Karnataka High Court
United India Insurance Co.Ltd vs Smt. Susheelamma on 28 June, 2021
Author: H.P.Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2021
R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.8329/2009 (MV)
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.,
BY ITS MANAGER
BENGALURU ROAD, TUMKUR,
NOW REPRESENTED BY ITS
DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE, NO.34/3,
M.M.K COMPLEX, AKKAMAHADEVI ROAD,
P.J.EXTENSION, DAVANAGERE-577002. ... APPELLANT
(BY SRI A.N. KRISHNA SWAMY, ADVOCATE)
AND:
1. SMT. SUSHEELAMMA,
W/O DYAMAPPA,
NOW AGED ABOUT 36 YEARS.
2. HANUMAPPA,
S/O HANUMAPPA,
NOW AGED ABOUT 67 YEARS.
3. DYAMAWA,
W/O HANUMAPPA,
NOW AGED ABOUT 64 YEARS.
RESPONDENT NOS.2 AND 3
SINCE DEAD, REPRESENTED BY LRs'
RESPONDENT NOS.4 AND 5.
(AMENDED AS PER THE COURT ORDER
DATED 18.04.2011)
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4. CHANNABASAPPA,
S/O HANUMAPPA,
NOW AGED ABOUT 49 YEARS.
5. CHANDRAMMA,
D/O HANUMAPPA,
NOW AGED ABOUT 30 YEARS.
ALL R/O VIJAPURA,
CHITRADURGA TALUK.
6. AMBUSH NIVRUTHA KASABE,
AGE: MAJOR,
DRIVER OF LORRY
BEARING NO.MP-23/D-2941,
R/O AURANGABAD (M.P),
C/O M/S. MAHAVEER ROAD LINES,
G.E.ROAD, TATIBUND,
RAIPUR (M.P).
7. M/S. MAHAVEER ROAD LINES,
OWNER OF LORRY BEARING
NO.MP-23/D-2941, G.E.ROAD,
TATIBAND, RAIPUR (M.P).
8. ORIENTAL INSURANCE CO. LTD.,
REPRESENTED BY ITS
DIVISIONAL MANAGER,
DAVANAGERE.
9. SYED SULTAN,
AGE: MAJOR,
DRIVER OF LORRY
BEARINGNO.KA-06/347,
R/O SIRA, TUMAKURU DISTRICT.
10. AHAMED
S/O RASHEED,
AGE: MAJOR,
DRIVER OF LORRY
BEARING NO.KA-06/347,
R/O SIRA, TUMAKURU DISTRICT. ... RESPONDENTS
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(BY SRI MAHESH R. UPPIN, ADVOCATE FOR R-1;
SRI H. ASHOK KUMAR, ADVOCATE FOR R-4;
SRI B.M. SIDDAPPA, ADVOCATE FOR R-5;
SRI N. PRAVEEN KUMAR, ADVOCATE FOR R-10;
R-8 SERVED;
NOTICE TO R-6, R-7 AND R-9 ARE DISPENSED WITH
VIDE ORDER DATED 29.07.2013)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 26.08.2009 PASSED
IN MVC NO.1371/1995 ON THE FILE OF THE ADDITIONAL
DISTRICT AND SESSIONS JUDGE, CHITRADURGA, AWARDING
COMPENSATION OF Rs.3,08,000/- WITH INTEREST AT 6% P.A.
FROM THE DATE OF PETITION TILL REALISATION.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.06.2021 THROUGH 'VIDEO CONFERENCE' THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed by the Insurance Company challenging the judgment and award dated 26.08.2009 passed in M.V.C.No.1371/1195 on the file of the Additional District and Sessions Judge, Chitradurga ('the Tribunal' for short) questioning the fastening of liability on the Insurance Company.
2. The parties are referred to as per their original rankings before the Tribunal to avoid the confusion and for the convenience of the Court.
3. The factual matrix of the case is that the claimants are the wife, parents, brother and sister of one Dyamappa who 4 died in the accident. The claimants contended that the said Dyamappa was working as a Clerk-cum-Manager and further while he was travelling in lorry bearing registration No.KA- 06/347 on 26.06.1995, the driver of the lorry dashed against the on coming lorry bearing registration No.MP-23/D-2941 and he succumbed to the injuries. The vehicle was insured with the appellant herein and the appellant had issued the policy of insurance in the name of one Syed Shafiulla with effect from 18.08.1994 to 17.08.1995. The said policy of insurance was subsequently transferred in the name of R. Akbar Ali with effect from 11.01.2005. As on the date of the accident, R. Akbar Ali was the RC owner. It is contended that the deceased was travelling as a gratuitous passenger and his risk was not required to be covered and the Tribunal fastened the liability on the Insurance Company.
4. The main contention urged by the Insurance Company in this appeal through the counsel is that the policy of insurance was issued much earlier to 14.11.1994. Under the said circumstances, there existed no legal liability on the Insurance Company to pay any compensation even though the owner of the goods or his authorized representative was being 5 carried in a goods carriage. The Tribunal was required to have noticed that there existed no material to indicate that the deceased was travelling in the goods vehicle as the owner of the goods. The Tribunal failed to notice the evidence adduced by the appellant and also the terms and conditions of the policy and in the absence of the insured not being made a party to the proceedings, there exists no liability on the part of the insurer to pay any compensation.
