Karnataka High Court
K R Sundar vs M Chinnadas on 23 December, 2021
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
M.F.A NO. 2603 OF 2013 (MV-D)
C/W
M.F.A CROB NO. 14 OF 2016 (MV-D)
IN MFA NO.2603/2013
BETWEEN:
K R SUNDAR
S/O K RAJU
AGED ABOUT 56 YEARS
R/O ARABILACHI CAMP
BHADRAVATHI TALUK
SHIMOGA DISTRICT-577 201
...APPELLANT
(BY SRI B.S. PRASAD, ADVOCATE FOR
SRI B.R. PRASANNA, ADVOCATE)
AND:
1. M CHINNADAS
S/O LATE MUNISWAMY KUMBAR
AGED ABOUT 21 YEARS
AGRICULTURIST COOLIE
2. DEVARAJ M
S/O LATE MUNISWAMY KUMBAR
AGED ABOUT 18 YEARS
AGRICULTURIST COOLIE
2
3. DEEPA M
D/O LATE MUNISWAMY KUMBAR
AGED ABOUT 15 YEARS
RESPONDENT NO.2 AND 3 ARE MINOR
REP. BY THEIR BROTHER
M. CHINNADAS, THE 1ST RESPONDENT
ALL ARE R/O VISHWANAGAR
ARABILACHI CAMP, ARABILACHI POST
BHADRAVATHI TALUK
SHIMOGA DISTRICT-577201
4. H RUDRAPPA
S/O HANUMANTHAPPA
AGED ABOUT 42 YEARS
R/O KUDLIGERE VILLAGE
BHADRAVATHI TALUK
SHIMOGA DISTRICT-577201
5. UNITED INDIA INSURANCE CO. LTD.
P B NO.123, CHANNAGIRI ROAD
BHADRAVATHI, SHIMOGA DISTRICT-577201
...RESPONDENTS
(BY SMT. MANJULADEVI R KAMADOLLI, ADVOCATE
FOR R1 TO R3; R4 V/C/O DTD: 12.01.2016 APPEAL
IS DISMISSED AGAINST R4;
SRI.RAVISH BENNI, ADVOCATE FOR R5)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 28.11.2012 PASSED IN MVC
NO.1058/2011 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE, JMFC, ADDITIONAL MACT-14, BHADRAVATHI, AWARDING A
COMPENSATION OF RS.3,90,000/- WITH INTEREST @ 6% P.A
FROM THE DATE OF PETITION FROM RESPONDENT NO.2 ONLY.
3
IN MFA CROB NO.14/2016
BETWEEN:
1. M CHINNADAS
S/O LATE MUNISWAMY KUMBAR
24 YEAR,
AGRICULTURIST COOLIE
2. DEVARAJ M
S/O LATE MUNISWAMY KUMBAR
AGE: 21 YEARS
AGRICULTURIST COOLIE
3. DEEPA M
D/O LATE MUNISWAMY KUMBAR
AGE: 19 YEARS
(CROSS OBJECTORS 2 & 3 ARE DELETED AS
PER ORDER DATED 17.03.2016)
R/O VISHWANAGAR, ARABILACHI CAMP,
ARABILACHI POST,
BHADRAVATHI TALUK-577 301,
SHIMOGA DIST.
...CROSS OBJECTORS
(BY SMT.MANJULADEVI R KAMADALLI, ADVOCATE)
AND:
1. H RUDRAPPA
S/O HANUMANTHAPPA
AGE: 46 YEARS,
R/O KUDLIGERE VILLAGE
BHADRAVATHI TALUK-577 301,
DRIVER OF TRACTOR-TRAILOR,
BEARING NO.REG. NO.KA-17/T-5566-67
4
2. K.R. SUNDAR
S/O K. RAJU
AGE: 60 YEARS
R/O ARABILACHI CAMP,
BHADRAVATHI TALUK-577301,
OWNER OF TRACTOR-TRAILOR,
BEARING NO.REG. NO.KA-17/T-5566-67.
