Karnataka High Court
Shiva @ Shivashankar vs Rajesh on 17 December, 2018
Equivalent citations: AIRONLINE 2018 KAR 2337
Author: H.P.Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 17TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.No.2271/2014 C/W
M.F.A.Nos.2270/2014, 2518/2014 AND
M.F.A.No.2517/2014 (MV)
IN M.F.A.No.2271/2014
BETWEEN:
SHIVA @ SHIVASHANKAR
S/O VENKATESH @ VENKATESHAN
AGED ABOUT 24 YEARS
R/AT GOWNGOLLA STREET
NO.84-B, HOSUR
KRISHNAGIRI DISTRICT
TAMIL NADU.
AND ALSO PRESENTLY R/AT
C/O GOVINDARAJU
NO.136, II CROSS, WATER TANK ROAD
NEAR GANESHA TEMPLE
KOTHNUR DINNE
J.P. NAGAR 8TH PHASE
BANGALORE-560 078. ... APPELLANT
(BY SRI UDAYA KUMAR R L, ADV.)
2
AND:
1. RAJESH
S/O SHIVALINGAPPA
NO. 371/421-B,
CHIKKABIDARAKALLU
NAGASANDRA POST
BANGALORE-560 075.
2. BAJAJ ALLIANZ GENARAL INSURANCE CO. LTD.
GROUND FLOOR, NO.31
TBR TOWERS, 1ST CROSS
NEW MISSION ROAD
BANGALORE-560 002. ... RESPONDENTS
(BY SRI O MAHESH, ADV. FOR R2
SRI R H DESHPANDE, ADV. FOR
M/S A & N ADV. & ASSOCIATES FOR R1)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:13.12.2013 PASSED IN MVC NO.6351/2012 ON
THE FILE OF THE XXIII ADDITIONAL SMALL CAUSE
JUDGE, & XXI ACMM, MACT, COURT OF SMALL CAUSES,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN M.F.A.No.2270/2014
BETWEEN:
1. SUSHEELA M
W/O KANNAPPA R @ SATHYANARAYANA,
AGED ABOUT 41 YEARS,
3
2. SRINIVAS
S/O KANNAPPA R,
AGED ABOUT 25 YEARS,
3. HEMAVATHI
D/O KANNAPPA R,
AGED ABOUT 17 YEARS,
4. HEMALATHA
D/O KANNAPPA R,
AGED ABOUT 17 YEARS,
APPELLANTS 3 AND 4 ARE
REPRESENTED BY THEIR NATURAL GUARDIAN,
MOTHER, APPELLANT NO.1
ALL ARE R/AT NO. 35/1
6TH CROSS, 3RD MAIN
PRASHANTH NAGAR
T. DASARAHALLI
BANGALORE-560 057. ... APPELLANTS
(BY SRI R L UDAYA KUMAR, ADV.)
AND:
1. RAJESHA
S/O SHIVALINGAPPA,
NO. 371/421-B, CHIKKABIDARAKALLU
NAGASANDRA POST,
BANGALORE 560 075.
2. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
GROUND FLOOR, NO.31
TBR TOWERS, 1ST CROSS
NEW MISSION ROAD
BANGALORE-560 002. ... RESPONDENTS
(BY SRI O MAHESH, ADV. FOR R2
SRI R H DESHPANDE, ADV. FOR
M/S A & N ADV. & ASSOCIATES FOR R1)
4
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:13.12.2013 PASSED IN MVC NO.6052/2012 ON
THE FILE OF THE XXI A.C.M.M & XXIII A.S.C.J, MACT,
BANGALORE, ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO 2518 OF 2014
BETWEEN:
RAJESHA
S/O SHIVALINGAPPA,
AGED ABOUT 26 YEARS,
NO.317/421-B,
CHIKKABIDARKALUU
NAGASANDRA POST,
BANGALORE-50075. ... APPELLANT
(BY SRI ANANTHARAM C, ADV.)
AND:
1. SHIVA @ SHIVA SHANKAR
S/O VENKATESH @ VENKATESHAN,
AGED ABOUT 24 YEARS,
RESIDING AT GOWN GOLLA STREET NO.84-B HOSUR
KRISHNAGIRI DISTRICT,
TAMILNADU.
