The United Indiai Insurance ... vs Mallamma W/O Chandramappa ...
2022 Latest Caselaw 8917 Kant

                            1


            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 16 TH DAY OF JUNE 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR


                MFA No.200395/2014 (MV)

BETWEEN:

THE UNITED INDIA INSURANCE CO. LTD.,,
THROUGH ITS DIVISIONAL MANAGER
DR. JAWALI COMPLEX
SUPER MARKET, GULBARGA
                                   ... APPELLANT

(BY SRI. S.S. ASPALLI, ADVOCATE)

AND:

1.     MALLAMMA
       W/O. CHANDRAMAPPA NAIKODI
       AGE: 57 YEARS, OCC: COOLIE
       R/O. MUDBOOL, TALUK: SHAHAPUR
       NOW RESIDING AT MAHALAXMI
       LAYOUT, GULBARGA.

2.     SANJEEVAPPA
       S/O. CHANDRAMAPPA
       AGE: 32 YEARS

3.     TRUPTI
       S/O. CHANDRAMAPPA
       AGE: 26 YEARS

4.     SHANTAMMA
       D/O. CHANDRAMAPPA
       AGE: 25 YEARS
                             2


5.   RANGAMMA
     D/O. CHANDRAMAPPA
     AGE: 24 YEARS,

6.   LAXMI
     D/O. CHANDRAMAPPA
     AGE: 23 YEARS

     ALL ARE RESIDENTS OF MUDBOOL VILLAGE
     SHAHAPUR TALUK, YADGIR DISTRICT.

7.   JHAKIR MAINODDIN
     S/O. UMAR KHAN
     MAJOR, OCC: BUSINESS]
     OWNER OF VEHICLE NO
     KA-36/T-3499 AND KA-36/5-3500
     MANVI, RAICHUR DISTRICT.
                                     ... RESPONDENTS

(BY SRI. BABU H. METAGUDDA, ADV. FOR R1 & R3 TO R6;
     SRI. BASAVARAJ R. MATH, ADV. FOR R7;
     NOTICE TO R2 SERVED)

     THIS MFA IS FILED IS FILED UNDER SECTION 173(1)
OF MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE
RECORDS    AND SET ASIDE THE JUDGMENT AND AWARD
DATED 06.09.2013 IN MVC NO.1217/2004 PASSED BY THE
PRINCIPAL SENIOR CIVIL JUDGE AND MACT, GULBARGA, BY
ALLOWING THE ABOVE APPEAL.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT     ON    10.06.2022,   COMING     ON        FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
                               3


                        JUDGMENT

This appeal is filed by Respondent No.2-Insurance

Company under Section 173(1) of the Motor Vehicle Act,

1988 ('MV Act' for short) challenging the liability fastened

on the Insurance Company in MVC No.1217/2004 on the file

of the Principal Senior Civil Judge and MACT, Gulbarga, vide

judgment and award dated 06.09.2013.

2. For the sake of convenience, the parties herein

are referred as per the ranks occupied by them before the

Tribunal.

3. The brief factual matrix leading to the case are

that, on 18.06.2004 at about 11.00 p.m., the deceased

Chandramappa and his family members were proceeding

along with house-hold articles and food grains to shift the

house to their native place-Mudbool in the Tractor bearing

No. KA.36/T-3499 and KA-36/T.3500 belonging to

Respondent No.1. When the Tractor reached Anwar Cross,

near Hattigud main road, the driver drove the Tractor in

negligent manner and in high speed, as a result, the

vehicle turned turtle on the left side of the road and the

deceased along with other persons fell down from the

Tractor and sustained grievous injuries, and he died on the

spot.

4. Petitioner/claimant No.1 being the wife and

Petitioner/claimants No. 2 to 6 being the sons and

daughters, have filed a claim petition under Section 166 of

the MV Act.

5. The Respondent No.2-Insurance Company

contested the matter on various grounds and further it is

specifically contended that the deceased was a gratuitous

passenger sitting on the engine (mud-guard) and hence the

insurance company is not liable to pay any compensation.

