Karnataka High Court
Chikkanna vs Jayamma on 10 November, 2023
-1-
NC: 2023:KHC:40571
MFA No. 3711 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10th DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE C.M.JOSHI
M.F.A. NO. 3711 OF 2017 (MV-I)
BETWEEN
CHIKKANNA,
S/O. MOLLEGOWDA,
AGED ABOUT 47 YEARS,
R/O. K M DODDI VILLAGE,
(BHARATHI NAGARA),
C A KERE HOBLI,
MADDUR TQ,
MANDYA DISTRICT - 571414.
...APPELLANT
(BY SRI SREENIVASAN M.Y, ADVOCATE)
AND:
1 . JAYAMMA,
W/O. VENKATESH Y.S,
Digitally signed MAJOR,
by T S
NAGARATHNA R/AT. NO. 105, SLUM NAGARBAVI,
Location: High THIMMENAHALLI,
Court of
Karnataka GOVINDARAJA NAGARA,
BANGALORE - 560032.
2 . THE BRANCH MANAGER,
SRIRAM GENERAL INSURANCE CO. LTD.,
NO.5/5, 3RD FLOOR,
MONARK CHURCH,
INFANTRY ROAD,
BANGALORE - 560001.
...RESPONDENTS
(BY SRI B.C SHIVANNE GOWDA, ADVOCATE FOR R2;
-2-
NC: 2023:KHC:40571
MFA No. 3711 of 2017
R1 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT PRAYING TO ALLOW THE APPEAL AND MODIFY THE
JUDGEMENT PASSED BY SENIOR CIVIL JUDGE & MACT AT
MADDUR IN M.V.C.982/2015 ON 17/01/2017 THEREBY
ENHANCING THE COMPENSATION SUITABLY WITH
INTEREST, FIXING THE LIABILITY ON THE INSURANCE
COMPANY AND GRANT SUCH OTHER RELIEFS IN FAVOUR OF
THE APPELLANT IN THE CIRCUMSTANCE OF THE CASE IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY THROUGH VIDEO CONFERENING
AT KALABURGI, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and award dated 17.01.2017 passed in MVC No.982/2015 by the learned Senior Civil Judge and MACT, Maddur, whereby, a sum of Rs.2,17,360/- was awarded as compensation, fixing liability on the owner, the petitioner/claimant has approached this Court in appeal.
2. It is the case of the petitioner that on 08.06.2015 at about 9.30 a.m. when the petitioner and one Puttaswamy were traveling in the Eicher Canter Vehicle bearing Reg.No.KA-02/AB-1728 towards -3- NC: 2023:KHC:40571 MFA No. 3711 of 2017 Kanakapura for the purpose of loading the tender coconut, the driver of the said canter vehicle drove the same in a rash and negligent manner and while avoiding collision against a motor cyclist, dashed against the road side tree and caused the accident. In the said accident, the petitioner sustained grievous injuries. Immediately, he was taken to Government Hospital, Ramanagara and thereafter, shifted to St. John Medical College Hospital, Bengaluru. The petitioner had his little finger amputated, plastic surgery was done. On account of these injuries, which are grievous in nature and the fractures, the petitioner has suffered disability. It was further stated that the petitioner is aged about 45 years and working as a cleaner cum loader under the respondent No.1 and getting monthly income of Rs.10,000/-. The accident took place due to rash and negligent driving of Canter Vehicle bearing Reg.No.KA-02/AB-1728 by its driver, the respondent No.1 being the owner of the said offending vehicle, -4- NC: 2023:KHC:40571 MFA No. 3711 of 2017 respondent No.2 being the insurer, they are jointly and severally liable to pay the compensation to the petitioner.
3. On issuance of notice, respondent No.1 though appeared before the Tribunal has not filed statement of objections. The respondent No.2 has appeared through its counsel and filed statement of objections denying the contentions taken up in the petition. However admitted that the canter vehicle bearing Reg.No.KA02/AB-1728 has been insured with the respondent No.2, but its liability is subject to the terms and conditions of the policy only. It has denied the allegations made in the petition in respect of the date, time and place of accident, there is a clear violation of Section 134(c) of M.V. Act by the respondent No.1 and that the compensation claimed by the petitioner is totally exorbitant, highly excessive and without any basis. It was further contended that the driver of the vehicle was not having any valid driving -5- NC: 2023:KHC:40571 MFA No. 3711 of 2017 licence and that the petitioner was traveling in the said vehicle as gratuitous passenger and thereby it is clear violation of the terms and conditions of the policy. Hence, the petitioner is not entitled for any compensation from the respondent No.2 and therefore, prayed to dismiss the petition.
