The New India Assurance Co Ltd vs Smt Kamalamma
2021 Latest Caselaw 2009 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 28TH DAY OF MAY, 2021
                                                             R
                         BEFORE

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

                  M.F.A.NO.1139/2011(MV)

BETWEEN:

THE NEW INDIA ASSURANCE CO. LTD.,
HASSAN BRANCH
THROUGH ITS REGIONAL OFFICE
No.2-B, UNITY BUILDING ANNEXE
MISSION ROAD, BENGALURU-560 027
REP. BY ITS MANAGER
SRI B.MANJA NAIK                              ... APPELLANT

          (BY SRI B.C.SEETHARAMA RAO, ADVOCATE)
AND:

1.     SMT. KAMALAMMA
       AGED ABOUT 55 YEARS
       W/O DYAVEGOWDA

2.     SRI DYAVEGOWDA
       AGED ABOUT 60 YEARS
       S/O MAYANNAGOWDA

       BOTH ARE R/O HANDINAKERE
       VILLAGE, KASABA HOBLI
       HASSAN TALUK                        ... RESPONDENTS

     (BY SRI GIRISH B. BALADARE, ADVOCATE FOR R1;
NOTICE TO R2 IS HELD SUFFICIENT VIDE COURT ORDER DATED
                       28.01.2019)
                                  2



     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 22.05.2006 AND
MODIFYING THE AWARD DATD 28.08.2010 PASSED IN MVC
NO.239/2003 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
(SR.DN.) AND ADDITIONAL MACT, HASSAN, AWARDING A
COMPENSTATION OF Rs.2,67,000/- WITH INTEREST @ 6%
FROM THE DATE OF PETITION TILL DEPOSTI.


     THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT      ON    25.05.2021       THIS   DAY,   THE   COURT
PRONOUNCED THE FOLLOWING:


                        JUDGMENT

This appeal is filed by the appellant-Insurance Company

challenging the judgment and award dated 22.05.2006 passed in

M.V.C.No.239/2003 on the file of Additional Civil Judge (Sr.Dn.)

and Additional Motor Accident Claims Tribunal at Hassan ('the

Tribunal' for short) and set aside the modified award dated

28.08.2010 carried out on 15.09.2010.

2. The parties are referred to as per their original

ranking before the Tribunal in order to avoid the confusion and

for the convenience of the Court.

3. The factual matrix of the case is that the first

respondent has filed a claim petition claiming the compensation

for the death of her son-Harisha in an accident, which took place

on 14.09.1998 stating that her son was traveling in a Tractor-

Trailor bearing registration No.KA-13, T-729 and 730 (in short

'the tractor'), was driven in a rash and negligent manner by its

driver and dashed against the KEB pole and skidded to the

Paddy field. As a result of which one Purushothama and the

deceased sustained injuries; wherein the deceased died at the

hospital. The deceased was hale and healthy before the accident,

doing Supervisory work in the Tractor earning Rs.4,000/- per

month and maintaining the claimant. Due to the sudden demise

of her son, she has suffered irreparable loss. The first

respondent is the owner and the second respondent is the

Insurer of the Tractor. The second respondent opposed the

claim petition by filing objection statement contending that the

deceased was traveling as a passenger contrary to the terms and

conditions of the policy and permit. Therefore, the Insurance

Company is not liable to pay any compensation.

4. The claimant in order to substantiate her claim, she

examined herself as P.W.1 and also examined P.W.2 and got

marked the documents as Exs.P1 to P4. Respondent No.2-

Insurance Company though objected the claim petition did not

choose to examine any of the witnesses, however, got marked

the document as Ex.D1 - Insurance Policy.

5. The Tribunal, after considering both oral and

documentary evidence and on appreciation of the material

available on record, allowed the claim petition of this petitioner

in part granting compensation of Rs.3,39,000/- with 6% interest

per annum from the date of petition till deposit and directed the

first respondent-owner alone held liable to pay the

compensation. The owner had filed Misc.No.60/2006 challenging

the liability fastened on him and the notice has been ordered

against the claimant as well as the Insurance Company and the

Insurance Company was represented through its counsel. The

Tribunal in Misc.No.60/2006 modified the Judgment and award

passed in M.V.C.No.239/2003 dated 22.05.2006 on the file of

Tribunal is reviewed to the extent recalling the dismissal of the

claim against the insurer and allowed the claim petition against

the Insurer and directed to pay the compensation amount,

modifying the quantum of compensation awarded by the

Tribunal. Hence, the present appeal is filed by the Insurance

Company.

