Karnataka High Court
M/S United India Insurance Company ... vs Sri Muni Anjinappa on 21 February, 2017
Author: B.Manohar
Bench: B.Manohar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2017
BEFORE:
THE HON'BLE MR. JUSTICE B.MANOHAR
MFA.NO.4384/2011 C/W.MFA.4380/2011,
MFA.4385/2011, MFA.9339/2011,
MFA.9340/2011 & MFA.9341/2011(MV)
MFA.NO.4384/2011
BETWEEN:
M/S UNITED INDIA INSURANCE
COMPANY LIMITED,
REGIONAL OFFICE, 6TH FLOOR,
KRISHI BHAVAN,
NRUPATHUNGA ROAD,
BANGALORE - 560 001
REP BY ITS MANAGER. ... APPELLANT
(BY SRI.A.M.VENKATESH, ADV.)
AND:
1. SRI MUNI ANJINAPPA
AGED 19 YEARS
S/O MUNIRAJAPPA @ MUNIRAJU
OCC: COOLIE, R/O SAVUKANAHALLI,
DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT
2
2. SRI LAKSHMI NARAYANA
R/O DINNEMELINAHALLI,
SOMEHALLI POST
GUDIBANDE TALUK
KOLAR DISTRICT. ... RESPONDENTS
(BY SRI.SURESH M LATUR, ADV. FOR R1,
SRI.S.M.SREERAMA REDDY, ADV. FOR R.2)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:15.12.2010 PASSED IN
MVC NO.7226/2009 ON THE FILE OF THE CHIEF JUDGE,
PRINCIPAL MACT, COURT OF SMALL CAUSES,
BANGALORE, AWARDING A COMPENSATION OF
RS.1,18,240/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL REALIZATION.
MFA.NO.4380/2011
BETWEEN:
M/S UNITED INDIA INSURANCE CO. LTD,
REGIONAL OFFICE,
6TH FLOOR, KRISHI BHAVAN,
NRUPATHUNGA ROAD,
BANGALORE-560001
REP BY ITS MANAGER. ... APPELLANT
(BY SRI.A.M.VENKATESH, ADV.)
AND:
SRI ANJANAPPA
S/O NARAYANAPPA
AGED 29 YEARS,
3
OCC:COOLIE,
R/O SAVUKANAHALLI,
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT.
2. SRI LAKSHMI NARAYANA
R/O DINNEMELINAHALLI
SOMEHALLI POST
GUDIBANDE TALUK
KOLAR DISTRICT
(OWNER OF TEMPO BEARING
REGISTRATION NO.KA-40/1842) ... RESPONDENTS
(BY SRI.SURESH M LATUR, ADV. FOR R1,
SRI.S.M.SREERAMA REDDY, ADV. FOR R.2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:15.12.2010 PASSED
IN MVC NO.7227/2009 ON THE FILE OF THE CHIEF
JUDGE, PRINCIPAL MACT, COURT OF SMALL CAUSES,
BANGALORE, AWARDING A COMPENSATION OF
RS.1,39,480/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL REALIZATION.
MFA NO.4385/2011
BETWEEN:
M/S UNITED INDIA INSURANCE COMPANY
LIMTIED, REGIONAL OFFICE,
6TH FLOOR, KRISHI BHAVAN,
NRUPATHUNGA ROAD,
BANGALORE - 560 001,
REP BY ITS MANAGER. ... APPELLANT
(BY SRI.A.M.VENKATESH, ADV.)
4
AND:
1. SMT ROOPA
D/O NARASIMHAPPA @ GILLARAPPA
AGE 20 YEARS. OCC:COOLIE,
R/O SAVUKANAHALLI,
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT
2. SRI LAKSHMI NARAYANA
R/O DINNEMELINAHALLI,
SOMEHALLI POST,
GUDIBANDE TALUK,
KOLAR DISTRICT.
(OWNER OF TEMPO BEARING
REGISTRATION NO.KA-40/18420) ... RESPONDENTS
(BY SRI.SURESH M LATUR, ADV. FOR R1,
SRI.S.M.SREERAMA REDDY, ADV. FOR R.2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:15.12.2010 PASSED
IN MVC NO.7225/2009 ON THE FILE OF THE CHIEF
JUDGE, PRINCIPAL MACT, COURT OF SMALL CAUSES,
BANGALORE, AWARDING A COMPENSATION OF
Rs.1,11,760/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL REALIZATION.
