Karnataka High Court
Yellamma W/O. Late Mahipal Golla vs Kishore Kashtwale on 24 June, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA,
GULBARGA BENCH
DATED THIS THE 24TH DAY OF JUNE, 2014
BEFORE
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
MISCELLANEOUS FIRST APPEAL NO.1039/2003 (MV)
BETWEEN:
1. Smt. Yellamma,
W/o. late Mahipal Golla,
Aged about 25 years,
Occupation: Household.
2. Shrishailam,
S/o. late Mahipal Golla,
Aged about 7 years, Minor.
3. Kalawathi,
D/o. late Mahipal Golla,
Aged about 5 years, Minor.
4. Maheshwari,
S/o. late Mahipal Golla,
Aged about 2 ½ years, Minor.
Appellants 2 to 4 are minors,
Represented by their natural guardian
Mother Appellant No.1 Smt. Yellamma.
5. Mallappa,
2
S/o. late Papayya,
Aged about 67 years,
Occupation: Nil.
6. Smt. Sayamma,
W/o. Mallappa,
Aged about 62 years,
Occupation: Nil.
7. Laxmi,
D/o. Mallappa Golla,
Aged about 18 years,
All are residing at Kodangal Taluk
And District, Mahaboob Nagar,
Now at Vidyanagar Colony,
Bidar. ... APPELLANTS
(Shri Ravi B. Patil, Advocate)
AND:
1. Kishore Kashtwale,
Major by age,
Occupation: Business,
Resident of Padma Roadlines,
# 8-6-395/869/3,
Erragadda,
Hyderabad.
2. United India Insurance Company Limited,
Represented by its Branch Manager,
Main Road, Bidar. ... RESPONDENTS
(Shri R.V. Nadagouda, Advocate for Respondent No.2,
3
Respondent No.1 notice dispensed with vide order dated
27.3.2003.)
This Miscellaneous First Appeal is filed under Section
173 (1) of Motor Vehicles Act, 1988 against the Judgement and
Award dated 4.1.2003 passed in MVC No.43/2001 on the file
of the Additional MACT & Additional Civil Judge (SD), Bidar,
partly allowing the claim petition for compensation and seeking
enhancement of compensation.
This appeal coming on for hearing, this day, the Court
delivered the following:
JUDGMENT
Heard the learned counsel for the appellants and the learned counsel for the respondents.
2. The appellants are the widow and children of the deceased victim of a road accident. The facts are, on 12.12.2000, the deceased was said to be proceeding in a lorry bearing Registration No.AP-9-U/5277 from Hyderabad to Humnabad with ten bags of Kumkum, each containing 25 kilograms of the material of different colours, to sell the same at Maniknagar Jatra. There was another co-passenger who was also travelling in the same lorry carrying his goods, namely 4 stationery. It is alleged that since the vehicle was being driven at a high speed, the driver had lost control of the vehicle and had dashed into a stationary lorry near Chitaguppa Cross on National Highway No.9 and the accident had occurred at about 1.30 a.m. and as a result of the accident, the deceased who had sustained injuries, had succumbed on the spot. A case was registered by the police against the driver and it is thereafter that a Claim Petition was lodged by the present appellants claiming that apart from selling kumkum, the deceased was also working as a Supervisor and earning an amount of Rs.3,000/- to Rs.4,000/- per month from the said avocations.
The claimants who were entirely dependant on the earnings of the deceased on their livelihood, claimed that they ought to be compensated in adequate measure under the several conventional heads of claim and had filed a claim petition. The same was resisted by the Insurance Company, on the basis of which the Tribunal had framed the following issues: 5
"1) Whether petitioners prove that on 13.12.2000 Mahipal Golla was proceeding in a lorry bearing No.AP-9/U-5277 along with his goods i.e., 10 bags of kumkum each bag 25 kg from Hyderabad to Humnabad to sell same in the Manik nagar Jatra. It was at about 1.30 P.M. on N.H. No.9 near Chitaguppa cross the driver of the said lorry drove the lorry in high speed; rash and negligent manner and lost the control over his lorry and dashed to stationed lorry and thereby caused the accident pleaded?
