Karnataka High Court
Smt.Suman W/O Ashok Bhosale And Ors vs Sri Anant Babu Kudachikar And Anr on 22 July, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF JULY 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.201231/2016 (MV)
BETWEEN:
1. SMT.SUMAN W/O ASHOK BHOSALE
AGE: ABOUT 47 YEARS, OCC: HOUSEHOLD WORK,
2. SRI VIJAY S/O ASHOK BHOSALE
AGED ABOUT 47 YEARS, OCC: STUDENT
3. SMT. MANGALA W/O ASHOK BHOSALE
AGE: ABOUT 43 YEARS, OCC: HOUSEHOLD WORK,
4. SRI VINAYAK S/O ASHOK BHOSALE
AGED ABOUT 28 YEARS, OCC: STUDENT,
ALL ARE R/O PETH WADGAON TQ: HATKANANGILE,
DIST: KOLHAPUR, MAHARASHTRA STATE
...APPELLANTS
(BY SRI.S.S.MAMADAPUR, ADVOCATE)
AND:
1. SRI ANANT BABU KUDACHIKAR
AGED ABOUT 28 YEARS, OCC: BUSINESS
R/O H.NO. 219, BEHIND MARATHI SCHOOL HINDALAGA,
TQ & DIST: BELGAUM MDS, BGM-590016.
2. THE BRANCH MANAGER
UNITED INDIA INSURANCE CO. LTD.,
S.S. FORNT ROAD, VIJAYAPUR-586 101
.....RESPONDENTS
(BY SRI.NARESH V.KULKARNI, ADV. FOR R1
SRI. J AUGUSTIN, ADV. FOR R2 )
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THIS MFA FILED U/S. 173(1) OF MV ACT, PRAYING TO
ENHANCE THE COMPENSATION AMOUNT AND ALSO HOLD THE
2ND RESPONDENT INSURANCE COMPANY LIABLE TO SATISFY
THE AWARD AMOUNT BY SUITABLY MODIFYING THE JUDGMENT
AND AWARD DATED 06.05.2016 PASSED BY THE LEARNED III
ADDITIONAL DISTRICT JUDGE AND MACT-IV VIJAYAPUR IN
MVC No.1114/2013.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.07.2022, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed by the appellants-petitioners under Section 173(1) of M.V.Act, challenging the judgment and award dated 06.05.2016 passed in MVC No.1114/2013 by the III Addl. District Judge & MACT IV, Vijayapur seeking enhancement of compensation and the ground of liability.
2. For the sake of convenience, parties herein are referred with the ranks occupied by them before the Tribunal.
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3. The factual matrix leading to the case are that on 20.05.2013, the deceased Ashok was traveling in a Mahindra Max goods vehicle bearing registration No.KA-22/B-1247 along with machine, while so traveling at about 2.00 a.m., near Chikka-Sindagi Village on Vijayapur-Gulbarga road, the driver of the said vehicle drove it in a rash and negligent manner, as a result he lost control over the vehicle and it turned turtle. That due to this accident, the Ashok sustained grievous injuries and he was immediately shifted to Government Hospital, Sindagi and thereafter shifted to District Hospital, Vijayapur. But he succumbed due to accidental injuries. That petitioner Nos.1 and 3 are the wives of deceased and petitioner Nos.2 and 4 are sons. That the deceased was the only bread earner in the family and aged about 46 years and serving in Swastik Kapur Udyog Ltd. Industrial Area, Kolhapur, by earning Rs.15,000/- 4 per month. That the claimants-petitioners have lost their bread earner and they were completely depending on him and hence they have filed the claim petition claiming compensation of Rs.25.00 Lakhs under the various heads.
4. The respondent Nos.1 and 2 appeared through their respective counsels and filed written statement denying the allegations and assertions made thereunder. They have also denied the age, occupation as well as income of the deceased. The respondent No.1 admits his ownership over the goods vehicle bearing registration No.KA-22/B-1247 and contended that it was insured with respondent No.2 and if any liability is to be fastened, the respondent No.2 is liable to pay the same.
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5. On the contrary, respondent No.2 has specifically contended that there is breach of policy conditions as the deceased was an unauthorized gratuitous passenger in the goods vehicle and as such question of respondent No.2 indemnifying the owner does not arise at all. Hence, he would contend that respondent No.1/owner is liable to pay compensation in view of the breach of policy conditions and sought for dismissal of the claim petition as against him.