4. On the basis of the above pleadings, the Tribunal framed the appropriate issues and petitioner examined himself as PW1 and examined one witness as PW2 and Exs.P1 to P12 were marked. On behalf of respondent, one witness was examined as RW1 and no documents were marked.
5. The Tribunal after hearing both the sides, awarded the compensation of Rs.2,17,360/- under different heads as below and directed the respondent No.1-owner to deposit the same dismissing the petition against respondent No.2 insurance Company.
-6- NC: 2023:KHC:40571 MFA No. 3711 of 2017 Medical expenses Rs. 50,000/- Other incidental charges which Rs. 5,000/- include traveling charges Pain and suffering Rs. 10,000/- Future loss of earnings capacity Rs.1,26,360/- due to disability Loss of income during laid up Rs. 5,000/- period Loss of amenities in life which Rs. 15,000/- include future prospects Medical attendant charges Rs. 6,000/- Total Rs. 2,17,360/-
6. Being aggrieved by the said judgment and award, the petitioner has approached this Court in appeal contending that the compensation awarded by the Tribunal is inadequate and the Tribunal committed an error in holding that the petitioner was a gratuitous passenger and fastening the liability on the respondent No. 1.
7. On issuance of notice, respondent No.2- Insurance Company appeared through its counsel and -7- NC: 2023:KHC:40571 MFA No. 3711 of 2017 respondent No.1 served and unrepresented. On admitting the appeal, the Tribunal records have been secured.
8. Heard the learned counsel for the petitioner and learned counsel for the respondent No.2-Insurance Company and perused the Tribunal records.
9. The learned counsel appearing for the appellant has contended that the petitioner was a loader and he went in the vehicle of the respondent No.1 which was insured by respondent No.2 to load tender coconut. It is contended that the said lorry hit a road side tree and the two loaders in the said vehicle were injured and a complaint was lodged after five days of the accident by a relative. It is contended that there is nothing to show that the petitioner was a gratuitous passenger in the said vehicle. It is submitted that PW.1 admits that he is not a cleaner but was a loader in the cross-examination and he states that he was hired by the owner of the goods and was sent to load the tender -8- NC: 2023:KHC:40571 MFA No. 3711 of 2017 coconuts and while returning the accident occurred. The learned counsel appearing for the appellant also contends that the tribunal should have assessed the notional income of the petitioner @ Rs.9,000/- per month, whereas it has assessed the income at Rs.6,000/-. It is contended that the compensation awarded by the tribunal is abysmally low as the disability assessed by the tribunal is also on the lower side despite there being amputation of a few of the fingers. It is contended that the functional disability of the petitioner as a loader should have been considered by the tribunal while assessing the compensation amount. He further relied on the decision in the case of Narsamma Vs. Magma HDI General Insurance Company Limited1, wherein it was held that Rule 100 of the Motor Vehicle Rules provide that a representative of the owner of the goods is permitted to travel in the goods vehicle and therefore in view of the said rule, the 1 ACJ 2021 734 -9- NC: 2023:KHC:40571 MFA No. 3711 of 2017 petitioner was permitted to travel in the said vehicle and he could not have been termed as a gratuitous passenger within the meaning of Section 147 of the Motor Vehicles Act. He also relied on the decision in the case of Ravi Vs. Badrinarayan and Others2, wherein it was held that the delay alone in filing the FIR cannot be a ground to doubt the involvement of the vehicle in the accident itself.
