1 R IN THE HIGH COU R T OF KARNA TAKA DHARWAD BENCH DATED TH IS THE21S T DAY OF JANU ARY2020BEFORE THE HONBL E MR . JUSTICE P .G.M.PATIL MFA NO.23320 /20 12 (MV) BE TWE EN :
1. . 2 . ANNAPURNA W/O ULAVAPPA KA TTIMANI URF BHIMANNAVA R, AGE:
30. YEARS , OCC: HOUSEHOLD WORK, R/O: KURUBAR ON I, MRI TYUNJAYNAGAR, HAVERIP E TH, DHARWAD. KAVYA D/O ULA VAPPA KA TTIMANI URF BHIMANNAVA R, AGE:
07. YEARS , OCC: NI L, MINOR R EP TD., BY NA TURAL GUARDIAN MOTHER - APP ELL ANT No.1 . 3 . MUTTU S /O ULAV APPA KA TTIMANI , 4 . URF BHIMANNAVA R, AGE:
06. YEARS , OCC: NI L, MINOR R EP TD., BY NA TURAL GUARDIAN MOTHER - APP ELL ANT No.1 . VENKA TESH ULAV APPA KA TTIMANI , URF BHIMANNAVA R, AGE:
04. YEARS , OCC: NI L, MINOR R EP TD., BY NA TURAL GUARDIAN MOTHER - APP ELL ANT No.1 . (BY SRI SANJAY S KATAGER I, ADVOC ATE .) ... APPEL LAN TS. 2 AND:
1 . 2 . 3 . RAM SHRINGAR PA L, AGE: MAJOR, OCC : BUS INESS AND OWNER OF THE TA TA LP T909TRUCK BEAR ING R EG. NO . MH-43/ E- 3880, R/O: SHOP No.14 , ME RIMID1 P LOT NO.3 2-32 , SEC T-11 CBD, BE L APUR, NAVI MUMBAI, DIST: THAN E, MAHARASHTRA - 400 61 4 THE DI VISIONAL M ANAGER, THE NE W INDIA A SSURANCE CO., L TD., SAVI TR I SADAN, OPP: K I TTL E COL LE GE, P.B .ROAD, DHARW AD. SIDDAVVA W/O YALLAPPA KA TTIMANI, @ BHIMANNAVAR , AGE:
59. YEARS , OCC: HOUSEHOLD WORK, R/O: HAVER IPE TH , N EAR DYAMAVVAN GUDI, DHARWAD. ... RESPONDEN TS (BY SRI S.S .KOL IW AD, ADVOCATE, F OR R .2 ; SRI NAGARATNA Y . NAIK , ADVOCATE, FOR R.3; R.1 SER VIC E OF NOTI CE HELD SUF FICI EN T.) THIS MISCEL LAN EOUS FIRS T APP EAL IS F IL ED UNDER SEC TION1731) OF MOTOR VEHIC LES AC T, PRAYING TO SE T ASIDE THE JUDGMENT AND AWAR D DATED42 .20 12 , PASSED IN MVC NO.512/ 2008 , ON THE F IL E OF I AD DL. SEN IOR CI VI L JUDGE AND ADDL. MACT, DHARWAD, E TC.,. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COUR T DELIV ERED THE F OLLOWING:
3. JUDGMENT The appeal is admitted and taken up for final disposal at the request of the learned counsel appearing for the parties.
2. The claimants being aggrieved by the judgment and award dated 4.2.2012, passed in MVC No.512/2008, by the I Addl. Senior Civil Judge and Addl. MACT, Dharwad, have filed this appeal.
3. The case of the claimants before the tribunal is that, on 27.6.2007, at about 2.45 p.m., near the land belonging to one Hebballi on P.B.Road, between Narendra and Hubballi, one Ulavappa was travelling in lorry bearing registration No.MA-43/E-3880 as hamal. The driver of the said lorry drove the same in a rash and negligent manner, lost control over the lorry and it was turtle down in a ditch by the side of 4 the road. Due to the accident, Ulavappa sustained fatal injuries and died on the spot. The claimants No.1 to 4 are the wife, daughter and two sons of the deceased, who were fully dependents upon his income. The deceased was a labourer in lorry and was earning `6,000/- per month along with daily bhatta of `40/-. The mother of the deceased was also impleaded as respondent No.3 in the claim petition. Therefore the claimants claimed compensation of twenty lakh rupees against the owner and insurer of the offending vehicle, who are respondents No.1 and 2 respectively.