MFA NO 9339/2011
BETWEEN:
SRI ANJANAPPA
S/O. NARAYANAPPA,
AGE: 29 YEARS, OCC: COOLIE,
R/O. SAVUKANAHALLI,
5
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT. ... APPELLANT
(BY SRI.SURESH M LATUR, ADV.)
AND:
1. SRI LAKSHMI NARAYANA
R/O DINNEMELINAHALLI,
SOMENAHALL POST,
GUDIBANDE TALUK,
KOLAR DISTRICT - 561 208.
2. THE DIVISIONAL MANAGER
UNITED INSURANCE CO.LTD.,
DO.NO.5, NO.25,
SHANKARANARAYANA BUILDING,
M.G. ROAD, BANGALORE - 1. ... RESPONDENTS
(BY SRI.S.M.SREERAMA REDDY, ADV. FOR R1,
SRI.A.M.VENKATESH, ADV. FOR R.2)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:15.12.2010 PASSED IN
MVC NO.7227/2009 ON THE FILE OF CHIEF JUDGE,
COURT OF SMALL CAUSES, PRINCIPAL MACT,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
6
MFA NO.9340/2011
BETWEEN:
ROOPA,
D/O NARASIMHAPPA @ GILLARAPPA
AGED 20 YEARS, OCC COOLIE,
R/O SAVUKANAHALLI,
DEVANAHALLI TALUK,
BANGALORE RURAL DISTIRCT. ... APPELLANT
(BY SRI.SURESH M LATUR, ADV.)
AND:
1. SRI LAKSHMI NARAYANA
R/O DINNEMELINAHALLI,
SOMENAHALLI POST,
GUDIBANDE TALUK
KOLAR DISTRICT - 561 208
2. THE DIVISIONAL MANAGER
UNITED INSURANCE CO. LTD.,
DO NO.5, NO.25
SHANKARANARAYANA BUILDING,
M G ROAD, BANGALORE - 1. ... RESPONDENTS
(BY SRI.A.M.VENKATESH, ADV. FOR R.2, R1-NOTICE
DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:15.12.2010 PASSED
IN MVC NO.7225/2009 ON THE FILE OF CHIEF JUDGE,
COURT OF SMALL CAUSES, PRINCIPAL MACT,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
7
MFA NO.9341/2011
BETWEEN:
SRI MUNI ANJINAPPA
S/O MUNIRAJAPPA @ MUNIRAJU,
AGE: 19 YEARS, OCC: COOLIE,
R/O. SAVUKANAHALLI
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT. ... APPELLANT
(BY SRI.SURESH M LATUR, ADV.)
AND:
1. SRI LAKSHMI NARAYANA
R/O. DINNEMELINAHALLI,
SOMENAHALLI POST,
GUDIBANDE TALUK,
KOLAR DISTRICT - 561 208.
2. THE DIVISIONAL MANAGER
UNITED INSURANCE CO. LTD.,
DO.NO.5., NO.25,
SHANKARANARAYANA BUILDING,
M.G. ROAD,
BANGALORE - 01. ... RESPONDENTS
(BY SRI.A.M.VENKATESH, ADV. FOR R2, R.1 NOTICE
DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:15.12.2010 PASSED
IN MVC NO.7226/2009 ON THE FILE OF CHIEF JUDGE,
COURT OF SMALL CAUSES, PRINCIPAL MACT,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
8
THESE MFA'S ARE COMING ON FOR ORDERS AND
HAVING RESERVED FOR JUDGMENT ON 08-02-2017, THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
The United India Insurance Company Limited as well as the claimants have filed these appeals challenging the judgment and award dated 15-12-2010 made in MVC Nos.7225, 7226 and 7227 of 2009 passed by the Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as "the Tribunal" for short).
2. The insurance company being aggrieved by the impugned judgment and award fastening liability on them to compensate the claimants filed MFA Nos.4384, 4380 and 4385 of 2011 whereas the claimants being not satisfied with the quantum of compensation filed MFA Nos.9339 to 9341 of 2011 seeking enhancement of compensation. Since, the common judgment and award passed by the Tribunal has been challenged in these appeals, all the appeals filed by the 9 insurance company as well as the claimants are clubbed together and disposed of by this common judgment.
