Karnataka High Court
The New India Assurance Co. Ltd vs Mureppa @ Mursidda S/O. Bhimarai ... on 11 December, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC-D:14541
MFA No. 25718 of 2011
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.25718/2011 (MV)
BETWEEN:
THE NEW INDIA ASSURANCE
COMPANY LIMITED,
BRANCH OFFICE, ASHOK NAGAR,
NIPPANI, THROUGH ITS
DIVISIONAL MANAGER,
D.O., CLUB ROAD, BELAGAVI,
REP. BY ITS ASST. MANAGER,
REGIONAL OFFICE,
TP-HUB, II FLOOR, SRINATH COMPLEX,
NEW COTTON MARKET, HUBBALLI.
...APPELLANT
(BY SRI G.N.RAICHUR, ADVOCATE.)
AND:
1. SHRI MUREPPA @ MURASIDDA
Digitally S/O. BHIMARAI KULAGUDE,
signed by AGE: 32 YEARS, OCC: COOLIE,
SUJATA
SUBHASH R/O: MAVINAHONDA, TQ: RAIBAG,
PAMMAR DIST: BELAGAVI.
2. SHRI PRADHANI BASAPPA PUTANE,
AGE: MAJOR, OCC: BUSINESS,
R/O: MAVINAHONDA, TQ: RAIBAG,
DIST: BELAGAVI.
(OWNER OF TRACTOR NO.KA-28/T-4527
AND TRAILER NO.KA-28/T-4528.)
...RESPONDENTS
(BY SRI K. ANANDKUMAR, ADVOCATE FOR R1;
R2 - NOTICE SERVED.)
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MFA No. 25718 of 2011
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLS ACT, 1988, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 30.08.2011, IN MVC
NO.465/2009 PASSED BY THE COURT OF III ADDITIONAL SENIOR
CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, BELAGAVI BY ALLOWING THIS APPEAL WITH COST,
ETC.,.
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the insurance company
challenging the judgment and award passed in MVC
No.465/2009, dated 30.08.2011, by the III Addl. Senior
Civil Judge and Addl. MACT, Belagavi, on the ground that
the claim is not maintainable under the provisions of the
M.V.Act. Therefore, prays to set aside the judgment and
award passed by the tribunal.
2. It is the case of the claimant that on
09.04.2008 at 05.00 p.m. the claimant was loading stones
in the tractor trailer and while loading stones, the phadak
(metal door with locking system holding the load on the
trailer at the backside of the trailer) suddenly opened and
the loaded stones have fallen on the claimant and thus the
claimant sustained injuries. Therefore, the claimant filed
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claim petition seeking compensation before the tribunal
and the tribunal has awarded the compensation.
3. Heard the arguments and perused the records.
4. The learned counsel for the appellant insurance
company submitted that the claim petition is not
maintainable since the tractor trailer was not in a moving
position and the driver was not on the driver seat and
when the tractor was in a static position, while loading
stones, this incident was happened as stated above.
Therefore, the claim petition filed under section 166 of the
M.V.Act is not maintainable and at the most the claimant
should have approached before the Commissioner for
Workmen's Compensation under the Employees
Compensation Act, 1923. Therefore, prays to reject the
claim by allowing this appeal.
5. On the other hand, learned counsel for
respondent submitted that the claimant has option either
to approach the MACT under the M.V.Act or before the
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Commissioner for Workmen's Compensation under the
Employees Compensation Act, 1923 and accordingly the
claimant has filed claim petition under section 166 of the
M.V.Act before the tribunal and that is rightly considered
by the tribunal. Hence, justified the judgment and award
passed by the tribunal and prays to dismiss the appeal.
6. In the present case the claimant had sustained
injuries while he was loading stones on the trailer of
tractor and the phadak of the trailer suddenly opened and
stones which were loaded in the trailer had fallen on the
body of the claimant, thus the claimant sustained injuries.
7. Even though the tractor trailer is not in a
moving position, and was static for loading stones on the
trailer but the accident is out of use of motor vehicle.