6. After having heard the arguments and perusing the oral and documentary evidence, the tribunal has come to a conclusion that the claimants- petitioners are entitled for compensation of Rs.4,33,000/- in all. However, the liability is fastened on respondent No.1-owner and the claim petition against respondent No.2-insurer is dismissed. 6
7. Being aggrieved by the judgment and award passed by the tribunal, the appellants- petitioners have come up with this appeal.
8. Heard the arguments advanced by the learned counsel for appellants/petitioners and learned counsel for respondent No.2-insurer. Perused the records.
9. Learned counsel for the appellants/petitioners would contend that the tribunal has taken the monthly income on lower side and further the compensation awarded under the head of loss of consortium is also on lower side. He would also contend that future prospects were also not taken into account. Further, he would also contend that the tribunal has also erred in fastening the liability on respondent No.1 alone and the tribunal ought to have 7 passed an order of pay and recover considering the peculiar circumstances of the case in hand.
10. Per contra, learned counsel for respondent No.2-insurer would support the judgment and award passed by the tribunal. He would contend that the deceased Ashok was not working under owner of goods who has booked the vehicle for transporting his machine and he was traveling in the goods vehicle as unauthorized passenger. He would also contend that admission of PW.2 disclose that deceased was not employed by owner and he being the representative of owner of Swastik Kapur Udyog Ltd. admits that the deceased was not working in Kapur Manufacturing Company. Further, the PW.2 admitted that he was the agent/representative of the owner of machine and deceased was neither agent nor representative of the owner of the machine. Hence, he would contend that 8 there is clear breach of policy conditions and deceased being a gratuitous passenger is not covered under the risk under Section 147 and 149 of M.V.Act, and hence he would contend that the tribunal has rightly fastened the liability on respondent No.1-owner for breach of policy conditions. Hence, he would seek for dismissal of the claim petition.
11. Having heard the arguments and after perusing the records, it is an undisputed fact that the deceased Ashok was traveling the goods vehicle bearing registration No.KA-22/B-1247. It is also an undisputed fact that the said vehicle met with an accident and deceased Ashok succumbed to the injuries. All along the petitioners asserts that the deceased was employed by the owner of machine which is being transported in the goods vehicle. But PW.2 who is authorized representative clearly admits 9 that the deceased was not representative of the machine and during the course of arguments it is submitted that he was accompanying the representative along with machine in order to install the same as he was a technician. This admission clearly disclose that deceased was not under employment of the owner of goods vehicle and hence he is required to be treated as an unauthorized passenger in goods vehicle.
12. The tribunal has taken the income of the deceased @ Rs.4,500/- per month which appears to be on lower side. In the absence of any material evidence, this Court is consistently taking the notional income of Rs.7,000/- per month pertaining to the accident which occurred in the year 2013. 10
13. Further, the tribunal has not added future prospects. There is no serious dispute of the fact that the deceased was aged about 46 years at the time of accident. Hence, considering his age and he being a private employee, the notional income of the deceased will have to be taken at Rs.7,000/- as against Rs.4,500/- per month taken by the Tribunal. To the aforesaid amount, as the deceased was aged 46 years, 40% has to be added as future prospects. Hence, the loss of monthly income would be Rs.9,800/-.
14. Further, the deceased was having four dependants and hence 1/3rd of the said income towards personal expenses of the deceased is required to be deducted and therefore, the monthly income of the deceased comes to Rs.6,534/-.
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15. Taking into account the age of the deceased which was 46 years at the time of accident, multiplier of 13 is applicable. Hence, the petitioners would be entitled to a sum of Rs.10,19,304/- (Rs.6,534/- x 12 X 13) on account of loss of dependency as against Rs.4,08,000/- awarded by the tribunal.
16. Further, the tribunal has awarded a sum of Rs.2,000/- under the conveyance charges and Rs.3,000/- under the head of funeral expenses and obsequies ceremonies which is very meager. Considering the facts and circumstances, the petitioners would be entitled for compensation of Rs.15,000/- under the head of funeral expenses and obsequies ceremonies and Rs.15,000/- under the head of loss of estate.
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17. Since there are four dependants being the wives and children, they are entitled for compensation of Rs.40,000/- each under the head of loss of consortium, which comes to Rs.1,60,000/- under the head of loss consortium.
