Karnataka High Court
Babusab S/O Moulali And Anr vs Iffco-Tokio Gfeneral Insurance ... on 29 June, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.31360/2013 (MV)
C/W
MFA No.200227/2014 (MV)
IN MFA NO.31360/2013
BETWEEN:
1. BABUSAB S/O MOULALI,
AGE: 46 YEARS, OCC: BUSINESS,
R/O ISLAMNAGAR, MANVI-584123
OWNER OF ABOVE NUMBERED TRACTOR.
2. HUSSAIN PASHA S/O MOULASAB,
AGE: MAJOR, OCC: BUSINESS,
R/O HIREKOTNEKAL, TQ. MANVI-584123
OWNER OF TRAILER NO.KA-36-TA-4528.
... APPELLANTS
(BY SRI. BASAVARAJ R.MATH, ADVOCATE)
AND:
1. IFFCO-TOKIO GENERAL
INSURANCE CO. LTD.
BUDEV PLAZA, 3RD FLOOR,
SRILAXMI TEMPLE,
DAJIBANPET HUBLI-580001.
2
2. UNITED INDIA INSURANCE CO. LTD.,
GANDHI CHOWK, RAICHUR-584101.
3. RAMANNA S/O HULIGEMMA,
AGE: 29 YEARS, OCC: DRIVER OF
MAHINDRA TRACTOR BEG. NO.
KA-36-TB-2119,
R/O AMBEDKAR NGAR,
KONAPURPET, MANVI-584123.
4. VEERESH S/O RUDRAMUNI @ JINDAPPA,
AGE: 26 YEARS,
OCC: BAILDER LABOUR WORK,
R/O LBS NAGAR, RAICHUR-584101.
... RESPONDENTS
(BY SRI. G.G.CHAGASHETTY, ADVOCATE FOR R1;
BY SRI. J.AUGUSTIN, ADVOCATE FOR R2;
BY SRI. PRAVEEN KUMAR.M. KALKORI, ADV. FOR R3;
BY SRI. SANGANAGOUDA V.BIRADAR, ADVOCATE FOR R4)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE M.V.ACT, PRAYING TO ALLOW THE
APPEAL BY SETTING ASIDE THE JUDGMENT AND AWARD
PASSED BY THE MACT (FTC-I), RAICHUR IN MVC NO.228/2012
DATED 15.03.2013 AND CONSEQUENTLY DISMISS THE CLAIM
PETITION OR ALTERNATIVELY HOLD THE RESPONDENT NOs.1
& 2 INSURANCE COMPANY AS LIABLE TO PAY THE
COMPENSATION.
******
IN MFA NO.200227/2014
BETWEEN:
VEERESH S/O RUDRAMUNI @ JINDAPPA,
AGE: 27 YEARS,
3
OCC: BAILDAR LABOUR WORK,
R/O LBS NAGAR, RAICHUR.
... APPELLANT
(BY SRI. SANGANGOUDA V.BIRADAR, ADVOCATE)
AND:
1. RAMANNA S/O HULIGEMMA,
AGE: 30 YEARS, OCC: DRIVER,
R/O. AMBEDKAR NAGAR,
KANAPURPET, MANAVI.
2. BABUSAB S/O MOULALI,
AGE: 47 YEARS, OCC: BUSINESS,
R/O. ISLAMNAGAR,
MANAVI.
3. HUSSAIN PASHA S/O MOULASAB,
AG: MAJOR, OCC: BUSINESS,
R/O. HIREKOTNEKAL,
MANAVI.
4. IFFCO TOKIO GENERAL
INSURANCE COMPANY LTD.,
BUDEV PLAZA, 3RD FLOOR,
SRILAXMI TEMPLE,
DAJIBANPET, HUBLI.
5. UNITED INSURANCE CO. LTD.
GANDHI CHOUK RAICHUR.
... RESPONDENTS
(BY SRI. PRAVEEN M. KALKORI, ADVOCATE FOR R1 & R3;
BY SRI. USTAD FIRASATH HUSSAIN, ADVOCATE FOR R2;
BY SRI. I.R.BIRADAR, ADVOCATE FOR
SRI.G.G.CHAGASHETTY, ADVOCATE FOR R4;
BY SRI. J.AUGUSTIN, ADVOCATE FOR R5)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE M.V.ACT, PRAYING TO ENHANCE THE
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COMPENSATION AND SHIFT LIABILITY TO RESPONDENT NOs.4
AND 5/INSURANCE COMPANIES AND MODIFY THE JUDGMENT
AND AWARD DATED 15.03.2013 PASSED BY THE MOTOR
ACCIDENT CLAIMS TRIBUNAL (RTC-I), RAICHUR IN MVC
NO.228/2012 AND ALLOW THE SAID CLAIM PETITION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
ON 15.06.2022, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
These two appeals are filed challenging the judgment and award dated 15.03.2013 passed by the Motor Accident Claims Tribunal/ FTC-I at Raichur ( 'Tribunal' for short) in MVC No.228/2012.
