Karnataka High Court
T S Subramanya vs The Divisional Manager on 8 August, 2013
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 08TH DAY OF AUGUST, 2013
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
M.F.A.No.10738/2010 (MV)
BETWEEN:
T.S.SUBRAMANYA,
S/O P.SEETHARAMU,
AGED ABOUT 43 YEARS,
R/O THIMMANAHALLI VILLAGE,
CHIKKANAYAKANAHALLY TALUK,
TUMKUR DISTRICT. ... APPELLANT
(BY SRI: S.P.SHANKAR, SR. COUNSEL, FOR
SRI. PATEL.D.KAREGOWDA, ADV.)
AND:
1.THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE
COMPANY LIMITED, MMK COMPLEX,
AKKAMAHADEVI ROAD,
DAVANAGERE, BY ITS MANAGER.
2.LAXMABHOVI,
S/O THIMMABHOVI,
AGED ABOUT 43 YEARS,
AGRICULTURIST,
R/O ARALAHALLY BHOVIHATTY,
HOSADURGA TALUK,
CHITRADURGA DISTRICT.
3.MANJAMMA,
W/O LAXMABHOVI,
AGED ABOUT 39 YEARS,
HOUSEHOLD WORK,
R/O ARALAHALLY BHOVIHATTY,
HOSADURGA TALUK,
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CHITRADURGA DISTRICT. ... RESPONDENTS
(BY SRI: A.N.KRISHNASWAMY, ADV. FOR R1,
SRI.S.C.VIJAYAKUMAR, ADV. FOR R2 AND R3)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 25.11.2010 PASSED
IN MVC NO.232/2006 ON THE FILE OF ITINERARY SENIOR
CIVIL JUDGE, HOSADURGA, AWARDING A COMPENSATION
OF RS.3,16,000/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL DEPOSIT.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the consent of counsel on both sides, it is heard finally.
2. This appeal is filed by the owner of a bus, which is a public transport vehicle bearing No.KA-06/A-3969 assailing the judgment and award passed in MVC.No.232/2006 dated 25/11/2010 by the Itinerary Senior Civil Judge, Hosadurga.
3. The facts of the case are that on 22/12/2005 at about 10.45 a.m., the passengers of the bus along with the deceased Ranganatha said to be the cleaner were proceeding from Hosadurga to Srirampura Village. When -3- the bus reached near S.Neralakere Village, the driver drove the same in a rash and negligent manner. As a result, the bus toppled down and the inmates of the bus as well as the deceased Ranganath sustained injuries. The latter died at the spot. His legal representatives filed M.V.C.No.232/2006 seeking compensation for the death of Ranganath. The claim petition was disposed of by the Tribunal, against which the respondent-insurance company had filed an appeal before this Court. The said appeal along with other appeals were disposed of by this Court by judgment dated 18/11/2009, by which the matters were remanded to the Tribunal for fresh consideration. On remand, the Tribunal has held that the deceased Ranganath was a cleaner in the bus, but concluded that the insurance company was not liable to indemnify the owner of the bus. Under these circumstances, the owner of the bus is in appeal.
4. I have heard the learned Senior Counsel for the appellant and the learned counsel for the insurance company and learned counsel for the claimant-respondent Nos.2 and 3 and perused the material on record as well as the original records.
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5. It is contended on behalf of the appellant that while the Tribunal clearly held that the deceased Ranganath was a cleaner of the bus, the policy was not appreciated in its proper perspective. Ex.R-1 is the copy of the insurance company, which has been produced by the insurance company. There was passenger coverage and also coverage in respect of two employees of the bus and endorsement IMT 40 applied. The risk of the cleaner was also covered and therefore, liability had to be fastened on the insurer as additional premium of Rs.50/- was collected in respect of two employees, but the claim petition was filed only in respect of one employee namely the death of cleaner. He, therefore, submitted that the exoneration of the insurance company was not in accordance with law and that the liability had to be fastened on the insurance company and that the insurance company may be directed to indemnify the appellant.
6. Per contra, learned counsel for the contesting party which is the insurance company, although referred to IMT 40, nevertheless, contended that the risk of only two employees i.e., driver and conductor was covered and that the risk of the cleaner was not covered having regard to -5- the order of priority mentioned in IMT 40. He, therefore, submitted that the judgment and award of the Tribunal would not call for any interference.
7. Having heard the rival contentions, the only point that arises for my consideration is, as to whether the Tribunal was right in exonerating the insurance company by fastening the liability on the owner of the vehicle.
8. From the material on record, it is not in dispute that the vehicle in question is a bus, which is a public transport vehicle. On a perusal of the policy Ex.R-1, copy of the insurance policy, it is noted that a sum of Rs.50/- has been paid as additional premium "in respect of two(2) employees". The IMT numbers endorsed on the policy are 7, 21, 38 and 40. IMT 40, on which reliance has been placed by both the counsel reads as follows:
"IMT 40 Legal Liability to paid driver and/or Conductor and/or cleaner employed in connection with the operation of Motor vehicle. (For buses, taxis and motorized three/four wheelers under commercial vehicles tariff).-6-
In consideration of the payment of an additional premium it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the insurer shall indemnify insured against his legal liability under the Workmen's Compensation Act, 1923 and subsequent amendments of that Act prior to the date of this endorsement, the Fatal Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver and/or conductor and/or cleaner whilst engaged in the service of the insured in such occupation in connection with the vehicle insured and will in addition be responsible for all costs and expenses incurred with its written consent.
The premium to be calculated and paid while taking insurance of the vehicle concurred at the rate of Rs.25/- per driver and/or conductor and/or cleaner.
Provided always that:-
(1) this Endorsement does not indemnify the insured in respect of any liability in cases where the insured holds or subsequently effects with any insurer or Group of Underwriters a Policy of Insurance in respect of liability as herein defined for his general employees.-7-
(2) the insured shall take reasonable precautions to prevent accidents and shall comply with all statutory obligations."
The vehicle in question is a bus. The said IMT states that in consideration of an additional premium paid at the rate of Rs.25/- per driver and/or conductor and/or cleaner, the insurance company would be liable under the Workmen's Compensation Act, 1923 and subsequent amendments to the Act prior to the date of endorsement, the Fatal Accidents Act, 1855 or at Common Law. Therefore, the liability of the insurance company in respect of the cleaner is established having regard to the additional premium received by the insurance company.
9. On a reading of the said IMT 40, it becomes clear that the driver, conductor and cleaner are placed on par. It is not on an order of priority. The insurer can cover all the three employees or he could cover the risk of either of them or two of them by paying additional premium. In the instant case, the risk of two employees are covered. It could be either for paid driver, conductor or cleaner and not only the paid driver and conductor. Therefore, the risk -8- of the cleaner is covered in terms of Ex.R1 policy. The Tribunal has lost sight of this aspect of the matter and has erroneously fastened the liability on the owner of the vehicle. Therefore, the judgment and award of the Tribunal is modified to than extent. Thus the insurance company is liable to indemnify the appellant-owner in the instant case.
The appeal is allowed.
The amount in deposit before this Court to be refunded to the appellant after due verification. No costs.
In view of the disposal of the appeal, Misc.Civil 22807/10 does not survive for consideration.
Sd/-
JUDGE S*