Karnataka High Court
M/S. Oriental Insurance Company vs Smt. Sannamma on 13 December, 2018
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
MFA.No.5572/2011 (MV)
C/W
MFA.CROB.NO.25/2017 (MV)
IN MFA.NO.5572/2011
BETWEEN:
M/S ORIENTAL INSURANCE COMPANY
NO.4/12, NAVEEN COMPLEX
1ST FLOOR, HEBBAL MAIN ROAD
METAGALLI, MYSORE
THROUGH ITS REGIONAL OFFICE
LEO SHOPPING COMPLEX
NO.44/45, RESIDENCY ROAD
BANGALORE - 560 001
REPRESENTED BY ITS
AUTHORISED SIGNATORY ... APPELLANT
(BY SRI B.S.UMESH, ADVOCATE)
AND:
1. SMT. SANNAMMA
W/O LATE THIMMEGOWDA
AGED ABOUT 38 YEARS
2. G.T.BASAVARAJU
S/O LATE THIMMEGOWDA
AGED ABOUT 24 YEARS
2
3. G.T.PAVITHRA
D/O LATE THIMMEGOWDA
AGED ABOUT 22 YEARS
4. G.T.SHRUTHI
D/O LATE THIMMEGOWDA
AGED ABOUT 20 YEARS
R-1 TO R-4 ARE R/AT
HALEBEEDU
PANDAVAPURA TALUK
MANDYA DISTRICT
5. CHUNCHEGOWDA
S/O RAMEGOWDA
AGED ABOUT 44 YEARS
R/AT HALEBEEDU
PANDAVAPURA TALUK
MANDYA DISTRICT ... RESPONDENTS
(BY SMT. SUMA KEDILAYA FOR
SRI V.PADMANABHA KEDILAYA, ADVOCATES
FOR R1 TO R4;
SRI NATARAJU.T FOR SRI V.N.MADHAVA REDDY,
ADVOCATES FOR R5)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, 1988 PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 15.11.2010 PASSED IN MVC NO.51/2009
(OLD NO.135/2009) ON THE FILE OF VI ADDITIONAL
DISTRICT JUDGE & MACT, MYSORE AND ETC.
IN MFA. CROB.NO.25/2017
BETWEEN:
1. SMT. SANNAMMA
W/O LATE THIMMEGOWDA
AGED ABOUT 44 YEARS
3
2. G.T.BASAVARAJU
S/O LATE THIMMEGOWDA
AGED ABOUT 30 YEARS
3. G.T.PAVITHRA
D/O LATE THIMMEGOWDA
AGED ABOUT 28 YEARS
4. G.T.SHRUTHI
D/O LATE THIMMEGOWDA
AGED ABOUT 27 YEARS
ALL ARE R/AT HALEBEEDU
PANDAVAPURA TALUK
MANDYA DISTRICT ... CROSS OBJECTORS
(BY SMT. SUMA KEDILAYA FOR
SRI V.PADMANABHA KEDILAYA, ADVOCATES)
AND:
1. SRI CHUNCHEGOWDA
S/O RAMEGOWDA
AGED ABOUT 50 YEARS
RESIDING AT HALEBEEDU
PANDAVAPURA TALUK
MANDYA DISTRICT
2. THE ORIENTAL INSURANCE
COMPANY LTD., NO.4/12
NAVEEN COMPLEX
1ST FLOOR, HEBBAL MAIN ROAD
METAGALLI, MYSORE ... RESPONDENTS
(BY SRI NATARAJU.T FOR
SRI V.N.MADHAVA REDDY, ADVOCATES FOR R1;
SRI B.S.UMESH, ADVOCATE FOR R2)
THIS MFA.CROB IS FILED UNDER ORDER 41 RULE
22 AND SECTION 173 OF MV ACT, 1988 PRAYING TO
4
MODIFY THE JUDGMENT AND AWARD DATED 15.11.2010
PASSED IN MVC NO.51/2009 (OLD NO.135/2009) ON THE
FILE OF THE VI ADDL. DISTRICT JUDGE & MACT,
MYSORE AND ETC.