2. MFA No.31360/2013 is filed by the Respondents No.2 & 3 (owners of offending Tractor and Trailer) challenging the liability, while MFA No.200227/2014 is filed by the claimant, seeking enhancement of compensation awarded by the Tribunal.
3. For the sake of convenience, the parties herein are referred as per the ranks occupied by them before the Tribunal.
4. The brief factual matrix leading to the case are that, on 03.01.2012, the claimant was proceeding in Tractor- 5 Trailer bearing No.KA.36/TB.2119 and KA.36/TA-4528 along with agricultural labourers, which was driven by Respondent No.1. It is further alleged that, when the said Tractor and Trailer reached on Manvi-Raichur main road at about 12.30 p.m. in front of Mahindra Tractor Show Room at Manvi, the driver of the tractor-trailer drove it in rash and negligent manner and hit to a TATA Indica Car bearing Registration No. KA.36/M.2330 from back side. As a result of which, the inmates of the tractor-trailer fell down including the claimant and the wheel of the trailer ran over the thigh portion of the claimant/petitioner and due to which, he suffered grievous injuries. It is also asserted that, the claimant has spent huge amount for treatment and he is permanently disabled and hence filed claim petition before the Tribunal in MVC 228/2012 against the respondents, seeking compensation of Rs.25,74,000/-.
5. Respondent No.1 is the driver and respondents No.2 & 3 are the owners of the tractor-trailer, while respondents No.4 & 5 are two different Insurers of the Tractor and Trailer.
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6. In spite of service of notice, Respondents No.1 to 3 did not choose to appear before the Tribunal and they were placed ex-parte.
7. Respondents No.4 & 5/Insurers appeared before the Tribunal and filed independent written statements denying the allegations and assertions made in the claim petition. They further contended that the accident had occurred because of the actionable negligence on the part of the driver of the car. It is also asserted that the driver of the car as well as the driver of the Tractor and Trailer were not possessing valid and effective driving licence. Further, it is contended that there is breach of policy conditions, as the owners of the Tractor and Trailer have allowed the claimant to travel in the vehicle on the load of stone crush powder, as the Insurance Policy of the alleged vehicle was a Farmers Package Policy. Hence, it is prayed for dismissal of the claim petition.
8. The Tribunal after assessing the oral and documentary evidence has allowed the claim petition by awarding compensation of Rs.8,96.000/- with interest at 6% 7 from the date of petition, till the date of realisation and fastened the liability on Respondents No. 2 & 3 to the extent of 50% each.
9. Being aggrieved by this judgment and award, respondents No.2 & 3/ owners have filed MFA No.31360/2013 challenging the liability, while claimant has filed MFA No.200227/2014 seeking enhancement.
10. Heard the arguments advanced by the learned counsel for appellants and respondents in both the appeals. Perused the records.
11. Learned counsel for appellants in MFA No. 31360/2013, who are the owners of Tractor and Trailer, would contend that the said vehicles were being used for transporting the stone crush powder to the house of Respondent No.2, who was the owner of the vehicle and the claimant was travelling as per his instructions. Hence, he would contend that the claimant was under employment of Respondent Nos. 2 & 3 and as such, fastening liability on Respondents No.2 & 3 on the ground of violation of policy conditions, is erroneous. He would contend that under Section 147 of the Motor Vehicles Act, 1988 8 ('MV Act' for short), the risk of the labourer is covered and since the claimant is a labourer, his risk is covered and the liability is required to be fastened on the Insurance Companies with whom the offending vehicles were insured.
12. Learned counsel for the appellant/ claimant in MFA No. 200227/2014 would contend that the compensation awarded was on lower side as the income of the deceased was taken on lower side. Further, he would contend that the Tribunal has taken the disability to the extent of 80%. But, amputation of his leg above the knee amounts to functional disability of 100%. Hence, he would seek for enhancement of compensation by considering future prospects also.
13. Per contra, learned counsel for Respondents No.4 & 5/Insurers would support the judgment and award passed by the Tribunal in MVC no.228/2012, which is under challenge in both these appeals.
14. Having heard the arguments and perusing the records, it is not in serious dispute that the claimant was travelling in Trailor when the load of stone crush powder was 9 being transported in Trailor. There is also no dispute of the fact that the Tractor and Trailer was involved in the accident and the driver of Tractor and Trailer i.e., Respondent No.1 was being prosecuted. Even the claimant all along specifically asserted that the accident is because of actionable negligence on the part of the Respondent No.1/driver.
