Karnataka High Court
Mr.B Shivananda Pai vs M.Thimma on 9 February, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
MFA No.3444 OF 2010 (MV)
C/w.
MFA.No.3445 OF 2010 (MV)
MFA.No.3444/2010 :
BETWEEN:
Mr. B.Shivananda Pai,
S/o B.Annappa Pai,
Residing at Silver Stand Apartment,
Lady Hill,
Mangalore-575 001. .. Appellant
( By Sri Jagadeesh G. Kumbar, Advocate
For Sri M.S.Raghavendra Prasad, Advocate )
AND:
1. M.Thimma
S/o Late Mudda Mugera
Aged about 47 years,
2. Smt.Lalitha,
W/o Thimma,
Aged about 47 years,
3. Kumari Kavitha,
D/o Thimma,
Aged about 19 years,
MFA.No.3444/10 C/w. MFA.NO.3445/2010
2
4. Kumari Geetha,
D/o Thimma,
Aged about 19 years,
All are permanent residents of
Indranda, Halenernki Village & Post,
Puttur Taluk,
Presently residing at
Shantha Alva Compound,
Monkey Stand Road,
Attavara, Mangalore-575 001.
5. The New India Insurance Co. Ltd.,
Polymer Building,
Nellikai Road,
Mangalore-575 001. .. Respondents
( By Sri O.Mahesh, Advocate for R-5,
R-1 to 4 - service held sufficient
Vide order dated 28.01.2015)
This MFA is filed under Section 173(1) of MV act
against the judgment and award dated 11.01.2010, passed
in MVC No.1615/2006 on the file of Member, MACT-II & I
Additional District Judge, Dakshina Kannada, Mangalore,
awarding a compensation of Rs.4,42,000/- with interest @
6% P.A. from the date of petition till realization.
MFA.No.3445/2010 :
BETWEEN:
Mr. B.Shivananda Pai,
S/o B.Annappa Pai,
Residing at Silver Stand Apartment,
Lady Hill,
MFA.No.3444/10 C/w. MFA.NO.3445/2010
3
Mangalore-575 001. .. Appellant
( By Sri Jagadeesh G. Kumbar, Advocate
For Sri M.S.Raghavendra Prasad, Advocate )
AND:
1. Smt. Balakka,
W/o. Late Keshav Poojary,
Aged about 51 years.
2. Smt. Hemalatha
D/o. Late Keshav Poojary,
Aged about 30 years.
3. Mr. Yashavantha,
S/o. Late Keshav Poojary,
Aged about 28 years.
All are Permanent residents of
Kalleri, Halernernki Village & Post,
Puttur Taluk, presently
Residing at 2nd Cross, Suterpet,
Kankanady,
Mangalore-575 001.
4. The New India Insurance Co. Ltd.,
Polymer Building, Nellikai Road,
Mangalore- 575 001. .. Respondents
( By Sri Guruprasad, Advocate for R-1 & R-2;
R-3 served;
Sri. O. Mahesh Advocate for R-4)
This MFA is filed under Section 173(1) of MV act
against the judgment and award dated 11.01.2010, passed
in MVC No.1639/2006 on the file of Member, MACT-II & I
MFA.No.3444/10 C/w. MFA.NO.3445/2010
4
Additional District Judge, Dakshina Kannada, Mangalore,
awarding a compensation of Rs.4,42,000/- with interest @
6% P.A. from the date of petition till realization.
These Appeals coming on for Admission this day, the
Court delivered the following:
JUDGMENT
The appellant herein was the respondent No.1 before the Motor Accidents Claims Tribunal, Dakshina Kannada, Mangalore, (henceforth for brevity referred to as `the Tribunal'), in MVC.No.1615/2006 and MVC.No.1639/2006, which came to be partly allowed by the judgment and award dated 11.01.2010, and the present appellant being the owner of the alleged offending vehicle, was directed to pay the compensation awarded to the claimants. The claim petitions of the claimants against the 2nd respondent-Insurance Company therein came to be dismissed. It is against the said judgment and award of the Tribunal, the appellant had preferred both these appeals.
MFA.No.3444/10 C/w. MFA.NO.3445/2010 5
2. In both the appeals, the appellant has taken common contention that he had expressly barred his driver and cleaner for taking any passenger either for reward, hire or gratuitous. The Act of the driver would make him liable only if it was done within the scope of his authority. However, the driver and cleaner have acted contrary to his condition. This aspect the Tribunal has not appreciated properly.
3. On notice being issued, respondent No.5- Insurance Company is being represented by Sri O.Mahesh, learned counsel and notice to respondent Nos.1 to 4 is held sufficient vide Court order dated 28.10.2015 in MFA.No.3444/2010 and respondent Nos.1 and 2 are being represented by Sri Guru Prasad, learned counsel and respondent No.4 is being represented by Sri O.Mahesh, learned counsel, and respondent No.3 though MFA.No.3444/10 C/w. MFA.NO.3445/2010 6 served, has remained unrepresented, in MFA.No.3445/2010.