AND ALSO PRESENTLY RESIDING AT
C/O GOVINDARAJU,
NO.136, 2ND CROSS,
WATER TANK ROAD,
5
NEAR GANESH TEMPLE,
KOTHANUR DINNE
J.P.NAGAR,
8TH PHASE,
BANGALORE-560 0078.
2. BAJAJ ALLANZ GENERAL INSURANCE CO LTD.
GROUND FLOOR, NO.31
TBR TOWERS, 1ST CROSS
NEW MISSION ROAD
BANGALORE-560 002. ... RESPONDENTS
(BY SRI O MAHESH, ADV. FOR R2
SRI R L UDAYAKUMAR, ADV. AND
SRI Y K SHESHAGIRI RAO, ADV. FOR R1)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:13.12.2013 PASSED IN MVC NO. 6351/2012 ON
THE FILE OF THE XXI A.C.M.M & XXIII A.S.C.J, MAT,
BENGALURU, AWARDING COMPENSATION OF
RS.11,08,000/- WITH INTEREST @ 6% P.A FROM THE
DATE OF PETITION TILL THE DATE OF DEPOSIT.
IN MFA NO 2517 OF 2014
BETWEEN:
RAJESHA
S/O SHIVALINGAPPA
AGED ABOUT 26 YEARS,
NO.317/421-B
CHIKKABIDARKALLU
NAGASANDRA POST
BANGALORE-50075. ... APPELLANT
(BY SRI ANANTHARAM C, ADV.)
6
AND:
1. SUSHEELA M
W/O KANNAPPA @ SATHYANARAYANA
AGED ABOUT 42 YEARS,
2. SRINIVAS
S/O KANNAPPA.R
AGED ABOUT 26 YEARS,
3. HEMAVATHI
D/O KANNAPPA.R
AGED ABOUT 18 YEARS.
4. HEMALATHA
D/O KANNAPPA.R
AGED ABOUT 18 YEARS
SINCE PETITIONER NO.3 AND 4 ARE MINORS
REP. BY THEIR MOTHER AND NATURAL GUARDIAN
ALL ARE R/AT NO.35/1, 6TH CROSS, 3RD MAIN,
PRASHANTH NAGAR,
T.DASARAHALLI
BANGALORE-560 057.
5. BAJAJ ALLIANZ GENERAL INSURANCE CO LTD
GROUND FLOOR, NO.31,
TBR TOWERS, 1ST CROSS,
NEW MANSION ROAD
BANGALORE 560 002. ... RESPONDENTS
(BY SRI Y K SHESHAGIRI RAO, ADV. FOR R1 AND R2
SRI R L UDAYAKUMAR, ADV. FOR R3 AND R4
SRI O MAHESH, ADV. FOR R5)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:13.12.2013 PASSED
IN MVC NO.6052/2012 ON THE FILE OF THE XXIII
ADDITIONAL SMALL CAUSE JUDGE, & XXI ACMM, MACT,
7
COURT OF SMALL CAUSES, BENAGLURU, AWARDING
COMPENSATION OF Rs.10,04,000/- WITH INTEREST @ 6%
P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THESE APPEALS COMING ON FOR HEARING AND
HAVING BEEN RESERVED FOR JUDGMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are directed against the impugned judgment and award dated 13.12.2013 passed in MVC.Nos.6052/2012 & 6351/2012 on the file of XXI Addl. CMM & Member MACT, Bengaluru.
2. Brief facts of the case are that on 12.09.2012, Kannappa @ Sathyanarayana and Shiva @ Shivashankar were proceeding as inmates in medium goods vehicle bearing Reg.No.KA-52:5706 on NH-44, when the vehicle passed over flyover bridge, Pullur Village, Manopad Mandal, Mahabubnagar District, Andhrapradesh, the driver of the same drove the vehicle at high speed in a rash and negligent manner, suddenly over took another vehicle, lost control over the same 8 and dashed against unknown vehicle. Due to which, they sustained grievous injuries and Kannappa @ Sathyanarayana succumbed to the said injuries on 12.09.2012 in the hospital. They filed a claim petitions seeking compensation before the Tribunal. The Tribunal on appreciation of the oral and documentary evidence on record has awarded total compensation of Rs.10,04,000/- in MVC.No.6052/2012 and Rs.11,08,000/- in MVC.No.6351/2012 together with interest at the rate of 6% per annum from the date of petition till the date of deposit by respondent No.1. Being aggrieved by the quantum of compensation awarded, the wife, daughters and son of deceased Kannappa @ Sathyanarayana filed MFA.No.2270/2014 and Shiva @ Shivashankar who sustained grievous injuries in a road traffic accident has filed MFA.No.2271/2014 and MFA.Nos.2218 and 2217 of 2014 are filed by the owner of the goods vehicle on the 9 ground that the liability ought to have been fastened on the Insurance Company.