MFA AND MFA.CROB COMING ON FOR HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA.No.5572/2011 is filed by the Insurance Company challenging the judgment and award passed in MVC.No.51/2009 dated 15.11.2010 on the file of VI Additional District Judge and MACT, Mysore, questioning the liability fastening on the Insurance Company. MFA.Crob.No.25/2017 is filed by the claimants.
2. The brief facts of the case are that the claimants have filed the claim petition before the Tribunal under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.65,75,000/- for the death of one Thimmegowda. It is contended that on 02.04.2008 at about 12.00 noon at ring road junction on Mysore- 5 Bangalore road, Mysore, when deceased Thimmegowda was returning with goods in vehicle bearing registration No.KA-11-8311, the driver of the said goods auto rickshaw drove the same in a rash and negligent manner and did not stop the same in a signal and went and dashed against the car bearing registration No.KA- 03-N-8853 which was coming from KRS ring road. Due to the impact, the said Thimmegowda, who was sitting in front sustained injuries to head and other parts of the body and he was taken to K.R.hospital, Mysore. But, he expired on the way to hospital. The first claimant is the wife, second and third claimants are the sons and the fourth claimant is the daughter of the deceased Thimmegowda. It is their contention that he was an agriculturist and vegetable vendor and thereby, he was earning Rs.300/- per day from vegetable vending. He was earning Rs.50,000/- per annum from agriculture. 6
3. The Insurance Company has filed written statement contending in para-2 that on the date of the accident, the petitioner was travelling in the goods auto as a gratuitous passenger and seating capacity of the alleged vehicle is 1+1. As per the statement of one H.K.Ravi, on the date of the alleged accident along with the driver, three persons were travelled in the said vehicle as gratuitous passengers. Hence, the Insurance Company is not liable to pay the compensation.
4. In order to substantiate their claim, the claimants have examined the first claimant as PW.1 and got marked the documents as Exs.P1 to P8. On the other hand, the respondents examined one witness as RW.1 and marked the document-Insurance policy as Ex.R1.
5. The Tribunal after considering both oral and documentary evidence of the respective parties has allowed the petition in part granting compensation of 7 Rs.3,26,000/- with interest @ 6% p.a. The Tribunal has fastened the liability on respondent No.2-Insurance Company.
6. Being aggrieved by the judgment and award of the Tribunal, the Insurance Company has preferred MFA.No.5572/2011 contending that the very judgment and award of the Tribunal fastening the liability on the Insurance Company is erroneous. The Tribunal failed to take note of the fact that the deceased has travelled as a gratuitous passenger as contended in the written statement and further that the vehicle insured with the Insurance Company is a goods auto rickshaw and the permit capacity of passengers in the auto rickshaw is 1+1 including the driver. Admittedly, there were 4-5 persons in the auto rickshaw and all of them cannot be said to be travelling along with the goods. Hence, the liability fastened on the Insurance Company has to be set aside.
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In support of his contention, the learned counsel appearing for the Insurance Company has relied upon the judgment reported in the case of National Insurance Co. Ltd. v. Aishabi and another reported in 2008 ACJ 1718. The learned counsel in the appeal memorandum has also contended that the Tribunal has allowed the petition against the principles of law laid down by the Hon'ble Supreme Court in the cases of New India Assurance Co. Ltd. vs. Vedavathi reported in 2007 ACJ 1043, National Insurance Co. Ltd. vs. Cholletti Bharathamma reported in 2008 ACJ 268, National Insurance Co. Ltd. vs. Prema Devi reported in 2008 ACJ 1149 and National Insurance Co. Ltd. vs. Kausalya Devi reported in 2008 ACJ 2144. He contends that the Tribunal ought not to have allowed the claim petition against the Insurance Company.