4. In response to the notices, respondents No.1 was absent and he was placed exparte. Respondent No.2/insurer appeared before the tribunal through his counsel and filed the statement of objections denying the averments made in the claim petition. He further contended that his liability is subject to production of 5 original policy, driving licence, permit of the lorry etc.,. He has denied the age, occupation and income of the deceased. The deceased was not a labourer in the lorry involved in the accident. He filed additional objections contending that the deceased was an unauthorized passenger in the lorry and insurance company is not liable to pay the compensation and that the driver of the lorry was also not holding a valid and effective driving licence.
5. On the basis of the pleadings of the parties, the tribunal framed issues. In support of their claim, claimant No.1 was examined as PW.1 and one witness as PW.2 and got marked 6 documents as Exs.P.1 to P.6. On behalf of the respondents, respondent No.2/insurer examined one witness as RW.1 and got marked 2 documents as Exs.R.1 and R.2. 6 6. The tribunal, after hearing both the parties, passed the impugned judgment awarding a compensation of `5,47,000/- with interest at 6% p.a. from the date of petition, till its realization. Respondent No.1 the owner of the vehicle was directed to deposit the compensation amount. Respondent No.2 the insurer was exonerated.
7. The claimants being aggrieved by the impugned judgment and award have filed this appeal stating that the tribunal is not justified in fastening the liability on the owner of the vehicle only on the ground that the deceased was stated to be travelling as an unauthorized passenger in the vehicle. It is further contended that the policy issued by respondent No.2 cover the risk of two non fare paid passengers (NFPP) and therefore the risk of the deceased was covered under the policy in addition to the risk of two persons as WC under 7 the policy. The claimants have also contended that the income of the deceased considered by the tribunal is on lower side and the compensation awarded under other heads is also on lower side.
8. Heard the learned counsel appearing for the parties.
9. The learned counsel for the appellants/claimants reiterating the grounds taken in the appeal memorandum submitted that the insurer has collected separate premium covering the risk of two NFPP and also cover the risk of 2 WC and therefore the case of the claimants falls under the category of NFPP and therefore the risk of the deceased is covered under the policy in view of IMT37.
10. In support of his submission the learned counsel for the appellants/claimants has relied on the judgment in Oriental Insurance 8 Company Limited vs. Thukarama Adappa and others, 2007 ACJ1497 United India Insurance Company Limited vs. Kalavathi and others, 2008(3) TAL580(Kant.); National Insurance Company Limited vs. Alipeer and another, 2007 Kant. MAC149(Kant.) and the case of Manuara Khatun and others vs. Rajesh Kumar Singh and others, 2017 ACJ1031 11. Per contra, the learned counsel for the insurer submitted that it is a case of the claimants that the deceased was working as hamal in the lorry involved in the accident and the said contention was not proved before the tribunal. Therefore it is held that the deceased was travelling in the goods vehicle as unauthorized passenger. The risk of such unauthorized passenger is not covered under the policy nor under section 147 of the M.V.Act. Therefore the tribunal has properly appreciated the facts and 9 law and has exonerated the insurer and there is no need to interfere with the impugned judgment. The learned counsel in support of his submission has relied on the judgment in National Insurance Company Limited vs. Cholleti Bharatamma and others, (2008) 1 SCC423 12. The claimants contended before the tribunal that the deceased Ulavappa was travelling in the lorry bearing registration No.MA- 43/E-3880 owned by respondent No.1, as hamal in the said vehicle. They also contended that the deceased was earning `6,000/- per month apart from daily bhatta of `40/-. However the claimants failed to produce necessary evidence to prove that the deceased was working as hamal in the offending lorry. Respondent No.1 the owner of the offending vehicle remained absent and he was placed exparte before the tribunal nor he was 10 examined by the claimants to prove that the deceased was working as hamal in the said lorry.