3. The claimant in MFA.No.2271/2014 is the injured who sustained injury in a road traffic accident, which took place on 12.09.2012. In the appeal memorandum, it is contended that the Tribunal has committed an error in taking the income at Rs.5,000/- per month, in spite of P.W.6 who is the owner has deposed before the Tribunal that he engaged the services of the claimant and was earning the salary of Rs.10,000/- per month. It is further contended that the Tribunal has failed to notice that the appellant now totally became disable and has to depend on others for day to day work and the compensation awarded by the Tribunal is very meager under all the heads and also failed to appreciate the functional disability of the claimant who has suffered the amputation of right leg and also the injuries to both bones of the left leg. Hence, 10 just and reasonable compensation has to be awarded by re-looking into the materials on record.
4. MFA.No.2270/2014 is filed by the claimants on account of death of Kannappa @ Sathyanarayana and the Tribunal has committed an error in taking the income of the deceased at Rs.5,000/- per month and has not awarded just and reasonable compensation.
5. In both the above appeals, the claimants have also challenged the liability fastened on the insured and vehemently contended that the Tribunal ought to have fastened the liability on the insurer, since the policy issued by the insurer is a Package Policy. Ex.R1- Insurnace Policy clearly discloses that it is the Package Policy and not the Act Policy. Hence, the Tribunal has committed an error in fastening the liability on the insured and the same has to be fastened on the Insurance Company.
11
6. The learned counsel for the appellants/claimants in support of his contention has relied upon the decision of this Court in the case of M.V.Chowdappa Vs. Mohan Breweries & Distilleries Limited reported in 2005 ACJ 644 and brought to my notice the paragraph Nos.28 and 34 regarding not justifying in assessing the permanent disability.
7. The learned counsel for the appellant in his argument regarding liability is concerned has vehemently contended that the Tribunal has failed to take note of the fact that the deceased and the injured both accompanied the owner in order to transport the Ganesha Idol from Hyderabad to Hosur and erroneously come to the conclusion that the Insurance Company is not liable to pay the compensation for the persons who traveled in the goods vehicle. In support of his contention, he relied upon the judgment of the Hon'ble Supreme court in the case of National Insurance Co., 12 Ltd., Vs. Balakrishnan and Another reported in (2013) 1 SCC 731, wherein it is held that the "Act Policy" stands on a different footing from a "Comprehensive/Package Policy". As the Insurance Regulatory and Development Authority (IRDA), which is presently the statutory regulatory authority, has commanded the insurance companies that a "Comprehensive/Package Policy" covers the liability of the insurer for payment of compensation to the occupant in a motor vehicle, there cannot be any dispute in that regard. The earlier pronouncements were rendered in respect of an "Act Policy" which admittedly cannot cover risk of an occupant in a car. But, if the policy is a "Comprehensive/Package Policy", the liability would be covered. The IRDA has clarified the position by issuing Circulars dated 16.11.2009 and 3.12.2009. Therefore, a "Comprehensive/Package Policy" would cover the liability of the insurer for payment of compensation for the occupant in a car. It is 13 further brought to my notice the provision under Section 147 of MV Act and in the case of K.Manjunath Vs. Basavaiah and Others reported in 2000(5) Kar.L.J.Sh.N.16A, the liability of the Insurance Company continues and the dismissal of the case as against the Insurance Company is not sustainable. In the result, the claim petition was allowed against all the persons including the Insurance Company. The liability in respect of bodily injury to and death of gratuitous passenger is concerned, insurance policy which is required to cover third party risks has to cover such risks relating to gratuitous passenger also, as gratuitous passenger cannot be excluded from category of third parties.