2) Whether petitioners further prove that on the said date, time and place deceased Mahipal Golla was met with a lorry accident and succumbed to fatal injuries and died on the spot?
3) Whether petitioners are entitled for compensation? If so, what amount? From which respondent?
4) What order?"
The Tribunal held Issue Nos.1 and 2 in the affirmative and also held that the claimants were entitled to compensation from the Respondent No.1, the owner of the lorry and followed 6 the dictum of the Supreme Court in New India Assurance Company Limited vs. Asha Rani and others (AIR 2002 SCW 5259), and disposed of the claim petition. The same was challenged in appeal before this Court and in the first instance, the appeal came to be dismissed by a judgment dated 26.02.2004. The appeal was dismissed on the summary finding that there was no merit in the appeal. The same was carried by way of a Special Leave Petition to the Supreme Court and the Supreme Court granted special leave and having considered the appeal in Civil Appeal No.336/2006, has by its judgment dated 9.1.2006, held that since the accident had occurred on 13.12.2000 and the deceased was travelling in the offending lorry along with the goods and since the Insurance Company had collected additional premium towards legal liability in respect of non-fare paying passengers, the claimants were entitled to get damages and since this Court had failed to consider the said fact, the Supreme Court felt that it was a matter which required fresh consideration by this Court and 7 accordingly, the judgment of this Court was set aside and the matter was remanded for fresh disposal. It is in this background that the appeal is now considered for final disposal.
3. The bone of contention as sought to be urged is that, the claim petition was filed on the premise that the deceased was travelling in a lorry as a passenger travelling along with his goods. It was therefore the burden on the claimants to establish that the deceased was travelling along with the goods. Since the law requires the insurance coverage in respect of persons travelling along with the goods in the goods vehicle and notwithstanding that there may be no contractual liability, the Insurance Company would be liable to pay such a claim if it is established that the deceased was travelling in the lorry along with his goods. This was a crucial aspect on which the claimants had not tendered any evidence. There is no material available on record to indicate that there were goods as claimed by the claimants found in the lorry, at the time of the accident. 8
4. In this regard, the learned counsel Shri Nadagouda appearing for the Insurance Company would take this Court through the record to demonstrate that neither the First Information Report nor the spot mahazar has any reference to any goods being carried in the lorry at the time of the accident, nor is there any evidence tendered by the claimants in support of the same and in the absence of any such evidence, it cannot be concluded that the deceased was travelling in the lorry along with his goods. Hence, his submission is that there is no legal liability that can be fastened, notwithstanding the fact that the Tribunal has placed reliance on Asha Rani's case while overlooking the amended provision under sub-section (1) of Section 147 of the Motor Vehicles Act, 1988. The position remains the same. In that, there is no evidence on record to establish that the deceased was travelling in the lorry along with his goods and therefore submits that the appeal requires to be dismissed as against the Insurance Company, in the absence of the above evidence.
