BEFORE THE HON’BLE MRS. JUSTICE S.SUJATHA M.F.A...
Transcript of BEFORE THE HON’BLE MRS. JUSTICE S.SUJATHA M.F.A...
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IN THE HIGH COURT OF KARNATAKADHARWAD BENCH
DATED THIS THE 5TH DAY OF DECEMBER, 2016
BEFORE
THE HON’BLE MRS. JUSTICE S.SUJATHA
M.F.A NO.21854 OF 2012 c/wM.F.A. Nos.21203/2012, 21204/2012,
22595/2010 [MV]
IN MFA No.21854/2012:
BETWEENSOMAPPA S/O. MALLAPPA @ MADIVALAPPA YAKKUNDI,AGE: 56 YEARS, OCC: AGRICULTURE, NOW NIL,R/O. KORAVINAKOPPA, TQ: BAILHONGAL,DIST: BELGAUM. ... APPELLANT
(By SRI. HANAMANT R. LATUR, ADV.)
AND
1. IMAMSAB S/O. FAKRUSAB BALIKAYIAGE: 61 YEARS, OCC: BUSINESS,R/O. VAKKUND, TQ: BAILHONGAL,DIST: BELGAUM.
2. THE UNITED INDIA INSURANCE CO. LTD.,DIVISIONAL MANAGER, DIVISIONAL OFFICE,MARUTI GALLI, BELGAUM. ... RESPONDENTS
( RESPONDENTNO.1 DISPENSEDBY SRI. N R KUPPELUR ADV. FOR R2)
MFA FILED U/SEC.173(1) OF MV ACT, AGAINST THEJUDGMENT AND AWARD DTD:29-12-2011 PASSED IN MVCNO.609/2010 ON THE FILE OF PRESIDING OFFICER, FASTTRACK COURT-I AND MEMBER, ADDL. MACT, BELGAUM,
R
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PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATIONAND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A. No.21203/2012:
BETWEEN
THE DIVISIONAL MANAGER,UNITED INDIA INSURANCE CO. LTD.,DIVISIONAL OFFICE,MARUTI GALLI, BELGAUM.REP. ITS SENIOR DIVISIONAL MANAGER. ... APPELLANT
(BY SRI. NAGANGOUDA R. KUPPELUR, ADV. )
AND
1. SRI. SOMAPPA S/O MALLAPPA @ MADIWALAPPA YAKKUNDI,AGE: 56 YEARS, OCC: AGRICULTURE,R/O: KORAVINKOPPA TALUK: BAILHONGAL.
2. SRI. IMAMSAB S/O FAKRUSAB BALIKAYI,AGE: 62 YEARS, OCC: BUSINESS,R/O: VAKKUND, TALUK: BAILHONGAL,DIST: BELGAUM.(OWNER OF THE GOODS VEHICLE,NO.KA-24/A-2929). ... RESPONDENTS
(BY SRI. HANUMANT R. LATUR, ADV. FOR R-1 & SRI. MADANMOHAN M KHANNUR FOR R1)
MFA FILED U/SEC.173(1) OF MV ACT, 1988, AGAINST THEJUDGMENT AND AWARD DTD:29-12-2011 PASSED IN MVCNO.609/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACKCOURT-I AND MEMBER, ADDL. MACT, BELGAUM, AWARDING THECOMPENSATION OF RS.65,000/- WITH INTEREST AT THE RATE OF 9%P.A., FROM THE DATE OF PETITION TILL COMPLETE REALISATION.
IN MFA NO. 21204/2012:
BETWEEN
THE DIVISIONAL MANAGER,UNITED INDIA INSURANCE CO. LTD.,DIVISIONAL OFFICE,
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MARUTI GALLI BELGAUM,REP. ITS SENIOR DIVISIONAL MANAGER. ... APPELLANT
(BY SRI. N.R.KUPPELUR, ADV.)