8. The learned counsel has relied upon the decision of this Court in the case of M/s United India Insurance Co., Ltd., Vs. Smt Gangubai and others reported in ILR 2009 KAR 4004, wherein it is held that 14 the term goods includes anything carried in the vehicle except those excluded by the definition. Ganapathi Ideol does not fall within any one of the items which has been excluded in the above definition. As such, no difficulty arises in answering the said question by holding that Ganapathi Idol, therefore, will have to be deemed to fall within the expression 'goods'. It is further held that the legislation wanted to bring within the purview of Section 147 (making it compulsory for the insurer to insure even in case of goods vehicle) the owner of the goods or his authorized representative being carried in the vehicle when that vehicle meets with an accident and the owner of the goods or his representative dies or suffers bodily injury. As far as the change brought about by excluding definition of goods vehicle in the new Act and replacing the same with a definition goods carriage in Section 2(14) of the new Act is concerned by the said change, the legislature made its intention clear that a passenger carried in a goods vehicle is not liable 15 to be covered by the policy in question. In other words, the risk of the passenger in a goods vehicle is not to be covered by the insurance company.
9. The learned counsel also relied upon the decision of the Hon'ble Supreme Court in the case of Hanumanagouda Vs. United India Insurance Co., Ltd., and Others reported (2014) 9 SCC 341. In the decision of the Hon'ble Supreme Court in the case of Manuara Khatun and others Vs. Rajesh Kumar Singh and others and Mamoni Saikia Mohanty and Others Vs. Rajesh Kumar Singh and Others reported in (2017) 4 SCC 796, it is held that the insurer of the offending vehicle to first satisfy the awarded sum and then to recover the same from the insured in the same proceedings.
10. The insured in MFA.Nos.2217 and 2218 of 2014 has contended that the Tribunal has committed an error in not considering Exs.P.7, P.11 to 12, P.13 16 and P.14 and as per the said exhibits the deceased and respondent No.1 were the authorized representatives of the goods and it covers the insurance as per the provision under Section 147 of the MV Act and the Tribunal has failed to appreciate the same in a proper perspective and erroneously fastened the liability on the insured. Hence, the same has to be set aside and the liability has to be fastened on the Insurance Company, since the policy is a "Package Policy" and not an "Act Policy". Hence, he prays this Court to set aside the judgment and award insofar as fixing the liability on the insured instead on the Insurance Company.
11. On the other hand, the learned counsel for the Insurance Company has contended that the Tribunal has discussed in detail in the judgment regarding the liability is concerned and has rightly came to the conclusion that the Insurance Company is not liable to pay the compensation and fastened the liability on the 17 insured. It is further contended that under Section 147 of the MV Act, the owner of the goods or the representatives of the goods and in the case on hand, the owner has accompanied the goods and these two persons are not the employees of the insured and they traveled as a gratuitous passengers and when the word is used owner or representative and when the owner himself was in the vehicle who has been examined as PW.6, the Tribunal has rightly distinguished the same and fixed the liability on the insured. Hence, there are no grounds to set aside the impugned judgment passed by the Tribunal.
12. After having heard the arguments of the appellants' counsel in both the appeals i.e., MFA.Nos.2271/2014 & 2270/2014 regarding quantum and liability and also the learned counsel for the appellant/insured in MFA.Nos.2217/2014 and 2218/2014 in respect of fastening of liability, the 18 following questions arises for consideration before this Court:
(1) Whether the Tribunal has committed an error in not appreciating the material on record in awarding just and reasonable compensation in respect of both the claimants?
(2) Whether the Tribunal has committed an error in fastening the liability on the insured instead of fastening the liability on the Insurance Company?
13. Now, I would like to take the first point for consideration with regard to the quantum of compensation is concerned. The counsel for the appellants/claimants has relied upon the judgment of the Division Bench of this Court in the case of M.V.Chowdappa Vs. Mohan Breweries & Distilleries Ltd., and Another reported in 2005 ACJ 644, wherein this Court while assessing the disability held that the injured suffered 90% of permanent disability to the 19 whole body, which was ignored and the Tribunal was not justified in assessing the permanent disability at 40% ignoring the expert evidence. Keeping the principles laid down in the judgment referred supra and also the factual matrix of the case on hand, this Court has to consider the appeal i.e., MFA.No.2271/2014 which is an injury case. The Tribunal while answering issue No.3 in MFA.No.2271/2014 has discussed with regard to the evidence of PW.1 and also the wound certificate, which is marked as Ex.P.5, which discloses that the injured suffered tenderness right leg crush injury, tenderness left ankle and extensive lacerated wound over left leg. Injury Nos.1 and 3 are grievous and injury No.2 is simple in nature and also discussed the evidence of doctor with regard to Type III open fracture both right leg, Type III B open fracture both bone left leg and underwent below knee amputation of right lower limb external fixation for left leg C SSG for left. 20
14. It is also discussed in the judgment that the doctor who has been examined as P.W.5 has assessed the permanent disability of the injured to the extent of 90% to the lower limbs and 45% to the whole body. Hence, the Tribunal came to conclusion that there is necessary to assess the loss of income keeping in mind 45% of permanent disability. The very approach of the Tribunal is erroneous, merely because, the doctor assessed the permanent disability at 90% to the lower limbs and 45% to the whole body, which cannot be the basis for assessing the disability and the Tribunal has lost sight of taking note of the functional disability of a person whose right leg was amputated below the knee and also failed to take note of the fact that the injured was a coolie and failed to appreciate that because of amputation as well as factures to the left leg, he could not able to perform the function. Hence, the Tribunal ought to have taken the disability at 70% as functional 21 disability taking note of amputation and the injuries to the left leg.
