Karnataka High Court
Iffco-Tokio General vs Taslim Banu And Ors on 26 November, 2021
Bench: R.Devdas, Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF NOVEMBER 2021
PRESENT
THE HON'BLE MR.JUSTICE R. DEVDAS
AND
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MISCELLANEOUS FIRST APPEAL No.200545/2018 (MV)
BETWEEN:
Iffco-Tokio General Insurance Co. Ltd.
Through its Manager
R/o Sri Shanti Towers IV Floor
III Main No.141, East of NGEF Layout
Kasturi Nagar
Bangalore-32045896
(Now represented by Authorized Signatory)
... Appellant
(By Smt. Preeti Patil Melkundi, Advocate)
AND:
1. Taslim Banu W/o Basha Patel
@ Chandpasha, Age: 35 Years
2. Subhan S/o Basha Patel
@ Chandpasha, Age: 13 Years
Occ: Student Minor
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3. Shadab S/o Basha Patel
@ Chandpasha, Age: 11 Years
Occ: Student Minor
4. Shabana Begum D/o Basha Patel
@ Chandpasha, Age: 9 Years
Occ: Minor
5. Shafiya Begum D/o Basha Patel
@ Chandpasha, Age: 7 Years
Occ: Minor
6. Ameer Sab S/o Hussain Sab
Age:65 Years, Occ: Coolie
7. Arjuman Bee W/o Ameer Sab
Age: 60 Years , Occ: Coolie
Petitioner Nos.2 to 5 are minor
Through their next friend
Petitioner No.1
All R/o Village Minajagi
Tq. & Dist. Kalaburagi-585 101
8. Nagendra Kumar K.V.
Age: Major, Occ: Owner of
Tata Hitachi Machine
Sl.No.2001-14578
Engine No.84061948
R/o No.2551/3, X Main
E Block, II Stage Rajaji Nagar
Subramanya Nagar
Bangalore-560 010
9. Hassan Patel S/o Basha Patel
Age: Major, Occ: Owner of
Tipper No.KA-34/5293
R/o 4, Iqbal Colony, Jeelanabad
MSK Mill, Kalaburagi-585 101
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10. The Oriental Insurance Co. Ltd.
Through its Sr. Divl. Manager
N.G. Complex, 1st Floor
Opp. Mini Vidhan Soudha
Main Road, Kalaburagi-585 101
... Respondents
(By Sri Krupa Sagar Patil, Advocate for R1, R6, R7;
R2 to R5 are minors Rept. by R1;
Notice to R8 & R9 held sufficient V/O Dt. 5.10.2020)
This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to allow the above appeal by setting
aside the impugned judgment and award dated 11.10.2017
in MVC No.712/2013 passed by the Prl. Senior Civil Judge
and MACT at Kalaburagi.
This appeal coming on for hearing, this day,
Rajendra Badamikar J., delivered the following:
JUDGMENT
This appeal is directed by the original respondent No.2-appellant herein against the judgment and award passed in MVC No.712/2013 dated 11.10.2017 passed by the Senior Civil Judge and MACT, Kalaburagi, whereby the Tribunal has awarded a total compensation of Rs.15,27,400/- to the claimants with interest thereon.
2. The brief factual matrix leading to the case are that; the deceased Basha Patel @ Chand Pasha was 4 working as a Driver of Tipper bearing Reg.No.KA.34/5293 owned by respondent No.3 which was being used for transporting mud from inside of filter bed Water Board. The mud was being dug and removed by Tata Hitachi Machine bearing Sl.No.2001- 14578, Engine No.84061948 owned by respondent No.1.
3. It is alleged that on 29.07.2013 at 3.30 p.m. inside the filter bed Water Board on Sultanpur road in the limits of Traffic P.S., Gulbarga, the deceased after unloading the mud in the said Tipper parked it near the said Hitachi Machine for loading the mud through the said machine in the Tipper. At that time, the operator of the said Hitachi machine moved it front side and backside in a rash and negligent manner and he suddenly turned it towards left side. As a result, it hit the deceased who was standing behind the said Tipper and was crushed between the said Hitachi Machine and Tipper and he sustained fatal injuries. Immediately, he was brought to the United Hospital, Kalaburagi wherein 5 he received medical treatment as in-patient for a short period of 6 hours and for higher treatment while shifting to Satya Hospital, Gulbarga, on the way to the said hospital, he succumbed to the injuries at 10.10 p.m. In this regard, the Traffic P.S., Gulbarga registered a case in Cr.No.50/2013 against driver of the Tipper.
4. The petitioners claim to be the dependents of the deceased and it is also alleged that the deceased was aged about 34 years and was earning Rs.9,000/- p.m. and they have filed a petition under Section 166 of the Motor Vehicles Act, seeking compensation of Rs.18,50,000/-. The Tribunal after appreciating the oral and documentary evidence has awarded a total compensation of Rs.15,27,400/- with interest thereon. This Tribunal's award is being challenged in this appeal.