AND
1. SRI. FAKKIRAPPA S/O RAMAPPA MARKUMBI,AGE: 67 YEARS, OCC: AGRICULTURE,R/O: VAKKUNDA, TALUK: BAILHONGAL.
2. SRI. IMAMSAB S/O FAKRUSAB BALIKAYI,AGE: 62 YEARS, OCC: BUSINESS,R/O: VAKKUND, TALUK: BAILHONGAL,DIST: BELGAUM.(OWNER OF THE GOODS VEHICLE KA.24/A-2929) ... RESPONDENTS
(BY SRI. M.M.KHANNUR, ADV. FOR R-2.)
MFA FILED U/SEC.173(1) OF MV ACT, 1988, AGAINSTTHE JUDGMENT AND AWARD DTD:29-12-2011 PASSED IN MVCNO.776/2010 ON THE FILE OF THE PRESIDING OFFICER, FASTTRACK COURT-I AND MEMBER, ADDL. MACT, BELGAUM,AWARDING THE COMPENSATION OF RS.5,000/- WITHINTEREST AT THE RATE OF 9% P.A., FROM THE DATE OFPETITION TILL COMPLETE REALISATION.
IN MFA NO.22595/2010:
BETWEEN
UNITED INDIA INSURANCE CO. LTD.BELGAUM DO. THROUGH ITS DIVISIONALOFFICE, SEETA SMRITI, P B NO. 156MARUTHI GALLI, BELGAUMREP: BY ITS SR. DIVISIONAL MANAGERS.M. DHARMANANDA RAO. ... APPELLANT
(BY SRI. N. R. KUPPELUR, ADV.)
AND
1. SRI. SHIVAPPA S/O MADIWALAPPA YANAGIAGE: ABOUT 41 YEARS, OCC: BUSINESS
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FOOD & GRAIN MERCHANT,R/O KORVIKOPPA BAILHONGAL
2. MR. IMAMSAB FAKRUSAB BALIKAI,MAJOR, OCC: BUSINESSR/O VAKKUND TQ: BAILAHONGAL(OWNER OF GOODS TEMPO KA-24/A-2929). ... RESPONDENTS
(BY SRI. SRINAND A. PACHHAPURE FOR R1)
MFA FILED U/SEC.173(1) OF MV ACT, 1988, AGAISNTTHE JUDGMENT AND AWARD DTD:08-03-2010 PASSED INMVC.NO.1614/2008 ON THE FILE OF THE MEMBER, MACT,BAILHONGAL, AWARDING THE COMPENSATION OF RS.80,500/-WITH INTEREST AT THE RATE OF 6% P.A., SHALL DEPOST THECOMPENSATION AMOUNT WITHIN THREE MONTHS FROM THEDATE OF THE ORDER.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAYTHE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
The Insurer is challenging the Judgment and
Order passed by the Motor Accident Claims Tribunal,
Belgaum [‘Tribunal’, for short] in MVC Nos. 609/2010,
776/2010 and 1614/2008 whereas the claimant has
filed appeal against the Judgment and Order in MVC
No.609/2010.
2. Since all these matters arise out of the same
accident, the same are heard together and disposed of
by this common Judgment.
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3. Briefly stated the facts are:
That the claimants instituted petition before the
Tribunal seeking compensation for the injuries
sustained by them in the road traffic accident which
occurred on 3.5.2008 while travelling in a goods vehicle
bearing registration No.KA-24/A-2929 [offending
vehicle] along with their goods. It was contended that
the accident caused due to the negligence of the driver
of the offending vehicle. The Insurer contested the
claim. The Tribunal, after appreciating the evidence on
record, awarded compensation fastening the liability on
the Insurer of the offending vehicle. Being aggrieved,
the Insurance Company is in appeal challenging the
liability as well as the quantum in the three cases
referred to above whereas the claimant is seeking
enhancement of compensation as the quantum of
compensation awarded being inadequate in MVC
No.609/2010.
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4. The learned Counsel appearing for the Insurer
would refer to Section 147 of the Motor Vehicles
Act,1988 [‘Act’ for short] which runs thus:
“147. Requirements of policies and
limits of liability-(1) In order to comply with
the requirements of this Chapter, a policy of
insurance must be a policy which-
(a) xxxx xxxx xxxx
(b) insures the person or classes of
persons specified in the policy to the extent
specified in sub-section(2)-
(i) against any liability which may be
incurred by him in respect of the death of or
bodily injury to any person, including any
person, including owner of the goods or his
authorised representative carried in the
vehicle or damage to any property of a third
party caused by or arising out of the use of
the vehicle in a public place.”
