M/S Sriram General Insurance ... vs Muthuraj
2022 Latest Caselaw 2658 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 17th DAY OF FEBRUARY, 2022

                        BEFORE

        THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

              M.F.A.NO.8063/2011 (MV)

BETWEEN:

M/s SRIRAM GENERAL INSURANCE
COMPANY LIMITED,
NO.S-5, 2ND FLOOR,
MONARCH CHAMBERS,
INFANTRY ROAD,
BANGALORE-560001.
REP. BY ITS LEGAL OFFICER                 ...APPELLANT

(BY SRI.H.N.KESHAVA PRASHANTH, ADVOCATE)

AND:

1.     MUTHURAJ
       AGED ABOUT 21 YEARS,
       S/O RAMA BHOVI,
       R/AT BOODAGATTE DODDI VILLAGE,
       PALYA HOBLI, SATTEGALA POST,
       KOLLEGAL TALUK,
       CHAMARAJANAGAR DISTRICT.

2.     SHIVAMADHE GOWDA K
       S/O KARI GOWDA,
       MAJOR,
       R/O THITTAMARANAHALLI,
       CHANNAPATNA TALUK,
       RAMANAGARA DISTRICT.             ...RESPONDENTS

(BY SMT G.K.SREEVIDYA, ADVOCATE FOR
    SRI.T.N.VISWANATH ADVOCATE FOR R1
     AND R2-NOTICE DISPENSED WITH)
                             2




     THIS MFA IS FILED U/S 173(1) OF M.V. ACT AGAINST
THE JUDGMENT AND AWARD DATED 01.04.2011 PASSED IN
MVC NO.1805/2010 ON THE FILE OF 14TH ADDITIONAL JUDGE,
MACT, COURT OF SMALL CAUSES, BENGALURU, AWARDING A
COMPENSATION OF RS.2,80,610/- WITH INTEREST AT 8% PER
ANNUM (FUTURE MEDICAL EXPENSES OF RS.8,000/- DOES NOT
CARRY INTEREST) FROM THE DATE OF PETITION TILL DEPOSIT
IN COURT.

      THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:


                        JUDGMENT

The short question that arises for consideration in

this appeal at the instance of the appellant/insurance

company is as to whether in a case where the policy of

insurance issued, the premium collected is only for the

paid driver, owner-driver and the cleaner, the insurance

company could be held liable to pay compensation for the

bodily injury or death of the coolie in a heavy goods

vehicle above and beyond the compensation payable for

such an employee under the Employee's Compensation Act

1923?

The insurance company has preferred this appeal

seeking to set aside the judgment and award dated

01.04.2011 in MVC No.1805/2010 passed by the Motor

Accident Claims Tribunal, Bangalore.

2. The facts of the case are not required to be stated in

view of the narrow scope of dispute raised in this appeal.

3. One Muthuraj is the claimant. The allegation is that

he was proceeding in a heavy goods vehicle bearing Reg.

No.KA-20-A-5075 which met with an accident resulting in

grievous injuries to the claimant on 03.06.2009 at about

10.30 p.m.

4. The policy coverage is not in dispute. But so far as

liability is concerned, learned counsel for the insurance

company by filing I.A.No.1/2015 has produced the policy

of insurance along with relevant attached sheets to the

same. The said application has already been allowed on

22.02.2016. Therefore, the said document is required to

be considered for the purpose of deciding this appeal.

5. Learned Tribunal after enquiry has allowed the claim

petition in part wherein the compensation of

Rs.2,80,610/- with interest at 8% per annum from the

date of petition till the date of payment.

6. Learned counsel Sri. H.N. Keshava Prasanth for the

appellant-insurance company contends that the liability of

the insurance company insofar as the bodily injury suffered

by the claimant who was admittedly traveling in the

insured vehicle as a coolie is concerned, is limited to the

extent of compensation payable under the Employee's

Compensation Act, 1923 and nothing more. He therefore,

submits that learned Tribunal was in error in fastening the

entire liability to pay the compensation awarded on the

insurance company. Therefore, the judgment and award

impugned herein is liable to be modified to the said extent

and liability of the appellant is required to be reduced.