5. The main contention of the appellant is that the policy was a special policy i.e., Contractor's Plant and Machine (CPM) policy and the liability to third party 6 is restricted to 10% of the sum assured. She would also contend that the Hitachi Machine does not fall under the definition of Motor Vehicle as the policy is a non- motor policy. She would further contend that the Tribunal has also erred in deducting 1/5th towards personal expenses of the deceased as the claimant No.6 being self employed is not a dependent and deduction ought to have been 1/4th. She further contended that awarding of compensation of Rs.1,45,000/- under the conventional heads is against the principles enunciated in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors., AIR 2017 SC 5157 and hence she would dispute the liability. She would also contend that there is also a contributory negligence on the part of the deceased as he has not taken due care at the site of the incident.
6. Per contra, learned counsel for the respondents/claimants specifically asserted that though it is CPM policy, the third party risk is covered and the 7 insurer is liable to satisfy the entire award and recover excess if any from the owner. He would also contend that as per the definition of Rule 2 (cab) of the Central Motor Vehicles Rules, 1989, an excavator is covered under motor vehicle definition and hence the appellant is liable to pay compensation. He would also contend that the Tribunal has appreciated the oral and documentary evidence and awarded just compensation. He would place reliance on a decision reported in Bose Abraham Vs. State of Kerala and another reported in AIR 2001 SC 835 and the decision of a Co-ordinate bench of this court in MFA No.25899/2011 dated 17.07.2020 and MFA No.21800/2010 C/w MFA CROB No.731/2011. Hence, he would contend that the vehicle involved is covered under the definition of motor vehicle and the insurer cannot avoid its liability. Hence, he has sought for dismissal of appeal.
7. Having heard the arguments and perusing the records at the first instance, the main grounds 8 urged by the learned counsel for the appellant-insurer is that the policy in question is a CPM policy and it does not fall within the ambit of motor vehicle. But the Hon'ble Apex Court in the case of Bose Abraham Vs. State of Kerala and anr. reported in AIR 2001 SC 835, wherein at para No.7, it is held that the road rollers are motor vehicles for the purpose of the Motor Vehicles Act and they are registered under that Act. Para No.7 of the said judgment reads as under;
"We hold that the excavators and road rollers are motor vehicles for the purpose of the Motor Vehicles Act and they are registered under that Act. The High Court has noticed the admission of the appellants that the excavators and road rollers are suitable for use on roads. However, the contention put forth now is that they are intended for use in the enclosed premises. Merely because a motor vehicle is put to a specific use such as being confined to an enclosed premises, will not render the same to be a different kind of vehicle. Hence, in our view, the High Court has correctly decided the matter and the impugned order does not call for any interference by us. However, the question whether any motor vehicle has entered into a local area to attract tax under the Entry Tax Act or any concession given under the local 9 Sales Tax Act will have to be dealt with in the course of assessment arising under the Entry Tax Act."
Further, learned Single Judge of this court in MFA No.25899/2011 in para-13 had an occasion to deal with this aspect and held that JCB/Excavator/construction equipment is a motor vehicle. Further, the definition of "construction equipment vehicle" referred in Rule 2 (cab) is defined as under:
"2(cab). "construction equipment vehicle"
means a self-propelled machine with rubber tyred (including pneumatic tyred), rubber padded or rubber or steel drum wheel mounted compactor, wheeled hydraulic excavator, wheel loader, backhoe loader, skid-steer loader, dumper, motor grader, mobile crane, dozoer and pavers with rubber track or rubber pads or wheeled pavers, fork lift truck, self-loading concrete mixer or self- propelled boom pumps, self-propelled or concrete pumps or any other construction equipment vehicle or combination thereof primarily designed to perform earth moving, excavation, loading, transpiration, drilling, spreading, compacting or trenching of earth, rock, other materials, off-highway operations in mining, industrial undertaking, irrigation and general construction but modified and manufactured with "on or off"
or "on and off" highway capabilities."10
Further, the Explanation to the said rule reads as follows:
"a construction equipment vehicle or earth moving vehicle shall be a non- transport vehicle the driving on the road of which is incidental to the main off-highway function and for a short duration at a speed not exceeding fifty kilometers per hour, but such vehicle does not include other purely off-highway construction equipment vehicle designed and adopted for use in any enclosed premises, factory or mine other than road network, not equipped to travel on public roads on their own power for example slip form pavers, concrete pavers, cold milling machines, cold recycler machines and any construction equipment vehicle or earth moving vehicle with crawlers or metal track, for example, tracked excavator or excavator with legs are not considered to be falling under the scope of Central Motor Vehicles Rules, as they are not permitted to run on public roads;"
Hence, the explanation makes it very clear that a construction equipment vehicle or earth moving vehicle shall be non-transport vehicle the driving on the road which is the incidental to the main off-highway function and for a short duration at a speed not exceeding fifty 11 kilometers per hour with an exception of equipment/machinery which are used only off- Highways in enclosed premises not equipped to travel on public road such as slip form pavers, concrete pavers, cold milling machines, cold recycler machines and any construction equipment vehicle or earth moving vehicle with crawlers or metal track, for example, tracked excavator or excavator with legs are not considered to be falling under the scope of Central Motor Vehicles Rules, as they are not permitted to run on public roads. Further, the synopsis produced by the learned counsel for the appellant itself clearly establishes that the vehicle involved in the accident is meant for movement within a construction site or on road and it is not fixed to the particular place. The only exception is that it cannot be driven for longer distance in a high speed and it is required to be moved on another vehicle. Hence, in view of the decision of the Apex Court and as per the definition referred above, the 12 machinery in question is covered under the definition of Rule 2 (cab) "construction equipment vehicle" of the Central Motor Vehicle Rules, 1989. Hence, the arguments advanced by the learned counsel for the appellant does not have any force.