6. The main contention of the appellant-Insurance

Company in this appeal is that the learned member of the

Tribunal has committed an error in modifying the award dated

22.05.2006 made in MVC No.239/2003 by his order dated

28.08.2010 fastening the liability on the Insurance Company.

The Tribunal earlier had rightly absolved the liability of the

appellant on the ground that there is no coverage to the

Supervisor traveling in an agricultural Tractor-Trailer, had no

reason to change that view in view of the review petition. Even

though, there was an order modifying the liability by its order

dated 21.04.2007 there was no direction to modify the award.

Therefore, the office of that Tribunal had been directed to amend

the award by order dated 28.08.2010 and on that basis the

award has been modified on 15.09.2010. Hence, it requires to

be set aside.

7. The learned member of the Tribunal had no basis to

make the appellant liable to pay the compensation for the death

of the alleged Supervisor of the Tractor-Trailer. The fact that the

deceased is the son of the claimant and the second respondent

and that he was traveling in the Tractor along with his friend

Chi.Purushothama, a minor boy aged 12 years and the same is

not noticed by the Tribunal before fastening the liability on the

Insurance Company. The deceased boy and his friend

Purushothama, aged 12 years, studying in VII Standard also

died in the same accident while traveling in on the Tractor of the

engine and the parents of the said Purushothama had filed

W.C.No.1/2007 before the WCC, Hassan, which had been

allowed on 08.05.2007 and the same has been questioned by

the Insurance Company in MFA No.10076/2007 (WC) and the

same was allowed on 24.08.2009 to absolve the liability of the

Insurance Company. All these aspects had been suppressed by

the Insurance Company while pursuing the claim petition before

the Tribunal. Hence, it requires an interference of this Court.

8. The learned counsel for the appellant/Insurance

Company in his oral arguments has vehemently contended that

this Court also in MFA No.10076/2007 set aside the award

passed by the Commissioner and when this Court came to a

conclusion that even in respect of the third party, Insurance

Company is not liable to pay the compensation. The question of

making the Insurance Company to pay the compensation to the

son of the insured does not arise. The learned counsel also

vehemently contended that the policy not covers the supervisor

as the claimant contends that the deceased was supervisor and

supervising the Tractor-Trailer. The learned counsel also would

vehemently contend that it is not in dispute that the deceased is

also the son of the owner of the tractor.

9. The learned counsel also brought to the notice of this

Court Section 147 of the Motor Vehicles Act, 1988 ('MV Act' for

short) and referring to Section 147 of the MV Act would

vehemently contend that the Insurance Company is not liable to

pay any compensation to the Supervisor and he cannot be

termed as either the loader or coolie and also as workman.

Hence, it requires an interference of this Court.

10. Per contra, learned counsel for respondent

No.1/claimant would vehemently contend that the Tribunal found

mistake, which is apparent on the face of the record. Having

considered the principles laid down in the Judgments referred

before the Tribunal rightly came to the conclusion that the

policy, which has been marked as Ex.D1 is a comprehensive

policy. The premium is collected for third parties and when the

policy is not an act policy and the same is a comprehensive

policy. The Tribunal while reviewing the earlier order in detail

discussed in paragraph Nos.7 to 11. Having discussed in detail

came to the conclusion that the Tractor-Trailer was covered by a

comprehensive policy. When a tractor and trailer was covered

under a comprehensive policy there is an in built cover for 6

workmen irrespective of payment of additional premium,

wherein, the deceased is a workmen within the meaning of The

Workmen's Compensation Act covers the risk of the deceased as

he was working as Supervisor and looking after the supervisory

work of the Tractor and he was traveling as Supervisor of the

Tractor at the time of the accident. Hence, the contention of the

Insurance Company cannot be accepted.