7. The claimants have also filed the cross objection in MFA.Crob.No.25/2017 contending that the 9 Tribunal has committed an error in taking the income of the deceased as Rs.3,000/- per month. All the cross objectors are depending on the income of the deceased. The first claimant-wife was aged about 36 years and an amount of Rs.10,000/- for loss of love and affection is minimal, though the deceased has left three children. Hence, the compensation awarded is inadequate and requires the modification of the judgment and award.
8. The appellant's Counsel in MFA.No.5572/2011 is directed to take notice to respondent No.2-Insurance Company in respect of MFA.Crob.No.25/2017 and he is permitted to file vakalat.
9. The learned counsel appearing for the cross- objectors contended that the accident was occurred in the year 2008. The Tribunal has committed an error in taking the income of the deceased as Rs.3,000/- and the same is very meager and it has to be reconsidered. 10
10. The learned counsel appearing for the appellant-Insurance Company in his argument contends that the cross objection is not filed within the stipulated time and the same was filed in the year 2017. The notice was served in the year 2012 itself issued against the claimants/cross objectors. Hence, the very cross objection is not maintainable. They have also not filed any application along with the cross objection to condone the delay and hence, the same cannot be considered.
11. In reply to the arguments, the learned counsel appearing for the claimants/cross objectors contends that immediately after receipt of notice from this Court in the year 2017, the cross objection has been filed within the time. Hence, this Court has to consider the same.
12. The learned counsel appearing for the claimants also relied upon an unreported judgment of 11 this Court dated 12.01.2011 passed in MFA.No.5856/2009 and contends that the said judgment is aptly applicable to the case on hand. This Court has considered the similar set of facts that the deceased was returning after selling the vegetables and at that time, the accident was taken place. This Court in para-8 discussed in detail with regard to the said facts and hence, the said judgment is squarely applicable to the case on hand.
13. After having heard the arguments of the appellant's counsel and also the respondent's counsel and after perusal of the judgment and award, the points that arise for my consideration are:
i) Whether the Tribunal has erred in not coming to the conclusion that the deceased was a gratuitous passenger and has erroneously fastened the liability on the Insurance Company?
ii) Whether the cross objection is not maintainable as contended by the Insurance 12 Company, since the same is not filed within one month from the date of the receipt of the notice?
14. Regarding point No.1 is concerned, the main contention of the Insurer is that the deceased travelled as a gratuitous passenger. Hence, the Tribunal ought to have considered the material on record. It has failed to appreciate both oral and documentary evidence in a proper perspective. It ought not to have fastened the liability on the Insurance Company.
15. The learned counsel has relied upon the judgment of this Court in the case of National Insurance Co. Ltd. v. Aishabi and another reported in 2008 ACJ 1718. On factual aspect of the case which is referred in the judgment is aptly applicable to the case on hand since it is discussed that the owner of the goods vehicle was returning to his place in the same truck after unloading the goods. It is held that the vehicle was met with an accident resulting in death of 13 owner of the goods vehicle. The Insurance Company is not liable on the ground that there were no goods carried by him at the time of the accident. The expression 'owner of goods' presupposes that person will have to travel with the goods in order to come within the expression 'owner of the goods' found that the deceased was travelling as a passenger. The learned counsel has also relied upon the other judgments which he has referred to in the appeal memorandum and contends that there were no goods in the vehicle when the accident took place and hence, the liability cannot be fastened on the Insurance Company.
16. On the other hand, the learned counsel for the claimants relied upon an unreported judgment passed in MFA.No.5856/2009 and brought to my notice the factual aspect at para-4 of the said case that after selling the tomatoes at Vadahalli shandy with a load of empty tomato boxes near Shettihalli cross, they were 14 returning in the said vehicle. This Court in the said judgment at para-8 observed that in the FIR, charge sheet, mahazar at Exs.P1 to P3, it is clearly mentioned that the deceased was travelling in the offending tempo along with the empty boxes of tomatoes after selling the tomatoes in shandy but it is not clear that how many persons including the deceased were travelling in the tempo and that question does not arise in this case because the deceased was the only person who dies in the said accident and that being so, the insurer is liable to pay the compensation awarded by the Tribunal and considering the same, the Tribunal has also rightly fastened the liability against the insurer of the vehicle.