15. It is further important to note that the Apex Court in the cases of Sanjay Kumar Vs. Ashok Kumar and Another reported in (2014) 5 SCC 330 and Syed Sadiq and others vs. Divisional Manager, United India Insurance Company Limited reported in (2014) 2 SCC 735, has held that when there is a functional disability, the Tribunal ought to have added future prospects while calculating the future loss of income. Hence, future prospects has to be added while calculating the future loss of income. It is important to note that the accident was taken place on 12.09.2012 and the income was taken only at Rs.5,000/- per month and the same is also on the lower side. The Tribunal ought to have taken the notional income of the injured at Rs.7,000/-. No doubt, P.W.6 who has been examined before the Tribunal claims that he was paying the salary 22 of Rs.10,000/- per month, but there are no documents except the oral say. Hence, the Tribunal was right in not accepting the evidence of P.W.6 and in the absence of such documents, the income taken is on the lower side. As the accident is of the year 2012 and the injured was working as a coolie, I am of the opinion that the income has to be taken at Rs.7,000/- per month.
16. In the case on hand, the injured was aged 22 years and the relevant multiplier applicable is 18 and in the case of a person who is working in an unorganized sector, 40% has to be added to the income, which taken at Rs.7,000/-. Hence, the calculation would be Rs.7,000/- + 40% x 12 x 18 x 70/100 = Rs.14,81,760/- and the same has been awarded under the head future loss of income.
17. The Tribunal has taken the loss of income for a period of two months and awarded Rs.10,000/- under the head loss of income during laid up period, which is 23 on the lower side and having considered the crush injury to both right leg and injury to left leg, which led to amputation in respect of right leg, the Tribunal has failed to notice the gravity of injury and awarded lesser compensation. It ought to have taken for a period of six months and now taking note of the income at Rs.7,000/-, Rs.42,000/- is awarded as against Rs.10,000/- awarded by the Tribunal under the head loss of income during laid up period.
18. The Tribunal has awarded Rs.3,00,000/- under the head pain and suffering, which is on the higher side and no doubt, the claimant has sustained the grievous injury to both legs and led amputation to right leg and without any basis, Rs.3,00,000/- is awarded. Under the head future loss of income, the Tribunal has awarded only Rs.4,86,000/-, but awarded compensation of Rs.3,00,000/- on the head pain and suffering. Hence, the compensation awarded under the 24 head pain and suffering has to be reduced. In the case of amputation and 70% of permanent disability, it is appropriate to reduce the compensation to Rs.1,50,000/- under the head pain and suffering from Rs.3,00,000/-. Towards transport, special diet and attendant charges a sum of Rs.50,000/- is awarded. Hence, I do not find any ground to interfere with the compensation awarded under the said head. Based on the medical documents, the Tribunal has awarded Rs.62,000/- under the head medical expenses and I do not find any ground to interfere with the same. As the injured was aged 22 years as on the date of the accident and his right leg is amputated and he has to lead rest of his life with the functional disability, Rs.1,00,000/- awarded by the Tribunal under the head loss of amenities is just and proper and there is no ground to interfere with the same. Rs.1,00,000/- awarded by the Tribunal towards loss of marriage prospects is also just 25 and reasonable and there is no ground to interfere with the same.
19. Having considered the factual matrix of the case and applying the principles laid down by the Apex Court, the just and reasonable compensation comes to Rs.19,85,760/-.