3. UNITED INDIA INSURANCE CO., LTD.,
P.B. NO.123, CHANNAGIRI ROAD,
BHADRAVATHI-577301,
POLICY NO.240402/47/10/96/00001480.
DIST:SHIMOGA.
...RESPONDENTS
(BY SRI.B.S.PRASAD, ADVOCATE FOR SRI.B.R.PRASANNA,
ADVOCATE FOR R2;
R1 V/C/O DTD: 19.03.2020 SERVICE OF NOTICE IS D/W;
SRI.RAVISH BENNI, ADVOCATE FOR R3)
THIS MFA.CROB IN MFA.NO.2603/2013 FILED U/O 41 RULE
22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED:
28.11.2012 PASSED IN MVC NO.1058/2011 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE, & JMFC, ADDITIONAL MACT-14,
BHADRAVATHI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE MFA AND MFA CROB. HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 30.11.2021, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
5
JUDGMENT
The owner of the tractor and trailer has filed
MFA.No.2603/2013 assailing the judgment and award dated
28.11.2012 passed in MVC.No.1058/2011, wherein the
Tribunal has fastened liability on the appellant/owner on the
ground that the accident has occurred while the vehicle was
being used for commercial purpose when the insurance policy
was issued for agricultural purpose. The claimants have also
filed cross objection in MFA Crob.No.14/2016 seeking
enhancement of compensation.
2. For the sake of convenience, the parties are
referred to as per their rank before the Tribunal.
3. The facts leading to the case are as under:
The claimants filed claim petition by contending that on
23.05.2011 at about 9.30 a.m. their mother Sulochanamma
was traveling in a tractor and trailer bearing Reg.No.KA-17/T-
5566-67 as a loader and when the tractor was passing by the
land of one Kudligere Maheshwarappa, the driver of the said
tractor and trailer drove the vehicle in a rash and negligent
manner and dashed against another tractor and in the said
accident, the claimants' mother Sulochanamma sustained
grievous injuries and succumbed to the injuries on the way to
the Hospital. Hence, filed claim petition claiming compensation
of Rs.11,50,000/-.
4. The owner of the tractor and trailer who was
arrayed as respondent No.2 having denied the entire
averments in toto contended that the tractor and trailer is duly
insured with the respondent No.3/Insurance Company and
therefore, the respondent No.3 is liable to pay the
compensation, if any, to the claimants. The respondent
No.3/Insurance Company having denied the entire averments
in the claim petition further specifically contended that the
policy issued in favour of the respondent No.2 did not cover
the risk of the passengers and therefore, the Insurance
Company is not liable to pay the compensation to the
claimants.
5. The claimants in support of their contention,
examined the claimant No.1 as PW.1 and adduced
documentary evidence vide Exs.P-1 to P-11. The respondent
No.3/Insurance Company in support of its contention
examined the owner of the tractor and trailer as RW.1 and its
official as RW.2 and adduced rebuttal evidence vide Exs.R-1 to
R-5.
6. The Tribunal has assessed the income of the
deceased at Rs.3,000/- and by deducting 1/3rd towards
personal expenses has awarded Rs.3,60,000/- under the head
'loss of dependency' and under conventional heads, a sum of
Rs.30,000/- is awarded. The Tribunal, in all, has awarded
Rs.3,90,000/-. The Tribunal while examining the liability held
that the respondent No.2/owner has violated the terms of the
insurance policy and therefore, held that the respondent
No.3/Insurance Company is not liable to indemnify the
respondent No.2 insured.
7. Learned counsel appearing for the owner in MFA
No.2603/2013 would vehemently argue and contend before
this Court that the finding of the Tribunal in fastening liability
on the respondent No.2/owner is contrary to the ratio laid
down by the Co-ordinate Bench of this Court in MFA
No.12587/2007. Placing reliance on the said judgment, he
would submit to this Court that the tractor and trailer was
being used for agricultural purpose and in the judgment cited
supra, the Co-ordinate Bench was of the view that if offending
vehicle is used for agricultural purpose which was in the
course of agricultural operations, the Insurance Company has
to indemnify the insured and is liable to pay compensation.