The learned Counsel would contend that in terms of
Section 147[1] of the Act, only one owner of the goods or
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his authorized representative carried in the vehicle is
entitled for the compensation. The word ‘owner’ cannot
be read as ‘owners’ of the goods. In other words, the
learned Counsel submits that the intention of the
legislature in amending section 147[1] of the Act by Act
No.54/1994 with effect from 14.11.1994 is in much as
the sole owner of the goods travelling in a goods vehicle
to be covered under the statutory policy. No multiple
number of owners carrying with their goods travelling in
the goods vehicle are entitled for compensation as per
the statutory policy issued under Section 147[1] of the
Act.
5. Secondly, the learned Counsel placing reliance on
the Judgment of the Hon’ble Apex Court in the case of
‘NATIONAL INSURANCE CO., LTD., v. CHOLLETI
BHARATAMMA’ reported in 2008 [1] SCC 423 would
contend that seven persons were travelling in the
offending vehicle at the time of the accident out of which
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three persons claimed compensation. The permitted
seating capacity of the offending vehicle was only three
including the driver and the cleaner and only one non
fare paying passenger as owner of goods was entitled to
travel in a cabin and the claimants travelled in the
offending vehicle beyond the seating capacity contrary
to the provisions of the Act and Rules. Thus, the
Tribunal grossly erred in fastening the liability on the
Insurer sans the appreciation of this vital aspect.
6. Thirdly, it was contended that the quantum of
compensation awarded by the Tribunal is
disproportionate to the nature and gravity of the
injuries sustained by the claimants and the same
requires to be reduced considering the material evidence
on record.
7. Per contra, learned Counsel for the claimant in
MVC No.609/2010 would contend that the Tribunal
failed to appreciate the nature of injuries sustained by
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the claimant. The quantum of compensation awarded is
in utter disregard to the evidence placed by the
claimant. The learned Counsel seeks for enhancement
of compensation as the compensation awarded by the
Tribunal being not the just compensation in terms of
the legal principles laid down by the Hon’ble Apex Court
in catena of judgments.
8. As regards the liability, the learned Counsel would
submit that the Insurer has not let in any evidence to
rebut the evidence of the claimant in much as the
claimant travelling in a goods vehicle as the owner of
the goods. The Tribunal rightly appreciated the
evidence to arrive at a conclusion that the claimant was
owner of the goods travelling in the goods vehicle,
entitled to compensation under Section 147[1] of the
Act.
9. Heard the learned Counsel for the parties and
perused the material on record.
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10. As regards the arguments advanced by the learned
counsel for the Insurer in much as the phrase “owner of
the goods or his authorised representative”, suggests
singular owner or authorised representative is not
acceptable. At this juncture, it would be beneficial to
refer to Section 13 of the General Clauses Act, 1897,
wherein it provides that in all Central Acts and
Regulations, unless there is anything repugnant in the
subject or context, i) xxxx ii) words in the singular shall
include the plural and vice versa.
11. In terms of Section 13 of the General Clauses Act,
1897, referred to above, it can be held that the owner or
his authorised representative shall include the owners
or his authorised representatives. It cannot be read in a
restrictive sense. Section 147 of the Act is quite
comprehensive in scope and meaning. It has to be given
wider, effective and practical meaning so that the object
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of the legislature enabling the owners of the goods to be
covered under the statutory policy cannot be defeated.
12. It is axiomatic to refer to the judgment of this
Court in the case of NATIONAL INSURANCE COMPANY
LTD., VS. ALIPER AND ANOTHER reported in ILR
2006 KARNATAKA 947) wherein it is categorically held
thus:
5. The Rule 100 of Karnataka Motor Vehicles
Rules permits certain categories of persons to
travel in the goods vehicle. In case of lighter
goods vehicle, the permitted capacity of
passengers is 2+1 including driver. In the case
of heavy goods vehicle, the permitted capacity
is 5+1 including the driver. Therefore, as per
the tariff regulation if there is a contract to
cover the risk of owner of goods travelling in
the vehicle under the category of non-fare paid
passenger as per IMT 13/14, the insurer will
be liable to pay the compensation.
