Karnataka High Court
T.M. Renukappa vs Fahmida And Ors. on 20 March, 1979
Equivalent citations: AIR1980KANT25, [1982]52COMPCAS634A(KAR), ILR1979KAR2324, 1979(2)KARLJ103
JUDGMENT Bhimiah, J.
1. The above miscellaneous first appeal is directed against the judgment and award passed by the District Judge, Chitradurga, in M.V.C. No. 12 of 1971, dated 5-11-197-6 fixing, the liability of the insurer at Rupees' 10,000/- out of the total compensation of Rs. 25,048/- and the owner of the vehicle bearing No. MYT 3887 for payment of the balance amount to respondents I to 4.
2. The appellant is the owner of the lorry bearing No. MYT 3887. Respondents 1 to 4 are the claimants. Respondent-5 is the insurer. Respondent-6 is the driver.
3. The claimants instituted a petition before the Motor Accidents Claims Tribunal at Chitradurga, claiming compensation of a lakh of rupees for the death of one Mohamed Ameer, the husband of the lst claimant and father of respondents 2 to 4, arising out of the motor accident which took place an 13-3-1971, When he (deceased) was travelling in the said goods vehicle from Davanagere to Hihyw with his goods loaded in the said vehicle.
4. Facts of the case are that Mohammed' Ameer was travelling from Davanagere to Harihar with his goods loaded in the vehicle- MYT 3887. At 101/2 mile stone near Vanivilasa Sagar Mills, Hiriyur town, the lorry dashed against another vehicle bearing No. HMT 2672, which was parked for some repairs, as a result of which Mohammed Ameer sustained injuries. He was removed to Hiriyur Hospital and from there he was removed to the Hospital at Chitradurga in a car where he succumbed to the injuries. According to the claimants the death was due to the rash and negligent driving by the 6th respond dent.
5. The owner and the driver in their written statements have denied the fact of the deceased travelling in their vehicle by Paying charges. They denied that the alleged accident was due to rash and negligent driving of the vehicle by the 6th respondent.
6. The insurer by its written statement denied the rash and negligent driving on the Part of the driver and the accident was of the case of a 'VisMajor' It pleaded that there is no statutory Obligation to insure the risk resulting to persons travelling in goods vehicles and that there -is no coverage of insurance relating to deceased person. Further, it has averred that there was no coverage of insurance for non-fare paying passenger.
7. Upon these pleadings, the following issues were framed by the Claims Tribunal.
(1) Whether the petitioners prove that the deceased died in an accident near Vani Vilas Sugar Mills on Bangalore-Dharwar Road, when he was travelling in vehicle No. MYT 3881?
(2) Whether the accident was due to rash and negligent driving of the driver of vehicle No. MYT 3887 (3) Whether the Petitioners prove that they are heirs to the deceased?
(4) Whether they prove - that the deceased was aged 35 years and a merchant with an income of Rs. 300/- per month?
(5) Whether they prove that they are entitled to the quantum of damage claimed?
(6) What order?
8. The claimants examined seven, witnesses in support of their case. No defence witness was examined on behalf of the respondents.
9. The Claims Tribunal upon consideration of the evidence on record found that Mohammed Ameer died due to the motor accident in which vehicle No. MYT 3887 was involved and held that the accident was due to the rash and negligent driving of the vehicle. It further held that the claimants were the heirs of the deceased, that the income of the deceased was Rs. 150/- per month, and that the claimants were entitled to the compensation. In that view of the matter, it awarded compensation of Rs. 25,048/- payable by the owner and the driver. It held that the insurer was not liable for payment of any compensation.
10. Aggrieved by the said' judgment and award the present appellant-owner filed Miscellaneous First Appeal No. 333 of 1976 challenging the order of the Claims Tribunal for exonerating end not holding the insurer liable to pay compensation to the claimants. The other findings were not challenged in that appeal.
11. A Division Bench of this Court of which one of us (K. B. J.) was a member set aside the award passed by the Claims Tribunal only to the extent It exonerated the insurer from the liability to pay compensation and remanded the case to the Claims Tribunal below to decide the question whether the insurer is liable to pay the amount of compensation determined by it or not afresh, after giving reasonable opportunity to all the parties to file additional pleadings, if any. And In other respects the award passed by the Claims Tribunal was affirmed.
12. Thus the only quest ion referred to the Tribunal for decision by this Court was whether the insurer is liable to indemnify the insured in so far as the amount of compensation that he is liable to pay to the claimants on account of the death of a person who is carried in a goods vehicle along with his goods in the vehicle in question.
