The Manager-Legal vs Sabamma W/O Ramanna Thanedar And ...
2021 Latest Caselaw 3765 Kant

                          1




        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

  DATED THIS THE 10th DAY OF NOVEMBER, 2021

                        BEFORE

       THE HON'BLE MR.JUSTICE M.G.S.KAMAL

            MFA No.201220/2014 (MV)

BETWEEN:

THE MANAGER-LEGAL,
SHRIRAM GENERAL INSURANCE CO.LTD.,
E-8, EPIP, RHCO INDUSTRIAL AREA,
SITAPUR, JAIPUR, RAJASTHAN,
PIN CODE: 302 022.
                                    ... APPELLANT
(BY SRI BHADRASHETTY SANGEETA, ADVOCATE)

AND:

1. SABAMMA,
W/O.RAMANNA THANEDAR,
AGE: 57 YEARS,
OCC: COOLIE,

2. MALLAMMA,
W/O.LATE MAREPPE THANEDAR,
AGE: 22 YEARS,
OCC: COOLIE,

3. BHAGYA SHREE,
D/O.MAREPPA,
AGE: 11 YEARS, MINOR,
U/G. OF MALLAMMA
W/O.MAREPPA,
                               2




RESPONDENT NO.2 HEREIN-LMOTHER
RESPONDENTS 1 & 3 HEREIN ARE
R/O.HANUMAN NAGAR, YADGIR,
TALUK & DIST: YADGIR, PIN-585 201.

4. MALLIKARJUN,
S/O.SHARANAPPA KAMBAR,
AGE: 28 YEARS,
OCC: OWNER OF LORRY
BEARING REG.NO.KA-32/3294,
R/O.BANDHALLI,
TALUK & DIST: YADGIR,
PIN: 585 202.
                                          ... RESPONDENTS

(BY SRI S.K.BABASHETTY, ADVOCATE FOR R-1 TO 3,
R-4 SERVED)


       This Miscellaneous First Appeal is filed under Section
173(1) of MV Act against the Judgment and Award
dt.13.03.2014 passed in MVC No.170/2012 on the file of
the Member, MACT-II at Yadgiri, partly allowing the claim
petition awarding compensation of Rs.6,93,000/- with
interest at 6% p.a.

      This appeal coming on for further hearing, this day,
the Court delivered the following:-

                        JUDGMENT

MFA No.201220/2014 is filed by the appellant-

Insurance Company against the Judgment and Award dated

13.03.2014 passed in MVC No.170/2012 on the file of

Member, MACT, Yadgiri.

2. Brief facts leading up to filing of the appeal are

that, deceased Mareppa was a cleaner in a lorry bearing

Registration No.KA-32/3294 belonging to respondent No.1.

That on 25.06.2011 at 5.00 p.m. he was traveling in the

said lorry as a cleaner on Bhankalga to Ramteerth road.

At that time, the driver of the lorry drove the same in high

speed and negligent manner and lost control over the

same resulting in the lorry turning turtle causing the

accident in which deceased Mareppa sustaining grievous

injuries and succumbed to the same on the spot. A

complaint in Crime No.68/2011 was registered in Chittapur

Police Station.

3. Thereupon, claim petition was filed under Section

166 of the Motor Vehicles Act, seeking compensation of

Rs.12,00,000/- with interest at 12% p.a.on the premise

that the deceased was aged about 25 years working as a

cleaner in the aforesaid lorry earning Rs.6,000/- p.m., and

that the Claimant No.1 is the mother of the deceased and

Claimant No.2 is the wife of the deceased and Claimant

No.3 is the minor daughter of the deceased and that they

were depending upon the income of the deceased. That

the untimely death of the deceased has caused financial,

mental and emotional loss and agony to the family of the

deceased.

4. That the accident had occurred on account of the

rash and negligent driving of the lorry by its driver and the

vehicle belonged to Respondent No.1 and was insured with

Respondent No.2. As such, they were jointly liable for

payment of compensation.

5. On service of summons, Respondents 1 and 2

appeared through their advocates and filed statement of

objections. Respondent No.1 denied the allegation of

driver of lorry driving the lorry in a rash and negligent

manner. It was also denied that the deceased was working

as a cleaner earning Rs.6,000/- p.m. It was further

contended that the compensation sought for is exorbitant

and that the driver of the vehicle was having valid driving

licence at the time of accident. However, it is further

submitted that respondent had insured the lorry with

Respondent No.2 and the policy was valid from 18.12.2010

to 17.12.2011 and if the compensation is to be awarded,

the same needs to be paid by the Respondent No.2-

Insurance Company.

6. Respondent No.2-Insurance Company filed written

statement denying the petition averments, mode and

manner of accident, age and occupation and income of the

deceased. It is also denied that the accident had occurred

due to negligence on the part of the driver- Respondent

No.1. It was also contended that the driver of the lorry was

not having valid and effective driving licence as on the

date of the accident. It was also contended that the

deceased was traveling in the lorry as an unauthorised

passenger. Therefore, he has violated the terms of the

policy.

7. On the basis of the pleadings, the Tribunal framed

issues and recorded evidence. Claimant No.2-wife of the

deceased examined herself as P.W.1 and exhibited five

documents as Ex.P1 to Ex.P5. One Mallikarjun and

Dattatraya have been examined as R.Ws.1 and 2, exhibited

four documents as Ex.R1 to Ex.R4. On appreciation of

evidence, the Tribunal held that the accident in question

had occurred on account of rash and negligent driving of

the offending lorry by its driver and consequently, held

that the claimants were entitled for compensation of

Rs.6,93,000/- with interest at the rate of 6% p.a., from the

date of petition till realization. Aggrieved by the same, the

Insurance Company is before this Court by way of the

above said appeal.

