The Oriental Insurance Company Limited Through Its Regional Office Represented by Its Regional Manager Vs. Y.S. Gangaiah S/O Siddagangaiah and M. Anwar S/O M. Baba - Court Judgment

C.R. Kumaraswamy, J.

1. This is a miscellaneous first appeal filed under Section 173(1) of the Motor Vehicle Act, 1988 against the Judgment and award dated 06.07.2004 passed in M.V.C. No. 4256/2000 on the file of IX Addl. Judge, Member, MACT-7, Court of Small Causes, Bangalore, SCCH No. 7, allowing the case in part and awarding compensation of Rs. 2,00,000/- with interest at 6% p.a.

2. I have heard the learned Counsel for the appellant as well as learned Counsel for the respondent No. 1.

3. Parties will be referred with reference to the status in the claims Tribunal.

4. The contention of the claimant in the Tribunal is as under:

That on 18.08.2000 at about 11.45 p.m. claimant was occupant of the canter bearing No. KA-02-2605. He was on duty. He was passenger travelling from Bangalore towards Tumkur and when it reached near Bommanahalli on NH-4, the driver drove the same in a rash and negligent manner and dashed against the stationed lorry bearing No. MP-07-B-9418. Consequently, claimant sustained injuries. He was aged 40 years. He was a Police Constable. He was earning Rs. 5,000/ - p.m.

5. The contention of Respondent No. 1 -Insurance Company in the Tribunal is as under:

Respondent No. 1 - the Oriental Insurance Company Limited has filed objection statement denying the averments made in the claim petition. This respondent states that the vehicle in question was insured with this respondent Claimant was gratuitous passenger. So this respondent is not liable to indemnify to the owner of the vehicle.

In so far as the negligence is concerned, Tribunal relying on the documentary evidence namely certified copy of FIR, Charge Sheet, Wound Certificate and in the absence of rebuttal evidence by the respondent has come to a conclusion that the driver of the canter bearing No. KA-02-2605 was driving the same in a rash and negligent manner. Finding of the Tribunal in respect of negligence is based on oral and documentary evidence and it is sound and proper.

6. Tribunal considering the evidence of PW-1 and FW-2 and also documentary evidence that is Ex.P.4-Wound Certificate, Ex.P.5-Discharge summary, Ex.P.6-Medical bills, Ex.P.7 to 15 - 2 case sheets, 1 OPD slip and 6 X-rays has awarded a compensation under different heads as under:

Pain and suffering : Rs. 60,000.00Medical expenses : Rs. 50,000.00Conveyance, food and : Rs. 5,000.00nourishmentLoss of earning : Rs. 15,000.00Under the head of : Rs. 50,000.00disabilityLoss of amenities : Rs. 20,000.00-----------------Total : Rs. 2,00,000.00-----------------

In all Tribunal has awarded a compensation of Rs. 2,00,000/-.

7. Being aggrieved, the Insurance Company has filed this appeal. In this appeal, the Insurance Company has challenged the liability fastened on it and also the quantum of compensation amount.

8. Learned Counsel for the appellant submitted as follows:

Claimant was travelling as a gratuitous passenger in a goods vehicle. To establish that claimant was a Police Constable and was on duty, no evidence was placed on record. Rule 100 of the Karnataka Motor Vehicles Rules gives protection only in cases where the claimant prove that he was a Police Officer in an uniform and was on duty at the time of accident. The words used in Rule 100 emphasis that the Police Officer in uniform and on duty are being protected when they travel in a goods vehicle. There is no material evidence on record to show that the claimant was a Police Officer and he was on duty. In the case of National Insurance Co. Ltd. v. Bommithi Subbhayamma and Ors. reported in : 2005 ACJ 721 it is held that no person to travel in any goods vehicle is permitted. The Insurance Company is not liable to pay the compensation for a gratuitous passenger travelling in a goods vehicle. The vehicle involved in an accident was a goods vehicle and claimant was gratuitous passenger and he was travelling in the said vehicle by paying fare charges. Hence fastening on it, the liability to pay compensation is illegal.

9. It is the contention of the learned Counsel for the appellant that claimant was travelling as a unauthorised passenger in a goods vehicle. He was not in uniform. He has not produced any documentary evidence to show that he was on duty. The citation relied in the case of United India Insurance Co. Ltd. v. Chandramma reported in ILR 1999 Kar 523 is not applicable to the facts and circumstances of the present case. Rule 100 of Karnataka Motor Vehicles Rules, the policeman should be in uniform and he should be on duty and in case if he met with an accident, for bodily injury or death occurred, the Insurance company is liable to pay compensation. In this case, the police constable has admitted in his cross-examination that he paid fare to the driver. Therefore, Insurance Company is not liable to pay the compensation amount.

