The Branch Manager vs Arun Kumar
2021 Latest Caselaw 2421 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 28TH DAY OF JUNE, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.10907/2013 (MV)

BETWEEN:

THE BRANCH MANAGER,
UNITED INDIA INSURANCE COMPANY LIMITED,
BRANCH OFFICE: KANCHAN TOWERS,
KUNDAPURA.
BY DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
JEWEL PLAZA, 1ST FLOOR
MARUTHI VEETHIKA, UDUPI-576101.
BY ITS MANAGER.                                 ... APPELLANT

               (BY SRI O. MAHESH, ADVOCATE)

AND:

1.     ARUN KUMAR,
       AGED ABOUT 22 YEARS,
       S/O RAMA DEVADIGA,
       R/O MELMANE, UPPUNDA VILLAGE,
       KUNDAPURA TALUK,
       UDUPI DISTRICT-576101.

2.     RAGHAVENDRA DEVADIGA,
       AGED ABOUT 26 YEARS,
       S/O KRISHNA DEVADIGA,
       HERKERI, BIJOOR VILLAGE,
       KUNDAPURA TALUK,
       UDUPI DISTRICT-576101.                ... RESPONDENTS

       (R-1 AND R-2 ARE SERVED AND UNREPRESENTED)
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     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 22.10.2013
PASSED IN MVC NO.578/2011 ON THE FILE OF THE ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MACT,
UDUPI (SITTING AT KUNDAPURA) KUNDAPURA, AWARDING
COMPENSATION OF Rs.1,00,350/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL PAYMENT.

     THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 09.06.2021 THROUGH 'VIDEO CONFERENCE',
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

                        JUDGMENT

This appeal is filed challenging the judgment and award

dated 22.10.2013 passed in M.V.C.No.578/2011 on the file of

the Additional District and Sessions Judge and Additional MACT,

Udupi, sitting at Kundapura ('the Tribunal' for short), questioning

the fastening of the liability on the Insurance Company.

2. The parties are referred to as per their original

rankings before the Tribunal to avoid the confusion and for the

convenience of the Court.

3. The factual matrix of the case is that on 21.02.2011

at about 10.30 p.m., the claimant was travelling in goods

rickshaw bearing registration No.KA-20-A-9384 along with his

goods and the goods rickshaw was driven by its driver from

Uppunda side towards Byndoor side in a very high speed and

rash and negligent manner and the driver lost control over the

vehicle and met with an accident. Due to the accident, the

claimant sustained grievous injuries.

4. The respondent No.1 being the RC owner and the

insurer being respondent No.2, were arraigned as the

respondents. The owner remained exparte and the Insurance

Company appeared through its counsel and filed a detailed

objection statement contending that the claimant was travelling

as a passenger in the goods rickshaw and the same amounts to

violation of the terms and conditions of the policy and hence the

Company is not liable to pay the compensation.

5. The claimant in order to substantiate his contentions,

examined himself as P.W.1 and examined the doctor as P.W.2

and got marked the documents at Exs.P.1 to 11. On the other

hand, the respondent examined one witness as R.W.1 and got

marked the document at Ex.R.1. The Tribunal after considering

both oral and documentary evidence placed on record, allowed

the claim petition granting compensation of Rs.1,00,350/- with

interest at the rate of 6% per annum and fastened the liability

on the Insurance Company in coming to the conclusion that the

claimant was travelling along with goods and Ex.R.1 policy

covers the risk of other than the driver. Hence, the Insurance

Company is liable to pay the compensation.

6. The appellant Insurance Company in the present

appeal has contended that the claimant was proceeding as a

passenger and the Tribunal failed to consider the said fact. It is

further contended that the insured claimant tried to get down

from the moving goods auto in question in which he was

travelling as a passenger in the body of the said goods auto.

The claimant was admittedly travelling in the body of the insured

goods auto and such risk was not covered. The Tribunal even

otherwise, ought to have seen the risk of any person carried in

goods vehicle in any capacity other than in its cabin not covered

and as such its reasoning to hold that the appellant insurer is

liable is erroneous and illegal and hence it requires interference

of this Court.

7. The learned counsel for the appellant Insurance

Company reiterated the grounds urged in the appeal in his oral

submissions and also relied upon the judgment of the Apex

Court in the case of NATIONAL INSURANCE CO. LTD. v.

CHOLLETI BHARATAMMA AND OTHERS reported in ACJ

2008 ACJ SC 268 = (2008) 1 SCC 423.

8. This Court had issued notice against respondent

Nos.1 and 2 and though served they are unrepresented.

9. Having heard the arguments of the learned counsel

for the appellant and on perusal of the records, the points that

arise for the consideration of this Court are:

(i) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company in coming to the conclusion that the claimant was proceeding along with goods and Company is liable to pay the compensation?

(ii) What order?

