Karnataka High Court
M/S Unversal Sompo General Insurance ... vs Ashwatamma on 29 July, 2019
Author: A.S.Bellunke
Bench: A.S Bellunke
MFA.1605/2013
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2019
BEFORE
THE HON'BLE MR.JUSTICE BELLUNKE A.S.
M.F.A.1605/2013 (MV)
BETWEEN:
M/S UNIVERSAL SOMPO GENERAL
INSURANCE COMPANY LTD.,
NO.201-208, CRYSTAL PLAZA,
LINK ROAD, ANDERI WEST,
MUMBAI-400 058,
REPRESENTED BY LEGAL MANAGER. ... APPELLANT
(By Sri RAVI S.SAMPRATHI, Adv.)
AND:
1. ASHWATAMMA,
W/O LATE KRISHNAPPA,
AGED ABOUT 43 YEARS;
2. E. HARISH KUMAR,
S/O LATE KRISHNAPPA,
AGED ABOUT 22 YEARS;
3. E. RAMU,
S/O LATE KRISHNAPPA,
MAJOR IN AGE;
4. NAGAMMA,
W/O LATE RAMANNA,
AGED ABOUT 82 YEARS;
since deceased represented by
Respondents 1 to 3 as her L.Rs.
ALL ARE RESIDING AT
PANDIPARTI VILLAGE,
BLOCK 1, 2 (MANDAL),
SOMANDEPALLI, ANANTHAPURA,
ANDHRA PRADESH - 400 024.
MFA.1605/2013
2
5. VIKRAM DEVA REDDY,
S/O LATE PANATI DURUVASALU REDDY,
MAJOR IN AGE,
NO.8, BEHIND SANDYA TENT,
OLD MADIWALA,
BANGALORE - 560 036. ... RESPONDENTS
(By Sri A.S.GIRISH, ADV. FOR C/R1 TO 3,
Sri T.MOHANDAS SHETTY, ADV. FOR R5
R1 TO R3 ARE L.Rs. FOR DECEASED R4)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED
03.10.2012 PASSED IN MVC.NO.2523/2011 ON THE FILE OF THE
VII ADDITIONAL JUDGE, MEMBER, MACT-3, COURT OF SMALL
CAUSES, BANGALORE, AWARDING COMPENSATION OF
RS.7,70,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is by the Insurance Company against the judgment and award dated 03.10.2012 passed in MVC.No.2523/2011 by the VII Additional Judge, Member, MACT-3, Court of Small Causes, Bangalore, questioning the fastening of liability on the Insurance Company.
2. Parties are referred to by their ranks as they were before the Court below.
MFA.1605/20133
3. Brief facts leading to this appeal are as under:
On 04.01.2011, when E.Krishnappa, husband of petitioner No.1 and father of petitioner Nos.2 and 3, as representative/agent of one Kumar was proceeding in a goods auto rickshaw bearing registration No.KA-05/AB- 7008 after unloading garbage collected from various areas. The said auto rickshaw was driven by the driver of respondent No.1 in a rash and negligent manner. Therefore, the vehicle turned and turtled. As a result of this accident, fatal injuries are caused to the head of E.Krishnappa. Thereafter, E.Krishnappa was shifted to NIMHANS for treatment. He took treatment as inpatient up to 07.01.2011 and died in the Hospital. Petitioners being his legal representatives filed a petition under Section 166 of Motor Vehicles Act seeking compensation. They contended that deceased Krishnappa was aged about 50 years at the time of accident. He was working as coolie, earning monthly wages of Rs.7,000/- and on account of untimely death of deceased, petitioners being their legal representatives have lost their breadwinner. They have MFA.1605/2013 4 spent Rs.30,000/- towards medical treatment and Rs.50,000/- towards funeral and obsequies. The goods auto is owned by respondent No.1 and insured by respondent No.2 - Insurance Company. Therefore, claimants sought recovery of compensation jointly and severally by respondents 1 and 2.