15. It is required to be noted here that the petition is filed under Section 166 of the MV Act. The claimant was travelling by sitting on the load of stone crush powder and as the trailer over-turned, the claimant also fell down and as a result, the wheel of the Trailer ran over the thigh of the claimant. Though the Tribunal has considered the fact regarding the driver was not possessing valid and effective driving licence as on the date of accident, but however, that point may not be relevant in view of the decision rendered by the Hon'ble Apex Court in AIR 2017 SC 3668 (Mukund Dewangan Vs. Oriental Insurance Company Limited), as the tractor is a Light Motor Vehicle and it makes no difference as to whether it was a transport vehicle or not. 10
16. However, it is the specific contention of the Respondents No.4 & 5/Insurers that, there is breach of policy conditions. Ex.R1 is the policy pertaining to Tractor and Ex.R4 is the policy pertaining to Trailer. It is evident that the policy in existence as on the date of accident was 'Formers Package Insurance Policy'. However, it is also important to note here that no premium was paid covering the risk of any passengers travelling in the trailer. The main contention of the learned counsel for appellants/owners of Tractor and Trailer is that the claimant was under employment and the tractor was never used for commercial purpose. But, it is to be noted here that there is a specific assertion in the complaint as well as in the claim petition, and also in the statement of PW.1 that the stone crush powder was being transported to the house of Moulali, who is stated to be the father of respondent No.2/owner of offending Tractor. On perusal of the entire evidence of PW.1/claimant, it is important to note here that no where he asserted that he was working either under Respondent No.2 or
3. However, the trailer cannot move independently and it is attached to the tractor and the owners of both tractor-trailer are responsible to the extent of 50:50, as per the decision of 11 this Court in MFA No.2152/2006 (WC) [M/s. United India Insurance Co. Ltd. Vs. Sanna Tayanna and others] decided on 01.09.2015.
17. PW.1/claimant specifically asserts that he used to undertake separate contracts for construction of houses. In examination-in-chief in Para No.2, he specifically asserts that, he was proceeding in Tractor-Trailer along with agricultural labourers. But, in cross-examination, he asserts that only he and driver were travelling in the Tractor-Trailer and these stands are inconsistent. PW.1/claimant never asserts that, he was a labourer under respondent No.2/owner and he was travelling with the load of stone crush powder. But, his own evidence, disclose that he was an independent contractor and he used to undertake construction of houses and as such the stone crush powder was being transported. First of all, the vehicle is not used for agricultural purpose. As transportation of stone crush powder, even for personal use of the father of respondent No.2/owner does not amount that it was for agricultural use and that it does not fall under the terms and conditions of the policy, as admittedly, the policy was 12 'Formers Package Policy. Secondly, the claimant never claimed that he was the labourer under Respondent No.2 or 3/Owners of the alleged Tractor and Trailer and interestingly, they never contested the claim petition before the Tribunal by filing any objections or set-up any defence regarding the claimant working under them. But, straightaway, without there being any defence before the Tribunal, now they filed appeal before this Court. Further, there is no material evidence to show that the claimant was working under them at any point of time, and on the contrary, the evidence discloses that the claimant was working independently and merely because he was sitting on the load of stone crush powder, it cannot be presumed that, he was a labourer under Respondents No.2 or 3.
18. Learned counsel for the appellants/owners invited the attention of the Court towards the recital of the complaint. But, on perusal of the recital of the complaint, it is noticed that there is an assertion that the labour, who was sitting on the stone crush powder, fell down and sustained injuries. But, complaint was not filed either by driver or owners of the offending Tractor-Trailer. But, it was filed by a third person ie., 13 driver of the car, which was hit by the Tractor and Trailer, and it is assumed that a person sitting in the Trailer might to be a labourer. But, the claimant himself has never asserted about this aspect. Hence, simply because there is some reference in the complaint, the contention that claimant was a labourer under respondent No.2 or 3/owners, cannot be accepted and that too when the claimant himself has never asserted this aspect. Further, the provisions of Section 147 of the MV Act cannot be made applicable to the case on hand, since the claimant is a gratuitous passenger travelling in the Tractor- Trailer, and not being a labourer, he is not covered under the policy, as there is clear breach of policy conditions. As such, it is only respondent Nos. 2 & 3, who are owners of the Tractor- trailer, are liable to indemnify the claimant. Hence, though the Tribunal has absolved the liability of Respondent Nos. 4 & 5/Insurers on account of the driver of the offending Tractor and Trailer was not possessing driving licence, which may not be proper. However, admittedly, the finding of the Tribunal is proper in view of the fact that there is clear breach of policy conditions on the ground that the claimant is a gratuitous passenger and no premium was paid towards additional 14 coverage of risk of any inmates of the Tractor-Trailer. Hence, the appeal filed by Respondent Nos. 2 & 3/owners in MFA No.31360/2013 needs to be rejected.
