Karnataka High Court
B M Suresh Kumar S/O Marthandappa vs Om Prakash S/O N Halappa on 30 June, 2009
Bench: N.Kumar, B.Sreenivase Gowda
IR ms HIGH mum' or KARHATAICA Afr
DATED was THE 30TH._I}AY'GF
um xmrrnm ksizzfquénéis; 1: :3 i
THE Hownw naJ 1i;.%rus§?i'x;;£g' aowm
BE1VlEE?'fi
B M " V A
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31 jfm, rfa fippat Br:1et1~i_
Santheliscnntjr. .» ..
Channagixi " a
Davanficzre 56 'Di£gt. Appellant
Mahcsh R Uppin, Advocate)
Sj'ai.N["HaIappa
\."'P1is3Sriet<>r of Republic Mentor Service Bus
.. ffiagauahally Village
Sa11th€b€I1I111I' Post
Channagiri Taiuk
Davanagere Dist
2 The Manager
Oriental Insurance Co.Ltd
Branch Ofice V
Vishnuprakash, II Floor
P.B.N<>. 35, Court Road _ _ .. '
Udupi V
(By Sri 3 M Sid:iéi.mal};¥p'pag Adi: f£s§~"'Ié4'1";'
Sri V Nmnyanjagfvvagny, Ativ for R%2)
This appeal ;3%fm 173(1) of MV Act
against the Judment ~15-113003 passed
in MVC No. 282/2902_9n'.ihc fik: 'cf'--the Pr1.CiviI Judge
(Sr. D13) 83 _II.A'f&sidi.£§'JA(I1"',.: Déavaaageztfie partly aliowing the
claim petition farvcomgtfimfion -seeking enhanccment of
' -- ~
for orders this day,
N:;vHAxf~.5:_, c;e1iyezga.. tj1c_f01}oWing:
" ""%gafipaM2Nr
is appeal seeking enhancement of
injusrics sustaizacwd in a motor vchick:
' "3CCi£§Cfli't;3;§vW'€H as challenging the finding of the Tribunal in
H '-- the insurance company ta pay the
i<':i:as may arc mftrrcd to in the claim pctititm.
awarded.
2. For the purpose of cbnvcnicnct, paxfics an: mfcntd
3. Case of the claimant is that he as
clcancr~cum-conductor in bus bearing 33'
6-2000 at about 7.00 pan. "
tin: claimant was bringing dmm$}%:;gas'scz;gc}s%%1figg;;§;";:§m%jfop
of the bus, drivcr of the of; a b:?1L1t$
Without Waiting for any same, he
fell down and was immediately
admitted to Iiiapuji On account of the
accident, V' claims that he was
getting R340]-' per day as hatta.
'pfttition claiming cempcnsation caf
L./4. V' of notice, rcspandcnts cntcmd
A , Respondents -1 8:. 2 -- owner and driver did not
" &}ifri:itcn statcmcnt and Itspomicnt~~3 ---- insurance A fiktd Wfittcn statement denying the claim. AA VTLHo§xs'r$rcr, it did not dispute the accidcnt or the insurance V' -».r:§f;$veragc. But mspcndcnt-3 contcmicd that insarancc policy clams; not cover the risk of a cleaner or ccnductoy alsc:
denied that cziazimant: was a conductor 'm the A'
5. On the aforesaid pleadings, thnsc issues. In order to tzxamincd hiznscif as P.W. 1;_ he e.;;.§mincd f§1t': adcfdf'A§§fi».$ Nclavagi as P-.W.2 and " giétéresh vfis P.W'.3. The ciaimafit Exs.P--I to P-12. On bchaif of G Dcshpandc was cxamincd :aS R;_'W.1§ ut}.3cif'ii1su1'a3:;cc policy was masked 'i'i?;§'§VVVV"VI'1ih31na1 after taking into c0n§idéraf;ionL documentary evidence, held that agcgidcnfwas mi: of rash and negligent driving by the thy: thestforag claimant has established V A:3ctTtiaI§31§1c.:nc.gIigcncc. Themaficr, looking inte the evidence 351* t1;Ac;' vV:ig:r¢.§tor and medical rccorcis, Tribunal found that had sustained Ccmbrai C<'.lfi(1'11SSi()I1 and fracture of " ; Lkmzcr end of radius 1:311: wrist: joint. He was an inpatient for six éays. Even after dischmgc, he was under tmatmeat.