13. Under such circumstances, the tribunal has held that the claimants have failed to prove that the deceased was travelling in the lorry as hamal and on the other hand, the tribunal proceeded to hold that the deceased was a gratuitous passenger in the lorry. Therefore the insurer is not liable to indemnify the insured. The tribunal has referred the evidence on record including Ex.P.2 the complaint, wherein it is stated that the deceased Ulavappa boarded the lorry in order to go to Mailar. This is also elicited in the evidence of PW.2. Therefore the finding recorded by the tribunal that the claimants have not proved that the deceased was travelling as hamal in the offending lorry is well reasoned and it does not call for interference. 11 14. When it is reaffirmed that the deceased was not travelling in the lorry as hamal, the next question would be as to whether the deceased was travelling in the lorry as unauthorized passenger or a non fare paid passenger or a gratuitous passenger. The finding in this regard would decide the liability of the insurer to pay the compensation. The learned counsel for the claimants relying on the judgment in United India Insurance Company Limited stated supra, submitted that this Court considered IMT13and 14 in the said case and has held, on the basis of the material in that case, that the deceased was not a fare paid passenger or that he was carried for reward.
15. This Court referred to section 147(1)(b)(i) with reference to IMT14 and proceeded to hold that on an unbiased interpretation of the latter half of the condition in 12 IMT14 it would clearly render the appellant liable under the policy and that there can be no doubt that the deceased was a passenger in the vehicle and was permitted to board the vehicle by the driver, who was in charge of the vehicle. His presence was not unauthorized. Further, it was held that he was connected with journey at least up to the accident spot. The inmate involved in the said case was the claimant travelling in goods vehicle from Mumbai to Hyderabad and carrying goods. Therefore as representative of the owner of the goods he was travelling in the said vehicle. Under such circumstances, this Court hold that the insurer is liable to pay compensation.
16. In the case of National Insurance Company Limited stated supra, this Court again considered the case wherein the claimant was travelling in the goods vehicle as owner of the goods and it is held that number of such owners 13 should not exceed permitted seating capacity. Therefore again it is a case of travelling of a person along with goods in the goods vehicle.
17. In the case of Oriental Insurance Company Limited stated supra, this Court considered the liability of the insurance company to pay compensation, which arise out of the contractual obligations, wherein the risk of the non fare paid passenger was covered. This Court has made the following observations. The f ollo wing position emerges. In the under cl aims covered insurance company the
1) the Motor Vehicles Act, prov isions of 1939, is no t liable to pay any compensation f or injury sus tained or death c aused to gr atuitous passengers, f are paying passengers, and o wner of the goods or his represe ntative who tr avels in the goods vehicle, when th at vehicle mee ts with an accident. In f rom cl aims covered the
2) the Motor Vehicles Act, prov isions of 1988, till 14.11.1994, the day the Amendment Ac t came into f orce, the Insur ance Company 1.7.1989 ar ising under 14 to be liable shall no t pay any compensation f or the injury sus tained or de ath c aused to gr atuitous passenger, f are paying passengers and o wner of the goods or his author ised representative on being c arried in goods vehicle, when th at vehicle mee ts with an accident. In af ter under cl aims covered the
3) the Motor Vehicles Act, prov isions of f rom amendment 1988, insurance 14.11.1994 company is liable to pay compe nsation for the injury sustained or de ath caused to o wner of the goods or his au thorised representative c arried in a goods vehicle. onwards, i.e., the The company insur ance
4) is statu tor ily l iable to pay compensation to the employee of the insured eng aged in i.e., driver of the driv ing the vehicle vehicle, employee a conduc tor or examining ticke ts of the publ ic service vehicle, and an employee carr ied in goods carr iage, to the ex ten t of liabil ity under Workmens Co mpensation Act, 1923 only. engaged payable as 18. Therefore it is necessary for the claimants to prove one of such circumstances, under which they fall, in order to fasten the liability against the insurer. The claimants have to establish that the deceased was either 15 travelling as owner of the goods or representative of the owner of the goods, or as any other person directly connected with the journey in one form or the other as stated in IMT37. The facts proved in the present case shows that the deceased was travelling in the goods vehicle and it is the case of the claimant that he was travelling in the said vehicle as hamal, which was not proved before the tribunal. When the claimants failed to prove that the deceased was travelling in the said vehicle as hamal, he has to be considered as a non fare paid passenger or as an unauthorized passenger or a gratuitous passenger.