7. Learned respondent/claimant, per contra, submits

that in view of the judgment of Hon'ble Supreme Court in

the case of Ramchandra Vs. Regional Manager, United

India Insurance Company Limited1, this Court is

required to look into the terms and conditions of the policy

issued and, on such perusal, to decide whether the

appellant/insurance company is liable to pay the entire

compensation or its liability is limited to the extent as

provided under the Employee's Compensation Act, 1923.

She therefore submitted that there is no merit in this

appeal and liable to be dismissed.

8. Perusal of the judgment and award impugned herein

shows that even though, the learned MACT has

meticulously scrutinized the evidence placed and assessed

the compensation payable by applying the relevant

principles guiding the same, this question of law canvassed

before me was not agitated therein and consequently,

learned MACT had no opportunity to consider the same.

9. Nevertheless, this being a question of law and the

facts necessary to examine the same are available on

AIR 2013 SUPREME COURT 2561

record, it is open to the parties before me to advance such

contention and it is incumbent upon me to consider the

same. There is no dispute about the fact that the offending

vehicle was covered by valid policy of insurance issued by

the appellant. There is also no dispute about the fact that

the claimant/respondent was proceeding in the heavy

goods vehicle as a coolie. The policy of insurance issued by

the appellant shows the premium collected under various

heads and the extent of liability taken upon by the

insurance company to indemnify the compensation.

10. Insofar as the liability under the policy of insurance

is concerned, it is necessary to extract the relevant entries

in the policy which read as follows:

B. LIABILITY Basic TP cover 6,090.00 Add: GR36A-PA for owner driver 100.00 Add: LL to paid cleaner count:1 25.00 Add: LL to paid driver count:1 25.00 TP Total 6,240.00 Total premium 11,197.00 Add: service tax 1,384.00 Total amount 12,581.00

Section II liability to the third parties

1. Subject to the limits of liability as laid down in the Schedule hereto to the Company will indemnify the insured in the event of an accident caused by or arising out of the use of the vehicle against all sums including claimant's cost and expenses which the insured shall become legally liable to pay in respect of

i) Death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the vehicle.

ii) Damage to property caused by the use (including the loading and/or unloading) of the vehicle.

11. The above clearly shows that the owner had

collected premium to cover the risk of the owner-driver,

paid driver and paid cleaner and not beyond the same.

Therefore, under the contract of insurance entered into

between the owner of the offending vehicle and the

appellant-insurer, the insurer's liability to pay

compensation for death or personal injury is only to the

owner-driver, paid driver and paid cleaner. The claimant,

being a coolie in the lorry, is not entitled to claim

compensation under the terms of the contract of

insurance. The Insurance Company has statutory liability

to cover the risk of death or bodily injury up to 7 coolies

carried in a heavy goods vehicle to the extent payable under

Employee's Compensation Act, 1923. The above position is

very clear from a close reading of Section 147 of Motor

Vehicle Act, 1988 and Rule of 100 of the Karnataka Motor

Vehicles Rules, 1989.

12. Section 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) is issued by a person who is an authorized insurer; and

(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 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;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

Provided that a policy shall not be required-

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee-

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or

(c) if it is a goods carriage, being carried in the vehicle, or

(ii) to cover any contractual liability.

13. Similarly, Rule 100 of Karnataka Motor Vehicles Rules, 1989

reads as follows:

100. Carriage of persons in goods vehicle.- (1) Subject to the provisions of this rule, no person shall be carried in a goods vehicle:

Provided that the owner or the hirer or a bona fide employee of the owner or the hirer of the vehicle carried free of charge or a police officer in uniform traveling on duty may be carried in a goods vehicle, the total number of persons so carried,-

(i) in light transport goods vehicle having registered laden weight less than 990 kgs. not more than one;

(ii) in any other light transport goods vehicle not more than three; and

(iii) in any goods vehicle not more than seven:

Provided that the provisions of sub-clauses (ii) and (iii) of the above proviso shall not be applicable to the vehicles plying on interstate routes or the vehicles carrying goods from one city to another city.