19. As stated above, the claimant has filed MFA No.200227/2014 seeking enhancement and the Tribunal has granted compensation of Rs.8,96,200/-. The Tribunal on the basis of medical evidence, has taken the disability at 80% in view of the evidence given by PW.2-Doctor. No doubt, the Doctor has assessed the disability to the extent of 80% to the whole body. But, admittedly the claimant is a Beldar and his left leg above the knee was amputated, which is also not in serious dispute. Considering the nature of work carried by the claimant, the disability has to be treated as 100% functional disability. Hence, the Tribunal is not justified in taking disability for calculating compensation only at 80%.
20. The Tribunal has taken the income of the deceased at Rs.4,500/- p.m. But, as per the Lok-Adalat Chart, this Court is consistently taking the notional income at Rs.6,500/- in respect of the accidents occurred during the year 2012. Hence, the Tribunal has erred in taking the income on the lower side. 15
21. The claimant is aged 25 years as on the date of accident and as such, the multiplier '18' is applicable and the claimant has sustained 100% functional disability. Apart from that, since the claimant is virtually crippled because of amputation of his one leg, as such, he cannot carry-out his regular avocation as before, so as to consider reduction in the income. Hence, in view of the decision of a Division Bench of this Court reported in MFA No.103807/2016 c/w. MFA 103835/2016 decided on 27.05.2022 (New India Assurance Co. Ltd. Vs. Abdul and others), the compensation under the Loss of Future Prospects is required to be added. Therefore, considering the age of claimant, 40% of his income is required to added and as such, the income of claimant would work-out Rs.9,100/- p.m. As such, the compensation under the head of Loss of Future Income would be Rs.19,65,600/- (Rs.9,100x12x18).
22. The claimant is also entitled for medical expenses to the extent of Rs.32,000/-, as awarded by the Tribunal. He is also entitled for compensation of Rs.40,000/- under the head of Pain and Suffering and Rs.20,000/- under the head 16 of Loss of Amenities. Apart from that, the claimant is also entitled for Rs.16,600/- towards attendant charges towards 83 days of his hospitalisation and Rs.3,000/- towards Extra Nourishment. Hence, the claimant would be entitled for total compensation of Rs.20,77,200/-
23. The Claimant/appellant in his valuation in the appeal memo has restricted his claim to Rs.15.00 Lakhs. Because, he initially claimed compensation of more than Rs.24.00 Lakhs and this Court does not have any jurisdiction to entertain such appeal. Hence, considering this aspect, he has restricted his claim to Rs.15.00 Lakhs. When the claimant himself has restricted his claim to Rs.15.00 Lakhs, this Court cannot grant compensation more than Rs.15.00 Lakhs, as the jurisdiction of this Court is restricted to said amount and claimant has also restricted the same. Under such circumstances, though the claimant is entitled for total compensation of Rs.20,77,200/-, in view of his own restriction, the compensation is required to be restricted to Rs.15.00 Lakhs only.
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24. Under these circumstances, looking to the facts and circumstances of the case, the appeal in MFA No.200287/2014 needs to be allowed in respect of enhancement of compensation. But, the appeal filed by Respondent Nos.2 & 3/owners of offending Tractor & Trailer in MFA No.32360/2013, challenging the point of liability fastened on them, needs to be dismissed. Accordingly, I proceed to pass the following:
ORDER
i) The appeal in MFA No.200227/2014 is allowed.
ii) The claimant/appellant is entitled for compensation of Rs.15.00 Lakhs, as against Rs.8,96,200/-
awarded by the Tribunal.
iii) The enhanced compensation of Rs.6,03,800/- shall carry interest at 6% pa, from the date of petition, till the date of realisation.
iv) The Respondent Nos. 2 & 3/owners of Tractor & Trailer in question are liable to deposit the entire compensation in equal proportion (50:50) with proportionate interest thereon, from the date of petition till the date of realisation and they are directed to deposit the same within six weeks from today.
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v) On deposit of entire compensation amount with
accrued interest thereon, 50% the same shall be
kept in Fixed Deposit in the name of
appellant/Claimant in MFA No.200227/2014, in any Nationalised Bank for a period of three years and the remaining 50% shall be released in favour of the appellant/claimant.
vi) The claim of the appellant/claimant as against Respondent Nos. 4 & 5/Insurers in the appeal, stands dismissed.
vii) MFA No.31360/2013 filed by Respondent Nos. 2 & 3/ owners stands dismissed.
viii) Statutory amount deposited in MFA No.31360/2013 shall be remitted back to the Tribunal.
Sd/-
JUDGE KGR*