Placing reliance on an unreported judgment in MFA
No.7681/2010 and a reported judgment of the Division Bench
in National Insurance Company Limited vs. Sri Maruthi
and Others1, he would submit to this Court that the clinching
evidence on record clearly indicates that the tractor and trailer
was used for agricultural purpose and the deceased was in fact
employed by the respondent No.2 for loading and unloading
mud and therefore, the Tribunal ought to have saddled the
liability on the respondent No.3/Insurance Company.
8. Learned counsel appearing for the claimants
arguing in the same vein would adopt the contentions raised
by the owner of the tractor and trailer insofar as liability is
concerned. On quantum, he would submit to this Court that
the Tribunal erred in assessing the income of the deceased at
Rs.3,000/- per month. He would submit to this Court that
there is scope for enhancement of compensation under the
head of loss of dependency and would urge this Court to
assess the income notionally by placing reliance on the chart
issued by the legal services authority.
ILR 2011 Kar 4139
9. Per contra, learned counsel for the respondent
No.3/Insurance Company repelling the contentions canvassed
by the learned counsel appearing for the owner of the tractor
and trailer as well as learned counsel appearing for the
claimants/cross objectors would submit to this Court that the
finding of the Tribunal in fastening liability on the owner does
not suffer from any infirmities and therefore, may not warrant
interference at the hands of this Court.
10. Heard learned counsel for the appellant/owner,
learned counsel for the claimants as well as learned counsel
for the Insurance Company. Perused the records.
In regard to liability:
11. The claimants have specifically contended that their
mother Sulochanamma was working as a Coolie under
respondent No.2 and on the said unfortunate day, their
mother was traveling in a tractor and trailer as a loader. The
Tribunal having taken note of the policy as per Ex.R-4 has
come to conclusion that the policy issued by the Insurance
Company being a farmers package policy, the risk of loader or
unloader will not be covered. Therefore, on these set of
reasonings, the Tribunal has come to conclusion that the
tractor and trailer was used for transporting sand and stone
meant for agricultural purpose and therefore, there is violation
of terms and conditions as per Ex.R-4.
12. To counter this finding, the claimants have placed
reliance on the judgment rendered by the Co-ordinate Bench
of this Court in MFA.No.12587/2007.
13. Learned counsel appearing for the Insurance
Company has placed reliance on the judgment rendered by the
Co-ordinate Bench of this Court in the case of The Divisional
Manager vs. Smt. Akkavva and Another2 and also the
judgment rendered by the Hon'ble Apex Court in the case of
Oriental Insurance Co. Ltd. vs. Brij Mohan and Others3.
ILR 2007 Kar 1382
(2007) 7 SCC 56
He has also placed reliance on the judgment rendered in the
case of United India Insurance Co. Ltd. vs. Serjerao and
Others4.
14. In the present case on hand, the deceased was
working as a Coolie under respondent No.2. The respondent
No.2 has examined himself as RW.1 and he has stated in his
ocular evidence that he owns one acre of land in Sy.No.95
situated at Kodihalli village, Bhadravathi Taluk. He has also
stated that on the said day, Sulochanamma was traveling in a
tractor and trailer as a loader. The Tribunal having assessed
the oral and documentary evidence has recorded a finding that
the respondent No.2/owner was transporting sand and stone
in the tractor trailer.
15. In Ex.P-2, which is an FIR, a complaint is lodged
stating that the tractor and trailer was being used to transport
mud. The Insurance Company by way of rebuttal evidence
has made an attempt to rely on a statement given by one
AIR 2008 SC 460
Kumar who was also traveling in the said tractor and trailer as
a coolie and the same is produced in the present case and
marked as Ex.R-5. The said witness has stated that at the
instruction of respondent No.2, he along with Sulochanamma
had gone to load mud in the offending tractor. The Insurance
Company intends to encash a part of a statement made by the
said witness who has stated that after having unloaded two
trips of mud, thereafter proceeded to transport stones and
while they were returning after loading stone in the tractor
and trailer, the accident has occurred.