10. Per contra, learned counsel appearing for the respondent No.1-Insurance Company has contended that the petitioner was not the owner of the goods in the said vehicle and he was a loader but the policy had coverage of a cleaner. When the petitioner was not a cleaner in the said vehicle, he was not covered under the terms and conditions of the policy. It is submitted that the complaint had been lodged after a delay of five days and it categorically mentioned that the petitioner 2 AIR 2011 SC 1226,
- 10 -
NC: 2023:KHC:40571 MFA No. 3711 of 2017 and another were the labourers/loaders in the said goods vehicle. Therefore he contends that the tribunal is justified in absolving the liability on the respondent No.2 and fastening the liability on the respondent No.1. He further contended that the compensation awarded by the tribunal is just and proper and no interference is required. In support of his contention he placed reliance on the decision in the case of Oriental Insurance Company Ltd. Vs Rudrappa and another, rendered in MFA No.3171/2007 dated 02.06.2011. In the said decision it was held that when the claimant was traveling in an empty goods vehicle for the purpose of loading the some material, it could not have been said that he was traveling with the goods. No goods were found in the vehicle i.e., auto rickshaw and therefore there was no material on record to show that the vehicle was hired for the purpose of transportation of goods vehicle. On that count this Court had dismissed
- 11 -
NC: 2023:KHC:40571 MFA No. 3711 of 2017 the petition as against the insurance company and fastened the liability on the owner of the vehicle.
11. The first aspect to be considered by this Court is whether the tribunal is justified in holding that the petitioner was gratuitous passenger in the said vehicle.
12. The perusal of the FIR, produced at Ex.P1 discloses that though the accident was on 08.06.2015, the complaint was lodged on 13.06.2015. It was stated in the complaint that the petitioner and another were the labourers and they were going to Kanakapura for the purpose of loading the tender coconut in the offending vehicle. It was stated that near Sathanur bus stop, the driver of the Canter vehicle while avoiding the collision to a two wheeler, turned to left and dashed against the road side tree. It is evident that the petitioner was a labourer in the vehicle. It is also pertinent to note that the complaint is clear enough in saying that they were going for bringing tender
- 12 -
NC: 2023:KHC:40571 MFA No. 3711 of 2017 coconuts. The other police papers, which are at Exs.P2 to P5 do not mention whether the canter was loaded with the tender coconuts or it was empty. The charge sheet produced at Ex.P5 shows that the petitioner and another who were injured in the accident were the cleaners in the said vehicle. The cross-examination of petitioner-PW.1 discloses that the learned counsel for the respondent No.2 had suggested that on the date of the accident, the petitioner was returning from the farm of one Puttaswamy and Kempayya along with the load. The suggestion to PW.1 is clear enough in saying that the vehicle was loaded with tender coconuts and they were returning after loading the vehicle. In view of this suggestion by the learned counsel for the respondent No.2 in the cross-examination of PW.1, the decision relied by the learned counsel for the respondent No.2 in the case of Oriental Insurance Company Vs. Rudrappa, referred above is not applicable to the case on hand.
- 13 -
NC: 2023:KHC:40571 MFA No. 3711 of 2017
13. The question to be determined is whether the petitioner was the gratuitous passenger. The tribunal in the impugned judgment, comes to the conclusion that though the policy was in force, the petitioner comes within the meaning of the gratuitous passenger. It holds that there is no evidence on record to show that the petitioner was cleaner but he had admitted that he was a coolie by profession and therefore it concludes that he was a gratuitous passenger. The cross-examination of PW.1 was not properly considered by the tribunal. It is pertinent to note that the petitioner was the loader-cum-labourer in the said vehicle and he was engaged for the purpose of loading and unloading the tender coconuts. The cross- examination of PW.1 nowhere mention that the petitioner had sought for a lift and the driver of the respondent No.1 had permitted to board the vehicle. On the other hand, the petitioner was entrusted with the
- 14 -
NC: 2023:KHC:40571 MFA No. 3711 of 2017 work of loading and unloading in the said vehicle. This aspect is not denied in the cross-examination of PW.1.
14. Coming to the question of law, the provisions of Section 147 (1) and (2) of the motor vehicles act read as below;
147. Requirement 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 injury to any person including owner of the goods or his authorised representative carried in the motor vehicle or damage to any property of a third party caused by or arising out of the use of the motor vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a transport vehicle, except gratuitous passengers of a goods vehicle, caused by or arising out of the use of the motor vehicle in a public place.