Therefore, the claimant has option to prove claim petition
either under the provisions of M.V.Act or under the
provisions of Employees Compensation Act, 1923, as per
section 167 of the M.V.Act. Therefore quite naturally the
claimant has preferred a claim petition under section 166
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of the M.V.Act which is maintainable. There is no merit in
the argument canvassed by the counsel for appellant
insurance company that compensation can be claimed only
under the provisions of Employees Compensation Act
which is not correct. For the reason that when the statute
has given option to the claimant to choose either of the
forum under two different statutes but not both
simultaneously, the claimant has chosen to prefer claim
under the provisions of M.V.Act and that is considered by
the tribunal and accordingly the tribunal awarded the
compensation.
8. In the present case the insurance policy
admittedly is a Liability only/Act only policy. Therefore,
liability of the insurance company is as per the provisions
of section 147 of the M.V.Act. Therefore, what the
insurance company is liable under section 147 of the
M.V.Act that liability is to be put on the insurance
company. I place reliance on the judgment of this Court in
the case of Mounesh vs. Thimmanna and another,
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reported in 2011 ACJ 2054. As per section 147 of the
M.V.Act, the insurance company is liable to pay
compensation and its liability is restricted to the
compensation to be determined as per the Employees
Compensation Act, 1923 for the reason that the insurance
policy is Act policy/Liability only policy.
9. Even though the tribunal has determined the
compensation under section 166 of the M.V.Act, the
insurance company is liable to pay compensation as to be
determined under the provisions of the Employees
Compensation Act, 1923, as per sub-clause (i) of clause
(b) of sub-section (1) of section 147, irrespective of
premium is paid in the Act policy/Liability only policy. It is
submitted, extra premium is paid covering the risk of one
employee. Therefore determination of compensation made
by the tribunal is to be classified that what is the insurance
company would be liable under the provisions of
Employees Compensation Act, 1923 and the remaining
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balance amount would be payable by the owner of the
tractor and trailer.
10. In the present case the tribunal awarded
compensation of Rs.1,93,840/-. The accident is caused on
09.04.2008. The doctor stated that the claimant suffered
50% of physical disability and the tribunal has considered
functional disability at 9%. The claimant has not
challenged holding of 9% as functional disability taken by
the tribunal. Under the Employees Compensation Act, the
loss of earning capacity can be considered according to the
percentage of disability suffered by the claimant. The
injuries suffered by the claimant are non scheduled
injuries. The injuries sustained by the claimant are
permanent partial disability as per section 4 of the
Employees Compensation Act, 1923. Therefore the actual
compensation to be determined under the Employees
Compensation Act is as follows:
11. The income of Rs.4,000/- per month is to be
taken into consideration. The claimant was aged 30 years
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old at the time accident. Therefore the relevant factor is
207.98. Therefore the compensation under the provisions
of the Employees Compensation Act, 1923 is determined
as Rs.44,923/- (Rs.4,000 x 60% x 207.98 x 9%).
Therefore the appellant insurance company is liable to pay
compensation of Rs.44,923/- along with interest at the
rate of 12% p.a. from the date of accident.
12. From the determined compensation by the
tribunal, the respondent No.2 owner is liable to pay the
remaining balance amount to the claimant with interest at
the rate of 12% p.a. from the date of accident till
realization. To this extent the appeal filed by the insurance
company is liable to be allowed in part.
13. In the result, I proceed to pass the following:
ORDER
i) The appeal filed by the insurance
company is allowed in part.
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ii) The judgment and award passed in
MVC No.465/2009, dated 30.08.2011, by the
III Addl. Senior Civil Judge and Addl. MACT,
Belagavi, stands modified holding that the
appellant insurance company is liable to pay
compensation to the claimant to the extent of
Rs.44,923/- along with interest at the rate of
12% p.a. from the date of accident till
realization and the remaining balance amount
shall be paid by respondent No.2 owner of the
vehicle.
iii) The respondent No.2 owner of the
vehicle shall pay remaining compensation as
determined by the tribunal, along with interest
at the rate of 12% p.a. from the date of
accident till realization.
iv) The amount in deposit shall be
transmitted to the tribunal.
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v) The excess amount, if any,
deposited by the appellant insurance company
shall be refunded to the appellant insurance
company.
vi) No order as to costs.
vii) Draw award accordingly.
SD/-
JUDGE
MRK
CT-ASC