8. Learned counsel for the appellant-Insurance

Company reiterating the grounds urged in the

memorandum of appeal submitted that the Tribunal erred

in not appreciating the fact that the deceased was

traveling in the aforesaid lorry as an unauthorised

passenger at the time of the alleged accident and was not

working as a cleaner of the said lorry as claimed. He

further submitted that the lorry was a goods transport

vehicle and that the Respondent No.4 herein who was the

owner of the vehicle was carrying more than 60

passengers on hire basis. Referring to the complaint at

Ex.P1 and the F.I.R, learned counsel submitted that one

Mareppa had taken the lorry of the respondent No.4 on

hire basis for carrying the passenger to attend the

marriage and while returning after attending the marriage,

the alleged accident has taken place. Thus, Respondent

No.4 had violate the provisions of the Motor Vehicles Act

and Rules and the terms and conditions of the policy

issued by him. As such, it was submitted that the

appellant-Insurance Company was not liable to pay any

compensation to the claimants. She further contended

that the aforesaid lorry was goods carrying transport

vehicle and permit was necessary to ply the vehicle on the

public road. That on the date of the alleged accident, the

Respondent No.4 being the owner of the lorry was not

having permit and the vehicle was being plied without valid

permit. That the Respondent No.4 had not produced a

routed permit of his vehicle which would establish that as

on the date of the alleged accident, Respondent No.4 was

not having permit to ply the vehicle. That the Tribunal had

not taken note of this aspect of the matter. She further

submitted that the police had chargesheeted the owner of

the vehicle under Section 192(A) of the Act for using the

vehicle without permit. As such, the violation of the policy

was established. That the Tribunal, without looking into

these aspects of the matter, had fastened the liability on

the appellant. That the Tribunal had not framed the issue

with regard to the violation of he policy, particularly

Respondent No.1 carrying more than 60 passengers in the

lorry on hire charges basis. That the order passed by the

Tribunal was without appreciating the facts and

circumstances of the matter and hence, required to be set

aside.

9. Learned counsel also relied upon the Judgment of

Full Bench of this Court in the case of NEW INDIA

ASSURANCE CO. LTD, BIJAPUR vs. YELLAVVA

W/O.YAMANAPPA DHARANAKERI AND ANOTHER (2020(2)

AKR 484) and also referred to the Judgment dated 13 TH

February 2015 passed in MVC Nos.140/2013, 14/2013,

167/2013 to 170/2013 on the file of the Member, MACT-II

at Yadgiri.

10. On the other hand, learned counsel for

respondents-claimants submitted that the award passed by

the Tribunal directing the appellant insurance company to

pay the amount payable to the claimants is just and proper

and the same does not warrant any interference.

11. Though the Respondent No.4 is served, has

remained absent and has not chosen to contest the appeal.

The Judgment in MVC Nos.140/2013, 14/2013, 167/2013 to

170/2013 referred supra arising out of the same accident

which is subject matter of the present appeal, the

claimants therein have claimed themselves to be the

travelers in the offending lorry. The MACT therein on

consideration of the facts and circumstances and the

evidence, more particularly Ex.R-1, namely the RC book

regarding the seating capacity of the offending lorry and

also the admission of R.W.1 who is the owner of the vehicle

(Mallikarjun who is the Respondent No.4 herein) has held

that the lorry was used to carry the members to a marriage

event and as such, there was violation of the terms of the

policy. Consequently, had fastened the liability of payment

of compensation on the Respondent No.4-owner of the

vehicle. Learned counsel for the appellant submits that the

said order has remained unchallenged.

12. Further referring to the deposition of R.W.1-

Mallikarjun, the respondent No.4 who is the owner of the

vehicle, submits that the same categorically establishes

the breach of the policy. In the cross-examination RW.1

has specifically admitted "That on the said date, the lorry

had gone for marriage party and that there were 40

members traveling in the said lorry". Referring to the

same learned counsel vehemently submitted that there is

violation of the policy even as admitted by RW.1.

13. It is necessary to note that Ex.R2 is certificate

cum policy issued by the Appellant insurance company in

respect of the offending vehicle. In that, additional

premium has been paid to cover the risk of the cleaner of

the vehicle. In the instant case, it is not dispute that the

deceased Mareppa was the cleaner of the offending

vehicle. The respondent No.2, in his affidavit evidence has

admitted that Mareppa S/o Ramanna was working in the

lorry as a cleaner. Though the vehicle appears to have

been used for the purpose other than carrying goods and

though it may amount to violation of policy, the same

cannot be extended not to cover the risk of the cleaner as

provided under the insurance policy and undertaken by the

appellant insurance company particularly when the

additional premium is paid.

14. In that view of the matter the reasoning

assigned by the Tribunal that the policy covers risk of the

cleaner and the insurance company is liable to pay the

compensation, is just and proper and does not warrant any

interference.

15. Hence, the following:

ORDER

The appeal filed by the Insurance Company in MFA

No.201220/2014 is disposed of confirming the judgment

and order passed by the Tribunal in MVC.No.170/2012.

Amount in deposit, if any, is ordered to be

transferred to the Tribunal.

Sd/-

JUDGE

BNV