10. Keeping in view the contentions of the learned

counsel for the appellant urged before this Court, this Court has

to see the pleadings of the parties. The claimant in column

No.22 of the claim petition specifically pleaded that he was

proceeding along with goods and due to the rash and negligent

driving on the part of the auto, the driver lost the control of the

vehicle and met with an accident. The Insurance Company in

the written statement denied the averments made in column

No.22 of the claim petition. It is contended that the driver was

proceeding in a slow manner and the claimant who was

travelling in the said vehicle tried to get down from the moving

vehicle and on seeing this, the driver suddenly applied the

brake, as such the goods rickshaw was capsized by touching left

side on the ground and the accident was on sole negligence on

the part of the petitioner. It is contended that he was travelling

as a passenger. In order to substantiate the contention that he

was travelling as passenger, R.W.1 has been examined. R.W.1

in the cross-examination has categorically admitted that he does

not know personally as to whether the petitioner was travelling

as a passenger or carrying the goods. The said admission takes

away the defence of the Insurance Company. The same has

been noticed by the Tribunal and observed in the order. The

specific contention of the Insurance Company is that he was

travelling as passenger and not proceeding along with the goods

and in order to substantiate the same, nothing is placed on

record.

11. The complainant in the complaint has specifically

mentioned that he was proceeding along with iron rod and

Ex.P.1 contents have not been disputed. Nothing is elicited from

the mouth of P.W.1 that he was not carrying the iron rod. On

perusal of the evidence of P.W.1, it is specific that he was

proceeding along with the goods i.e., iron rod and he

categorically says that the same was purchased from the shop in

the name of his uncle. Ex.P.6 was disputed in the cross-

examination, but no rebuttal evidence is placed before the

Tribunal to disbelieve Ex.P.6. A specific question was also put to

him that he was travelling as a passenger and the same has

been denied. It is also suggested that when he saw the garage,

he suddenly tried to get down from the auto rickshaw and when

the same was noticed by the driver of the auto, he suddenly

applied the brake and hence the accident was taken place, and

the same was also denied. The theory that the claimant was

trying to get down from the auto rickshaw negligently has not

been proved and none of the eye witnesses have been examined

by the Insurance Company in order to prove the defence which

have been taken before the Tribunal. Hence, the grounds urged

in this appeal are not supported by any material before the Court

and the very defence of the Insurance Company was

categorically denied. Hence, the first ground urged that he was

trying to get down from the moving goods auto in question was

not proved.

12. The second ground that admittedly the claimant was

travelling in the body of the insured goods auto also has not

been proved. The fact that he was travelling along with the

goods has not been disproved by the Insurance Company except

examining R.W.1 who is not an eye witnesses. R.W.1

categorically admits that he does not have the personal

knowledge as to whether the claimant was proceeding as

passenger or along with goods. Under the circumstances, I do

not find any reasons to accept the contention of the learned

counsel for the appellant which has been canvassed in this

appeal. The judgment of the Apex Court in the case of Cholleti

Bharatamma (supra) is not applicable considering the fact of

the case as he was travelling along with goods.

13. The third contention that the complainant was

travelling as passenger and hence the policy does not cover and

only driver is permitted to proceed in the vehicle also cannot be

accepted. On perusal of Ex.R1 policy, it clearly discloses that

premium is collected not only in respect of the driver, but also in

favour of one workman. The very contention that the Insurance

Company is not liable to pay the compensation and premium is

not collected cannot be accepted. On perusal of Ex.R1, the

Tribunal also noticed that an amount of Rs.25/- was collected

towards WC to employee 1. When the premium was collected,

the very contention that the policy covers only for the owner-

cum-driver cannot be accepted. It is important to note that

third party basic was also collected and compulsory PA to owner-

driver amount to the tune of Rs.2,00,000/- is covered and also

one employee is also covered. Under these circumstances,

when the claimant was proceeding along with the goods in the

auto rickshaw, the Tribunal has rightly fastened the liability on

the Insurance Company coming to the conclusion that the

Insurance Company is liable to pay the compensation. The

other ground that only the driver is permitted to travel in the

auto rickshaw also cannot be accepted. The Tribunal while

fastening the liability on the Insurance Company discussed the

same in detail and rightly comes to the conclusion that the

Insurance Company is liable to pay the compensation. In the

year 1994, an amendment was made including the owner of the

goods and authorized representatives of the goods. This Court

would like to refer to the judgment of this Court in the case of

SHIVA @ SHIVASHANKAR v. RAJESH AND ANOTHER

reported in 2019 (1) KCCR 860, wherein this Court had

discussed the very proviso of Section 147 of Motor Vehicles Act

and held that coolies travelling in goods vehicle along with owner

in transporting ganesha idol comes within the purview of Section

147 of the Motor Vehicles Act. It is observed that wisdom and

intent of the legislature is not kept in mind while considering the

case and circumstances. It is further observed that the very

intent of the legislation is to protect the interest of the owner of

the goods and representative of the owner of the goods under

the provisions of Section 147 of the Motor Vehicles Act in view of

bringing the amendment in the year 1994. Hence, there is no

merit in the appeal.

14. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE MD