16. Now the question that would arise before this Court
is whether this statement would establish the allegations made
by the Insurance Company that the vehicle was being used
other than for agricultural purpose and therefore, breach is
established. My answer to the said question is in negative.
The question that has to be examined in the present case is
whether the owner of the tractor and trailer has used the
vehicle in question for commercial purpose when the policy
was admittedly issued for agricultural purpose. The evidence
on record clearly indicates that deceased Sulochanamma was
working as a Coolie with respondent No.2. There is no
rebuttal evidence adduced by the Insurance Company to
indicate otherwise. Though at para 8(d) of the objections filed
by the Insurance Company, a stand is taken that the tractor
and trailer was not used for agricultural operation and the act
of carrying stones would not come within the purview of
agricultural operation, there is no rebuttal evidence lead in by
the Insurance Company to indicate that it was being used for
commercial purpose. The claimants have placed on record
sufficient materials to demonstrate that deceased had gone to
unload mud at the instruction of respondent No.2.
17. If these significant details are taken into
consideration, I would not hesitate to come to conclusion that
tractor and trailer was in fact used for agricultural purpose.
The judgments cited by the learned counsel for the Insurance
Company have no application to the present case on hand. In
the judgment cited by the learned counsel for the Insurance
Company the facts are totally different. The Co-ordinate
Bench of this Court in the case of Divisional Manager vs.
Smt. Akkavva, the Court held that there is violation of policy
condition by the insured, and in that case, the claimants failed
to establish that they were the employees engaged in
connection with use of tractor cum trailer for agricultural
purpose only. It was in this context, the Co-ordinate Bench
held that the Tribunal could not have saddled the liability on
the Insurance Company. On the contrary, I am of the view
that the judgment cited by the owner of the tractor and trailer
in MFA.No.12587/2007, MFA.No.7681/2010 and MFA.No.
11968/2007 are squarely applicable to the present case on
hand.
18. The material on record clearly establishes that
deceased Sulochanamma was working as a Coolie under
respondent No.2 and at his instruction, she had gone to load
and unload mud and further it is clearly evident that the
tractor and trailer was used for agricultural purpose more
particularly, on that particular day, the deceased and other
two colleagues were being engaged to transport mud to the
land of respondent No.2. Therefore, the accident has occurred
when the vehicle was being used for agricultural purpose and
deceased was traveling in the trailer as a coolie of respondent
No.2. Therefore, the finding recorded by the Tribunal on
liability is palpably erroneous and the same is liable to be set
aside. The vehicle was duly insured with the Insurance
Company and it was farmers package policy. Therefore, the
Insurance Company has to be saddled with liability to
indemnify the owner of the tractor and trailer.
In regard to quantum:
19. The contention of the claimants that in absence of
income proof, the income of the deceased has to be notionally
assessed at Rs.5,500/- in terms of the chart issued by the
legal services authority cannot be acceded to. In the claim
petition, the claimants have specifically averred that deceased
was getting a salary of Rs.3,000/- per month. If claimants
themselves have pleaded that deceased was earning
Rs.3,000/- per month by doing coolie work, question of
assessing the income of the deceased notionally by placing
reliance on the chart would not arise in the present case on
hand. Moreover, the petition is filed under Section 163-A of
Motor Vehicles Act and therefore, I am of the view that there
is no scope for any further enhancement of compensation.
20. Accordingly, the appeal filed by the appellant/owner
in MFA.No.2603/2013 is allowed in part and the cross
objection filed by the claimants in MFA Crob.No.14/2016 is
dismissed. The judgment and award of the Tribunal is
modified to the extent that the Insurance Company is liable to
indemnify the owner of the tractor and trailer and is directed
to satisfy the judgment and award passed in
MVC.No.1058/2011.
The amount in deposit, if any, shall be transmitted to the
Tribunal.
Sd/-
JUDGE
CA
