of the offending preferred this appeai.

Ea 3

-4. Sn. Veeresh E. Pratt}, learned Advocate appearing for the appellant contended that, the Trihnnal has passed the impugned Judgment/Award and Without proper consideration of the reenrd,._:in:VasI:nt1el1"

as, it is specific case of the elainiants thefnselize's'---inxwthei; .' claim petition that the deceased others were waiting for a go to village Ujalarnb and '4 bus, they boarded the lorryf admission made in the made by them by filing to contend that the deceased iwas along with two bags of j0\V2u' which was nothingllbtildt hood winking the process of "law over' 'thedeeision of the Apex Court which of the passenger travelling in a go0ds,_.\?ehieles'1._its not covered by the insurance company ~ ..l'_fye.an.d in sueti-i eases, the insurance company is not liable to award. He further eontended that FIR, spot panehanain E;x:.P.2, when considered in t;

a¢"'H 6 proper perspective, Clearly establish that the deceased was travelling in the vehicle in question at the time of accident as an unauthorised passenger and therefore, is not justified in fastening the liability on "

insurance company to satisfy the ayvardj in.' V .l his contentions, the learned coiiiieel iriade refere1ice_to _i~i:he following decisions:

ii] ILR 2007 KAR» 1585 _ (The United Indiia .liisii1fa._1_'1ce. Company Limited

-~VS~ S111 _ .-.Lalii:.h2nba*i 8:" Q'lih"€1'.S_)_f A

ii) 2008 (AP)

---- (-National: is, ii1S:i_fat1e.e . Company Limited, Seeiiiti§:lei'2{;l3adf*-Vs~_Mashety Vijaya laxmi and iii] 200.9 (1) 'r.A.::.'«3'e9 (AP) " i.(New'-Inltiia Assurance C0,, Ltd, Kurnool ~--~Vs~ Ra,thnai?ath..iSali & others) . 'AV.l'::EiéirshaV'ardhan R. Malipatil, learned V eounsei agieeaiing for the elaimantsiespondents 1 to 4, ., tiie.4_.oili'er hand, contended that the deceased Waman *-Eiiiadeili had purchased two bags of jowar from PWI3 and M:

having paid the tranepertatien charges for carrying of the goods, the deceased had travelled in the eaid lerry with goods, which vehicle had been i:1surecfi""":>:§,zf'~ appellant and hence, the Tribunal is j§;stifiee:i"in."' the liability en the appellant to vséatieiﬁzji' the.' award .

In support of his c'<§r1tenti013, ieariieég 'e.Q:;n3se1 relied upon the following g:1ecisi0:1.S:VVi:A' 1}

iii) {LR 2006 KAR§"*'Z%4--7 "

(National Insurance . '_ Cfempariy __ .'-Limited ~--vs~ A1ipeer_a11_c_1 a1j;0ther) ' ..

11 (2'o:':?)5A<:%C~ §1j7.._2 (Mén1jufh;i_VReimac:ha1:1d1'a Kﬁrnbar -=VS--~ Manohar "Ka11a'ppa"{fihe0uga1a ar1'd...:«1hother) "¢IIR 2OOS7'I:AR§%'1v5:8 % (National? I«neur:»;f1'ee Company -~Vs~ Ambadas an(i..oth.er:3) 7 ,.20o7 AiReew~7337 {Nafﬁonal Insurance Company Limited -Vs~ 3 T. Bharatamma and others)

6. Keeping in View the aforesaid rival contentions, V' fheAf'ei1:;\vif1g point arise for consideration. .

"Whether the Motor Accident Claims Tribunal is justified in fastening the liability on the appeﬁant in satisfy the impugned award'?''.

7. The eeeurrenee of accident, neg1igenee._ef'--driVef"

of the offending Vehicle, death of result of fatal injuries sustair«'ed__hy hm': in '£eh'ei.§9.Q_ci<ienf and insurance coverage of the Qffe"nc_i1n_g vehicle are not in dispute.