10. Learned Counsel for the appellant has also relied on several Apex Court decisions:

1. United India Insurance Co., Ltd. v. Smt. Chandramma and Ors. reported in ILR 1999 Kar 523.

Motor Vehicles Act, 1939 (Central Act No. 4 of 1939) Section - 96 Two Police Constables after completing their duty, Boarded a Lorry proceeding towards the police station to which they were attached. Within a short while thereafter there was a violent collision between this Lorry and another stationery Truck parked on the Highway without parking lights. Tribunal awarded compensation holding that they were not passengers. In the Appeal filed by the Insurer the High Court Held -deceased constable had every reason to be travelling in the Lorry as a member of the Law Enforcement Machinery and as such entitled to compensation as he would not come within the excluded category.

2. New India Assurance Co. Ltd. v. Asha Rani and Ors. reported in : 2003 ACJ (Volume-I).

Motor Vehicles Act, 1988, Section 147(1) (prior to its amendment in 1994) - Motor Insurance - Goods vehicle - Passenger risk -Liability of insurance company - Death of or injuries sustained by the owner of goods or his authorised representative being carried in a goods vehicle when that vehicle met with accident prior to amendment of 1994 -Whether insurance company is liable - Held: No. : 2000 ACJ 1 (SC) overruled: : 2001 ACJ 1847 (SC) answered).

3. Oriental Insurance Co. Ltd. v. Premlata Shukla and Ors. reported in 2007 ACJ 1928.

Motor Vehicles Act, 1988, Section 166 - Claim application - Maintainability of - Negligence - Proof of rashness and negligence of driver of offending vehicle is sine qua non for maintaining claim application - Collision between a van and truck and a passenger in van sustained fatal injuries - Registration number of truck could not be noted - On the basis of F.I.R. lodged by a passenger in van, criminal case against driver of truck was initiated but had to be closed as the truck and its driver could not be traced - Claimants filed claim against driver, owner and insurance company of van - Tribunal on the basis of evidence including F.I.R. held that van driver was not driving rashly and negligently and dismissed the claim application - High Court relied upon the deposition of two witnesses and observed that as F.I.R. was not legally proved, driver of van should be held guilty of rash and negligent driving - F.I.R. had been relied upon by the parties on both sides and the claimants had made a reference to it in their claim application - F.I.R. was marked as an exhibit as both the parties intended to rely upon it. - Whether the Tribunal was justified in relying upon the F.I.R. irrespective of the fact that contents of the document have been proved or not - Held: yes; judgment of High Court set aside and claim application dismissed. : 2006 ACJ 1081 (MP) reversed.

4. Oriental Insurance Co. Ltd. v. Meena Variyal and Ors. reported in : 2007 ACJ 1284.

Motor Vehicles Act, 1988, Section 147(1) - Motor insurance - Policy - Liability of insurance company - Death of Regional Manager of company which owned the car when it dashed against a tree - Claimants deposed that car was being driven by the driver and deceased was a passenger - Driver who was in the car lodged the F.I.R. stating that deceased was driving the car at the time of accident - Insurance company seeks to avoid its liability on the ground that policy did not cover the employee of the owner company who was driving the car while attending to the business of the company, deceased was not a third party in terms of the policy or in terms of the Act, Act did not provide for statutory coverage of such a person, there was no special contract and deceased did not possess a driving licence - Tribunal held that car was being driven by the deceased at the time of accident and he had no licence and exempted insurance company from liability on the ground that policy did not cover such an employee - Appeal by claimants contending that even if there was breach of policy the dispute was inter se insurer and insured, claimants cannot be denied the benefit of insurance - High Court allowed the appeal and following Swaran Singh's case held that it is not open to insurance company to avoid liability under the Act and directed insurance company to pay the amount and take recourse to recover the amount from the insured - Whether the insurance company is liable to indemnify the insured or is obliged to satisfy the award and then have recourse to the insured - Held: no; where a person is not a third party within the meaning of the Act. the insurance company cannot be made automatically liable merely by resorting to Swaran Singh's ratio; deceased being an employee not covered under Workmen's Compensation Act, has not to be covered compulsorily under Motor Vehicles Act and there is no special contract covering such a person, insurance company cannot be made liable to pay the compensation first and then to recover it from the insured; even if the case of the claimants that car was driven by the driver was hue, then also the claimant had to establish negligence of the driver before the insurance company could be asked to indemnify the insured and there is no finding of his negligence; High Court's order set aside and Tribunal's order restored. : 2007 ACJ 721 (SC) concurred.

