Karnataka High Court
The United India Insurance Company Ltd. ... vs Smt. Lalithabai W/O Late Eranna @ Erappa ... on 20 March, 2007
Equivalent citations: 2007ACJ2342, ILR2007KAR1585, 2007 (3) AIR KAR R 333, 2007 A I H C 2063, (2007) 3 KANT LJ 501, (2007) 57 ALLINDCAS 955 (KAR), (2007) 4 ACJ 2342, (2007) 4 CIVLJ 805, (2007) 4 TAC 771, (2007) 3 ACC 415
Author: V. Jagannathan
Bench: V. Jagannathan
JUDGMENT V. Jagannathan, J.
Page 1085
1. Whether carrying of "one or two bags of grains" in a goods, vehicle will amount to "carrying of goods" is the question that is involved in this appeal.
2. Briefly stated the facts are to the effect that the deceased Eranna was found travelling in a lorry bearing No. AHT 6393 carrying "two bags" of pulses and jowar and the said lorry belonging to the respondent No. 7 herein dashed to a parked lorry bearing No. ATT 1851 at about 5.00 a.m. near Sadashiv Pet on 6.8.1996. Following the said accident, the above said Eranna sustained injuries on his vital parts of the body and died on the spot. A case was registered against the driver of the lorry No. Page 1086 AHT 6393 for rash and negligent driving. The claim petition filed by the wife and children of the deceased Eranna came to be allowed by the MACT, Basavakalyan awarding a sum of Rs. 2,79,200/-as compensation and putting the liability on the appellant-Insurance Company. Aggrieved by the said order of the Tribunal, the Insurance Company is in appeal.
3. I have heard the submissions made by Sri. A.M. Venkatesh, the learned Counsel for the appellant and Sri. Praveen Kumar Raikote, the learned Counsel appearing for the respondent Nos. 1 to 6 and perused the records of this case.
4. Sri. A.M. Venkatesh, the learned Counsel for the appellant referring to the pleadings as well as the evidence on record submitted that, except in the oral testimony of PW-1, there is no evidence to indicate that the deceased was carrying goods in the lorry, in which he was travelling, PW-1, Smt. Lalithabai, the wife of the deceased has deposed before the MACT that the deceased was found carrying one bag of jowar and one bag of fur to Hyderabad. Therefore, referring to the said oral evidence of PW-1, which is not backed up by the documentary evidence, in particular, the F.I.R-Exhibit P-1 and the spot panchanama-Exhibit P-4(A), it was submitted by the learned Counsel that carrying of one or two bags will not lead to the inference that what was carried was "goods" and therefore it establishes that the deceased was travelling as a gratuitous passenger in a goods vehicle and as such, in the face of the Insurance Cover note being produced at Exhibit P-4 to indicate that the vehicle in question was a goods vehicle, the Tribunal could not have fastened the liability on the Insurance Company, particularly, in the light of the Hon'ble Apex Court decision holding that the Company will not be liable when the gratuitous passengers are carried in a goods vehicle. In support of the above submission, the learned Counsel has placed reliance on the decision of the High Court of Andhra Pradesh, in the case of Deddula Padmavathi and Ors. v. Maddala Srinivasa Rao and Anr. .
5. Sri. Praveen Kumar Raikote, the learned Counsel for the respondents-claimants on the other hand submitted that, as it has come in the evidence of PW-1 that deceased was carrying two bags, it is obvious that what was carried by the deceased comes within the expression "goods" and as such, the Insurance Company is liable. It was further contended that if what was carried did not come within the expression "goods", the deceased would not have travelled by the goods vehicle and the very fact that he was travelling in a goods vehicle implies that he was travelling with the goods in the lorry in question. Therefore the Insurance Company is liable.
6. In the light of the aforesaid submissions made by the learned Counsel for the parties, the short point that arises for consideration is whether it can be said that in the instant case, what was carried by the deceased comes within the expression "goods". This takes us at first to have a look at Page 1087 the definition of "goods" as contained in Section 2(13) of the Motor Vehicles Act, 1988 (for short 'Act'). The said Section reads thus:
"goods" includes live-stock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle.
7. It is therefore clear from the above definition that personal effects or personal luggage carried by a person in a motor car or passengers travelling in the vehicle will not come within the ambit of the definition of "goods". In order to establish that what was carried came within the expression "goods" and not personal effects or personal luggage, the claimants will have to lead evidence in this regard by establishing the weight of the bags or the quantity of food grains carried in the two bags. No such evidence is forthcoming in the instant case. Even assuming for argument sake, the deceased was carrying two bags in the lorry in question, the spot panchanama - Exhibit. P-4(A) and the F.I.R.-Exhibit P-1 do not indicate that two bags were found in the lorry at the time of conducting spot panchanama. As the lorry belonging to the respondent No. 7 herein dashed to the parked lorry, the spot panchanama reveals that in the parked lorry bearing No. ATT 1851, mud was found being carried; whereas in the lorry belonging to the respondent No. 7 i.e., AHT 6393 nothing was found. Even in the cabin of the lorry in question, there was no indications of food grains being spilled over the spot. As such, the evidence on record does not permit one to take the view that the deceased was found carrying bags as deposed by PW-1. Even assuming that deceased was found carrying two bags, yet the definition of "goods" does not bring the said two bags within the expression "goods" for lack of evidence being placed by the claimants to indicate the quantity of goods that was carried or weight of the two bags. The very mention of the word "bag" will not automatically lead to the conclusion that they are the "goods'", "Bags" and "goods" are entirely two different expressions and if carrying of one or two bags of food grains were to be construed as carrying of "goods", in such an event, the definition of "goods" as found in Section 2(13) of the Act would have been all together different. Therefore, the very mention of the word "goods" does not include luggage or personal effects or personal luggage of passengers travelling in the vehicle is indicative of the fact that small quantities of food grains carried in one or two bags as personal luggage or personal effects will not bring them within the expression "goods".
8. Therefore, in the instant case, carrying of one or two bags by deceased cannot be construed as carrying of "goods". Since the Insurance cover note produced at Exhibit P-4 goes to indicate that the vehicle in question was a goods vehicle, the liability fastened on the Insurance Company by the MACT is unsustainable in law, particularly, in the light of the decision of the Apex Court in the case of National Insurance Co. Ltd. v. Bommithi Page 1088 Subbhayamma and Ors. . The question of appellant-Insurance Company being saddled with the liability will not arise, as such, the finding of the MACT in this regard will have to be set aside and it will be the owner of the vehicle i.e., the respondent No. 7, who will have to satisfy the award passed by the MACT.
9. In the result, the appeal is allowed and the impugned order of the Tribunal putting the liability on the Insurance Company is set aside and it is the insured, i.e., respondent No. 7, who will have to satisfy the award passed by the MACT. The amount deposited by the Insurance Company shall be refunded to it.