9
5. The learned counsel for the claimants on the other hand would seek to point out that the claim petition of another co-passenger was decided along with the claim petition of the present appellants. There is express evidence tendered by the co-passenger who was an injured victim of the accident to the effect that, the deceased who was a vendor of kumkum, was travelling in the same lorry as a co-passenger along with his goods. This was sufficient to indicate that the deceased victim was travelling in the lorry. Even in the absence of any other evidence as to the presence of goods in the vehicle in question, it is clear that even in the absence of any contractual liability on the part of the Insurance Company, if the deceased had been travelling in the lorry along with his goods, the Insurance Company was liable. However, even if it is to be held that he was merely a gratuitous passenger travelling in the goods vehicle, though there is no legal liability on the part of the Insurance Company to meet the risk of such a passenger in a goods vehicle, the contractual liability would be attracted. In 10 that, the certificate of insurance produced as Exhibit P4 clearly indicates that the Insurance Company has collected an additional premium towards legal liability to non-fare paying passengers. Therefore, if the deceased is treated as a person who was travelling in the goods vehicle without any goods, he would be treated as a non-fare paying passenger in the absence of any evidence tendered to the contra that he had paid any fare for travelling in the goods vehicle as a passenger. Since an additional premium is collected towards risk to non- fare paying passengers, the contractual liability of the Insurance Company is certainly attracted. Hence, he would conclude that if it is to be viewed that the deceased was travelling along with his goods in the lorry, the legal liability would be attracted and if it is to be treated that he was travelling as a non-fare paying passenger, the contractual liability of the insurer would be attracted. In either case, the Insurance Company is not in a position to shirk its liability and hence would submit that in the light of this circumstance, it cannot be denied that the Insurance 11 Company is not liable. It is further pointed out that insofar as the finding of fact is concerned, the Tribunal had indeed found in favour of the respective claimants being passengers travelling along with their goods in the vehicle concerned. It is only on an incorrect interpretation of the law that the Tribunal sought to fasten the liability on the owner and the fact that the owner may have satisfied the claim of the injured victim insofar as the claim petition filed by him is concerned, it does not take away or absolve the Insurance Company of its liability and the mere fact that the owner had satisfied the claim of the injured victim, by itself would not preclude the present appellants from seeking to fasten the liability on the Insurance Company and therefore seeks that the appeal be allowed.
6. Shri Nadagouda however would further contend that the dual claim on the part of the claimants in the alternative would be impermissible. If the claimants have approached the Tribunal on the basis that the deceased was travelling in the lorry along with the goods, it was for them to abide by such a 12 contention and cannot be permitted to plead in the alternative that he should be treated as a non-fare paying passenger. Hence, the fact remains that there is absolutely no evidence to establish that there were goods being carried in the vehicle in question and hence, the Insurance Company would stand absolved. It is this controversy which requires to be addressed.
At the outset, it is to be noticed that Issue No.1 framed by the Tribunal, which is extracted hereinabove, was with reference to whether or not the deceased was travelling in the lorry at the time of the accident along with his goods. This has been answered in the affirmative. If really the Insurance Company was seeking to dispute such a finding of fact, it was incumbent on the Insurance Company to have filed an appeal. As no such appeal is filed, the finding of fact arrived at by the Tribunal is binding on it. Even otherwise, if it is to be noticed that there was doubt as to whether or not the deceased was carrying goods in the vehicle, it would still render the Insurance Company liable to pay compensation, since under the contract 13 of insurance, an additional premium has been collected towards the liability in respect of non-fare paying passengers. The deceased was travelling in the lorry with the permission of the driver. There is no indication of he having paid any fare, in which event, contractual liability would be attracted. Even if the Insurance Company had filed an appeal questioning the finding that there were no goods in the vehicle to be found, the Insurance Company would still be liable under its contractual liability. Therefore, viewed in any angle, the Insurance Company is clearly liable. Accordingly, the issue is held against the Insurance Company. The award of the Tribunal would have to be modified to that extent. Secondly, it is to be noticed that insofar as the computation of compensation is concerned, the Tribunal has chosen to deduct 1/3rd of the amount arrived at towards the personal expenses of the deceased. In terms of the established principles laid down by the Apex Court, if the members of the family are seven in number, the deduction should be one-fifth of the total income 14 and not one-third. If this is applied, the appellants are entitled to a marginal additional compensation.
Further, having regard to the age of the deceased, the multiplier to be applied was 17 and not 16. If these aspects are taken into account, the appellant would be entitled to an additional compensation of Rs.73,920/-, which shall carry interest from the date of the claim till the date of payment. The award of the Tribunal stands modified to hold that the Insurance Company shall bear the liability to pay the compensation, which amount shall be paid within a period of four weeks from the date of receipt of a copy of this judgment.
The appeal stands allowed in the above terms.
Sd/-
JUDGE KS