11. Having heard the arguments of learned counsel for

the appellant-Insurance Company and the learned counsel for

respondent No.1/claimant and on perusal of the material

available on record, the points that would arise for consideration

of this Court are:

(i) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company and it requires an interference of this Court?

(ii) What order?

Point Nos.(i) & (ii):

12. Having heard the respective counsel and also on

perusal of the claim petition and also the objection statement, it

is contended that the deceased was working as a Supervisor and

he was travelled in the tractor as Supervisor. The very

contention of the Insurance Company is that the Supervisor is

not covered under the policy.

13. Having perused the claim petition, in column No.22,

a specific pleading was made that the deceased-Harisha was

supervising the tractor work. When the tractor was returning by

unloading the bricks, the driver of the said tractor - trailer lost

control of the tractor and dashed against the KEB Pole. It is not

in dispute that the deceased was returning in the tractor. The

respondent also in the objection statement categorically

contended that the Insurance Company shall be liable only as

per the terms and conditions of the policy and contended that

the deceased was travelling in the tractor as a gratuitous

passenger. Hence, the Insurance Company is not liable to pay

any compensation.

14. Having perused the pleading of both the claimant as

well as the Insurance Company and also the evidence of P.W.1,

the P.W.1 - claimant has reiterated the averments made in the

claim petition. In the cross-examination, a suggestion was made

that he was not working as Supervisor and the said suggestion

was denied. However, admits that there are no documents in

this regard. It is suggested that he was traveling as passenger

and not proceeding as Supervisor and the said suggestion was

denied. The Insurance Company has not led any evidence before

the Tribunal in order to prove the fact that he was travelled as a

passenger and the very contention of the Insurance Company is

that he was proceeding as a gratuitous passenger. In the cross-

examination of P.W.1, nothing is elicited that he was travelled as

a passenger. It is also not in dispute that the deceased was the

son of the insured. The policy is also marked as Ex.D1 and on

perusal of the premium paid; third party insurance covers the

risks of the tractor-trailer apart from the driver. Hence, it is clear

that the policy placed before the Tribunal is a comprehensive

policy and not an act policy as observed by the Tribunal.

15. The main contention of the claimant before the

Tribunal is that the son of the claimant was working as a

Supervisor. On perusal of the document - Ex.P1, a specific

averment was made in the complaint that the deceased was

returning in the tractor-trailer after unloading the bricks as

pleaded in column No.22 of the claim petition. The document -

Ex.P1 is not disputed during the course of the cross-examination

of P.W.1 by the Insurance Company. It is also important to note

that when the Insurance Company has not disputed the fact that

they were returning after unloading the bricks, it is clear that the

deceased was also travelling on the tractor while returning after

unloading the bricks. It is the contention that he was working as

Supervisor and in the cross-examination of P.W.1, though

suggestion was made that he was not working as Supervisor,

nothing is elicited to dispute the same. The pleading is very

clear that he was a Supervisor of the tractor. The Insurance

Company also not disputed the same except making the

suggestion and not led any evidence rebutting the evidence of

P.W.1. It is also important to note that it is not in dispute that he

was a son of the insured but the claimant is the mother of the

deceased and the insured has not joined along with the claimant

claiming the compensation.

16. It is also important to note that when the policy is a

comprehensive policy, which covers the third party including the

loader and unloader and when the tractor was returning after

unloading the bricks as narrated in the claim petition and also in

the pleadings. The very contention of the Insurance Company is

that the Insurance Company is not liable to pay the

compensation as the same not covers the liability of the

Supervisor cannot be accepted. When he was returning after

unloading the bricks and when the premium is collected for third

parties on the tractor-trailer as indicated in the policy, which is

marked as Ex.D1, mere taking of the defense that he was a

gratuitous passenger, nothing is placed on record and the

Insurance Company failed to prove the fact that he was a

gratuitous passenger as contended in the written statement by

examining any of the witnesses. I have already pointed out that

no evidence has been adduced before the Court and the case of

the claimant has not been rebutted by placing any material

before the Tribunal. The Insurance Company already collected

the premium for the third parties also and the Tribunal had

rightly come to the conclusion that the policy is a comprehensive

policy and not an Act Policy, the premium paid covers the risk of

the deceased.

