Karnataka High Court
The Branch Manager vs Smt. Bhagya on 2 March, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
M.F.A. NO.242 OF 2013 (MV)
BETWEEN:
THE BRANCH MANAGER
NATIONAL INSURANCE
COMPANY LIMITED
MANDYA BRANCH
MANDYA
NOW REPRESENTED BY IT'S
ADMINISTRATIVE OFFICER
D.KARTHIKA
REGIONAL OFFICE
NO.144, SUBHARAM COMPLEX
M.G.ROAD, BANGALORE-560001 ... APPELLANT
(BY SRI. L. SREEKANTA RAO, ADVOCATE)
AND:
1. SMT. BHAGYA
W/O LATE PARAMESHA
AGED ABOUT 28 YEARS
2. MAHESHA
S/O LATE PARMESHA
AGED ABOUT 8 YEARS
3. ARJUN
S/O LATE PARAMESHA
AGED ABOUT 8 YEARS
ALL ARE R/O KALIYUR VILLAGE
TALAKADU HOBLI
T.NARASIPURA TALUK
2
MYSORE DISTRICT-571122
SINCE R2 AND R3 ARE MINORS
REPRESENTED BY THEIR MOTHER
NATURAL GUARDIAN RESPONDENT NO.1
4. K.J. JAKRIS
S/O JOHN
AGED ABOUT 53 YEARS
R/O # 194/1
ANANDA RAMAIAHPPA COMPOUND
2ND CROSS, MYSORE ROAD
BANGALORE-560018
5. USHA SUBRAMANYA
W/O SUBRAMANYA
AGED ABOUT 57 YEARS
R/O PETE MALAVALLI
MANDYA DISTRICT-571401
6. R. SHIVAKUMAR
S/O RAMAN
AGED ABOUT 34 YEARS
R/O NO.35, 1ST STREET
SIRUMALLUR VILLAGE AND POST
CHYYUR TALUK, KPM DISTRICT
TAMIL NADU STATE
7. ORIENTAL INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE
SAYYAJIRAO ROAD
MYSORE REPRESENTED BY ITS
DIVISIONAL MANAGER-570001 ... RESPONDENTS
(BY SRI. T.S. GIREGOWDA FOR R1,
R2 & R3 ARE MINORS REPRESENTED BY R1;
SRI. A. RAVISHANKAR, ADVOCATE FOR R7;
SRI. R.R. SUNDARA RAJA GUPTA, ADVOCATE FOR R5;
NOTICE TO R4 DISPENSED WITH VIDE ORDER DATED
28.3.2014;
SERVICE HELD SUFFICIENT TO R6 VIDE ORDER DATED
20.2.2017)
3
THIS APPEAL IS FILED UNDER SECTION 173 (1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 20.07.2012 PASSED
IN MVC NO.43/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE,
MACT., T.NARASIPURA, AWARDING A COMPENSATION OF
RS.6,42,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The appellant - National Insurance Company Limited was the 3rd respondent in MVC No.43/2010 before Senior Civil Judge and MACT at T.Narasipura which was decided on 20.07.2012 ('Tribunal' for short).
2. The Tribunal by way of aforesaid judgment had allowed the petition filed by the family members of a cleaner-helper of the vehicle viz., a private bus bearing Registration No.KA-54-4999 as regards the death of the said cleaner-helper having fallen down from the bus when the driver applied the brake suddenly and subsequent thereto, he was hit by a 4 paddy harvester Ashoka Leyland Cargo bearing Registration No.TN-34-B-1896, which was parked on the left side of the road in front of the hotel at Talabetta.
3. The Tribunal partly allowed the claim petition and awarded compensation of a sum of Rs.6,42,000/- with interest @ 6% p.a. to the petitioners therein. The quantum of the compensation as also the calculation of the compensation is not in dispute.