6. In the rural lifestyle of India, with very poor
inadequate transport infrastructure, the
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agriculturists often jointly engage a goods
vehicle for transportation of their agricultural
produce. In such a situation, the
owners/representatives of the goods are
eligible to travel along with their goods.
However, the number of such
owners/representatives should not exceed
permitted seating capacity as stated in Rule
100 of Karnataka Motor Vehicles Rules. In that
view, the contention that the entire lorry
should have been exclusively hired by only
one person and only in respect of such owner
of goods, the insurer incurs liability under
Section 147 is an untenable argument.”
13. Further, it is apt to refer to Rule 100 of the
Karnataka Motor Vehicle Rules. The same is extracted
herein for ready reference:
“100. Carriage of Persons In Goods Vehicle –
1) Subject to the previous of this rule, no
person shall be carried in goods vehicle:
Provided that the owner or the hirer or a
bonafide employee of the owner or the hirer of
the vehicle carried free of charge or a police
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officer in uniform travelling on duty may be
carried in a goods vehicle, the total number of
persons so carried-
i) in the light transport goods vehicle
having registered laden weight less than 990
Kgs. not more than one:
ii) in any other light transport goods not
more than three; and
iii) in any goods vehicle not more than
seven:
Provided that the provisions of sub-clause (ii)
and (iii) of the above proviso shall not be applicable
to the vehicles plying on inter-state routes or the
vehicles carrying goods from one city to another
city.”
14. The Hon’ble Apex Court in the case of ‘B.V.
NAGARAJU vs. M/S. ORIENTAL INSURANCE CO.
LTD.DIVISIONAL OFFICE, HASSAN’ reported in 1996
[4] SCC 647 has held thus:
“It is plain from the terms of the
Insurance Policy that the insured vehicle was
entitled to carry six workmen, excluding the
driver. If those six workmen when travelling
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in the vehicle, are assumed not to have
increased any risk from the point of view of
the Insurance Company on occurring of an
accident, how could those added persons
be said to have contributed to the causing of it
is the poser, keeping apart the load it was not
carrying. Here it is nobody's case that the
driver of the insured vehicle was responsible
for the accident. In fact, it was not disputed
that the oncoming vehicle had collided head-
on against the insured vehicle, which resulted
in the damage. Merely by lifting a persons or
two, or even three, by the driver or the
cleaner of the vehicle, without the knowledge
of owner, cannot be said to be such a
fundamental breach that the owner
should, in all events, be denied
indemnification. The misuse of the vehicle
was somewhat irregular though, but not so
fundamental in nature so as to put an end to
the contract, unless some factors existed
which, by themselves, had gone to contribute
to the causing of the accident.”
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15. Further, in the case of ‘NATIONAL INSURANCE
COMPANY LIMITED vs. SWARAN SINGH AND
OTHERS’ reported in [2004] 3 SCC 297, the Hon’ble
Apex Court has held as under:-
“49. Such a breach on the part of the
insured must be established by the insurer to
show that not only the insured used or
caused or permitted to be used the vehicle in
breach of the Act but also that the damage he
suffered flowed from the breach.”
16. In the case of ‘LAKHMI CHAND vs. RELIANCE
GENERAL INSURANCE’ reported in (2016) 3 SCC 107,
the Hon’ble Apex Court has held thus:
“It becomes very clear from a perusal of
the above mentioned case law of this Court
that the insurance company, in order to avoid
liability must not only establish the defence
claimed in the proceeding concerned, but also
establish breach on the part of the
owner/insured of the vehicle for which the
burden of proof would rest with the insurance
company. In the instant case, the respondent-
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Company has not produced any evidence on
record to prove that the accident occurred on
account of the overloading of passengers in
the goods carrying vehicle. Further, as has
been held in the case of B.V. Nagaraju (supra)
that for the insurer to avoid his liability, the
breach of the policy must be so fundamental
in nature that it brings the contract to an end.