13. After remand, the Claims Tribunal determined this question and held that the insurer was liable to pay Rs. 10,000/- out of the total amount of compensation awarded and the owner is liable to Pay the balance of compensation.
14. Aggrieved by this judgment and award, the owner has filed the above Miscellaneous First Appeal.
15. Therefore, the only question for determination is whether the Claims Tribunal is justified in law in fixing the liability of the insurer to an extent of Rs. 10,000/- and holding that the owner is liable to pay the balance amount of compensation.
16. The learned Advocate for the appellant firstly contended that the insurer the 5th respondent undertook to the third lorry terms pay compensation in respect of death or bodily injuries to a party who was travelling in the along with his goods, as per the of the 3rd party risk as contemplated under S. 95 of the Indian Motor Vehicles Act, 1939 (to be called the 'Act'). He further urged that the liability of the insurer the 5th respondent is limited to the extent of Rs. 50,000/- as the appellant has paid additional premium as per notice Exhibit R-2 and, therefore, he urged that the 5th respondent insurer is liable to indemnify the appellant to the entire extent of liability under the award under the policy in force at the time of the accident.
17. The counsel for the 5th respondent insurer sought to support the order under appeal and he urged that the insurance 'policy in question did not cover the non-fare paying passengers. However, as an alternative, he argued that in the event of fastening the liability on the insurer its liability in respect of death or bodily injuries on a non-fare paid passenger is restricted to the extent of Rs. 10,000/- only according to the terms of endorsement 14 (b) attached to the policy and, therefore, he justified the Award limiting the liability of the insurer to the extent of Rs. 10,000/-. He relied upon certain decisions in support of his contention. It is unnecessary to consider them in view of the judgment of a Division Bench, of which one of us (KBJ) was a member in M. F. A. Nos. 227 and 363 of 1975 (Channappa Chanavirappa Katti v. Lakshman Bhimappa Bhanjantri , The material facts in that case are: A goods vehicle bearing registration No. MTR 3739 was being used by its owner, a public carrier, for carriage of goods from Bijapur to Talikot on 3-3-1973, when the said vehicle was carrying goods from Bijapur to Talikot, it met with an accident at 6 p. m. near a place called Hitnalli as the driver of the vehicle failed in his attempt to successfully negotiate the vehicle in a harp curve on the road. As a result of the accident, six persons in the vehicle including one Somappa Mallappa Nidagundi of Talikot, the owner, of certain goods who had hired the vehicle for carrying the goods and Balappa Bajentri, the cleaner of the vehicle sustained fatal - injuries and died of those injuries. The legal representatives of Somappa Mallappa Nidagundi claimed compensation in a sum of Rs. 4,24,000/- for the death of Somappa Mallappa Nidagundi (owner of the goods). The insurer took the stand of non-liability for the claim for compensation made in respect of the death of the owner of the goods on the ground that the risk of such a person was not covered by the insurance policy issued In respect of the vehicle inasmuch as such risk was not required to be insured against compulsorily under the Act.
18. In the above decision this Court after careful examination of the relevant provisions of Section 95 of the 'Act and Rule 161 of the Mysore (Karnataka) Motor Vehicles Rules, 1963 (to be called the - 'Rules') observed thus:
"It has to be mentioned at the outset that the policy of the law- in making provision for compulsory insurance of vehicles is to cover the risk of innocent third parties. If we consider the case of the owner of the goods (hirer of goods vehicle) who wants to convey his goods through a public goods-vehicle, will he be an innocent third party when he dies or suffers injury while accompanying his goods carried by a public goods vehicle, in the course of the user of the vehicle? Our answer to this question can only be in the affirmative for the simple reason that when the owner of the goods wants to convey his goods in a public goods vehicle, hired by him and accompany the goods for their safety, in the normal course of things, it would not be possible for him to ascertain the financial stability of the 'user of the vehicle, the expertise of the driver of, the vehicle in driving it, or the road-worthy condition of the vehicle, as would ensure his safety. When such a person travels as a passenger in a goods-vehicle which is used to advance the business interests of its owner and is permitted by law, it cannot be said that it is not a vehicle meant for carrying passengers for hire or reward, provided for in, the exception to the first part of the proviso. In fact, in our opinion, the hire payable for carrying the goods must be deemed to include the hire for carrying the owner of the goods or his agent or servant who travels in the vehicle along with the goods for their safety, inasmuch as it is impossible for us to think of a binding obligation on the part of the owner of the goods vehicle to carry in it the owner of the goods, who hires the goods vehicle for carrying the goods. Moreover, such obligation to carry the owner of the goods along with his goods in a goods vehicle can only be as a business proposition as opposed to a gratuitous proposition. Hence, we have no doubt in our minds that the Legislature by enacting the, exception contained in the first part 'of the ''proviso has thought of compulsory coverage by insurance the risk of owners of goods who are entitled to travel in a goods, vehicle along with their goods in the event of any risk arising in the course of the user of the vehicle.