(2) Notwithstanding anything contained in sub-rule (i), but subject to the provisions of sub-rules (4) and (5), a Regional Transport Authority may, by any order in writing permit that a larger number of persons may be carried in the vehicle, on condition that no goods at all are carried, free of charge in connection with the work for which the vehicle is used, and that such other conditions as may be specified by the Regional Transport Authority are observed, and where the vehicle is required to be covered by a permit, the conditions of the permit.

(3) Notwithstanding anything contained in sub-rules (1) and (2), but subject to the provisions of sub-rules (4) and (5),-

(a) for the purpose of celebrations in connection with the Republic Day or Independence Day or any other public congregation, the Regional Transport Officer;

(b) for the purpose of enabling a co-operative society or class of co-operative societies owning or hiring a goods vehicle to carry its members under its authority in such goods vehicle when used for the purpose of carrying goods of the society in the

ordinary course of its business, the Secretary of Regional Transport Authority;

(c) where it considers expedient in public interest in respect of vehicles owned or hired by it, and in respect of other vehicles on such inescapable grounds of urgent nature to be specified in the order, the State Government may, by general or special order, permit goods vehicle to be used for the carriage of persons for the purpose aforesaid, and subject to such conditions, as may be specified in the order.

(4) No persons shall be carried in any goods vehicle,-

(a) unless an area of not less than 0.40 square metre of the floor of the vehicle is kept open for each persons; and

(b) in such manner-

(i) that such person when carried on goods is otherwise in danger of falling from the vehicles;

(ii) that any part of his body, when he is in a sitting position is at a height exceeding three metres from the surface upon which the vehicles rests.

(5) The provisions of this rule shall not apply to motor vehicles registered under section 60.

(6) No person other than an attendant or attendants required by Rule 226 shall be carried on a trailer which is a goods vehicle.

14. Hon'ble Supreme Court in Ramchandra's case

(supra) has only observed that the Court adjudicating the

matter will have to closely scrutinize the terms and

conditions of the policy issued in each case and thereafter,

determine whether additional premium has been collected

under the policy of insurance to cover the risk of the coolie

in a goods vehicle. It is already noticed in this case that,

no additional premium is collected to cover the risk of

coolies carried on the offending vehicle by the

appellant/insurance company. Therefore, it is axiomatic

that the liability of the appellant to pay compensation to

the claimant-respondent is only to the extent payable

under the Employee's Compensation Act, 1923.

15. Learned Tribunal has held that the claimant was

aged 21 years at the time of accident. The accident has

occurred in the year 2009. Therefore, the maximum

notional income that can be taken under Employee's

Compensation Act, 1923 is Rs.4,000/- and accordingly

notional income is fixed at Rs.4,000/- per month.

16. The learned Tribunal upon detailed consideration of

the medical evidence has come to the conclusion that the

functional disability resulting in loss of income for the

claimant is 20% to the whole body. The relevant factor

applicable to the case of the claimant, he being aged 21

years at the time of accident, is 222.71/- under the

Employee's Compensation Act, 1923. Therefore, the

compensation awardable under the Act is

Rs.4,000x60/100x222.71x20/100=1,06,901/-.

17. Similarly, since the liability of the insurance company

to pay the compensation is limited to the extent payable

under the Employee's Compensation Act, 1923, the

interest payable should also be calculated under the same

enactment and consequently, interest payable is 12% per

annum with effect from 30 days from the date of accident

till the date of depositing the amount. The appeal is

allowed to the said extent.

18. The amount in-deposit along with records shall be

transmitted to the learned court below forthwith.

19. Balance amount shall be deposited by the insurance

company before the learned MACT within six weeks from

the date receipt of this order.

Sd/-

JUDGE

JS/-