6. The Tribunal after appreciating the oral and

documentary evidence has awarded a total compensation of

Rs.4,85,500/- by fastening liability on Respondent No.2-

Insurer. Being aggrieved by this award, the Insurance

Company has filed this appeal.

7. Heard the arguments advanced by the learned

counsel for the appellant-Insurance company and the

learned counsel for respondents. Perused the records.

8. Learned counsel for the appellant-Insurance

Company would contend that the deceased was travelling in

the offending Tractor along with house-hold articles and he

was sitting on the mudguard of the said Tractor. The

Tractor could accommodate only the driver and as such, the

deceased being a gratuitous passenger is not entitled to be

reimbursed from the respondent-Insurer, as no risk of the

passenger is covered. In this contest, he has relied on

number of citations.

9. On the contrary, learned counsel for

respondents would support the judgment and award of the

Tribunal and further it is argued that the claim is already

satisfied and as such, sought for dismissal of the appeal.

10. Having heard the arguments and perusing the

records, it is not under serious dispute that the

Chandramappa while travelling in the Tractor, which met

with accident, succumbed because of injuries. Regarding

quantum of compensation awarded by the Tribunal, there is

no serious dispute and the dispute of the Insurance

Company is only regarding liability.

11. Learned counsel for the appellant has invited the

attention of the Court towards the FIR and complaint,

wherein there is clear reference that the deceased was

travelling in the Tractor and the Tractor is being driven by

the son of the deceased by name Narayana, and the

deceased along with the complainant was sitting on the

engine.

12. Learned counsel for the respondent would

contend that the FIR cannot be taken note of, as PW.1 has

denied the contents of the FIR. In the evidence of PW.1

she stated that, she was travelling along with the deceased

in the trailer along with house-hold articles. But, it is to be

noted here that the deceased was never claimed to be the

coolie under Respondent No.1. Even Respondent No.1 did

not appear and contested the matter. The Tractor was

driven by the son of the deceased. Even in cross-

examination, PW.1 has gone to the extent of denying

transportation of house-hold articles in the Tractor. Even

for what purpose they were travelling in the vehicle is not

at all forthcoming. In this context, the learned counsel for

the appellant placed reliance on a decision reported in 2007

ACJ 1928 [Oriental Insurance Co. Ltd. Vs. Premlata

Shukla and others], wherein the Hon'ble Apex Court has

observed as under:

"Motor Vehicles Act, 1988, Section 166- Claim application - Maintainability of - Negligence- Proof of rashness and negligence of driver of offending vehicle is sine qua non for maintaining claim application- Collision between a van and truck and a passenger in van sustained fatal injuries - Registration number of truck could not be noted - On the basis of FIR lodged by a passenger in van, criminal case against driver of truck was initiated, but had to be closed as the truck and its driver could not be traced- Claimants filed claim against driver, owner and insurance company of van- Tribunal

on the basis of evidence including FIR, held that van driver was not driving rashly and negligently and dismissed the claim application - High Court relied upon the deposition of two witnesses and observed that as FIR was not legally proved, driver of van should be held guilty of rash and negligent driving - FIR had been relied upon by the parties on both sides and the claimants had made a reference to it in their claim application-

FIR was marked as an exhibit, as both the parties intended to rely upon it - Whether the Tribunal was justified in relying upon the FIR irrespective of the fact that contents of the document have been proved or not - Held : yes; judgment of High Court set aside and claim application dismissed. [2006 ACJ 1081 (MP) reversed)".