17. The learned counsel for the Insurance Company also contends that the deceased was travelling in the goods vehicle sitting by the side of the driver. The complainant, who lodged the complaint was sitting in the back side of the vegetable plastic crates and the 15 same is found in Ex.P2-complaint. It is specifically mentioned that they were returning with the vegetable plastic crates.
18. After having considered the arguments of the learned counsel for the respective parties, this Court has to rely upon the material available on record. On perusal of the records, in the pleadings, the claimants have stated that on 02.04.2008 the deceased Thimmegowda had come to Mysuru with the goods and he was returning to his place in goods vehicle bearing registration No.KA-11-8311 along with others. The said vehicle is being driven by its driver in a rash and negligent manner and hit against car. No dispute with regard to the fact that the vehicle was involved in the accident. The main contention before the Court is that the deceased was a gratuitous passenger. The Insurance Company has also specifically took the defence that the deceased was traveling as a gratuitous 16 passenger in the goods vehicle. On perusal of the judgment and award of the Tribunal at para-14, it is discussed that in the FIR as well as in the complaint that the complainant Ravi and deceased Thimmegowda, Dinesh, Somashekar had come to RMC market on that day and thereafter, they were going back to their village in the said offending vehicle. The Tribunal further observed that the policy shows the seating capacity of the offending vehicle is 1+1 and there is no dispute with regard to this. It has observed that only one person died in the accident and hence, the Insurance Company is liable. Now the question before this Court is as to whether the deceased was a gratuitous passenger as contended by the Insurance Company. The very document which came into existence immediately after the accident is the complaint which was given by one of the occupants of the vehicle who travelled in the same vehicle i.e. one Ravi and in his complaint in the beginning itself, he mentions that one Thimmaiah and 17 Dinesh were sitting by the side of the driver and he himself and one Somashekar were sitting in the back side on the plastic crates. Hence, it is clear that they were returning with plastic crates in which they took the goods. The accident was taken place on 02.04.2008 at 12.00 hours. The complaint was also given on the same day at 14.10 hours and there was no delay. Hence, the question of manipulation of documents does not arise and immediately after the accident the complaint was given and in the complaint itself, it is specifically mentioned that they were returning after selling the goods and also mentioned that plastic crates were there in the vehicle. On perusal of the evidence of PW.1, nowhere in the cross examination of PW.1, the question was put to him that he was travelling as a gratuitous passenger and he also did not dispute the contents of the document Ex.P1 - FIR. The defence taken in the written statement remained as defence only.
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19. The learned counsel appearing for the Insurance Company contends that one person can charter the vehicle for transportation of the goods but in the case on hand, there were four persons while returning and on perusal of the record, it reveals that there were four persons i.e. Thimmaiah, Dinesh, Ravi and Somashekar. I have already pointed out that in the pleadings itself, it is specifically mentioned that the deceased took the goods and sold the same in RMC yard and he was returning in the same vehicle. In the cross examination of PW.1, nothing is suggested to PW.1 that he did not take the goods and returning in the vehicle. Hence, the very contention of the counsel appearing for the appellant, cannot be accepted.