4. The appellant in the present appeal would contend that the deceased was a cleaner and he is excluded from the policy taken out on the said bus and therefore, it is contended that the Insurance Company is not liable to make payment of any compensation to such excluded person.
5. In this regard, reliance is placed by Sri.Sreekanta Rao, learned counsel for the appellant on Ex.R4 to 5 contend that the insurance policy does not cover a cleaner. Reliance is also placed on proviso to Section 147(1)(b)(ii) to contend that only the persons named therein that is the driver, conductor examiner of tickets could be covered by such policy and any person not so named in the said proviso would not be covered by the policy and Insurance Company would not liable to make payment of any compensation for injuries or death suffered by the persons not named therein. Reliance is also placed on the decision of this Court in the case of Vew India Assurance Company Limited vs. Shantha reported in LAWS (KAR) 2008 332 more particularly para 10 thereof and it is contended that it is only the driver or cleaner or examiner of the tickets who would be covered under the policy. Any other member, employee of the owner of the bus, if traveling in the said bus 6 would not be so covered unless additional insurance premium is collected towards the same. The said decision of Vew India Assurance Company Ltd., was dealing with the act policy and no additional premium was collected and therefore this Court has held that there is no specific coverage for a cleaner as there was no contractual liability undertaken by the insurer to cover the liability of the cleaner. This Court held that the cleaner was not covered by such policy.
6. Sri.A.Ravishankar, learned counsel for the appellant who appears for insurer of the non- defaulting vehicle i.e, paddy harvester Ashoka Leyland Cargo submits that he is only a formal party, since, there is no liability which is affixed on the insurer of that vehicle. Any liability for payment arising out of the accident would be to the account of the insurer of the bus and the same 7 would depend on the condition of the insurance policy as also the Indian Motor Tariff and terms thereof.
7. Heard Sri.L.Sreekanta Rao, learned counsel for appellant and Sri.T.S.Giregowda, learned counsel for respondent No.1, Sri.Ravishankar, learned counsel for respondent No.7., Sri.R.R.Sundara Raja Gupta, learned counsel for respondent No.5.
8. The facts are not in dispute. What is relevant for consideration of this Court is only as regards the applicability of the insurance policy and the coverage arising therefrom. A perusal of Ex.R4 being the insurance policy issued by the appellant in respect of the public service bus would indicate that it is not just an act policy but also a contractual policy since additional premium has been collected under the said policy. In terms of 8 the additional premium, liability to workmen compensation to two employees are covered in addition to the basic policy or the act policy.
9. An additional premium having been collected for two employees, it is therefore, required for the Insurance Company to bear the compensation required to be paid towards such employees if any claim is raised by them. Now the question would be as regards identification of the employees covered. That question would be relevant only if there are more than two claimants, since only two claimants are covered if lesser than two claims are made then as long the employer/owner of the insured bus were to consent to the claim and to be an employee, such employee would be covered by the policy. Needless to say that this is over and above the driver, conductor, examiner of tickets who are naturally covered under the act policy and 9 these two persons could be over and above those persons.
10. Apart from the above, it would also be relevant to point out IMT 40 since these policy which is the subject matter of the dispute covers IMT endorsement 7, 28 and 40. IMT 40 and therefore would cover a driver, and/or conductor and/or cleaner employed in connection with the operation of motor vehicle.
11. In view of specific IMT endorsement 40 issued by the appellant-insurance company, the decision of this Court in Vew India Assurance Company Limited would not be applicable to the present facts and circumstances. Thus, looked at from any angle, that is either on account of collection of additional premium for two employees, as also IMT 40, it is seen that the appellant would be liable for 10 payment of compensation towards any injuries caused to the cleaner/helper of the vehicle in question. Hence, I find no infirmity in the judgment of dated 20.07.2012, the same stands confirmed.
The amount in deposit before this Court shall be transferred to the Tribunal to do needful. Appeal is accordingly dismissed.
Sd/-
JUDGE Prs*