The doctor -- P.'W.2 has deposed that claimant suffered V, pcrmancnt disability of left upper limb is to 15 tar 20%. On the aforesaid materials on awarded Rs.2(},0O(}/- tcwanzls pain wd towards mcdical bills, amtmzltics and Rs. 1,250/"¥ attendant charges and 1oss__::o}f Q-,a1*;:gi11g.'(ii:sA.r'fi1.r;AgVAVf%cat1I1c11t, in all, awarded Rs.30;€;CQ[ -' : .g1bI§a.1:'»"cgmpcnsafion to the claimant Wit1I,viI§tCI'C§E.i'&£ 8% date cf pctition an the ' V ' " has referred to the judmcnt of t1ziis_'On1V1x1: m*A% 3176/2008 Where it was held that igsizmnéé gomgany fine: iiablc to indcmm'1'y the owner if ' iI§:;t:r'c~is my coverage to the clcancr. Therefore, the V that insurance mmpany is not iiablc to ' ' the owner as the insuranct policy has not covered the risk of the cleaner and therefore dismissed the petition in ' _ far as insurance company is conccmcd.
7. Lcarrrccd counsel for the claimant, assaikg the impugneti award, ccmtxmdcd that compensation awarded is very maagzne and claimant is entitled to higher comfiénsafion. He further contends that insurance policy " this case as Ex.R-1 clearly shows that pmmium to cover the risk Tribunal was in error in ;t1_ot insuxancc company. Thcftft:#£{:;.hc bf the awazd ofthc Tzibugxal. M t 4
8. Learned company contendcd_,t1:;§t"-€:Iaii:ffiaJif_:§*4va§Aififirlgihg'I-is a cleaner and was xttof and therefore he cannot be tmafccgl as a' izfthc eye of law; in so far as cleaner is Cflflcfifflfidg is not covered under the policy in " ~qi1c'$1,ion;A. in man' cvcnt, insmancc campany is under 110 V A.?:L§j'_:jndcmn113r' the insured. Thcmfam, Tribuaal was not fastening the liability on th!:'': insuramzxt 9m From the afoitsaid material, it is sitar that claimant was aged 30 yrs as on the date (If accident. According to ciaimant, he was Working as cleaner-cum-conductor in 3 passcngcr bus in the accidcnt. He sustained of lower end of radius left wrist joint and The doctor has dcpoexzd that permanent disability to the fry AV upper limb and 5% to the A record shows that he was ~ month apart from Rs..-§§{)/ ~ 'p.-3:
10. In these of the View that Tribunal ' not awarding any of loss of future income.
mrcrmg A-rue income of the claimant at Rs.3,00(3'iand disability of 5%, applying the of Vie;-31¢ Wonk! be entitled to compensation of V "finder thc head 'loss of futum incamc'. The 95.1250/~ awarded under the head of "food, conféyancc and attcndmt chargts' is vcxy my and we kjgmm addifional sum of Rs.5,(}(}£}/-- under the said head. The amount sf $235,090/_ awarded undcr the head 'loss sf future amenities' is very low and we azwaxd additionai sum 9! 1% Rs.10,(}{)O/- undcr the said head. We 3330 award a sum of Rs.3,000/- towarcis loss of income during thcvpcxiod of tn:-atmcm. Thus, in all, claimant is entitled s¢{'~;§;:;z§itiona1 compensation of Rs.-46,800/-- which is 5:-Q Rs.-47,000/-.