20. The claimants in MFA.No.2270/20104 have contended that the Tribunal has erred in awarding Rs.8,19,000/- under the head loss of dependency, which is very meager and on the other heads also compensation awarded is very meager. The Tribunal by considering the material on record taken the income of the deceased at Rs.5,000/- per month and the same is also meager. As the accident is of the year 2012 and though, disbelieved the evidence of PW.6 that he was paying the salary of Rs.10,000/-, the Tribunal ought to have taken the income at Rs.7,000/-. No doubt, the Tribunal has taken the income at Rs.5,000/- and also 26 added 30% towards future prospects and the same has to be modified as 25%, since the deceased was working in an unorganized sector. Since, 2nd petitioner is a major and he is not a dependent, deduction of 1/4th by the Tribunal towards personal expenses of the deceased is not just and proper, since the dependents are only 3 in numbers. Hence, 1/3rd has to be deducted instead of 1/4th as personal expenses of the deceased. The multiplier applicable to the age group of the deceased is
14. Hence, the loss of dependency works out to Rs.9,79,944/- (Rs.7,000/- + 25% - 1/3) Rs.5,833/- x 12 x 14) and the same has been awarded under the head loss of dependency. The Tribunal has awarded an amount of Rs.25,000/- and Rs.10,000/- under the heads funeral expenses and transport expenses. In all, a sum of Rs.35,000/- is awarded under the said heads and the same has to be enhanced in view of the reasons assigned in the decision of the Hon'ble Supreme Court in the case of Pranaya Sethi's case. Therefore, an 27 amount of Rs.70,000/- is awarded as against Rs.35,000/- under the conventional heads. Hence, the just and reasonable compensation comes to Rs.10,49,944/-.
21. With regard to point No.2 is concerned, which is relating to fastening the liability on the insured, the insured has contended that the Tribunal has erred in fastening the liability on the insured and the claimants have also contended that the Tribunal ought to have fixed the liability on the Insurance Company. The main contention of the appellant/insured is that the Tribunal failed to take note of Exs.P.7, P.12, P.13 and P.14. Ex.P.7 - charge sheet is filed by the Investigating Officer after the investigation. Ex.P.12 is the bill for having purchased the Ganesha Idol and Ex.P.13 is the ticket purchased by P.W.6 to go to Hyderabad. Ex.P.14 is the loading slip issued in favour of P.W.6 issued by RMR Transport. It is contended that the Tribunal has not 28 taken into consideration all these documents as the injured and the deceased have accompanied P.W.6 and P.W.6 in his evidence has categorically deposed that the injured and the deceased accompanied him for transporting of Ganesha Idols from Hyderabad to Hosur. The court below has failed to take note of the fact that they are the authorized representatives of the owner of the goods and has committed an error in fastening the liability on the insured.
22. Before analyzing the material on record, I would like to make a mention of factual matrix of the case with regard to contention of claimants that they were traveling as representatives of the owner of goods. It is a specific case of the claimants that they were traveling in the vehicle, in which Ganesha Idols were transporting from Hyderabad to Hosur and the evidence emerged before the court that P.W.1 and deceased were working with PW.6 and P.W.6 also in his evidence has 29 categorically stated that he has engaged the services of deceased and the injured and was paying the salary of Rs.10,000/- each. An attempt is made to cross-examine the witnesses i.e., P.Ws.1 and 2, but nothing is elicited from the mouth of P.Ws.1, 2 and 6 that they were not engaged by P.W.6.
23. It is further important to note that the Tribunal has failed to analyze the document at Ex.P.7- charge sheet filed by the Investigating Officer, who while filing charge sheet stated that the injured as well as the deceased were traveling with the goods along with P.W.6 and the same has not been rebutted by the Insurance Company and apart from that, the claimants have also produced Ex.P.12 for having purchased the Ganesha Idols by P.W.6 and Ex.P.13 also shows that an amount was collected towards travel charges from Bangalore to Hyderabad from P.W.6 and the same has not been disputed. Ex.P.14-loading slip also shows that Ganesha 30 Idols were loaded to the vehicle and the same were transporting to Hyderabad and there was no rebuttal evidence regarding these documents and transporting of Ganesha Idols in the vehicle is also not disputed. The main contention of the counsel for the Insurance Company is that the representatives of the owner of the goods cannot be considered, since the owner himself has accompanied with the goods and also brought to my notice the provision of Section 147 of the MV Act, which reads as under:
"Section 147 - Requirements of policies and limits of liability. --
(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--
(i) against any liability which may be incurred by him in respect of the death of or bodily 27 [injury to any person, including owner 31 of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
xxxxxx xxxxxx".