4. Though, this matter was listed for admission, with the consent of both the parties, the matter was taken up for final disposal.
5. Heard the arguments from both sides and perused the materials placed before this Court. Since both these appeals arise out of a common judgment and award passed by the Tribunal, both these matters are treated as connected matters and heard together.
6. The summary of the case of the claimants in the Tribunal was that on 15.8.2006, deceased Suresh and Sandeep, after loading the cement, were proceeding in a lorry bearing registration No.KA-19-4824 towards Kadaba side. The said lorry was being driven by its driver in a rash and negligent manner. When the said lorry reached Hosmata bridge of Kutrupady village at MFA.No.3444/10 C/w. MFA.NO.3445/2010 7 about 1.45 p.m., at that time, the driver lost the control over the lorry, as a result, the lorry went and fell into the river and due to this incident, both the deceased drowned in the overflow water. The 1st respondent therein who is the appellant in the present appeals, in his written statement filed before the Tribunal, denied all the averments made by the claimants therein. He specifically denied that the deceased were employed as loaders and collie in his lorry. On the contrary, he took a contention that the deceased were gratuitous passengers and that it was the driver of the offending vehicle who allowed them to get in to the lorry.
7. The 2nd respondent-Insurance Company before the Tribunal took a contention that the deceased were Kabaddi players and the driver of the lorry - Manjunatha, was the fried of the deceased. The deceased were to take part in a Kabaddi match in MFA.No.3444/10 C/w. MFA.NO.3445/2010 8 Alangar village, which was convened as a part of Independent Day celebrations. The driver had camped at night at one of his relatives house at Alangar and invited his Kabaddi friends from Alangar on the lorry to go to the match. All of them decided to travel by lorry after unloading the cement from the lorry. Therefore, in his urgency to go to Kabaddi match after unloading the cement load, the driver ignored the warning given by the local people in attempting to negotiate the already waterlogged bridge and as such, the lorry fell into the overflowing water and drowned. It was the categorical contention of the 2nd respondent before the Tribunal that the deceased were not at all employed by the 1st respondent as loaders and unloaders and they were gratuitous passengers. Therefore, the Insurance Company was not liable to pay any compensation by indemnifying the 1st respondent/owner of the vehicle.
MFA.No.3444/10 C/w. MFA.NO.3445/2010 9
8. It was admitted in the pleadings of the parties before the Tribunal that apart from the two deceased under the claim petitions in consideration, the driver of the lorry by name Manjunatha and cleaner by name Umesha Gowda also drowned in the river and died in the accident. The compensation was awarded to claimants of those two deceased - driver and cleaner under Workmens' Compensation Act. The Tribunal after answering issue No.1 in affirmative holding that the claimants have proved the alleged accident in question and also the alleged rash and negligent driving by the driver of the lorry, but while allowing the claim petitions in part, fastened the liability to pay compensation upon the 1st respondent before it, who is the owner of the alleged offending vehicle and dismissed the claim petitions as against 2nd respondent-Insurance Company.
MFA.No.3444/10 C/w. MFA.NO.3445/2010 10
9. The learned counsel for the appellant in his arguments reiterated the contentions taken up by him in his memorandum of appeal.
10. The learned counsel for the respondent- Insurance Company submitted that the impugned judgment and award does not warrant any interference at the hands of this Court.
11. The insurance policy by which the offending vehicle was covered was admittedly an Act policy, which, even according to the appellant, was covering the risk only as against the third party and owner and driver. Even according to the appellant, his case before the Tribunal was that the deceased Suresh and Sandeep were not his employees, but, they were only gratuitous passengers. Thus, admittedly, the deceased were not working as loaders and unloaders in the lorry. As such, MFA.No.3444/10 C/w. MFA.NO.3445/2010 11 they would not fall under the category of `workman'. Even according to the insurance policy at Ex.R-1, a workman, as explained in the policy, was covering only the driver and the cleaner, whose dependents have already been compensated under the Workmens' Compensation Act. Admittedly, the respondent- Insurance Company has accepted the liability to compensate the dependents of the deceased driver and cleaner, which according to the learned counsel for the respondent-Insurance Company, have satisfied already. Therefore, the insurance coverage being an Act policy, which admittedly does not cover the gratuitous passenger and the deceased Suresh and Sandeep being the gratuitous passengers in the alleged offending vehicle at the time of accident, the Tribunal has rightly held the appellant who was the owner of the offending vehicle as liable to pay compensation. The said finding of the Tribunal does not warrant any interference at the MFA.No.3444/10 C/w. MFA.NO.3445/2010 12 hands of this Court. Thus, the only argument canvassed by the learned counsel for the appellant that the fixation of the liability upon respondent No.1/owner of the vehicle was not correct, is not acceptable. Accordingly, I proceed to pass the following order :
ORDER Both the Appeals are dismissed.
Sd/-
JUDGE bk/