8. To the _.WhiehVVf«has arisen for consideration, _Vit-::__'i.§;f j1i'et"neeees"ary to refer to the deposition ofiix on behalf of the claimants. 1, than the wife of deceased. She is';n'et an '-eyeviitnese to the accident, She has V'¥.de)nCse'd "she learnt about the accident from one Szinjéin_e;hé:i:"_23}en§in the spot and saw the dead body of her V Eiusbeind, had been shifted to the governnieni:

iiiherein the postmortem was Conducted. In her extarninatiendn-ehief, she has gtateci that her E :

2 2

E. as;

/;

E' E 1 boarded the lorry along with two gummy bags of jeweéiiejn order to take it to their vﬂiage Ujalamb and the37ee{2'te.1.§' " learnt that an accident took place, Wmnan Biradar. In the er0ss;eXamii1e;tid:;',H.h'e'~..ehase f admitted that he has not furnished afiy"€[eeun1e::V: sheer L. that he was running Kjrana '1#€iS':vf§f11FfZh€Y admitted that he has 'A :e.f;§7e'v"hA1€€'Ceipt having sold one quintal ofej-0_\.7var:i:0"e1--e:eee;ee»d' Biradar. He has also to ShOW that he V

11.Vv:'v--._AE:é{_.P'. FIR. Ex.P.2 is the spot panehanamre,°"«.. inquest panehanama, Ex.P.4 fie-._Athe':erjpQetn1.orteIﬁ 'report of deceased Waman Biradar, "is of insurance cover note and EX.P.8 is the heeuﬁy efegfxether claim petition. ' The police after " i_i:1vestige§U?.eh laid the charge sheet against the driver ef the A T he MACT, while answering issue N04, whiie ermeidering the contention of the ineurange company that, 3:» we E12, liability eannot be fastened on it to satisfy the award;"h[as held that if there is any violation of terms and V. the policy, it is between the owner of thejéehtele insurance Company and not the elaf{n1ants..vand~i "the7 insurance company has to payeethe eo1np'ensati,o'n,. " 1

12. In the ease AliAp-e--er"L_:-Esuprajh, '"th.e claimant therein travelled in the with three quintals of raginthe resulting in personal claim petition was fileel' the Tribunal and thereafteryethle by the insurance eornpanyu on"~ Vtlren,-.gfo1ind that petitioner was an Vi1'nauth'oris.ed'l- spasséngeé in the goods Vehicle. Taking into' RuleAlO0 of the Kl\/IV Rules, which 2 permits eertaijnhleategory of persons to travel in the goods ""ti§fA'*--3}eh:ele observing that with very poor inadequate transport infrastructure, the agrieulturists often jointly' a goods vehicle for transﬂortation of their 9% l5 question was found damaged at the accident speif.' does not Show the presence of any jowar bags' e:>17_:(ﬁ::l*le':"' 1 V' goods at the scene of occurrence.

16. The evidence of PW:l,_is nc§1::ater§.al-,shixieelfshe was neither travelled in thel"'»«_'ol*f_endingy_VAVehicle nor personally witnessed the'-accid*en1;_.V "