17. The learned counsel for the appellant referring to

Section 147 of the MV Act would vehemently contend that the

Insurance Company is not liable to pay any compensation to the

Supervisor and he cannot be termed as either the loader or

coolie and also as workman.

18. This Court would like to refer to the judgment of the

Apex Court in the case of National Insurance Company

Limited v. Balakrishnan and another reported in (2013) 1

Supreme Court Cases 731, wherein, the Apex Court held that

the Insurer liable to pay compensation in case of

'comprehensive/package policy" but not in case of "Act policy".

In the said case, it is observed that the owner or gratuitous

passenger travelling in motor vehicle meeting with accident and

discussed with regard to liability of the Insurer. Further, the

Apex Court held that, as the Insurance Regulatory and

Development Authority (IRDA), which is presently the statutory

regulatory authority, has commanded the insurance companies

that a "comprehensive/package policy" covers the liability of the

insurer for payment of compensation to the occupant in a motor

vehicle, there cannot be any dispute in that regard. Further, it is

observed that if the policy is a "comprehensive/package policy",

the liability would be covered. IRDA has clarified the position by

issuing Circulars dated 16.11.2009 and 03.12.2009. Therefore, a

"comprehensive/package policy" would cover the liability of the

insurer for payment of compensation for the occupant in a car.

The Apex Court in this judgment also extracted Section 147 of

the MV Act in paragraph No.10 and discussed several judgments

and the scope of comprehensive policy and also the act policy.

In paragraph No.17 of the judgment, the Apex Court discussed

the similar circumstances as reflected in the case on hand, in the

case of New India Assurance Co. Ltd v. Sadanand Mukhi,

wherein the son of the owner of the insured while driving the

motorcycle met with an accident and died. In paragraph No.19

of the judgment, the Apex Court held that, the policy in question

is a package policy. The contract of insurance if given its face

value covers the risk not only of a third party but also of persons

traveling in the car including the owner thereof. The question is

as to whether the policy in question is a comprehensive policy or

only an Act policy.

19. I have already pointed out that the policy, which is

involved in this case, which is marked as Ex.D1 is a

comprehensive policy. Hence, I do not find any error committed

by the Tribunal in reviewing the order fastening the liability on

the Insurance Company.

20. This Court also would like to refer to the Judgment of

the Apex Court in the case of New India Assurance Company

v. Satpal Singh and Others reported in (2000) 1 Supreme

Court Cases 237, wherein, the Apex Court discussed Section

147 of the MV Act and held that it covers death or bodily injury

even to a gratuitous passenger - Policy should cover injury to

any person including owner of the goods or his authorized

representative carried in the vehicle - Motor vehicles Act, 1939 -

Section 95(1) proviso (ii) - Compared with new Act. It is further

held that under Section 147(2) of the New Act there is no upper

limit for the insurer regarding the amount of compensation to be

awarded in respect of death or bodily injury of a victim of the

accident. It is, therefore, apparent that the limit contained in

the old Act has been removed and the policy should insure the

liability incurred and cover injury to any person including owner

of the goods or his authorized representative carried in the

vehicle. In the case on hand also, it has to be noted that the

deceased is the son of the owner and even the Apex Court held

that under the new Act an Insurance Policy covering third-party

risk is not required to exclude gratuitous passengers in a vehicle,

no matter that the vehicle is of any type or class.

21. This Court also would like to refer to the judgment of

the Apex Court in the case of Shivawwa and another v.

Branch Manager, National India Insurance Co. Ltd., and

another reported in AIR 2018 Supreme Court 1640, the

Apex Court held that, there was no challenge as to fact that

deceased loaded his agricultural produce on tractor and

accompanied tractor for unloading same and while returning met

with accident. The Apex Court held that the Insurance Company

is liable to pay compensation.

22. This Court also would like to refer to the Judgment of

this Court in the case of The Oriental Insurance Company

Limited v. Hanumant & Another reported in 2005(4) KCCR

2320 and discussed the provisions of Section 2(1)(m) of the Act

and taken note of the relationship between the parties as father

and son. In paragraph No.2 of the judgment, this Court held that

the fact that the first respondent and second respondent are

father and son, is not a ground in law to infer the absence of the

relationship of employer and employee under the Workmen's

Compensation Act.