3. The parties are referred to as they were arrayed before the Tribunal.
4. The claimants filed claim petitions inter alia contending that the claimants were working as coolies/loaders. On 08-09-2009 at about 1.15 p.m., after loading the vegetables in a goods tempo bearing Registration No.KA-40/1842 and proceeding from Dibburahalli towards Devanahalli, the driver of the said tempo drove the same in a rash and negligent manner near Kurubarakunte Gate on Vijayapura Main road. Due to the impact, the vehicle turned turtle and fell into the road-side ditch, as a result of which, the claimants have sustained grievous injuries all over the body. Immediately after the accident, they were shifted to Government Hospital Devanahalli, after first aid, they were shifted to Bowring Hospital, Bangalore wherein they were treated as inpatients. In view of the injuries sustained, they have become 10 permanently disabled to do any work. They filed claim petitions seeking compensation of Rs.6.00 lakhs, Rs.10.00 lakhs and Rs.7.00 lakhs respectively from the insured as well as the insurer.
5. In response to the notice issued by the Tribunal, the first respondent entered appearance and filed written statement denying the entire averments made in the claim petition and also denied the negligence attributed to the driver of the goods tempo. He has contended that the claimants and the deceased are not appointed as loaders or unloaders in the goods tempo and sought for dismissal of the claim petitions.
6. The second respondent-insurance company in their written statement contended that the driver of the tempo had no valid and effective driving license as on the date of accident. The claimants were traveling in the goods auto as unauthorized passengers. The insurance policy does not cover the risk of such unauthorized passengers. The 11 claimants and deceased are the employees of Muniyappa and not employed by the owner of the vehicle. Hence, the insurance company is not liable to compensate the claimants.
7. On the basis of pleadings of the parties, the Tribunal framed necessary issues.
8. The three claimants got themselves examined as P.W1 to P.W.3 and the doctor who treated the claimants was examined as P.W.4 and got marked Ex.P1 to Ex.P18. On behalf of the respondents none of the witnesses were examined, however, 'B' register extract and a copy of the insurance policy were marked as Ex.R1 and Ex.R2.
9. The Tribunal, after appreciating the oral and documentary evidence let in by the parties and taking into consideration IMV report, copy of the sketch, panchanama, copy of the complaint and charge sheet held that the accident occurred due to the rash and negligent driving of the goods tempo. The claimants are the loaders and unloaders in the 12 said goods vehicle and hence they are entitled for compensation. The Tribunal taking into consideration injuries sustained by the claimants and permanent disability they have suffered, awarded a sum of Rs.1,11,760/- in respect of MVC No.7225/2009, Rs.1,18,240/- in MVC No.7226/2009 and Rs.1,39,480/- in MVC No.7227/2009. With regard to liability is concerned, as on the date of accident, the insurance policy was in force, the claimants are the loaders and unloaders of the said goods tempo. They are statutorily covered under the Motor Vehicles Act and Rules made thereunder and accordingly fastened the liability on the insurance company. The insurance company being aggrieved by the judgment and award fastening liability on them to compensate the claimants filed MFA Nos.4384, 4380 and 4385 of 2011. Whereas the claimants being not satisfied with the quantum of compensation awarded by the Tribunal have filed MFA Nos.9339 to 9341 of 2011.
13
10. Sri.A.M.Venkatesh, learned counsel appearing for the appellant-insurance company contended that the claimants are the employees of Muniyappa who is the owner of the vegetables and not the owner of the vehicle. They engaged the goods tempo belonging to the first respondent herein. Hence the insurance company is not liable to compensate the claimants. Further, one Anjanappa, lodged a complaint, in which, he has clearly stated that on 08-09-2009 one Muniyappa called them for the purpose of loading vegetables to the goods tempo. After loading the said vegetables, they were traveling in the said goods vehicle as unauthorized passengers, they are not the owner of the goods or the representatives of the owner of the goods. The status of the claimants is unauthorized passengers traveling in the goods vehicle. The insurance policy does not cover the risk of those persons. Apart from that the compensation awarded by the Tribunal is also on the higher side and hence sought for allowing the appeals.
14
11. On the other hand, Sri.Suresh M Lathur, learned counsel appearing for the claimants in each of the appeals and Sri.M.S.Sreerama Reddy, learned counsel appearing for the owner of the goods vehicle argued in support of the judgment and award passed by the Tribunal and contended that the claimants are engaged for the purpose of loading the vegetables and unload the same in the APMC yard. The dominant nature of work of the claimants is loading and unloading. On 08-09-2009, after loading the goods at Dibburahalli and proceeding towards Devanahalli, for the purpose of unloading the said vegetables near Kurubarakunte gate, on Vijayapura Main Road, due to the rash and negligent driving of the said tempo, it was capsized and the claimants fell down and sustained grievous injuries. Initially they had taken treatment in Government Hospital and thereafter they took treatment at Bowring Hospital at Bangalore. The claimants are the loaders and unloaders of the said goods vehicle. Even though the driver of the goods vehicle engaged them for loading the vegetables, they become the employees 15 under the goods vehicle and insurance policy covers the risk of such employees. Sri.Sreerama Reddy, learned counsel appearing for the owner of the vehicle also supported the arguments canvassed by the learned counsel for the claimants.