19. In the case of National Insurance Company Limited vs. Cholleti Bharatamma and others stated supra, the Apex Court in paragraph No.23 has held as follows:
2. 3 . Upon considering the evidence on record, it was held:
16. the l iabil ity tr avel in the cabin and as As the permitte d se ating capac ity of the lorry is only 3 including the driver and cle aner and as only one non- f are paying passenger as o wner of goods can the deceased has admittedly tr avelled in the cabin beyond se ating c apac ity and contr ary to the terms of the permit as well as Rule 252(2) of the Motor Vehicles Act. I am of the vie w that R-2 c anno t be f astened with to pay compensation along with R-1 to all the injured and leg al representative s of the deceased. A t best it is liable to pay compensation jointly and sever ally along with R-1 only in respec t of one non-f are paying passengers, who is the owner of the goods. As per the endorsement I.M.T. 14(b) unless additional premium is paid for the number of persons who tr avelled in the lorry, as owners, I am of the v ie w th at R-2 f astened with liabil ity. Fur ther all the pe titione rs and the dece ased c anno t be deemed to have tr avelled as o wners of the paddy as the paddy is said to be in bags and or ally kept in loose in the lorry and it is enough if any one of them have tr avelled in the lorry on behalf of all, as o wner of the lorry. Rule 277(3) of A.P.Mo tor Vehicles Rules, cle arly sho ws that no person shall be c arr ied in the goods vehicle except as prov ided in the Rule under the statu te and as the only person, who is permitted to c arry in goods vehicle is the owner or hirer or bona f ide employee of owner or hirer and to tal number of such persons, who could be c arried in goods vehicle is no t more than seven includ ing the driver. c anno t be 17 As per Rule 252(2) no person shall be carr ied in the c ab of the vehicle beyond the se ating c apac ity as per cl ause (2). No person shall be carr ied on the lo ad or o ther wise. Rule 4 empo wers R.T.A. to allo w l arge number of persons to be carr ied. As the se ating c apac ity of the lorry is only 3 as per Ex.B1 and B3 and as the r isk of only o wner of goods is covered by Ex.B2 policy, whereas abou t 40 to 42 persons tr avelled in the lorry by sitting on is no t permitted and as there is no material to sho w that R.T.A. permitted c arr iage of more than se ating c apac ity but on the o ther hand the permit is c ancelled, I am in agreement with the conten tion of the le arned counsel for the respondent that it c anno t be f astened with the liabil ity for compensation. lo ad, which the 20. In the case on hand, the claimants have not proved that the deceased was permitted to be carried in the lorry by the insured. The insurance policy produced at Ex.R.1 shows that premium was collected for WC2and NFPP2 The IMT endorsement numbers provided in the policy also refers to IMT37. IMT37 refers to the liability of the insurer in respect of death or bodily injury 18 to any person not being employed by insured and not carried for hire or reward provided that the person, who is charterer or representative of the charterer of the truck or any other person directly connected with the journey in one form or the other being carried in or open or entering or mounting etc.,.
21. In the case on hand, the evidence is crystal clear that the deceased boarded the lorry in order to go to Mailar, which cannot be termed that he was travelling in the lorry connected with the journey in one form or the other.
22. Under these circumstances, this Court holds that the risk of the deceased is not covered under the policy Ex.R.1 under the category of NFPP. Consequently this Court has to hold that the deceased was travelling in the lorry as a person travelling without payment of fare which amounts to a gratuitous passenger. The learned 19 counsel for the claimants relying on the judgment in the case of Manuara Khatun and others stated supra, submitted that even assuming the case of deceased as gratuitous passenger, the insurer has to be directed to pay and recover the compensation from the owner of the vehicle. Th e leaned counsel for the insurer in this regard submitted that it is not a case of breach of policy conditions and therefore an order to pay and recover cannot be passed.