18. Hence, the petitioners are entitled for total compensation of Rs.12,09,304/- under the various heads as under;
Sl.No. Heads Amount
1. Loss of dependency Rs.10,19,304/-
2. Loss of consortium Rs.1,60,000/-
3. Loss of estate Rs.15,000/-
4. Funeral and obsequies Rs.15,000/-
ceremonies
Total Rs.12,09,304/-
19. Now the issue would be as to who is
responsible to pay the compensation. It is established that the deceased was a gratuitous passenger 13 traveling in the goods vehicle. In the light of these aspects, the liability is to be considered.
20. The tribunal has exonerated the respondent No.2-insurer from the liability of payment of compensation on the ground that the deceased was an un-authorized passenger in the goods vehicle. There is no dispute of the fact that deceased was traveling in the goods vehicle and the evidence on record disclose that he was not representative of the owner of goods vehicle and he was not working with the concerned Company i.e. Kapur Manufacturing Company, which has booked the vehicle for transportation of machine. The representative was also traveling and deceased was also traveling in the said vehicle. Under such circumstances, the tribunal has rightly observed that he is an un-authorized passenger in a goods vehicle.
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21. Learned counsel for the appellants would invite the attention of the Court to the decision of the Hon'ble Apex Court in the case of Anu Bhanvara Etc. Vs. Iffco Tokio General Insurance Company Limited & Others, in Civil Appeal Nos.6231- 6232/2019, and the full bench judgment of this Court in the case of New India Assurance Co. Ltd., Bijapur Vs. Yallavva and Another, reported in 2020 (2) KCCR 1405. On the basis of these citations the learned counsel would contend that this case may be treated as a special case and an order regarding pay and recovery may be passed.
22. At the outset, it is to be noted here that the vehicle was a goods vehicle and deceased Ashok was not an authorized representative of the goods being transported in the vehicle. The Hon'ble Apex Court in Civil Appeal Nos.6231-6232/2019, 15 considering the peculiar circumstances has ordered the principle of pay and recover. But the Hon'ble Apex Court has not laid down any special law or precedent that pay and recovery is a rule in case of a gratuitous passenger traveling in the goods vehicle. It is only under special circumstances such an order is passed and hence that cannot be considered as a precedent. A similar view is also taken by the Hon'ble Apex Court in the decision reported in 2008 ACJ 1741 (United India Insurance Co. Ltd. Vs. Suresh K.K. and another). Hence, it is evident that the Hon'ble Apex Court has exercised the discretion considering the peculiar facts and circumstances and directed the Insurance Company to pay and recover considering the minority of the children and deceased being a coolie and the claimants being unable to recover the same from owner but that cannot be treated as a precedent.
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23. In this context, the learned counsel for respondent No.2-insurer has placed reliance on the decision of this Court reported in [2015 Kant M.A.C. 540 (Kant)] (M.Raju Vs. M.C.Hemaraj and another) wherein it is held that gratuitous passenger traveling in the tempo, amounts to breach of conditions of the policy on the part of the owner and hence the insurer is absolved from liability by holding that the owner is liable to pay compensation. He has further placed reliance on a Full Bench decision of the Hon'ble Apex Court reported in (2004) 2 SCC 1 (National Insurance Co. Ltd. Vs. Baljit Kaur and Others, wherein it is observed as under;
"A. Motor vehicles - insurance - policy in respect of goods vehicle - Liability of insurer, held, does not cover gratuitous passengers carried in such vehicle - Amendment of S.147(1)(b), MV Act in 1994 does not alter this position - Expression "any person", occurring therein - scope explained 17
- As the law was not clear so long, the legal position as clarified herein directed to have prospective effect - Therefore, while allowing the insurer's appeal, in the interest of justice the insurer directed to satisfy the awarded amount and recover the same from the owner of the vehicle simply by initiating a proceeding before the executing Court without filing a separate suit - Motor Vehicles Act, 1988, S.147910(b) (as amended in 1994)".
