Karnataka High Court
The Oriental Insurance Co.Ltd., vs Smt. Dakshayani. P on 29 June, 2016
Author: B.Manohar
Bench: B.Manohar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JUNE, 2016
BEFORE:
THE HON'BLE MR. JUSTICE B.MANOHAR
MFA.NO.7987/2011(MV)
BETWEEN:
THE ORIENTAL INSURANCE CO.LTD.,
NO. 22, DVG ROAD, V.C. PLAZA,
BASAVANAGUDI, BANGALORE.
NOW BY REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
44/45, RESIDENCY ROAD,
BANGLAORE.
(REPRESENTED BY ITS DEPUTY MANAGER
SMT. B.S. PADMAJA). ... APPELLANT
(BY SRI.M.ARUN PONNAPPA, ADVOCATE)
AND:
1. SMT. DAKSHAYANI.P,
AGED 23 YEARS,
W/O LATE MOHAN,
2. SRI. S.N. MUNISHETTY,
AGED ABOUT 56 YEARS,
S/O LATE C. NANJAPPA SHETTY,
3. SMT. LAKSHMI
AGED 53 YEARS,
W/O S.N.MUNISHETTY,
2
4. MASTER PAVAN KUMAR.M,
AGED 2 ½ YEARS,
S/O LATE MOHAN,
SINCE MINOR REPRESNETED BY
HIS MOTHER & NATURAL
GUARDIAN SMT.DAKSHAYANI
ALL ARE R/AT SALLEPURAM VILLAGE,
JAWALAGIRI POST,
DENKANIKOTA TALUK,
KRISHNAGIRI DISTRICT - 635 107.
5. SRI.H.N. HANUME GOWDA,
MAJOR, S/O H.C. NARAYANAPPA,
NO. 18, 18TH CROSS, 7TH MAIN ROAD,
BEHIND BEL SOFTWARE,
N.S. PALYA, BTM II STAGE,
BANGALORE - 560 076. ... RESPONDENTS
(BY SRI.M.BABU, ADVOCATE FOR R1 TO R3,
R4 MINOR REPRESENTED BY R1,
SMT.BHUSHANI KUMAR, ADVOCATE FOR R5.
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:8.3.2011 PASSED IN
MVC NO.1501/2010 ON THE FILE OF XXII ADDITIONAL
SMALL CAUSES JUDGE, MEMBER MACT, BANGALORE,
AWARDING A COMPENSATION OF RS.10,53,500/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
REALISATION.
THIS MFA COMING ON FOR HEARING AND HAVING
RESERVED FOR JUDGMENT ON 08-06-2016, THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING
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JUDGMENT
The Oriental Insurance Company Limited filed this appeal challenging the legality and correctness of the judgment and award dated 8th March 2011 made in MVC No.1501/2010 passed by the Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as 'the Tribunal' for short) fastening the liability on them to compensate the claimants.
2. The respondents 1 to 4 herein filed a claim petition contending that husband of the first claimant and father of claimants 2 to 4 Sri.Mohan was working as a cleaner in a bus bearing Registration No.KA-05/D-9999. On 28-07-2009 at about 4.00 p.m., while Mohan was standing near the door, due to the rash and negligent driving of the said bus by its driver, he fell down from the bus and wheels of the bus ran over his leg, as a result of which, he sustained grievous injuries. Immediately after the accident, he was shifted to St.Johns Medical College Hospital, Bangalore. He was 4 inpatient there from 28-07-2009 to 08-08-2009 and on 08-08-2009 he succumbed to injuries. At the time of accident, he was getting salary of Rs.10,000/- p.m. In view of death of the bread earner, the family has become destitute. The respondents 1 and 2 in the claim petition, who are the owner and insurer of the offending vehicle are liable to compensate the claimants and sought for compensation of Rs.15,00,000/-.
3. In pursuance of the notice issued by the Tribunal, owner of the vehicle entered appearance and admitted that the deceased was working with him as conductor-cum- cleaner and he was paying the deceased salary of Rs.6,000/- p.m. The driver of the vehicle was holding valid and effective driving license and the insurance policy was in force as on the date of accident. Hence the insurer is liable to compensate the claimants.
4. The Insurance Company entered appearance and admitted that the offending vehicle is covered by insurance 5 policy, however it is subject to fulfillment of certain terms and conditions. The insurance policy does not cover the risk of a cleaner, as such, the insurance company is not liable to compensate the claimants and sought for dismissal of the claim petition.
