Karnataka High Court
Sri. Munivenkatappa vs Sri. Narasimhaiah on 13 September, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
MFA NO.3355/2017(MV)
C/W
MFA NO.3356/2017(MV)
IN MFA NO.3355/2017:
BETWEEN:
1. SRI. MUNIVENKATAPPA
S/O LATE VENKATAPPA
AGED ABOUT 40 YEARS
2. AMARESHA
S/O MUNIVENKATAPPA
AGED ABOUT 20 YEARS
3. MASTER BABU
S/O MUNIVENKATAPPA
AGED ABOUT 171/2 YEARS
3RD MINOR APPELLANT IS
REPRESENTED BY NATURAL GUARDIAN/FATHER
1ST APPELLANT HEREIN
ALL ARE RESIDING AT
SEEGENAHALLI VILLAGE
KAPPALA MADAGU POST
MULBAGAL TALUK
KOLAR DISTRICT-563 131
... APPELLANTS
(BY SRI. GOPAL KRISHNA .N, ADVOCATE)
2
AND:
1. SRI. NARASIMHAIAH
S/O MARAPPA
MAJOR IN AGE
RESIDING AT KAPPALA MADAGU POST
MULBAGAL TALUK, KOLAR DISTRICT
PIN: 563 131
2. THE UNITED INDIA
INSURANCE COMPANY LTD.
BRANCH OFFICE, 1ST FLOOR
BAGALUR MANSION, DODDAPET
KOLAR-563 101
REP. BY ITS MANAGER
... RESPONDENTS
(BY SRI. RAVISH BENNI, ADVCOATE FOR R2,
R1 SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:29.06.2016 PASSED IN MVC NO.275/2013 ON THE
FILE OF THE II ADDL.SR.CIVIL JUDGE AND MACT KOLAR,
(ITINERATING AT MULABAGAL), PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO.3356/2017:
BETWEEN:
SRI. MUNIVENKATAPPA
S/O LATE VENKATAPPA
AGED ABOUT 40 YEARS
RESIDING AT
SEEGENAHALLI VILLAGE
KAPPALA MADAGU POST
3
MULBAGAL TALUK
KOLAR DISTRICT
... APPELLANT
(BY SRI. GOPAL KRISHNA .N, ADVOCATE)
AND:
1. SRI. NARASIMHAIAH
S/O MARAPPA
MAJOR IN AGE
RESIDING AT KAPPALA MADAGU POST
MULBAGAL TALUK, KOLAR DISTRICT
PIN: 563 131
2. THE UNITED INDIA
INSURANCE COMPANY LTD.
BRANCH OFFICE, 1ST FLOOR
BAGALUR MANSION, DODDAPET
KOLAR-563 101
REP. BY ITS MANAGER
... RESPONDENTS
(BY SRI. RAVISH BENNI, ADVCOATE FOR R2,
R1 SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:29.06.2016 PASSED IN MVC NO.274/2013 ON THE
FILE OF THE II ADDL.SR.CIVIL JUDGE AND MACT KOLAR,
(ITINERATING AT MULABAGAL), PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 23.08.2022, COMING ON
FOR 'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
4
JUDGMENT
These two appeals are filed by the claimants under Section 173(1) of the MV Act challenging the judgment and award in MVC Nos.274/2013 and 275/2013 on the file of II Addl. Senior Civil Judge and MACT, Kolar (Itinerating at Mulbagal) dated 29.06.2016, whereby the claim petitions were allowed in part. However, the liability is fastened on respondent No.1- owner of the vehicle and the respondent No.2-Insurer is being exonerated.