- 15 -
NC: 2023:KHC:40571 MFA No. 3711 of 2017 Explanation.--For the removal of doubts, it is hereby clarified that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place, notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Notwithstanding anything contained under any other law for the time being in force, for the purposes of third party insurance related to either death of a person or grievous hurt to a person, the Central Government shall prescribe a base premium and the liability of an insurer in relation to such premium for an insurance policy under sub-section (1) in consultation with the Insurance Regulatory and Development Authority.
15. It is pertinent to note that Section 147 (1)
(b) (ii) mention that except the gratuitous passengers of the goods vehicle, the policy of insurance should cover any person. The word 'except gratuitous passengers of a goods vehicle' is to be understood in the meaning that such passenger is not permitted under any of the law in force.
- 16 -
NC: 2023:KHC:40571 MFA No. 3711 of 2017
16. Rule 100 (1) of the motor vehicles rules states as below;
100. Carriage of persons in goods vehicle.- (1) subject to the provisions of this rule, no person shall be carried in a goods vehicle:
Provided that the owner or the hirer or a bona fide employee of the owner of the hirer of the vehicle carried free of charge or a police officer in uniform traveling on duty may be carried in a goods vehicles, the total number of persons so carried.-
(i) In light transport goods vehicle having registered laden weight less than 990 kgs.
Not more than one;
(ii) in any other light transport goods vehicle not more than three; and
(iii) in any goods vehicle not more than seven:
Provided that the provisions of sub-clauses
(ii) and (iii) of the above proviso shall not be applicable to the vehicles plying on inter-
State routs or the vehicles carrying goods from one city to another city.
17. It is worth to note that the owner or representative of the owner or a bonafide employee or hirer of the vehicle is cannot be termed as gratuitous
- 17 -
NC: 2023:KHC:40571 MFA No. 3711 of 2017 passenger. When the rule 100 provides permission for a person, like hirer or any representative of the owner of the goods, to travel in the goods vehicle, it cannot be said that such a person is a gratuitous passenger. Rule 100 carves out an exception to the meaning of word gratuitous passenger that may be found in Section 147 of the Motor Vehicles Act. It is not only the owner or hirer or employee of the owner or hirer, who are permitted to travel in the goods vehicle, but also a police officer in uniform traveling on a duty may also be carried in the goods vehicle. It is pertinent to note that Rule 100 carves out exception for various circumstances narrated therein. All these exceptions cannot be termed to be come within the meaning of Section 147 of the Motor Vehicles Act and all such persons enumerated under Rule 100, if they travel in the goods vehicle, are to be termed as gratuitous passengers. Such an interpretation would be unjustifiable and definitely it was not the intention of
- 18 -
NC: 2023:KHC:40571 MFA No. 3711 of 2017 the legislature. Section 147 of the Motor Vehicles Act lays down as to who are covered under the insurance.
18. Section 2 of the Motor Vehicle Act, do not define who is a gratuitous passenger, the ordinary meaning of a gratuitous passenger has to be understood by the courts. If a person travels in the goods vehicle by seeking a lift and without hiring the said vehicle, he be termed as a person traveling gratuitously. If a person seek a lift and the driver of the vehicle accepts certain fare, then obviously such transaction is prohibited under law and therefore the cover of the insurance is not available. Therefore, he may be termed to be a person who is not entitled for the benefits under the law.
19. In the case on hand, the petitioner was traveling in the goods vehicle which was permitted under Rule 100 of the MV Rules and therefore it cannot be held that he was a gratuitous passenger. If he was unconnected to the owner of the goods in the said
- 19 -
NC: 2023:KHC:40571 MFA No. 3711 of 2017 vehicle and if he was not loader, or a person not authorized by the owner or hirer of the said vehicle, it could have been said that he is not covered under the insurance policy as provided under Section 147 (1) of the Motor Vehicles Act. The cross-examination of PW.1 categorically show that there was a suggestion by the respondent No.2 that the petitioner and another person were returning back after loading the tender coconuts in the said vehicle. Therefore when there is clear evidence available on record, it cannot be termed that the petitioner was gratuitous passenger. Under these circumstances, this Court comes to the conclusion that the tribunal had erred in holding that the petitioner was a gratuitous passenger.