5. National Insurance Co. Ltd. v. Bommithi Subbhayamma and Ors. reported in : 2005 ACJ 721.

Motor Vehicles Act, 1988, Section 147(1) - Motor insurance - Goods vehicle -Passenger risk - Gratuitous passenger -Liability of insurance company - Death of gratuitous passenger in truck when it met with accident - Tribunal allowed compensation but exempted the insurance company from liability - High Court in appeal affixed liability on the insurance company - Whether the insurance company is liable - Held: no; claimants entitled to recover awarded compensation from owner of vehicle. : 2004 ACJ 428 (SC) relied.

6. Branch Manager, United India Insurance Co. Ltd. v. Kalavathi and Ors. reported in : ILR 2007 Kar 3885.

Motor Vehicles Act, 1988 - Accident - Death of the Victim -Claim petition by the L.R's - Finding of the Tribunal that there was negligence on the part of the driver - The risk to the occupants was covered, appellant is liable to pay the compensation - Appealed against - On Facts, Held, Though the deceased was a passenger in the goods vehicle his presence was not unauthorised. The deceased was permitted to board the vehicle by the driver who was incharge of the vehicle - The deceased was connected with the journey atleast upto the accident spot - The insurance company is liable to pay the compensation - Award of the Tribunal is upheld. Appeal is dismissed.

7. Ramesh Kumar v. National Insurance Co. Ltd. and Ors. reported in : 2001 ACJ 1565.

Motor Vehicles Act, 1939, Section 95(1) - Motor insurance - Goods vehicle -Gratuitous passenger - Passenger risk - Liability of insurance company - Whether insurance company is liable for death or bodily injury to a gratuitous passenger including owner of goods or his representative travelling in a goods vehicle - Held: no; liability lies on the owner of vehicle. : 1999 ACJ 1 (SC) followed.

8. Devilal and Anr. v. Sidhanath through L.Rs. Ramakant and Ors. reported in : 2004 ACJ 1515.

Motor Vehicles Act, 1988, Section 147(1) - Motor insurance - Goods vehicle -Gratuitous passenger - Additional premium paid for non-fare paying passengers -Liability of insurance company - Gratuitous passengers in Goods vehicle are not covered under Act policy but it is always open for insured to get covered higher risk by payment of extra premium had been paid to cover risk of non-fare paying passengers - Whether insurance company is liable for injuries sustained by gratuitous passenger ill a goods vehicle - Held: yes; insurance company had undertaken the liability.

11. The learned Counsel for Respondent No. 1 supports the impugned Judgment and Award. The learned Counsel further submits that quantum of compensation awarded is just and reasonable. He further submits that finding recorded by the Tribunal in so far as fastening liability is also sound and proper.

12. The points that arise for my consideration in this appeal are as under:

i) Whether quantum of compensation awarded by the Tribunal deserves to be reduced?

ii) Whether finding recorded by the Tribunal fastening liability on the Insurance Company to satisfy the award is proper?

13. My answers to the above points are as under:

Point No. 1 .... YesPoint No. 2 .... Yes

14. Point No. 1: FW.2 - Doctor has stated in his evidence that claimant has sustained the following injuries:

a) Laceration Left Great Toe injury.

b) Sutured injury over the Left Foot.

c) Lacerated Injury over the right leg.

d) Fracture of both bones left leg.

e) Fracture of both bones right leg.

f) Swelling of the right ankle.

g) Bimalleolar fracture right ankle.

h) Fracture of II metatarsal bone.

i) Dislocation of II Toe proximal phalanx.

Doctor stated that the Injury Nos. a, b, c, f are simple in nature and injury Nos. d, e, g, h, i are grievous in nature. He has further stated that there is 50% of total disability to the right lower limb and 20% disability to the whole body.

15. In this case, the Tribunal has awarded compensation of Rs. 60,000/- towards 'pain and suffering' and on other heads awarded a compensation of Rs. 1,40,000/-.

16. I have carefully examined the evidence of the claimant and the doctor and also the wound certificate. Claimant has sustained 5 grievous injuries and other injuries are simple in nature. Tribunal has awarded compensation of Rs. 60,000/- under the head 'pain and suffering' which is on the higher side and in my view, it is just and reasonable to award Rs. 35,000/- under the head 'pain and suffering'. In this case, claimant is a Policeman and he is entitled to take treatment at the recognised Hospital and the expenses incurred by him will be reimbursed by the Government. Such being the case, Tribunal awarding compensation of Rs. 50,000/-under the head 'medical expenses' is on the higher side. Considering the facts and circumstances of the case and also material placed on record, the compensation amount of Rs. 50,000/- awarded under this head is reduced to Rs. 25,000/-.