23. The Apex Court in Manuara Khatun and others stated supra, has held in paragraphs No.20 and 22 as follows: Firs tly, 20. We f ind no merit in any of the submissions. as mentioned above, we f ind marked simil ar ity in the f ac ts of this c ase and the one invo lved in Saju P. Pauls Case, 2013 ACJ554(SC). Secondly, the compensation has no t ye t been paid to the cl aiman ts though the c ase is quite old (16 ye ars) like the one in Saju P. Pauls C ase it c anno t be a ground to deny the cl aimants the relief bec ause me rely (supr a), 20 the relief of the argument cl aimed in these appe al s. Thirdly, this Cour t has alre ady considered and reg arding no t rejec ted gr anting of the nature cl aimed herein due to pendency of the ref erence to a l arger Bench as would be cle ar f rom Par a 25 of the judgment in Saju P. Pauls case (supr a). That apar t, le arned counsel for the appell ants stated at the B ar that the ref erence mad e to the larger Bench has since been disposed of by keeping the issue undec ided. It is f or this re ason also, the argumen t does no t surv ive any more. In vie w of the 22. f ound inv olved in c ausing to be Ind ia issued direc ting Insur ance Co. f oregoing discussion, we are of the vie w that the direc tion to United India Insur ance Co. Ltd., respondent No.3, they being the insurer of the offending vehicle which was the acc ident due to negligence of its driver the m needs Ltd., (United respondent No.3) the awarded appell an ts (cl aimants) and then to recover the paid awarded sum from the o wner of the off ending Sumo), respondent execution proceeding s arising in this very case as per the l aw l aid do wn in par a 25 of Saju P. Pauls c ase, 2013 ACJ554(SC). vehicle N o.1, (T ata in to f irst pay sum to the 24. Therefore, even when the deceased was travelling in the goods vehicle as a gratuitous 21 passenger, the insurer has to be directed to pay and recover the compensation from the owner of the vehicle in the very proceeding by filing an execution petition against the insurer. Under these circumstances, this Court holds that the facts proved in the case on hand are squarely covered by this judgment and it is just and necessary to pass an order for pay and recover. Accordingly the insurer has to be directed to satisfy the award and recover from the insured in the very proceedings by filing an execution petition.
25. The claimants have sought for enhancement of compensation. The accident in question occurred on 27.6.2007. The tribunal has considered the income of the deceased at `3,000/- per month for awarding compensation. The age of the deceased is considered as 32 years as per the postmortem report Ex.P.4. As per the guidelines 22 issued by the Karnataka State Legal Service Authority for settlement of cases before Lok Adalat, the notional income of the deceased, for the accident of the year 2007, has to considered at `4,000/- per month. The claimants are also entitled for compensation towards loss of future prospects at 40%, which comes to `1,600/-. The total income comes to `5,600/-, out of which
t h of the income has to be deducted towards personal and living expenses of the deceased, thereby the remaining `4,200/- has to be considered for calculating the loss of dependency. Thus, a sum of `8,06,400/- (`4,200/- x 12 x
17) is awarded towards loss of dependency. The claimants are also entitled for `70,000/- under the conventional heads. Therefore claimants are entitled for `8,76,400/- as against `5,47,000/- awarded by the tribunal. Thereby, the claimants are entitled for enhanced compensation of 23 `3,29,400/- with interest at 6% p.a. from the date of petition till its realization.
26. For the aforesaid reasons, the appeal succeeds partly and accordingly this Court proceed to pass the following: ORDER The judgment and award dated 4.2.2012, passed in MVC No.512/2008, on the file of I Addl. Senior Civil Judge and Addl. MACT, Dharwad, so far as exonerating respondent No.2, fastening the liability on respondent No.1 owner of the vehicle, is set aside. Respondent No.2 the insurer is hereby directed to pay the compensation awarded in the case to the claimants and recover the same from the insured respondent No.1 in the very proceeding by filing an execution petition. 24 The appellants are entitled for enhanced compensation of `3,29,400/- with interest at 6% p.a. from the date of petition till its realization. Respondent No.2/insurer is directed to deposit the compensation amount before the tribunal within a period of 60 days. The apportionment, deposit and disbursement of the compensation shall be in terms of the order of the tribunal. Mrk/- Sd/- JUDGE