2. For the sake of convenience, the parties herein are referred as per the ranks occupied by them before the Tribunal.
3. The brief factual matrix leading to the case are that the injured petitioner namely Munivenkatappa in MFA No.3356/2017 along with his wife Lakshmamma and other coolie workers were proceeding to Seeganahalli village from Mulbagal on 04.06.2012 as per the instructions of 1st respondent in his Tractor and 5 Trailer bearing registration No.KA-07-T-9602 and KA- 07-TA-970 along with a load of fertilizer bags. That the petitioner along with his wife was sitting in the Trailer and at about 8.00 a.m the driver of the Tractor and Trailer drove it in a rash and negligent manner on NH-4 road, near Seegenahalli Tank and attempted to overtake a ongoing vehicle. As a result he lost control over the said vehicle. As such the Tractor and Trailer went in to road side ditch and fell down and due to the said impact, he and his wife fell down and both of them sustained grievous injuries. Both of them were taken to R.L.Jalappa Hospital, Kolar and wherein it is found that the claimant-petitioner Munivenkatappa suffered open type III Supra condular fracture of left femur and he was inpatient in the hospital and later on he was shifted to Gaurav Orthopedic and Surgical hospital, Kolar, wherein he underwent two surgeries. Further it is asserted that his wife Lakshmamma was also admitted in the hospital on the same day. However, she succumbed in R.L.Jalappa Hospital, Kolar on 07.06.2012 6 without responding to the treatment. Hence, he filed two claim petitions one pertaining to injury sustained by him in MVC No.274/2013 and another claim petition is filed by him along with his children on account of death of his wife in MVC No.275/2013.
4. The Tribunal after assessing the oral and documentary evidence has partly allowed both the claim petitions.
5. The petitioner-claimant was awarded Rs.1,78,940/- in respect of injuries sustained by him while he along with his children were awarded sum of Rs.13,17,690/- on account of death of his wife Lakshmamma but liability was fastened on owner- Respondent No.1.
6. Being dissatisfied by this judgment and award the claimants have filed these appeals.
7. Heard the arguments advanced by the learned counsel for the appellants-claimants and learned 7 counsel for respondent No.2-Insurance Company. Perused the records.
8. Learned counsel for the appellants-claimants would contend that deceased and claimant were travelling in a Trailer and three coolies were permitted and there is coverage of unlimited liability for one employee as per Ex.D1. It is also asserted that both claimant and deceased were travelling as a coolie along with fertilizer bag and hence, it is contended that the Tribunal has erred in fastening the liability on owner- respondent No.1. As regards the claimant in respect of injuries, it is fairly submitted that the quantum is not disputed but only liability is disputed. However, in respect of the death, it is contended that proper compensation is not awarded and sought for enhancement of the compensation also.
9. Learned counsel for respondent - Insurer would support the judgment and award passed by the Tribunal. It is contended that as per the available 8 evidence the deceased and claimant Munivenkatappa were traveling along with one Triveni by sitting on 20 bags of fertilizers. But there is no evidence to show that the fertilizer bags were being transported in the said vehicle. He would also contend that no premium is paid covering the risk of additional employee and premium was paid covering the risk of the owner as well as driver. He would also contend that there are no traces of manure found at the spot mahazar and damage to the Tractor is also not claimed by the owner which would clearly establish that the claimants were gratuitous passengers and they were not employees of respondent No.1.
10. Interestingly, it is to be noted here that the respondent-owner though appeared through his counsel, did not contest the matter by filing the objections. He never asserted that the deceased and the claimant were under his employment.
9
11. There is no serious dispute of the fact that the deceased Lakshmamma and her husband claimant Munivenkatappa were traveling in the Tractor and Trailer bearing registration No.KA-07-T-9602 and KA-07-TA-
970. It is also not under serious dispute that the said vehicle met with an accident. Due to the said impact the claimant Munivenkatappa suffered injuries and his wife Lakshmamma succumbed in the hospital 3 days later on. The Tribunal has awarded compensation of Rs.1,78,940/- to the claimant Munivenkatappa under following heads:
Sl. Particulars Amount
No.
1 Pain & Sufferings Rs.15,000/-
2 Medical expenses Rs.54,580/-
3 Incidental expenses Rs.11,200/-
4 Loss of income during Rs.6,000/-
treatment period
5 Future loss of income Rs.92,160/-
Total compensation Rs.1,78,940/-
12. Learned counsel would fairly submit that though he has filed an appeal regarding the quantum also, he would not press the issue of quantum as 10 regards the injuries sustained by Munivenkatappa. Hence, there is no issue regarding compensation awarded to the tune of Rs.1,78,940/- to the claimant.