8. Apart from that, the learned counsel for the appellant has also raised a ground that as per the policy Ex.D.1, the liability in respect of third party is restricted only to 10% of the sum insured and since the sum insured is Rs.47,00,000/-, thus the company is liable only to pay 10% with statutory deductions. In the instant case as per Ex.D.1 and after deduction of all statutory deductions, the liability will be only to the extent of 10% of the sum assured Rs.47,00,000/- along with further deductions of 1% as referred in the policy. However, Ex.D.1 further discloses at page No.3 the coverage is as per the comprehensive package policy wordings and as such the comprehensive package policy covers the risk of the third party. Hence, the arguments 13 of the learned counsel for the appellant that the liability is restricted to 10% only though acceptable but it is the duty of the insurer to pay and recover, in terms of the decision of the Hon'ble Apex Court reported in National Insurance Co. Ltd. Vs. Swaran Singh & Ors. reported in AIR 2004 SC 1531 which is again reiterated by the Apex Court in Shamanna and another vs. Divisional Manager, Oriental Insurance Company and others reported in AIR 2018 SC 3726.
9. One more contention is raised by the appellant insured that the Tribunal has erred in awarding Rs.1,45,000/- under the conventional heads which is in excess. On perusal of the judgment of the Tribunal, it is evident that the Tribunal has awarded Rs.1,45,000/- under conventional heads which reads as under:
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Towards loss of consortium Rs.1,00,000/-
Towards transportation of
dead body and funeral Rs.25,000/-
expenses
Towards loss of love and Rs.10,000/-
affection
Towards loss of estate Rs.10,000/-
Total 1,45,000/-
But as per the decisions of Magma General Insurance Company Limited Vs. Nanu Ram @ Chuhru Ram & Ors. reported in (2018) 18 SCC 130 as well as United India Insurance Company Limited Vs. Satinder Kaur @ Satwinder Kaur reported in AIR 2020 SC 3076, the Tribunal is required to award Rs.40,000/- to each claimant under the head of consortium and hence the award passed by the Tribunal under conventional head however is on lower side. Further, the Tribunal has also not considered 40% towards future prospects.
However, the claimants have not challenged the award and as such it cannot be interfered with and the said ground is not sustainable.15
10. The other ground urged by the learned counsel for the appellant is that the Tribunal has considered deduction of 1/5th towards personal expenses in place of 1/4th. She would contend that claimant No.6 is shown to be a Coolie, aged about 60 years and he cannot be considered to be a dependent. But no evidence is led by the insurer in this regard before the Tribunal to show that the claimant was not dependent. Further, considering his age and he being senior citizen, it is quite natural that he is a dependent. Hence, the said ground is also not sustainable.
11. Having regard to the fact that the liability of the insurer is restricted to 10% towards third party, we proceed to pass the following:
ORDER The appeal is partly allowed.
The liability of the appellant-insurance company is restricted to 10% of the sum assured i.e., Rs.47,00,000/- towards third 16 party liability subject to any other deductions permissible under the statute.
However, the appellant is directed to pay the entire compensation along with interest awarded by the Tribunal to respondent Nos.1 to 7/claimants and recover the excess paid from the owner i.e., respondent No.8 herein as per Ex.D.1.
The appellant shall deposit the balance awarded amount before the Tribunal within six weeks from the date of receipt of copy of this judgment.
The amount in deposit shall be transmitted to the Tribunal.
In view of disposal of main appeal, I.A.No.1/2020 stands disposed of.
Sd/-
JUDGE Sd/-
JUDGE BL