1 1. in so far as liability is J oonccmcd, Ex.R~--1 is csmzimcmial vehicle - passcngcr htiwnqr the vchich:
has paid additional ta cover the liability policy makes it clcar that tha 'sam $1V1b:§':3e',-;tr1*;*"to tcrms and condifions specified Qmmm i;e,.1::5;. ii; 12, 18, 19, 21 and etc. {NIT 13 deals to pad' driver and/or conductor or V i;::1"_::conncction with the operation of motor vchicie ' ,§&hic:;mad' thus:
"IMF 18 -- LEGAL LIABILJTY TO PAID DRIVER AND/OR CONDUCTOR EMPLOYED IN CONNECTION WITH THE OPERATION OF MOTOR VEHICLE: --
In cnnsidcration of the payment of an additional premium it is héreby uncicrstcxxi and agreed that 1 notwithstanding anything in to the contrary the CompanyA.Ts1wfliT. * ' indemniifir tha insured agairmt _ his'-..1egai "
liability under. _ j ' The Workmcifs »(5<>I:1pc:nésattioi1V.'Act,..,T. T f 1923 and subsequent araiendflzents Qf"
prior to the ciatcg of this Endoxjsemént, the "
Fatal accidcnta Act, 1855 or at Cgimmbn Law in respect 'of Vpc-rson'a1. '10 any paid driver (or....c_I€:a:r1k:r or écanductor or person '¢'m,plo_-*,}ed_ jcsaciijsag or unloading but in - .c8.$t£g--. I}:otV"i§>:z:ee:§iing seven in number inclufiing d.1iveii __ and cleaner) whiist tfigagigi " the .V sewices of the ;;aa_5i'r:l3'*fi1Ltpa_t_:i{)n in connection . witvh-.'_thc4 not égxcceeding six in number _.-[6XCli1diIig::'c1I9is'.617} Will in addition be ____ H V"ré:;-po1;sib1e'~ fit'-I_"___ costs and expenses V " -- .V f, with itsviiifittcn consent. ' " '§'liic:,_ " having been %% _c:*.ai:_3uiz§1ti::d 'fat the rate of Rs. 15/ -- per driver " _ (am:/or élcancr or conductor and or V employed. in loading and] or A. unload" """ "Ting but net exceeding scvcn in number including driver and cleaner?"
~_ tht aforcsaid clause makes it clear that "admm: pmminm sf 23.30/-- paid covers the sis}: in AA , 1fcs1j!'c"x;t of both driver or cleaner or conductor or person ' "'c;;1i1pIoycd in loading or unloading but not exceeding savers; in number including driver and cicancr. Lcarnczd counsel for the insumncc company submitted that permitted capacity of a passenger bus is 48+2 i.c., driver, conductcnj' and 48 passengers. There is no secopc for covering tlm-V_VAof a cleaner who is not cxpccted in be in the " I ~ .>
12. The vehicle: in qucs1_:_i<211»__is pelicy is issued in respect of ':
carrying 'B' policy.
separately risk of the apt u%idcr the Act. When the injured gal in terms of is that of driver, conductor or fiiirgaacr, ' statutory liability, there is cpnixacfiialf the part of insurance company to fl'1€'Vi;li§'1II"' \?~dv in {cans of the insurance policy. Tht':
V not looked into the policy, cspccaally' the <§1ausc in the poficy which is not in dispute.
Adaagfitcdly 211:': additional pmmiuzn of 123.30/-- is paid " Qxbvcring the risk of a clcancr and conductor. 'i'hcrcfam, the Tnbunai was not justifiw in exoncrating the insuranttzc policy from indcrmnifying titan injuxcd and consequently not paying the victim of the accident. To that requires inicriisrcncc.
13. Hence, the appeal isaflowcd I"1':.. to what has been awarded by tlic of Rs.4'?,0Ofi/-- as ..is";payah}¢ with interest at 6% pa. TI;¢_:{°;f121;i1>.=.V_va1n(.)i11*:tVpff9;i>:J:tpcnsati<)n awarded shall be company. Parties to bear their ('W11 Costa. . V sd/-
sa/...
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