4. The claim petition was resisted by respondents 1 and
2. According to respondent No.1 - owner, policy in question was in force as on the date of accident. Therefore, liability, if any, is on respondent No.2 - Insurance Company to satisfy the award and that petitioners are not entitled to claim compensation from the owner of the vehicle.
5. The allegation of the petitioners that the deceased was representative of the goods i.e., garbage loaded in the goods auto and allegations with regard to age, income of the deceased as on the date of the accident, negligence on the part of the driver of the goods auto are all denied by respondent No.2 - Insurance Company. It was contended MFA.1605/2013 5 by the respondent - Insurance Company that petitioners are residents of Andhra Pradesh and hence, Court had no jurisdiction to try the matter. It was also contended by respondent - Insurance Company that relevant documents pertaining to vehicle in question were not furnished to the jurisdictional police station within 30 days from the date of accident; that the driver of the vehicle was not holding valid driving licence as on the date of the accident; that the vehicle being goods auto, deceased was an unauthorised passenger to travel in the said vehicle, thereby violated terms and conditions of policy and that no additional premium was collected to cover the risk of other occupants of the vehicle except driver and that risk of the deceased was not covered under the policy. Accordingly, Insurance Company prayed for dismissal of the claim petition.
6. On the basis of the above pleadings, the Court below had framed the following issues.
1. Do the petitioners prove that E.Krishnappa died in an accident arising out of rashness/negligence of the driver of the Goods MFA.1605/2013 6 Auto Rickshaw bearing registration No.KA- 05/AB-7008 as alleged in the petition?
2. Whether the petitioners prove that they are LRs of the deceased E.Krishnappa?
3. Whether the petitioners are entitled for compensation? If so, how much and from whom?
4. What Order or Award?
7. After trial, the MACT held that the Insurance Company has not proved that the driver of the offending vehicle had no valid license as on the date of the accident. Hence, the liability was fastened on respondent No.2 - Insurance Company to satisfy the award. Accordingly, the Court below answered issue Nos.1 to 3 in the affirmative and consequently, allowed the claim petition quantifying the compensation as under:
1 Loss of dependency Rs.6,000/- less 1/3rd 7,20,000/-
= 4000 X 12 X 15 2 Loss of consortium 10,000/-
3 Loss of expectancy 10,000/-
4 Transportation of dead body and funeral 10,000/- expenses MFA.1605/2013 7 5 Loss of estate 10,000/-
6 Loss of love and affection 10,000/-
TOTAL Rs.7,70,000/-
Thus, awarded Rs.7,70,000/- as compensation along with interest at 6% p.a. from the date of petition till realization.
8. Aggrieved by the said judgment and award, insurance company has preferred the present appeal on the following grounds:
It is contended by the learned counsel for the appellant - Insurance Company that the Court below has not discussed the issue of liability raised by the Insurance Company and has ignored the defence of the Insurance Company and also failed to appreciate evidence produced by the Insurance Company, thereby wrongly fastened the liability on the Insurance Company.
9. Learned counsel for the appellant - Insurance Company contends that the vehicle in question was a goods auto having seating capacity of only one i.e., the driver and that the owner of the vehicle has admitted that deceased was not working under him. Therefore, deceased MFA.1605/2013 8 was an unauthorized passenger to travel in the goods auto. There is no evidence to prove that the deceased was representative of goods that were transported in the vehicle. No additional premium has been paid to cover the additional passenger in the vehicle in question. Hence, he prayed for remand of the matter to the Court below for fresh disposal with regard to fastening of the liability on the Insurance Company.
10. Per contra, learned counsel for claimant - respondents contends that the goods auto was meant for collecting garbage from various places in the city and to dump the same in the outskirts of the city. The said goods auto was entrusted to a person by name Kumar by the owner of the vehicle for collecting and transporting garbage. In turn, the said Kumar had appointed Krishnappa/deceased to collect and dump the garbage. Therefore, he contends that policy in question covers the cleaner also and thus, the Insurance Company is liable to satisfy the award. As regards quantum of compensation, claimants have not filed any cross-objection or appeal. MFA.1605/2013 9
11. In reply, learned counsel for the appellant - Insurance Company contends that the coverage given was under the personal accident policy, therefore, under that coverage, the legal representatives of deceased cannot claim compensation. They have to approach the Civil Court or Consumer Forum. He also clarified that the Insurance Company is not questioning the quantum of compensation determined by the Court below.