17. In this case, the claimant, is continuing in his employment. Even though, he is continuing, the Court cannot lose sight of reduced eligibility for employment. It is difficult to measure exact sum which he has lost under this head. The Tribunal has awarded Rs. 50,000/- under the head 'disability'. To award compensation under the head 'disability' may not be proper on the sound principles of law. Taking into consideration of the evidence placed on record and also material placed on record and the fact that claimant is continuing in the occupation even after the accident and in the absence of definite evidence about what was the amount lost, I feel it is just and reasonable to award Rs. 30,000/- under the head 'reduced eligibility of employment' and losing of chances of a better employment or better prospects in the same employment.

18. The compensation amount of 2,00,000/- as awarded bv the Tribunal is reduced to Rs. 1.30.000/-. Accordingly, I answer point No. 1 in the affirmative.

19. Point No. 2: Rule 100 of Karnataka Motor Vehicles Rules indicates that Policeman in uniform travelling on duty are permitted to travel in goods vehicle.

20. The learned Counsel for the appellant submitted that the claimant was travelling as unauthorised passenger in a goods vehicle. He was not wearing uniform. Rule 100 of the Karnataka Motor Vehicles Rules indicates that the policeman should be in uniform and he should be on duty to claim protection. In this case, police constable in his cross-examination has stated that he was working as a police constable at Ulsoor Gate Police Station since 13.07.2000. He has not produced any documents to show that he was on official duty. During his cross-examination, he clearly admitted that he was on sentry duty on that day from 6.00 p.m. to 10.00 p.m. The cause title of the petition discloses that he was a resident of Nelamangala Taluk, Bangalore Rural District and he was working as a Police Constable at Ulsoor Gate Police Station. On 18.08,2000 after attending his duty up to 10.00 p.m. he was proceeding in a lorry to his house and at. about 11.45 p.m. he met with an accident, as a result of which he sustained injuries. There is a positive evidence to that effect in this case. The contents of Ex.P.1-FIR discloses that the accident occurred on 18.08.2000 at 11.45 p.m. on NH-4. A police constable proceeding to the Police Station for performing the duty and returning to the house after completion of the duty are all associated or attached to the function of the office. Therefore, the contention of the learned Counsel for the appellant that the claimant was not on duty has no force. According to Rule 100 of Karnataka Motor Vehicle Rules some privilege has been given to the policeman to travel in a goods vehicle. It is the contention of the learned Counsel for the appellant that in the instant case, policeman was not in uniform and no documentary evidence has been produced to show that he was on duty. But evidence placed on record clearly indicates that claimant was a policeman and he was returning to his house after guarding and watching the Police Station.

21. Rule 100 of Karnataka Motor Vehicle Rules is made in exercise of power conferred under a Statute. According to Rule 100 of Karnataka Motor Vehicles Rules, some privilege has been given to the policemen to travel in goods vehicle. This Rule has been formulated so as to enable the member of law enforcement, agency, while on duty, to travel in a goods vehicle so as to enable them to protect the people and property, investigation of offences and apprehension of offenders. The general object of the Rule is to benefit a particular class of person. Therefore, the Court has to choose a wide meaning, which in its opinion carries all the object of the Rule, morefully when a Rule wants to protect the member of the law enforcement agency. It is my view that the Court should not make etymological excursions. Further, this Court cannot adopt a pedantic approach, but ought to adopt a constructive approach, which would sub-serve and carry-out the purpose and object of the Rule. In these circumstances, I am of the considered opinion that the policemen after attending sentry duty, returning to the house is associated or attached with the function arising out of his office. Therefore, the insurance company taking up a contention that there is no coverage in respect of policemen travelling in goods vehicle cannot be accepted.

22. Except United India Insurance Co. Ltd. v. Smt. Chandramma and Ors. reported in ILR 1999 Kar 523, in my view, the other rulings cited by the learned Counsel for the appellant are not applicable to the facts and circumstances of the present case.

23. In the light of the discussion made above, I am of the view that the Insurance company is liable to pay the compensation to the policeman who was proceeding to duty or returning to the place of residence after performing duty. Under these circumstances, the liability is fastened on the insurance company to satisfy the award amount. Therefore, finding recorded by the Tribunal fastening liability on the insurance company is legal and valid. Hence I answer Point No. 2 in the affirmative.

24. In view of the above discussion, I pass the following:

ORDER

i) Appeal is allowed in part.

ii) Compensation amount of Rs. 2,00,000/- as awarded by the Tribunal is reduced to Rs. 1,30,000/-.

iii) Respondent Nos. 1 & 2 before the Tribunal who are Insurer and owner of the vehicle in question are jointly and severally liable to pay the compensation amount.

iv) Modify the award accordingly.