13. Admittedly, the accident has occurred in 2012. The Tribunal has taken the income at Rs.6,000/- p.m of the deceased Lakshmamma. In the absence of any material evidence, this Court is consistently taking the notional income pertaining to the accidents occurred in the year 2012 at Rs.7,000/- p.m. Further the deceased was aged about 33 years which is evident from Ex.P14 and Ex.P17. The Tribunal has added 50% towards future prospects which is on higher side and considering the self employment, 40% is required to be added. If the income of the deceased is taken as Rs.7,000/- p.m and if 40% is added towards her future prospects, her total monthly income would be Rs.9,800/- (Rs.7,000 + 40%). The Tribunal has rightly deducted 1/3rd of the same considering the number of 11 dependents and hence, loss of future income would work out as under:
Rs.9,800/- X 12 X 17 X 2/3 = Rs.13,32,800/-
14. Further in MFA No.3355/2017 arising out of MVC No.275/2013, there are three dependents and each of them are entitled for Rs.40,000/- under the head of Consortium. Hence, they are entitled for Rs.1,20,000/-. It is also evident from records that they have spent Rs.3,690/- towards medical expenses and they are entitled for the same as awarded by the Tribunal. Further under the head of loss of estate they are entitled for Rs.15,000/- and under the head of funeral expenses they are entitled for Rs.15,000/-. Hence, claimants would be entitled for total compensation of Rs.14,86,490/- under the various heads as under:
Sl. Particulars Amount
No.
1 Loss of Dependency Rs.13,32,800/-
2 Funeral expenses Rs.15,000/-
3 Loss of estate Rs.15,000/-
4 Medical expenses Rs.3,690/-
5 Loss of consortium Rs.1,20,000/-
12
(Rs.40,000X3)
Total compensation Rs.14,86,490/-
Award of Tribunal Rs.13,17,690
Enhanced
Rs.1,68,800/-
compensation
15. The Tribunal has fastened the liability on the owner on the ground that there is breach of policy conditions. Ex.D1 is the policy and it disclose that compulsory TA coverage for owner cum driver premium of Rs.100/- is paid and Rs.25/- is paid towards one employee. However, the premium is paid in respect of the Tractor only and additional premium for Trailer is paid for Rs.535/-. No separate policy was taken pertaining to Trailer and this policy Ex.D1 is only pertaining to Tractor. Tractor is meant for one driver and question of paying premium for a employee in this regard does not arise at all.
16. Learned counsel for the appellants would contend that since additional premium is paid covering the risk of one employee the insurance company is liable. It is further argued that a Tractor Trailer is a 13 goods carriage and in support of his contention he placed reliance on the decision in the case of National Insurance Company Limited vs. Sri.Maruthi and Others reported in ILR 2011 KAR 4139. But in the said case, the claimants were held to be travelling in the Tractor Trailer for the purpose of agricultural operations, as they were carrying the stones for construction of the bridge in the land belonging to the insured. Hence, relying on the citation he would contend the insurance company cannot absolve its liability. In this context he alternatively placed reliance on the decision of the full Bench of this Court in the case of New India Assurance Co. Ltd., Bijapur by its Divisional Manager vs. Yallavva and Another reported in ILR 2020 KAR 2239 and argued that the insurance company is bound to satisfy the claim and recover it from the owner under pay and recovery policy. However, the learned counsel for the respondent on this point has placed reliance on the decision of the Hon'ble Apex Court in the case of Oriental Insurance 14 Company Ltd., vs. Brij Mohan and others reported in (2007) 7 SCC 56 wherein Section 147 was dealt with respect to gratuitous passengers. It is observed as under:
A. Motor Vehicles Act, 1988 - S.147 (after its amendment in 1994) - Gratuitous passenger carried in goods vehicle, reiterated, is not covered - The 1994 amendment only extended the statutory cover to the owner of the goods or his authorized representative carried in the vehicle, and not to gratuitous passengers - so where a labourer was traveling on the trolley of the tractor carrying earth to brick kiln, he being merely a passenger, his claim was not maintainable.
B. Motor Vehicles Act, 1988 - S.147- Deviation from purpose for which vehicle insured - Effect - Claim petitioner a labourer injured while traveling in trolley attached to tractor carrying earth to brick kiln - But neither was the tractor trolley insured in addition to the tractor nor was the tractor being used for "agricultural works", the only purpose for which the tractor was insured 15 when the appellant received the injuries - Held, claim not maintainable - Words and phrases.