20. The respondents have also examined one witness as RW.1, who is the official i.e. the Assistant Manager of the respondent-Insurance Company and in his affidavit in the form of chief evidence, he contends 19 that vehicle in question is a goods vehicle. The deceased Thimmegowda along with three passengers were travelling in the alleged vehicle as a gratuitous passenger. In the cross-examination of RW.1, he admits that in the claim petition, they have mentioned that he was doing the vegetable business and also he read the complaint given by the complainant. Further, he admits that in the complaint, it was mentioned that he was returning to his village after selling the vegetables and a suggestion was made that he was not travelling as a gratuitous passenger and the same was denied. The insurer has taken the defence that the deceased was proceeding as a gratuitous passenger. The insurer did not place any material except examining the Assistant Manager of the Company and even did not chose to examine the driver of the vehicle whether he was travelling as a gratuitous passenger or he was returning after selling the vegetables. The defence which had been taken remains as a defence only. In the cross 20 examination of PW1, nowhere it is suggested that he was proceeding as a gratuitous passenger and there are no materials before the Court that he was proceeding as a gratuitous passenger and the very document which came into existence immediately after the accident within two hours, a specific mention is made that they were returning in the said vehicle and there were plastic crates in the vehicle. The Court has to take note of the preponderance of probabilities in a case that too, a claim petition filed before the Tribunal and the claimants have to probabalise their case by adducing evidence. I relied upon Ex.P1-FIR and there is no contra evidence or rebuttal evidence to prove the contention that he was proceeding as a gratuitous passenger. Hence, the very contention of the insurer that he was proceeding as a gratuitous passenger cannot be accepted. Now on perusal of the material on record, it is clear that he was returning to his village after selling the goods. No doubt, the principles laid down in the 21 judgment in the case of National Insurance Co. Ltd. v. Aishabi and another reported in 2008 ACJ 1718, this Court has held that there were no goods carried by him at the time of the accident. In the recent unreported judgment referred by the learned Counsel, which was disposed of on 12.01.2011 in MFA.No.5856/2009, this Court in para-8 relying upon the FIR and other materials has come to the conclusion that the deceased was returning after selling the tomatoes along with the empty boxes and held that the insurer is liable.
21. In the case on hand, the material available on record clearly discloses that after selling the vegetables in RMC market, the deceased was also returning in the vehicle and plastic crates were there in vehicle.
22. Now the question before this Court is as to whether the Insurance Company is liable. Admittedly, there is no dispute with regard to the fact that the policy covers 1+1 and amongst the claimants before the Court, 22 there is only one claimant who passed away. Though the other persons were there in the vehicle, they have not made any claim before the Court. When the policy covers in respect of 1+1 and when the claim is made by only one, I am of the opinion that the Insurance Company is liable to pay the compensation. The very finding of the Tribunal that the liability fastening on the Insurance Company and also that the policy covers 1+1. The documents reveal that the deceased was returning after selling the goods. Hence, I do not find any ground to interfere with the order of the Tribunal with regard to fastening liability on the Insurance Company.
23. Regarding point No.2, the claimants have filed cross objection in the year 2017. The appellant's counsel has brought to my notice that this Court issued the notice at the first instance when the appeal was filed before this Court in 2011. I have perused the record. This Court has issued the notice to the claimants/cross 23 objectors in the year 2012 itself. The postal acknowledgment discloses that the notice was served on respondent Nos.3 and 4 and respondent No.3 also taken the notice issued in favour of respondent Nos.1 and 2. This Court compared the signature available on the vakalat and also the postal acknowledgment. On comparing the same, the signatures are one and the same. Hence, it is clear that the claimants have the knowledge of filing this appeal in the year 2012 itself. But they have filed the cross objection after lapse of five years. Therefore, the contention of the learned counsel for the cross objectors that immediately after service of notice, they have filed vakalat and thereafter, they have filed the cross objection, cannot be accepted. They are having the knowledge about the filing of the appeal and they have not filed the same within the stipulated time. They have not even filed any application for condonation of delay while filing the cross objection. Under the circumstance, the cross objection cannot be 24 entertained, which has been filed after the period allowed. Hence, I am of the opinion that the cross objection is not maintainable.
In view of the discussion made above, MFA.No.5572/2011 filed by the Insurance Company is dismissed. MFA.Crob.No.25/2017 filed by the claimants is also dismissed as not maintainable.
Office is directed to transmit the amount in deposit to the Tribunal.
Sd/-
JUDGE LB