24. The main contention of the counsel for the Insurance Company is that under Section 147 (1) (b) (i) of the MV Act against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle. The owner has accompanied the goods and the word used is including the owner of the goods or his authorized representatives and hence, the liability is either to the owner of the goods or representative not for both. 32
25. In keeping the contentions urged by the appellants' counsel and the counsel appearing for Insurance Company considering the factual matrix of the case, traveling of those two persons is not disputed and P.W.6 in the evidence has categorically stated that they are his employees engaged to transport the Ganesha Idols and merely the owner has also accompanied while transporting the goods and other persons cannot be carried and the said contention of the Insurance Company cannot be accepted. The court has to take note of the fact that Ganesha Idols were transporting in the vehicle along with the owner of the goods and these two persons were traveled as representatives of the owner of goods for transporting the same from Hyderabad to Hosur. The counsel for the appellants has relied upon the judgment of the Apex Court in the case of Hanumanagouda Vs. United India Insurance Co., Ltd., and Others reported 33 (2014) 9 SCC 341, wherein it is held that amongst the deceased victims, two were of clerical cadre working as a gumasthe and were accompanying the goods and premium paid for covering the risk of persons "employed in connection with the operation and/or loading/unloading of motor vehicle" and further held that the High Court fell in error in holding that insurer is not liable and the persons employed in connection with the operation is clearly over and above coverage provided by policy to persons employed in connection with loading/unloading of motor vehicle. The above judgment is aptly applicable on the case on hand.
26. The counsel also relied upon the judgment of the Apex Court in the case Manuara Khatun and others Vs. Rajesh Kumar Singh and others and Mamoni Saikia Mohanty and Others Vs. Rajesh Kumar Singh and Others reported in (2017) 4 SCC 796, wherein it is held that the insurer of the offending 34 vehicle to first satisfy the awarded sum and then to recover the same from the insured in the same proceedings. In the case on hand, it has to be noted that the claimants are the representatives of owner of the goods. The Apex Court in the case of Manager, National Insurance Co., Ltd., Vs. Saju P.Paul and Another reported in (2013) 2 SCC 41 has held that the liability was fastened on the insurer and the insurer has to pay injured and then recover same from vehicle owner. Though, these citations are quoted by the appellants' counsel, it is not a case for order to pay and recovery considering the factual matrix of the case. Facts and circumstances are different and each case and circumstances has to be analyzed while applying the citation. Hence, the liability ought to have been fastened on the Insurance Company and these two persons have traveled as employees of owner of the goods and similarly the owner also traveled in the vehicle and mere owner traveling in the vehicle not 35 disentitling the claimants to claim compensation from the insurance company and these two traveled along with owner, since they were transporting Ganesha Idols from Hyderabad to Hosur. The very approach of the Tribunal without analyzing the provision of Section 147 in the letter and spirit and failed to consider the factual matrix, has erred in coming to the conclusion that the owner is liable and fastened the liability on the owner instead of on the insurance company. It is important to note that the owner not sustained any injury and not made any claim and the very intent of the legislation is to protect the interest of the owner of the goods and representative of the owner and the goods under the provisions of Section 147 of MV Act. The wisdom and intent of the legislature is not kept in mind while considering the case and circumstances. No dispute that the policy is a package policy and on perusal of Ex.R1, it is clearly mentioned as a package policy. Hence, it is in my opinion, the Tribunal has committed 36 an error in fastening the liability on the insured and hence, answered point No.2 in affirmative.
27. In view of the above discussion, I pass the following ORDER MFA.Nos.2271/2014 and 2270/2014 filed by the appellants/claimants are partly allowed. The quantum of compensation is enhanced to Rs.19,85,760/- as against Rs.11,08,000/- in MFA.No.2271/2014 and Rs.10,49,944/- as against Rs.10,04,000/- in MFA.No.2270/2014.
MFA.Nos.2217/2014 and 2218/2014 filed by the insured/appellant are allowed insofar as fastening the liability as against the insurer instead of the owner of the offending vehicle. The Insurance Company is directed to pay the compensation amount with interest at 6% p.a. within six weeks.
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Office is directed to transmit the records to the lower Court.
Sd/-
JUDGE PB