5. On the basis of pleadings of the parties, the Tribunal framed the necessary issues. The first claimant got examined herself as P.W.1 and got the marked the documents as Ex.P1 to P18. On behalf of the respondents, the insurance company examined two witnesses as R.W.1 and R.W.2. and got marked the documents as Ex.R1 to Ex.R3.
6. The Tribunal after appreciating the oral and documentary evidence let in by the parties and taking into consideration spot mahazar, panchanama, IMV report, copy of the sketch held that due to the rash and negligent driving of the bus, the deceased fell down from the bus, sustained grievous injuries and subsequently succumbed to same. The claimants are dependants of the deceased and they are 6 entitled for compensation. With regard to quantum of compensation is concerned, taking into consideration income of the deceased as Rs.4,500/- p.m., deducting 1/3rd towards his personal expenditure, applying the multiplier 17 since the deceased was aged about 27 years as on the date of death, the Tribunal awarded a sum of Rs.6,88,500/- towards loss of dependency. The claimant was inpatient for a period of 11 days, they allowed the medical bills of Rs.2,80,000/-, Rs.25,000/- towards consortium, Rs.40,000/- towards loss of love and affection and estate and Rs.20,000/- towards transportation, funeral obsequies expenditure. In all, the Tribunal has awarded total compensation of Rs.10,53,500/- with interest at the rate of 6% p.a. The insurance policy statutorily covers the risk of the driver, conductor and the passengers traveling in the bus. Since the additional premium of Rs.50/- was paid in respect of additional liability of an employee, the cleaner is also covered under the insurance policy and the liability was fastened on the 7 insurance company to compensate the claimants. Being aggrieved by the same, the present appeal has been filed.
7. Sri.M.Arun Ponnappa, learned counsel appearing for the appellant contended that the judgment and award passed by the Tribunal fastening the liability to compensate the claimants in respect of death of a cleaner of the bus is contrary to law. The cleaner is not covered by the insurance policy which is produced as Ex.R2. It is evident from Ex.R2 that it covers the risk of 48 passengers, conductor and driver of the bus, however the insurance policy does not cover the risk of the cleaner. One Chinnappa was working as a conductor of the bus. No additional premium has been paid in respect of the cleaner. Hence, the judgment and award passed by the Tribunal fastening the liability on the appellant to compensate the claimants is contrary to law and sought for setting aside the judgment and award passed by the Tribunal by allowing this appeal.
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8. On the other hand, Sri.M.Babu, advocate appearing for Respondents 1 to 4 and Smt.Bhushani Kumar appearing for Respondent No.5 argued in support of the judgment and award passed by the Tribunal and contended that as per provision to Section 147 of the Motor Vehicles Act, 1988, the passengers, driver and conductor in respect of commercial vehicle are statutorily covered under the insurance policy. The provision (ii) will cover any contractual liability of the insurer. IMT 18 speaks about legal liability to the paid driver or conductor. If the owner of the vehicle had paid the additional premium to cover the risk of the cleaner, the insurance company cannot disown its liability. In the instant case, the 5th respondent has paid additional premium of Rs.50/-. Hence, the cleaner working in the bus is covered under the contract entered into between the insurer and the insured. The driver and conductor of public bus are statutorily covered under the policy and the cleaner working in the bus is contractual covered by paying additional premium. The insurance company does not dispute the fact 9 that 5th respondent has paid Rs.50/- as additional premium and hence sought for dismissal of the appeal.
9. 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.
10. The dispute in this appeal is only with regard to liability of the insurance company to compensate for the death of cleaner working in a passenger carrying commercial vehicle. The insurance company has not challenged the quantum of compensation awarded by the Tribunal. On perusal of the quantum of compensation awarded by the Tribunal, taking the income of deceased cleaner as Rs.4,500/- p.m., deducting 1/3rd towards his personal expenditure, since the claimants are 4, and the deceased was aged about 30 years at the time of death, applying the multiplier 17 awarded a sum of Rs.6,88,500/- towards loss of dependency. He was inpatient in the hospital from 28-7-2009 to 8-8-2009 and he has 10 furnished the medical bills for Rs.2,80,000/- towards medical expenditure and Rs.20,000/- towards transportation and funeral expenditure; Rs.25,000/- towards consortium; Rs.40,000/- loss of love and affection of the minor child and aged parents. In all, the Tribunal has awarded a sum of Rs.10,53,500/-. The compensation awarded is in accordance with law.