24. This view is again reiterated by the Hon'ble Apex Court in the decision reported in (2008) 8 SCC 246 (National Insurance Company Limited Vs. Kaushalya Devi and Others), wherein it is clearly held that deceased was not owner of any goods which were being carried in the truck and hence the insurance company is not liable. A similar view is also taken by the Hon'ble Apex Court in the in Civil Appeal arising out of SLP (C) No.9910/2006 in the case of National Insurance Co. Ltd. Vs. Kaushalaya Devi & Others, dated 13.05.2008, wherein it held that the 18 Insurance Company is not liable. This view is again re-iterated by the Hon'ble Apex Court in the decision reported in (2007) 9 SCC 486 (New India Assurance Co. Ltd. Vs. Vedwati and Others), wherein it is observed as under;
"Motor Vehicles Act, 1988 - S.147 (as it stood prior to 1994 amendment), and Ss.2(14), (35), (40), (47), 145(c) and 149(2)(c) - Third party risk - Liability of insurer to pay compensation under S.147 - Extent of - Reiterated, does not extent to cases of death of, or bodily injury to, the owner of goods or his authorized representative carried in a goods vehicle."
25. Hence, the principles enunciated in the above said decisions clearly establish that pay and recover is not a rule in case of gratuitous passenger traveling the goods vehicle.
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26. Learned counsel for the appellants has invited the attention of the Court on the full bench judgment of this Court in Yallavva's case stated supra, but the facts and circumstances of the said case are entirely different. Apart from that the full bench judgment of the Hon'ble Apex Court in Baljit Kaur's case and Vedwati's case, were not at all considered and discussed in the said case. It was in respect of a third party risk and further observed that there shall not be a fundamental breach and in view of these findings, the Insurance Company was held liable. However, it is also observed that this shall not adopt the above guidelines as a general rule in all cases, but only under peculiar facts and circumstances of each case and on giving appropriate reasons. Further, in the said case, there was excess premium was collected and additional premium was also collected. However, in the said decision, the full bench judgment 20 of the Hon'ble Apex Court in Baljit Kaur's case was not at all discussed and hence the said principles cannot be made applicable to the facts and circumstances of the case in hand. The Hon'ble Apex Court in the decision reported in (2008) 8 SCC 246 (National Insurance Company Limited Vs. Kaushalya Devi and Others), has re-iterated all these principles regarding gratuitous passenger traveling in a goods vehicle and held that the Insurance Company is not liable.
27. Learned counsel for the respondent No.2- Insurer has also placed reliance on the judgment of this Court in the case of Babusab Vs. Iffco-Tokio General Insurance Co. Ltd. In MFA No.31360/2013 connected with MFA No.200227/2014, wherein this Court has elaborately considered this issue regarding 21 gratuitous passenger and held that the Insurance Company is not liable to pay compensation.
28. Further, the full bench judgment of this Court in the case of Gadhilingappa and another Vs. K. Guleppa and Others, reported in 2021 ACJ 2588, has clearly dealt in respect of the provisions of Section 147(1) regarding goods carried and the definition etc.
29. Under these circumstances, looking to the facts and circumstances, it is evident that there is clear fundamental breach of policy conditions and hence as per the law laid down by the Apex Court a gratuitous passenger/un-authorized passenger traveling in the goods vehicle is not entitled for any compensation from the insurer. Though the vehicle was duly insured, there is fundamental breach of 22 policy conditions by the owner and the citations relied upon by the learned counsel for appellants cannot be made applicable to the facts and circumstances of the case in hand in view of the full bench judgment of the Hon'ble Apex Court referred supra.
30. Under these circumstances, the contention of learned counsel for the appellants that order regarding pay and recover is required to be passed holds no water and it is only the respondent No.1 who was the owner is liable to pay compensation. Further, this case does not fall under special circumstances as the claimant-petitioner Nos.2 and 4 are major sons. Further, the deceased was having two wives. Looking to these facts and circumstances, this is not a fit case wherein the liability can be fastened on Insurance Company with a principle of pay and recover. Hence, the appeal as against respondent No.2-Insurance 23 Company needs to be dismissed. However, the appeal needs to be allowed in part regarding enhancement.
31. Accordingly, I proceed to pass the following:
ORDER
(a) The appeal is allowed in part.
(b) The claimants-petitioners are held entitled for total compensation of Rs.12,09,304/- as against Rs.4,33,000/- awarded by the tribunal to be paid by respondent No.1.
(c) The enhanced compensation shall carry interest @ 6% p.a. from the date of petition till realization.
(d) Respondent No.1/owner is directed to deposit the entire compensation with accrued interest 24 thereon within a period of six weeks from today.
(e) The appeal as against respondent No.2-
Insurance Company stands dismissed by confirming the findings of the tribunal in this regard.
Sd/-
JUDGE msr