23. This Court also would like to refer to the Judgment of

this Court in the case of Manohar Bhimappa More v.

Mahadev Bhimappa More reported in 2006 ACJ 850. In

paragraph No.3 of the Judgment, this Court had discussed with

regard to the employment of the family itself and the fact that

the injured is the brother and the guarantor for repayment of the

loan is not a valid reason to hold that he was not a workman

employed in connection with the tractor-trailer. This Court also

observed that there is no inhibition in law for employment of

member of the family in connection with the tractor-trailer.

Further observed that, in view of the peculiar family relationship

it is absurd to insist on documentary proof of appointment and

the payment of wages by cash as the only mode of consideration

for proof of employment.

24. This Court also would like to rely upon the judgment

of this Court passed in Miscellaneous First Appeal No.6823/2016

(WC) dated 04.09.2019 and this Court relying upon the above

two decisions of this Court and in paragraph Nos.24 to 28

discussed the similar circumstances, which was arisen and in

paragraph No.29 comes to the conclusion that the Commissioner

for Employee's Compensation/Tribunal is not justified in

dismissing the claim petition on the ground that there is no

employer and employee relationship between the appellant and

second respondent by ignoring both oral and documentary

evidence on record.

25. This Court in this Judgment held that the relationship

regarding employer and employee and the relationship between

brothers, between father and son would not take away the

liability of the Insurance Company.

26. In keeping the principles laid down in the judgments

referred supra and also the contention of the learned counsel for

the appellant, I have already pointed out that it is not in dispute

that the deceased was travelled in the tractor and returning after

unloading the bricks and the learned counsel for the appellant

also not dispute the fact that the policy covers the risk of loader

and unloader. The learned counsel also not dispute the fact that

the policy, which is marked as Ex.D1 is a comprehensive policy,

wherein, the premium is collected for T.P. for tractor-trailer

other than the driver and when the Insurance Company not

disputed the fact that by adducing any rebuttal evidence that he

was proceeded as Supervisor of the tractor as pleaded in the

claim petition and also in the evidence and other than the

insured, the premium is collected for others also. The contention

of the learned counsel for the appellant-Insurance Company that

the Supervisor was not covered, cannot be accepted. The other

contention is that the policy not covers the risk of the Supervisor

also cannot be accepted as the policy involved in the case on

hand is a comprehensive policy and the premium was collected

and the same has been observed by the Tribunal while reviewing

the order passed earlier in the Miscellaneous Petition. The

Tribunal while modifying the earlier order assigned the reason

that no evidence has been adduced before the Tribunal by the

respondent-Insurance Company to rebut the case of the

claimant. The Tribunal had also assigned the reasons that the

Insurance Company has already collected the premium for the

third parties and the policy is a comprehensive policy and not an

Act policy. The premium paid covers the risk of the deceased,

who travelled on the tractor as Supervisor. Merely because he

was the son of the insured the liability of the Insurance Company

cannot be exonerated as contended by the learned counsel for

the appellant. The risk covers other than the insured and the

deceased, who proceeded on the tractor in order to unload the

bricks and he was returning after unloading the bricks, which has

not been disputed before the Tribunal.

27. The learned counsel appearing for the appellant

would vehemently contend that this Court has allowed MFA

No.10076/2007 (WC) vide order dated 24.08.2009 absolving the

liability of the Insurance Company in respect of the other claim.

The said judgment will not come to the aid of the Insurance

Company and in that case, a minor boy was travelled in the

Tractor though he was claimed that he was a workman and the

same has been disbelieved by this Court as he was a minor boy

and the law envisages barring of minor children for any

employment. Hence, the observation made in the said order will

not come to the aid of the appellant.

28. On perusal of the judgment and award, the learned

member of the Tribunal while reviewing the order, reduced the

compensation while re-calculating the 'loss of dependency'

taking the age of the mother and now it is settled law that the

age of the deceased has to be taken. But no appeal is filed by

the claimant before this Court. In the absence of any appeal, the

findings of the Tribunal cannot be modified or interfered with

even though the lesser compensation was awarded while

calculating the 'loss of dependency' taking note of the age of the

mother.

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

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

cp*