17. In the case of NATIONAL INSURANCE CO., LTD.,
VS. ANJANASHYAM AND OTHERS reported in 2007
AIR SCW 5237, the Hon’ble Apex Court has held thus:
“16. Then arises the question, how to
determine the compensation payable or how
to quantify the compensation since there is no
means of ascertaining who out of the
overloaded passengers constitute the
passengers covered by the insurance policy
as permitted to be carried by the permit itself.
As this Court has indicated, the purpose of
the Act is to bring benefit to the third parties
who are either injured or dead in an accident.
It serves a social purpose. Keeping that in
mind, we think that the practical and proper
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course would be to hold that the insurance
company, in such a case, would be bound to
cover the higher of the various awards and
will be compelled to deposit the higher of the
amounts of compensation awarded to the
extent of the number of passengers covered
by the insurance policy.”
18. Admittedly, the offending vehicle in question was a
light transport goods vehicle having registered laden
weight more than 990 kgs. In terms of Rule 100 of
Karnataka Motor Vehicle Rules, it is settled legal
position that the Insurer is liable to indemnify the
owner in much as three persons carried in the goods
vehicle along with their goods other than the driver.
The claim in the present case is with respect to three
persons. The liability of the Insurer being confined to
three persons, the Insurer cannot be afforded to eschew
from the liability.
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19. The learned counsel for the appellant placed much
emphasis on the judgment of Cholleti Bharatamma’s
case supra, to contend that the claimants were
travelling in the goods vehicle as gratuitous passengers,
the owner of the goods travelling along with the goods to
be restricted to only one person. The Hon’ble Apex
Court has laid down the dictum in the context of
Andhra Pradesh Motor Vehicle Rules. Rule 277 (3) and
Rule 252 of the Andhra Pradesh Motor Vehicle Rules
being not in parimateria with Rule 100 of the Karnataka
Motor Vehicle Rules, the said judgment is
distinguishable and not applicable to the facts and
circumstances of the present case. As aforesaid, Rule
100 of the Karnataka Motor Vehicle Rules, being framed
in accordance with Section 65 of the Act, the case of the
Insurer has to be examined in accordance with Section
147 (1) of the Act read with Rule 100 of the Karnataka
Motor Vehicle Rules. Applying the principles of law laid
down by this Court in Alipeer’s case cited supra, the
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Insurer is liable to indemnify the owner of the goods
vehicle since it is an indisputable fact that the
claimants were travelling in the offending vehicle along
with their goods i.e., with wheat bags, channa (pulse)
bags. It was the specific contention of the claimants
that they were carrying the goods to sell the same in
Dharwad market. It is significant to note that no
evidence is let in by the Insurance Company to rebut
the evidence of the claimants. Insurance Company has
not stepped into the witness box to substantiate that
the claimants were travelling in the goods vehicle as
gratuitous passengers. On the other hand, the copy of
the complaint marked at Ex.P.1 and all the police
records clearly establishes the claimants transporting
their goods namely, wheat and pulse in the offending
vehicle at the time of the accident. Further, it is
pertinent to note that the Insurer has not even made an
attempt to make available the copy of the Insurance
Policy to establish the breach of terms and conditions of
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the policy. The Insurance Company has become more
wiser in the appellate stage to contend that the Tribunal
erred in not appreciating the material evidence on
record. As could be seen, the Tribunal profusely
analysed the material evidence to arrive at a conclusion
that the claimants were travelling as owners of the
goods in the offending vehicle. As such the Insurer
cannot be exonerated from the liability in view of the
amendment to Section 147 (1) of the Act with effect from
14.11.1994. Thus, the argument advanced at the
hands of the learned counsel for the Insurer on this
point fails.
20. As regards the quantum of compensation, the
Tribunal has appreciated the evidence in extenso and
the compensation awarded is just and equitable in the
facts and circumstance of the case. No good ground is
made out by the parties to warrant interference with the
well reasoned judgment and order.
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For the reasons aforesaid, appeals being sans
merit, stands dismissed.
Amount in deposit shall be transferred to the
jurisdictional Tribunal for disbursement.
Sd/-
JUDGE
AN/jm/-