17. In the said case the labourer was travelling on a trolley of the tractor carrying earth to brick kiln and he was a gratuitous passenger and it is held that claim is not maintainable. Though in the instant case, it is all along argued that claimant was employed under respondent No.1 and he was carrying manure bags itself is under dispute. On perusal of Ex.P5 seizure of the vehicle mahazar, it is evident that no manure bags were seized from the spot. Even on perusal of the Ex.P5-spot mahazar it is evident that at the spot no traces of manure were noticed by the investigating officer. Though the seizure of manure may not be there but traces of manure itself is not found when the Tractor met with an accident, when it was loaded with manure bags which over turned as it fell down in a ditch of 15 feet depth. Hence, some manure traces ought to have been found at the spot but that is 16 not forthcoming. Hence, the contention of the claimant that they were working under respondent No.1 and were travelling along with manure bags cannot be accepted. Even otherwise the complaint allegations itself disclose that they were travelling by sitting on manure bags. In this context learned counsel for respondent has further placed reliance on the decision of the Hon'ble Apex Court in the case of M.S.Middle High School vs. HDFC ERGO General Insurance Co. Ltd. and others reported in 2018 ACJ 2108. Further he has also placed reliance on the decision reported in the case of United India Insurance Co. Ltd. vs. Serjerao and Ors. reported in 2007 AIR SCW 7280 wherein the Hon'ble Apex Court has clearly held that labourers travelling in a Tractor trolley, the insurance company has no liability. Under such circumstances, when the claimants are travelling in the trolley they cannot claim any compensation in the absence of any evidence to prove that any additional premium is paid in respect of the coolies travelling in Trailer. But no such evidence is 17 forthcoming. The records disclose that there is no insurance for trolley at all and whatever insurance was paid under Ex.D1 was pertaining to Trailer. In this context the learned counsel for the respondent has further placed reliance on the decision in the case of Oriental Insurance Co. Ltd. vs. Smt. Shoba and Others reported in ILR 2011 KAR 4619.
18. In the instant case at the first instance there is no evidence to prove that the deceased and claimant Munivenkatappa were employed under respondent No.1. Respondent No.1 himself did not admit this aspect. Second aspect is that, all along it is asserted that they were traveling along with 20 manure bags but Ex.P5 disclose that no manure traces were found at the accident spot and hence, the contention that the deceased and the claimant Munivenkatappa were travelling along with manure bags cannot be accepted. Further the Trailer was also not insured. There is no evidence that any extra premium is paid. Though it is all 18 along argued that three coolies are permitted, there is no evidence to substantiate this aspect. Under Section 147, the liability is required to be fastened only if there is evidence to show that Trailer was insured but in the instant case that is also missing. Under Section 147, liability can be fastened only if additional premium is paid. But in the instant case, there is no material evidence to show that the Trailer was insured with respondent and additional premium is paid. All these facts and circumstances clearly establish that the Tribunal is justified in fastening the liability on respondent No.1 who never supported the claim of the claimants that they were under his employment and were transporting his manure bags in the Tractor during the relevant time of the accident. Hence, the question of fastening the liability on insurance company does not arise at all and the owner-respondent No.1 is bound to satisfy the claim of the claimants. Under these circumstances, the appeal in MFA No.3355/2017 arising out of MVC No.275/2013 needs to be allowed in part so 19 far as it is concerned to quantum. However, the liability cannot be fastened on the insurance company. The appeal in MFA No.3356/2017 arising out of MVC No.274/2013 does not survive for consideration and accordingly, I proceed to pass the following:
ORDER i. MFA No.3355/2017 is allowed-in-part.
ii. The judgment and award dated 29.06.2016 passed by II Addl. Senior Civil Judge and MACT, Kolar (Itinerating at Mulbagal) in MVC No.275/2014 is modified.
iii. The appellants-claimants are held entitled for total compensation of Rs.14,86,490/- as against Rs.13,17,690/- awarded by the Tribunal.
iv. The enhanced compensation of
Rs.1,68,800/- (Rs.14,86,490 -
Rs.13,17,690) shall carry interest at the rate of 6% p.a. from the date of petition till its realisation.
v. Respondent No.1-owner is directed to deposit the entire compensation with 20 accrued interest within a period of 6 weeks from today.
vi. The liability fastened by the Tribunal on respondent No.1 stands confirmed.
vii. The appeal against respondent No.2 stands dismissed.
viii. The deposit, apportionment and disbursement shall be as per the terms of the order of the Tribunal.
ix. MFA No.3356/2017 stands dismissed.
Sd/-
JUDGE NS CT:NR