From this, it would follow that the goods vehicle with which we ire concerned was a goods vehicle which was meant to carry along with the goods passengers for hire or reward and' fell within the exception contained in the first part of the proviso so as to require coverage of risk of the owners of goods travelling as passengers by compulsory insurance required -to be taken in respect of the vehicle, under Chapter VIII of the Act and Exhibit D-1 is the policy of insurance which had been taken accordingly.
In this context, we consider it necessary to deal with another-point, which has a bearing on the question under consideration. From the terms and conditions of the Insurance Policy which have been extracted herein before, it will be seen that under the heading 'Limitations' it is stated that policy does not cover 'use for the conveyance of passengers for hire or reward.' But the said limitation, in our view, if upheld, will have the effect of nullifying the provisions contained in the exception in, the first part of the proviso and therefore, the insurer cannot be allowed to take advantage of the same to deny its liability to indemnify the insured for the compensation payable In respect of the death of the owner of the goods who travelled in the goods vehicle.
** ** ** ** ** ** The proviso to Rule 161 (1) of the Rules, since specifically authorises the use of the goods vehicle for carrying the owners of goods carried in the vehicle as passengers it cannot be said the vehicle which carries such passengers is not the one covered by a "a permit to ply for hire or reward. In the said view of the matter, the term, relating to the limitation of liability contained in the policy adverted to by us, does not enable the insurer to escape its liability for the risk of the owner of the goods."
19. Thus, it is clear from the above decision that the insurer does not escape its liability for the risk of the owner of the goods travelling in the vehicle along with his goods.
20. The next question for deter- is as to the limits of liability of the insurer under the policy of insurance.
21. Sub-section (2) of See. 95 of the Act, which has a bearing on the point reads thus:
"95 (2):- Subject to the proviso to sub-section (1), a policy of insurance shall cover, any liability incurred in respect of any one accident up to the following limits, viz.,
(a) Where the vehicle is a goods vehicle, a limit of fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923, in respect of the death of, bodily injury to, employee other than the driver), not exceeding six in number, being carried in the vehicle."
22. Hence we are of the opinion that the liability of the insurance company for the death of a passenger in goods vehicle has to be fixed with reference to the terms in clause (a) of sub-section (2) of Section 95 of the Act and the term referred to in the policy.
23. Thus, it is clear that the limits of liability of the insurer in the case of passengers carried for hire or reward in a goods vehicle who die or suffer bodily injury the limit of liability cannot exceed fifty thousand as provided in the case. When the Legislature has made a specific provision fixing the liability of the insurer in respect of the goods vehicle, we are of the view that the liability for the death of passengers in the goods vehicle has to be made good by the insurer in its entirety if the amount does not exceed Rs. 50,000/- as provided for specifically in clause (a) of subsection (2) of Section 95 of the Act. Therefore, in the instant case, the legal position is that the limit of liability of the insurer in respect of a passenger shall be up to Rs. 50,000/-, therefore the view taken by the Claims Tribunal that the deceased in the instant case was only a non-fare paying passenger travelling in the lorry and the liability of the insurance company is limited to Rs.10, 000/- is unsuitable in law. It is therefore set aside.
24. In the view that we have taken the insurer 5th respondent is liable to indemnify the insured up to the extent of Rs. 50,000/-. In the instant case the claimants 1 to 4 have been award compensation of Rs. 25,048/- together with interest at the rate of 6 per cent, from the date of petition till the date of payment. The insurer 5th respondent is liable to pay the entire amount. Accordingly it is ordered and the award is modified.
25. In view of the above modification in the award, the appellant insured is not liable to pay any amount towards compensation awarded to respondents I to 4 by the Claims Tribunal.
26. In the result, miscellaneous first appeal is allowed. In the facts and Circumstances of the case parties are directed to bear their own costs.
27. Appeal allowed.