5. The learned counsel in support of his grounds urged in the appeal memo and his argument would contend that the risk of the employee of the insured is not covered and also he is not an employee. The very contention of the claimants that he was working as Clerk-cum-Manager and though the amendment was made in 2010 replacing the word 'workman' as 'employee', Section 147 does not attract to make the Insurance Company as liable.
6. Per contra, the learned counsel for the respondents would contend that the amendment was made on 14.11.1994 and the accident was occurred in the year 1995. The material discloses that he was an agent of the owner of the goods and 6 covers the risk of the agent also. In support of his contentions, he relies upon the Apex Court judgment in the case of NEW INDIA ASSURANCE CO. LTD. v. ASHA RANI AND OTHERS reported in (2003) 2 SCC 223, wherein discussed with regard to amendment carried out in the year 1994 and prior to the amendment and subsequent to the amendment in detail discussed the said judgment and hence the very contention of the Insurance Company cannot be accepted. The learned counsel also brought to the notice of this Court that there is a clear pleading that the deceased was bringing back the groundnut seeds from Jalagaon to M/s. Dakshyani Mill as the agent of the owner of the goods and it is not in dispute that the goods belongs to M/s. Dakshyani Mill and hence the very contention of the Insurance Company cannot be accepted.
7. Having heard the arguments of the respective learned counsel, the point that arise for the consideration of this Court is:
(i) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company in coming to the conclusion that the 7 deceased travelled as an agent of the owner of the goods as contended in the appeal?
(ii) What order?
Point No.(i)
8. Having heard the respective learned counsel and also on perusal of the records, the main contention of the Insurance Company is that the deceased was proceeding in a goods carriage vehicle as a passenger. In order to prove the said contention, though the Insurance Company examined R.W.1 official witness, nothing is placed on record that he was travelling as a gratuitous passenger. In order to prove the fact that he was a gratuitous passenger, there is no documentary evidence. It has to be noted that the main contention of the claimants before the Tribunal is that the deceased was bringing back the groundnut seeds from Jalagaon to M/s. Dakshyani Mill as the agent of the owner of the goods. Nothing is elicited in the cross-examination that the goods does not belong to M/s. Dakshyani Mill. It is not in dispute that the deceased was travelling in the vehicle along with the goods pertaining to M/s. Dakshyani Mill. When such being the case, the very contention 8 of the Insurance Company that the Tribunal ought to have noticed that there existed no material to indicate that the deceased was travelling in the goods vehicle as an agent of the owner of the goods cannot be accepted. The defence that he travelled as gratuitous passenger has not been proved by adducing any cogent evidence before the Tribunal.
9. The other contention of the Insurance Company that the risk of the employee of the insured is not covered and he is not an employee also cannot be accepted for the reason that the pleading is very specific that he was working as a Clerk-cum- Manager and the learned counsel is not disputing the fact that the amendment was made in the year 1994 that the owner and his representatives are entitled to proceed along with the goods in the goods carriage vehicle.
10. The Apex Court in its judgment in the case of Asha Rani (supra) discussed the amendment Act 54 of 1994 by which the expression "injury to any person" in the original Act stood substituted by the expression "injury to any person including owner of the goods or his authorized representative carried in the vehicle", the conclusion is irresistible that prior to the 9 aforesaid Amendment Act of 1994, even if the widest interpretation is given to the expression "to any person" it will not cover either the owner of the goods or his authorized representative being carried in the vehicle. The objects and reasons of clause 46 also state that it seeks to amend Section 147 to include owner of the goods or his authorized representative carried in the vehicle for the purposes of liability under the insurance policy. The Apex Court in detailed discussed the same and comes to the conclusion that in respect of cases under Section 147 prior to its amendment in 1994, the insurer will not be liable for paying compensation to the owner of the goods or his authorized representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of the goods or his representative dies or suffers any bodily injury. It is held that subsequent to 1994 amendment, the legislature wanted to bring within the sweep of Section 147 and make it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorized representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury. 10
11. This Court in the judgment in the case of SHIVA @ SHIVASHANKAR v. RAJESH AND ANOTHER reported in 2019 (1) KCCR 860, having considered the amendment made in the year 1994 including the owner and representatives of the owner of the goods came to the conclusion that the employee or the representative of the owner of the goods are covered consequent upon the amendment.
12. The other contention of the learned counsel for the Insurance Company is that the policy was issued in 1994 prior to amendment. The fact that the accident was occurred in the year 1995 is not in dispute and the same is subsequent to the amendment and when the very statute has been amended in the year 1994, the very contention of the Insurance Company cannot be accepted. Hence, I do not find any merit in the appeal to come to other conclusion that the Tribunal has committed an error in fastening the liability on the Insurance Company in respect of the agent of the owner of the goods. Point No.(ii):
13. In view of the discussions made above, I pass the following:
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ORDER The appeal is dismissed.
Sd/-
JUDGE MD