12. I have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgment and award, oral and documentary evidence adduced by the parties and other relevant records.
13. The main contention of the appellant-insurance company is that, the claimants are not engaged by the owner of goods tempo and one Muniyappa, who is the owner of the vegetables engaged them for loading the vegetables. Hence they are not the employees of the owner of the goods tempo. Further, the quantum of compensation awarded by the Tribunal is also on higher side. Whereas the claimants have contended that they are coolies by profession, they are engaged for loading the vegetables in the offending goods 16 vehicle. After loading the said vegetables, they were proceeding towards Devanahalli for the purpose of unloading the said vegetables. The dominant nature of work of the claimants is loading and unloading vegetables in the goods tempo. Even though the claimants have been appointed for a limited period, they become the employees of the goods vehicle for loading and unloading of the vegetables. As per Rule 100 of the Motor Vehicles Rules, the insurance company cannot escape their liability. Rule 100 of the Motor Vehicle Rules statutorily covers the loader and unloader working in the goods vehicle. Hence, I am of the opinion that the claimants are working as loaders and unloaders of the goods vehicle and the insurance policy covers the risk of those employees engaged for loading and unloading of the vegetables. The Tribunal after appreciating the oral and documentary evidence, was justified in fastening liability on the insurance company. I find no infirmity or irregularity in the said finding.
17
14. With regard to quantum of compensation is concerned, the claimant in MVC No.7225/2009 has sustained fracture of radius and ulna of right forearm, the mild head injury, tenderness and swelling over the right forearm. X-ray shows fracture of both the bones of right forearm lower 1/3rd. The doctor who treated this claimant has stated that the claimant has sustained one grievous injury and one simple injury. She was inpatient from 08-09-2009 to 18-09-2009. At the time of accident, she was aged about 18 years. The Tribunal awarded compensation in a sum of Rs.1,11,760/- which is in accordance with law.
15. The claimant in MVC No.7226/2009 is concerned, he has sustained distal end of right radius, fracture of shaft of right femur middle 1/3rd, tenderness and swelling over the right forearm. He was also inpatient for a period of 10 days. The doctor who treated the claimant has assessed the disability to an extent of 39.33% to the right lower limb and 19.65% to the whole body. The Tribunal taking into 18 consideration income of the claimant as Rs.3,000/- p.m., disability to an extent of 13% to the whole body, awarded total compensation of Rs1,18,240/- with interest at 6% p.a. I am of the opinion that the compensation awarded by the Tribunal is just and fair compensation.
16. Whereas the claimant in MVC No.7227/2009 is concerned, in the accident he has sustained fracture of both the bones of right leg lower 1/3rd and tenderness and swelling over the right thigh and right leg. Initially, he had taken treatment in the Government Hospital at Devanahalli, thereafter he took treatment in the Bowring hospital at Bangalore. He was inpatient for a period of 10 days. He was conservatively treated. Since the claimant has taken treatment in the Government hospital, he has not incurred much medical expenditure; The doctor assessed 34% disability to the right lower limb. The Tribunal taking into consideration income of the claimant as Rs.4,500/- p.m., and disability to an extent of 11%, as he was aged about 27 years, 19 applying the multiplier 17 awarded a sum of Rs.1,39,480/- with interest at 6% p.a. The compensation awarded in respect of this claimant is also in accordance with law.
17. The claimants have not undergone any surgery and they had taken only conventional treatment in the Bowring hospital. The Tribunal, taking into consideration the injuries sustained and suffering undergone by the claimants awarded just and fair compensation. The claimants have not made out a case for enhancement of compensation.
18. Accordingly, I pass the following:
ORDER MFA Nos.4384, 4380, 4388 of 2009 filed by the insurance company challenging the judgment and award in respect of fastening liability on them to compensate the claimants and also with regard to quantum of compensation are dismissed. Further, the MFA Nos.9339 to 9341 of 2011 filed by the claimants seeking enhancement of compensation 20 are also dismissed. The judgment and award dated 15-12-2010 made in MVC Nos.7225 to 7227 of 2009 is upheld.
The amount in deposit in MFA Nos.4384, 4380 and 4388 of 2009 be transferred to the Motor Accident Claims Tribunal, Bangalore for disbursement.
Sd/-
JUDGE mpk/-*