11. With regard to liability is concerned, the appellant- insurance company has taken a specific contention before the Tribunal that the insurance policy does not cover the risk of cleaner working in a passenger carrying commercial vehicle. The Tribunal examined the said contention with reference to various provisions of the Motor Vehicles Act and also law laid down by the Hon'ble Supreme Court and also this Court held that as per the insurance policy, 48 passengers, driver and conductor are statutorily covered by the insurance policy. Insofar as cleaner is concerned, the owner has paid additional premium of Rs.50/- and it is a contractual liability of the 11 insurance company to compensate the claimants and fastened the liability on the insurance company to compensate the claimants. The issue raised in this appeal is no longer res-integra. In the judgment reported in 2009 (3) KCCR 2122 in the case of B.M.SURESH KUMAR v/s OM PRAKASH AND OTHERS the Division Bench of this Court after examining IMT 10, 11, 12, 18, 19 and 21 clearly held that in view of payment of additional premium of Rs.50/-, the cleaner working in a passenger carrying commercial vehicle covers the risk. The relevant paragraphs of said judgment reads as under:
11. In so far as liability of the insurance company is concerned, x.R1 is the insurance policy -
commercial vehicle - passenger carrying 'B' policy. Owner of the vehicle has paid additional premium of Rs.30/- to cover the liability for paid driver/conductor. The policy makes it clear that the said policy is subjected to terms and conditions specified therein i.e., IMT 10, 11, 12, 18, 19, 21 and etc. IMT 18 deals with legal liability to paid driver 12 and/or conductor or employed in connection with the operation of motor vehicle which reads thus:
"Imt 18 - Legal Liability To Paid Driver And/Or Conductor Employed In Connection With The Operation Of Motor Vehicle - in consideration of payment of an additional premium it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the Company shall indemnify the insured against his legal liability under, The Workmen's Compensation Act, 1923 and subsequent amendments of act prior to the date of this Endorsement, the Fatal accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver (or cleaner or conductor or person employed in loading or unloading but in any case not exceeding seven in number including driver and cleaner) whilst engaged in the services of the insured in 13 such occupation in connection with the and not exceeding six in number ( excluding driver) and will in addition be responsible for all costs and expenses incurred with its written consent)."
The premium having been calculated at the rate of Rs.15/- per driver (and/or cleaner or conductor and or person employed in loading and/or unloading but not exceeding seven in number including driver and cleaner)"
A perusal of the aforesaid clause makes it clear that additional premium of Rs.30/- paid covers the risk in respect of both driver or cleaner or conductor or person employed in loading or unloading but not exceeding seven in number including driver and cleaner. Learned Counsel for the insurance company submitted that permitted capacity of a passenger bus is 48+2 i.e., driver, conductor and 48 passenger. There is no scope for covering the risk of a cleaner who is not expected to be in the vehicle at all.14
12. The vehicle in question is passenger bus. The policy is issued in respect of commercial vehicle
- passenger carrying 'B' policy. From the aforesaid clause in the policy, separately risk of the cleaner is not covered under the Act. When the injured pays additional premium and in terms of the insurance policy, risk covered is that of driver, conductor or cleaner, notwithstanding statutory liability, there is contractual liability on the part of insurance company to indemnify the injured in terms of the insurance policy. The Tribunal has not looked into the policy, especially the aforesaid clause in the policy which is not in dispute. Admittedly the additional premium of Rs.30/- is paid covering the risk of a cleaner and conductor. Therefore, the Tribunal was not justified in exonerating the insurance policy from including the injured and consequently not paying the victim of the accident. To that extent, finding requires interference.
12. In an unreported judgment of this Court in MFA No.3071/2009 and another connected matter disposed off on 06-11-2012 and MFA No.10738/2010 disposed off on 08-08-2013 similar view has been taken.
15Proviso sec.147 reads as under:
Provided that a policy shall not be required-
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than an liability arising under the Workmen's Compensation Act, 1923 ( 8 of 1923), in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
13 In the instant case, the vehicle in question is a passenger carrying commercial vehicle, the driver and conductor are statutorily covered under the Act. So far as cleaner is concerned, on paying the additional premium, there 16 is a contractual liability on the part of the insurance company to compensate the claimants. The Tribunal, after examining the entire matter in detail has fastened the liability on the insurance company to compensate the claimants. I find no infirmity or irregularity in the said finding. The appellant has not made out a ground to interfere with the well considered judgment and award of the Tribunal based upon the various judgments of Hon'ble Supreme Court as well as this Court. Accordingly, the appeal is dismissed.
Sd/-
JUDGE mpk/-*