17. The exriliiencegzillcfh .2] is material as she is a _Wa1nan Biradar and also traxfellllecll.a§iQn§:fwith--fjeeeasedin the lorry on the date of accident: . spoken anything about purchase 0fL°'JQwar'y--. "gPW.3 nor the fact that, the Vcie.ceaeedi..and- herelelfwere travelling in the lorry along with fwd' h by paying the charges to the driver of lorry.=.__ evidence coupled with spot panchanama " 'A"--hi;a.:lies that, herself and deceased were at busetop for the bus and when the lorry came from VT side, as the elriver of the lorry was known to 3 xti/« 6/' fl E6 them, the ariver of the Kerry invited herself and the deceased and as per the invitatien of driver of the herself and the deceased boarded the proceeded towards Uehalamb and the accident" 2 later. if really the deceased had v'pure'}1.ase'd._h'ehe of jowar from PW3 and traVtev1ie.§1 aleag by paying the charges for the goedaé-,a:they'e '11eV._AAre_ais0n for PW.2 not to speak abotit' all along with the deceased.LS1'nce:' with regard to purchase {at and deceased admittedly ti inference that could be drawhgis Waman Biradar and PW.2 were net ab1e'V-teA*--g.f;et--"ptnt0 any bus they boarded the areaeh their "" 'village and enroute, the accident ee.cts.:fed,:"'»..V_'% :'es.t1'1;ting in death of Waman Biradar on t acccuht Qf fataitinjuries sustained by him. 2 The evidence of Jeetendra (PW.3) does not ____""ins'pire the confidence of the Ccurt, inasmuch as, I10 proof " MM few M/' / if 18 E9. The decisions relied upon by the learned Counsel for the elaimantsrespondents, including th.el"e_ase of Ainbadas {supra} are not helpful to .

respondents, as the facts involved t_h.eif__ein 2_--:n'd" K"

on hand are entirely different. ~ respondents have failed to the pr'ima.ry"«:._:quest1on r L' that, the deceased had in faete.--plVi:<eh'aesedh' "one qnintal of Jowar and travelled in along with goods, by paying of goods.

20. H include the luggage or personal__ _r'o1f"per.sonal luggage of passengers travelling thevvehiele .is'--i.ndlieative of the fact that small 4_t.Vquantitielst*.of food,grain.s carried in one or two bags as l"g:}ers'onal,luggag.e_ or personal effect will not bring them withinrtlie 'expression of "goods". '1' he decision in the case g of Choll.etiBharatainn1a (supra), the question considered ith'<:_ Ahex Court was with regard to liability of the ___"'i'nst;iranee company to indemnify the owner of the vehicle tr X;

l9 in respect of death of a passengefWtfavelljhg _i1:.goo€ls carriage. Noticing the catenaof caeeegdilt was_:v_th;eld the provisions of the Act do 'i'1ot'l.enjoir3._VahjL?.= étatiitory liability on the owner of Vehicle to hie vehicle'"insured for any passenger tFa\;'€lllI_lg' in §§oo'de'--e_a.1jf.?iage and the insurer would hziéLVveAi;ijeloV liabiljéty"'therefor.V .

21. -.ox%ijew'V'::1of. tl'1e----. shal¢;y.7and ur1~eorroborative evidence of PWS. 1 View of the law laid down by the Apex' C01i"I':§'> i1:VtheAAe_ase'e cited supra, it is clear that, decjeaeed-. A.Watﬁan;----"Biradar has not travelled in the offehdirlegijvehicle "(goods vehicle) on the date and time of Z aeeideht a;s':o:e/her of the goods. There is a dearth of H ""--.eVidence support of plea of the claimants that deceased Biradar had purchased the goods and he hired Vt lorry for the purpose of transportation of his goods u "and that, he did travel in the offending Vehicle along with goods. Oh the contrary, the documentary evidence would Show that, the deceased has travelled in the vehicle % it 2} I z , itx ""~\§§> C3'?

For the foregoing reasons, the appeal has merit: and hence, stands allowed. The impugned award, only tziglithe extent of fastening the liability on the appellanti11eig;;%a:i§:evA' Company stands set aside. The claim petition. "

resp0rider1ts~l to 4 as against the company stands dismissed, *ll--l«<>_weVer., it is.:"injad_e clear that, dismissal of claim petiti0n____aeV_agains't {hie appellant~ insurance company doeefgnioi pif,e(§"liid.Ae'l the elaimantsn resp0nder11;s~l toiél .here:if1"," ta: ree£3VerV'.the»v"award amount from the ovviief' of offending vehicle viz., I'€SpOI1d€'1ltS" -5 6"l3::erei':1V. l ' Refunilthe deposit to the appellant. ln Vfghe c:ifei;msfanceé;"*--€h'e parties to bear their respective eeétef 1 A ~ géfia §ZE§L's{§f£

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