Sri D B Lokeshappa Gowda vs Mr A Maruthi
2022 Latest Caselaw 12768 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF NOVEMBER, 2022

                         BEFORE

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

                 M.F.A.No.10282/2013 (MV)


BETWEEN:

1.   SRI D B LOKESHAPPA GOWDA
     S/O PATEL BASAPPA
     MAJOR
     R/AT DEVAKATHIEOPPA VILLAGE
     SHIVAMOGGA TALUK
     SHIVAMOGGA DISTRICT - 572 101
     DEAD BY LRS

1(A) SRI D L RAMESH
     S/O LOKESHAPPAGOWDA
     AGED ABOUT 43 YEARS
     R.AT DEVAKATHIEOPPA VILLAGE
     KOTEGANGUR POST - 572 101
     SHIVAMOGGA TALUK AND DISTRICT

1(B) SRI K L SURESH
     S/O LOKESHAPPAGOWDA
     AGED ABOUT 49 YEARS
     R.AT DEVAKATHIEOPPA VILLAGE
     KOTEGANGUR POST - 572 101
     SHIVAMOGGA TALUK AND DISTRICT

1(C) SRI K L REKHA
     W/O R C CHANDRASEKHAR
     S/O KOKESHAPPAGOWDA
     AGED ABOUT 41 YEARS
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       R/AT KUNIGAL, KSRTC HOUSING BOARD
       KUNIGAL TALUK - 572 130
       TUMAKURU DISTRICT
                                             ... APPELLANTS
(BY SRI V B SIDDARAMAIAH, ADVOCATE)

AND:

1. SRI A MARUTHI
   S/O ANNAPPA
   AGED ABOUT 20 YEARS
   R/AT DEVAKATHIEOPPA VILLAGE
   SHIVAMOGGA TALUK
   SHIVAMOGGA DISTRICT - 572 101

2. SRI RENUKAPPA
   S/O GANGAPPA
   AGED ABOUT 24 YEARS
   R/AT DEVAKATHIEOPPA VILLAGE
   SHIVAMOGGA TALUK
   SHIVAMOGGA DISTRICT - 572 101

3. UNITED INDIA INSURANCE CO. LTD
   2ND FLOOR, RUB BUILDING
   A A CIRCLE, B H ROAD
   SHIVAMOGGA TLAUK
   SHIVAMOGGA - 572 101
   REP. BY ITS MANAGER

4. A ANNAPPA
   S/O NOT KNOWN
   AGED ABOUT 00 YEARS
   R/AT DEVAKATHIEOPPA VILLAGE
   SHIVAMOGGA TALUK
   SHIVAMOGGA DISTRICT - 572 101
                                           ... RESPONDENTS
(BY SRI O MAHESH, ADVOCATE FOR R3;
R1 & R2 ARE SERVED;
V/O DT.17.08.21, NOTICE TO R4 IS D/W)
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     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 19.10.2012
PASSED IN MVC NO.963/2011 ON THE FILE OF FAST TRACK-II
AND MACT, SHOMOGA AND ETC.

    THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

This appeal is filed challenging the judgment and award

dated 19.10.2012 passed in M.V.C.No.963/2011 on the file of

the Fast Track-II and MACT, Shomoga ('the Tribunal' for short).

2. Heard the learned counsel appearing for the

appellants and the learned counsel appearing for the respondent

No3.

3. The main contention of the learned counsel for the

insured is that the Tribunal has committed an error in fastening

the liability on the insured even though the policy was in force

and the same is also admitted by RW1 and the deceased

Durgamma was travelling as a loader in the said vehicle hence,

the Insurance Company is liable to pay the compensation hence,

the Tribunal erred in coming to the conclusion that the deceased

Durgamma was travelling in the tractor as a passenger but the

fact is that she was working as a coolie and travelling in the

tractor in the course of agricultural employment to load the mud

to the garden of the appellant and RW1 who is an Administrative

Officer during the course of his cross-examination, he admitted

that in terms of policy, respondent No.1 is liable to pay the

compensation in the event of death of any employee in the

course of agricultural employment. In terms of Ex.P4, the

complaint was lodged by the father of the deceased Durgamma

which clearly reveals that she was travelling in the tractor for the

purpose of loading the mud and inspite of the said contention,

the Tribunal committed an error in coming to the conclusion that

she was a passenger, not an employee.

4. The counsel appearing for the appellant brought to

notice of this Court the copy of the document at Ex.R1-Policy

and contend that a separate premium is collected in respect of

WC employee hence, the Tribunal ought not to have exonerated

the liability of the Insurance Company. Hence, it requires

interference of this Court.