20. It is obvious that the RW.1, the official of the insurance Company was examined before the tribunal but however, he did not produce copy of the policy. It was admitted by him in the cross-examination that the policy covers the driver and two other persons traveling
- 20 -
NC: 2023:KHC:40571 MFA No. 3711 of 2017 in the vehicle. It was contended that only the cleaner is permitted to travel in the vehicle. It appears that the copy of the policy would have clarified as to who were covered under the policy. In a medium goods vehicle, it is not possible to comprehend that there may be two cleaners. Under these circumstances, when additional premium was paid for driver and two other persons, obviously it covers the loader also. Hence, the dismissal of the petition as against the respondent No.2 is not proper and correct and liability has to be fastened upon respondent No.2.
21. The second contention of the earned counsel appearing for the appellant is regarding the quantum of compensation.
22. He has contended that the disability of the petitioner was to the extent of 13.5% for the whole body and it was 40% for the left upper limb. Obviously the petitioner had sustained amputation of the little finger at the proximal inter phalangeal level and there
- 21 -
NC: 2023:KHC:40571 MFA No. 3711 of 2017 was a ring finger crush injury over the middle phalanx exposing. It was also found that the index and middle finger were swelling and tenderness was present and there was fracture of the base of the first metacarpal, proximal phalanx fracture of index finger. The author of Ex.P10 disability certificate was not examined by the petitioner but however the tribunal has held that the disability was to the extent of 13.5% for the whole body has to be taken to be the functional disability of the petitioner considering the fact that he was a labourer working as a loader. I do not find any reason to interfere with the said finding for the tribunal and it is proper and correct.
23. The tribunal has assessed the income of the petitioner notionally as Rs.6,000/- per month. The learned counsel for the appellant contends that the said conclusion of the tribunal is not justifiable and needs to be enhanced. The guidelines issued by the Karnataka State Legal Services Authority for the purpose of
- 22 -
NC: 2023:KHC:40571 MFA No. 3711 of 2017 settlement of the claim petitions before the Lok Adalath prescribe a notional income of Rs.9,000/- for the year 2015. In umpteen number of decisions this Court has held that the guidelines prescribed by the Karnataka State Legal Services Authority are in the general conformity with the wages fixed under the Minimum Wages Act. Therefore, the notional income of the petitioner has to be taken at Rs.9,000/- per month.
24. The petitioner was aged 50 years at the time of accident and therefore appropriate multiplier is 13. Hence, the loss of income on account of the disability is calculated as Rs.9,000 x 12 x 13 x 13.5% =1,89,540/-. The tribunal has awarded a compensation of Rs.5,000/- as conveyance expenses, Rs.10,000/- towards pain and suffering, Rs.5,000/- as the income during the laid up period. It can safely be said that the petitioner was unable to resume his work at least for a period of two months and therefore the loss of income during the laid up period is enhanced to Rs.18,000/-. The
- 23 -
NC: 2023:KHC:40571 MFA No. 3711 of 2017 compensation under the remaining heads awarded by the tribunal does not require any interference. Hence, the petitioner is entitled for compensation of Rs.2,93,540/- under following heads.
Medical expenses Rs. 50,000/-
Incidental charges and conveyance Rs. 5,000/-
charges
Pain and suffering Rs. 10,000/-
Future loss of earnings capacity
Rs. 1,89,540/-
due to disability
Loss of income during laid up
Rs. 18,000/-
period
Loss of amenities in life Rs. 15,000/-
Medical attendant charges Rs. 6,000/-
Total Rs. 2,93,540/-
Less awarded by Tribunal Rs. 2,17,360/-
Enhancement Rs. 76,180/-
25. Thus, the petitioner is entitled for enhanced compensation of Rs.76,180/- with interest @ 6% p.a. For aforesaid reasons, the appeal filed by petitioner deserves to be allowed. Hence, the following:
- 24 -
NC: 2023:KHC:40571 MFA No. 3711 of 2017 ORDER
a) The appeal is allowed in part.
b) The dismissal of claim petition as against respondent No.2 is hereby set aside.
c) The petitioner is entitled for a sum of Rs.
Rs.76,180/- in addition to what has been awarded by the tribunal along with interest @ 6% p.a. from the date of petition till its deposit before the tribunal.
d) The respondent No.2 is directed to deposit the entire compensation amount within a period of six weeks from the date of this judgment.
e) Rest of the conditions imposed by the tribunal regarding the fixed deposit remain unaltered.
Sd/-
JUDGE tsn*