12. After hearing learned counsel for both sides and on perusal of the records, the following points would arise for consideration:
1) Whether the appellant - Insurance Company proves that the deceased was an unauthorized passenger in the goods vehicle and therefore, the Insurance Company is not liable to satisfy the award?
2) Whether it is a fit case to remand the case to the Court below for fresh disposal?
13. At the very outset, the nature of the vehicle and its use has to be borne in mind before deciding the liability of MFA.1605/2013 10 owner or the insurer. Admittedly, the owner of the vehicle in question had taken a valid policy marked at Ex.R3. As regards driving license is concerned, there is no dispute. The finding of the Court below that the accident occurred on account of rash and negligence act of the driver resulting in grievous injury and death of the deceased is not disputed. The vehicle in question was entrusted to one Kumar by the owner of the vehicle, who in turn used the said vehicle to collect garbage from various places and dump in the outskirts of the city. For this purpose, two persons are required, one is to drive and another is to collect and dump the garbage. Hence, Kumar appointed the deceased for collecting the garbage. Hence, question of deceased traveling as unauthorized passenger in the vehicle is ruled out.
14. On plain reading of Ex.R2 - notarized copy of earlier insurance policy of the vehicle in question, it reveals that the policy covers personal accident for paid driver, cleaner and conductor to the accident up to Rs.2,00,000/- on collection of premium of Rs.100/-. Additional premium of MFA.1605/2013 11 Rs.25/- was collected for the paid driver. As per Ex.R3 which is a insurance policy issued in respect of very same vehicle for the subsequent year, the carrying capacity of the vehicle is shown to be two. Learned counsel for the appellant - Insurance Company drew my attention to Ex.R1 - notarized copy of RC book showing the seating capacity including the driver as one. If that was so, under Ex.R3 - Insurance Company for the subsequent year, the Insurance Company could not have shown the carrying capacity as two. Even as per Ex.R2, the policy issued covers the driver, cleaner and conductor. As already stated, garbage could not have been collected and dumped in the outskirts of the City without the aid of a cleaner. Therefore, having known the nature and use of the vehicle in question and having issued the policy, the Insurance Company cannot now go back from its liability to satisfy the award. The word 'cleaner' has not been defined under the Motor Vehicles Act and if the Insurance Company has given due coverage for the cleaner also that impliedly goes to show that policy was issued depending on the nature MFA.1605/2013 12 and use of the vehicle. Therefore, at the most, the Insurance Company has to satisfy the award and recover the same from the owner.
15. As regards the contention of the Insurance Company that for claiming compensation under personal accident cover, the claimants have to approach the Civil Court or Consumer Forum. It is important to note that it is a case arising out of motor vehicle accident and the petition was filed under Section 166 of the Motor Vehicles Act claiming compensation. The deceased was not found to be an unauthorized passenger traveling in the vehicle in question. He was at the time of accident found to be collector/loader of garbage from various places of the City, which was the use and purpose of the vehicle in question. It is a peculiar case where the driver of the vehicle could not have used the same without the aid of a cleaner. Though deceased was not a direct employee of the owner of the vehicle in question, but the vehicle in question was entrusted to a person to collect the garbage from various places of the City and shift the same to the outskirts of the MFA.1605/2013 13 City, which was the job of the deceased. Therefore, only on technical ground, the poor claimants cannot be driven out of the Court with dry hands. Hence, print No.1 is answered in negative.
16. Under these facts, I find that the Insurance Company cannot avoid its liability having issued the policy. Since the materials available on record is sufficient to decide the point in issue, it is not necessary to remand the matter back to the Court below for fresh disposal. Thus, Point No.2 is also answered in negative. Consequently, this appeal is dismissed with no costs. Registry to transmit the amount, if any, deposited before this Court and also the records to the Court below.
(Sd/-) JUDGE PKS