5. Per contra, the learned counsel appearing for the

Insurance Company would contend that policy which is marked

as Ex.R1 is liability only policy, hence, the Insurance Company is

not liable to pay any compensation. The counsel further contend

that even though the premium is collected for WC employee, the

same is applicable only at the time of loading and unloading and

not atn the time travelling in the tractor. Hence, the Insurance

Company is not liable to pay any compensation.

6. Having heard the learned counsel appearing for the

respective parties and also on perusal of the material available

on record, particularly the document at Ex.P2-FIR, wherein, it is

mentioned that the driver of the tractor and trailer drove the

same in a rash and negligent manner as a result, the deceased

fell down from the trailer and contents of Ex.P4-complaint

discloses that the deceased was travelling in the said tractor

when an accident was occurred and immediately she was shifted

to the District Mc Gann hospital and in the cross-examination of

PW1, he says that the said Durgamma was proceeding in the

tractor to attend the work of Lokeshappa but he does not know

what was the work and he does not remember whether his

mother was going to attend the loading work. On the other

hand, the respondents examined one witness as RW1 who in his

evidence, he says that the said tractor cannot be used for hire or

carrying any passengers and the said vehicle is registered as a

non-transport vehicle and therefore, it cannot carry any person

to load or unload the goods and they have not covered any

employees of the owner under the Act except the driver and the

rest of coolies and other employees of the owner is not required

to be covered compulsorily under the Act and taken the premium

only for the third parties and own damages. The witness was

also subjected for cross-examination and in the cross-

examination, he admits that the policy was in force and also

admits that the driver was also having the driving licence and he

admits that when the vehicle was used for agricultural purpose

at that time, the vehicle met with an accident, hence, they are

liable to pay compensation. However, the witness volunteers

that in the policy itself, it is mentioned that to whom the

compensation has to be given. It is suggested that the deceased

was travelling in connection with the agricultural work and the

witness volunteers that the deceased was travelling as a

passenger hence, the Insurance Company is not liable to pay

any compensation.

7. Having considering the material available on record

particularly, in the FIR, it is mentioned that due to the

negligence of the driver of the tractor the alleged accident was

occurred and also in Ex.P4, it is mentioned that she was

proceeding in the tractor and trailer as a coolie and also in the

cross-examination of RW1, he admits that if a person carries in a

vehicle for the purpose of agricultural purpose, then the

Insurance Company is liable to pay compensation and the only

contention of the counsel for the Insurance Company is that the

deceased was travelling in the vehicle as a passenger and in

order to prove the said fact, nothing is placed on record except

the statement of RW1 and the records disclose that she was

proceeding in the tractor as a coolie and only contention of the

Insurance Company is that if the deceased travelled as a

passenger, then the Insurance Company is not liable to pay

compensation and I have already pointed out that there is no

cogent evidence before the Court to prove that the deceased

was travelling as a passenger not as a worker and on perusal of

Ex.R1 also it is mentioned as liability only policy and premium of

Rs.25/- is collected for WC employee-1, when such being the

material available on record, the contention of the Insurance

Company cannot be accepted and the fact that the premium of

Rs.25/- collected for WC employee-1 is not in dispute but only

contention of the Insurance Company is that carried a person in

the tractor and trailer as a passenger hence, the Insurance

Company is not liable to pay compensation. The counsel for the

Insurance Company also would vehemently contend that only at

the time of loading and unloading, any accident was occurred,

then the Insurance Company is liable to pay compensation and

the said contention cannot be accepted when the premium is

collected in respect of WC employee. Under such circumstances,

there is a force in the contention of the counsel for the appellant

that the Tribunal has committed an error in not considering the

material available on record and erroneously fastened the

liability on the insured instead of insurer when the policy was in

force as on the date of the accident and the premium was

collected towards WC employee. Hence, it requires interference

of this Court.

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

following:

ORDER

i. The appeal is allowed.

      ii.    The impugned judgment and award of the
             Tribunal      dated     19.10.2012        passed      in

M.V.C.No.963/2011 is modified setting aside the fastening the liability on the insured and exonerating the liability on the Insurance Company and directed the Insurance Company to pay the compensation with interest at the rate of 6% per annum.

iii. The amount in deposit made by the appellant is ordered to be refunded on proper identification. iv. The Insurance Company is not liable to pay interest for the delayed period of 323 days. v. The Registry is directed to send the records to the concerned Tribunal, forthwith.

Sd/-

JUDGE

SN