(Emphasis supplied)

13. In the instant case also, the FIR was marked at

the instance of PW.1 and when the FIR and complaint

were marked during her evidence, and when claimants are

relying on the FIR and Complaint, it is not permissible for

PW.1 to deny the contents of FIR now, only to suit their

claim. Further, even in mahazar marked at Ex.P3, there is

reference that the deceased and complainant were

travelling by sitting on engine. The mahazar was drawn at

the instance of the complainant herself. Under such

circumstances, now it cannot lie in the mouth of the

claimants that the contents of FIR were wrong. Even they

did not challenge the contents of FIR or recitals made in

the FIR and complaint. But, in fact they tendered it in

evidence and relied on the same. Even they placed

reliance on Ex.P9, which is the judgment of the criminal

court, wherein the claimants have turned hostile to the

prosecution case. Admittedly the driver of the offending

vehicle was the son of PW.1 and as such, naturally they

have turned hostile in order to save his skin. But, no

evidence is placed before this Court to show that the

recitals of the complaint were made falsely. In this context,

the learned counsel for respondent has placed reliance on

an unreported decision of the Hon'ble Apex Court in Civil

Appeal No.6151/2021 (arising out of Special Leave

Petition (C) No.4705/2019). But, the facts and

circumstances of the said case are entirely different. Apart

from that, in the said case, the decision of Hon'ble Apex

Court reported in 2007 ACJ 1928 (cited supra) was not

at all considered and hence, considering these facts and

circumstances, the principles enunciated in the said decision

cannot be made applicable to this case.

14. Learned counsel has also placed reliance on the

decision of this Court in MFA No.3787/2006 (WC) and

connected appeals. But, the facts of the said case are

different and it is pertaining to Workmen's Compensation

Act and that principle cannot be made applicable to the case

in hand.

15. Learned counsel for the respondents further

placed reliance on a decision in MFA No.6624/2007

(MV) dated 08.02.2010. But, it was pertaining to

carrying of two persons in goods vehicle. But, in the instant

case, the deceased was alleged to be travelling by sitting

on engine of the offending Tractor. In this context, the

decision of the Full Bench of this Court reported in AIR

2021 KAR 102 (MFA CROB No.100001/2016 in MFA

No.102649/2015 and connected matters, rendered

on 20.04.2021) [Gadhilingappa @ Gadhilinga and

another Vs. K. Guleppa and others] is very much

relevant, wherein the Full Bench of this Court basing the

decision of the Hon'ble Apex Court, has held that the

liability of a person sitting on mud-guard of a Tractor is not

required to be covered by statutory insurance policy as

contemplated under sub-Section (1) of Section 147 of the

MV Act. It is further held that the Tractor is meant for only

driver and the person sitting on mud-guard does not cover

any liability and the Insurance Company is not liable to pay

the compensation. The evidence on record clearly establish

that, in the instant case, the deceased was admittedly

sitting on the mud-guard and that is evident from Exs.P1,

P2 and P3. Though PW.1 claims in her evidence that, they

were sitting in the trolley, no material evidence is placed to

substantiate this contention and the complaint averments

were not denied or disputed. Further, the FIR and

Complaint itself are based for claiming compensation and

the claimants are relying on the same documents. When

they are relying on the said documents, in view of the

decision of Premlata Shukla ( supra), the contents of the

document is held to be proved, as both the parties are

relying on the same documents. Hence, the Tribunal has

erroneously held that the Insurance Company is liable to

pay compensation and in the facts and circumstances, it is

evident that, as the deceased was travelling by sitting on

mud-guard of the Tractor, the Insurance Company is not

liable and it is only the owner (Respondent No.1) is liable to

pay compensation. However, it is also submitted that the

Insurance Company has already satisfied the claim. If that

is the case, it is open for the Insurance Company to claim

and recover it from the owner.

16. Under these circumstances, the appeal needs to

be allowed and accordingly, I proceed to pass the

following:-

ORDER

The appeal is allowed. The judgment and award dated 06.09.2013 passed by the Tribunal viz., Principal Senior Civil Judge and MACT,

Gulbarga, in MVC No.1217/2004 is modified so far as it relates to liability and the liability to pay compensation is fastened on Respondent No.1-

Owner. However, since it is submitted that the claim is already satisfied, it is open for the Insurance Company to recover the same from Respondent No.1-owner.

Statutory amount deposited by the Insurance Company shall be refunded to the appellant-Insurance Company.

Sd/-

JUDGE

KGR*