Karnataka High Court
The Oriental Insurance Co Ltd vs B Roopa on 26 December, 2023
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MFA No. 5690 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 5690 OF 2014 (MV-D)
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.
JAYADEVA HOSTEL BUILDING B.H.ROAD
TIPTUR THROUGH ITS HUBLI REGIONAL OFFICE
2ND FLOOR, SUMANGALA COMPLEX
LAMINGTON ROAD, HUBLI - 580 020
REP. BY ITS REGIONAL MANAGER ... APPELLANT
(BY SRI. S. V. HEGDE MULKHAND, ADV.)
AND:
1. B. ROOPA
W/O B.C.SHIVAPPA
AGED ABOUT 33 YEARS
2. HEMA
D/O B.C.SHIVAPPA
AGED ABOUT 11 YEARS
Digitally signed by 3. PUNEETH
MALA K N
S/O B.C.SHIVAPPA
Location: HIGH COURT
OF KARNATAKA AGED ABOUT 5 YEARS
4. CHANNABASAPPA
S/O BYREGOWDA
AGED ABOUT 72 YEARS
RESPONDENT NOS.2 AND 3 ARE MINORS
REP. BY THEIR MOTHER AND NATURAL GUARDIAN
THE RESPONDENT NOS. 1 TO 3 ARE THE
LRS OF THE DECEASED R4 AND ARE
ON RECORD. AND HENCE THE NOTICE
TO R4 IS DISPENSED AND R4 IS DELETED
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MFA No. 5690 of 2014
R4 DELETED VIDE PERMISSION GRANTED
ON 12.4.2017 FOR AMENDMENT OF CAUSETITLE
RESPONDENT NOS.2 AND 3 ARE MINORS
REP. BY THEIR MOTHER AND NATURAL GUARDIAN
THE RESPONDENT NO.1
ALL ARE R/O BYRANAIKANAHALLI
HONNAVALLI HOBLI, TIPTUR TALUK - 5772201
THE RESPONDENT NO.4 BEFORE THE MACT
IS DEAD AS PER THE JUDGMENT AND HENCE
NOT MADE PARTY IN THIS APPEAL
5. B.N. VEDAMURTHY
S/O NANJAPPA, MAJOR IN AGE
R/O BYRANAIKANAHALLI
HONNAVALLI HOBLI
TIPTUR TALUK - 572 201 ... RESPONDENTS
(BY SRI.B. K. NARENDRA BABU, ADV. FOR R1;
SRI.M.V.MAHESHWARAPPA, ADV. FOR R5;
R2 AND R3 ARE MINORS REP. BY R1;
R4 IS DELETED VIDE ORDER DATED 14.02.2017]
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 15.07.2014 PASSED
IN MVC NO.56/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, 14 TH
MACT, TIPTUR, AWARDING A COMPENSATION OF RS.5,68,000/-
WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION OF THE AWARD AMOUNT AGAINST THE
RESPONDENTS.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.12.2023 AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 5690 of 2014
JUDGMENT
In this appeal, the Insurance Company has
challenged the judgment and award dated 15.07.2014 in
M.V.C.No.56/2012 passed by the Senior Civil Judge and
XIV, Tiptur ('the Tribunal' for short).
2. For the sake of convenience, the parties shall be
referred to as per their status before the Tribunal.
3. Brief facts of the case are, on 06.12.2011 at about
08:00 am, the husband of 1st petitioner, father of
petitioners No.2 and 3 and son of petitioners No.4 and 5,
by name B.C. Shivappa, the deceased, while transporting
coconut load in a tractor-trailor bearing Reg.No.KA-06/T-
7347-48 from his garden to his house situated at
Byranaikanahalli, on the Kengadu garden cart track at
about 10:30 am, tractor fell into the ditch, due to which
the deceased fell down and sustained the injuries. Though
he was treated at Government Hospital, Tiptur, he
succumbed to death. The petitioners being the
dependants have approached the Tribunal for grant of
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compensation of Rs.25,00,000/-. Claim was opposed by
the Insurance Company. The Tribunal after taking the
evidence, by impugned judgment, awarded compensation
of Rs.5,68,000/- with 6% interest p.a. directing the
respondent to pay the compensation. Aggrieved by the
same, the Insurance Company has filed this appeal on
various grounds.
4. Heard the arguments of Sri. S.V. Hegde Mulkhand,
learned counsel for the Insurance Company, Sri. B.K.
Narendra Babu, learned counsel for the petitioners and Sri.
M.V. Maheshwarappa, learned counsel for the owner of the
tractor.
5. It is the contention of learned counsel for the
Insurance Company that the deceased was a passenger in
a tractor-trailor, sitting on the load of coconut, sustained
the injuries due to the accident and succumbed to death.
The tractor was not insured with any passenger of the
tractor and there is no package or comprehensive
insurance covering the risk of the trailor passenger or the
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owner of the goods travelling in the tractor, the Tribunal
did not consider the liability aspect with reference to the
contract of insurance entered into between respondents
No.1 and 2, fastened the liability erroneously. To support
his contention, he has relied upon the judgment of this
Court in National Insurance Co. Ltd. -Vs.-
Bramarambike and others1, Full Bench judgment of this
Court in Gadhilingappa @ Gadhilinga -Vs.- K.
Guleppa2 and also the judgment of the Hon'ble Apex
Court in National Insurance Co. Ltd. -Vs.- V.
Chinnamma and others3.
6. Per contra, learned counsel for the petitioner has
contended that no doubt the deceased was travelling along
with the goods, the policy of insurance covers the risk of
the passenger of the tractor; even in case of no liability, it
is a case for pay and recovery and requested that the
Insurance Company has to be directed to pay the
compensation and recover it from the owner.
2006 ACJ 671
LAWS (KAR)-2021-4-6
2004 ACJ 1909
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7. Learned counsel for the owner of the tractor has
contended that there is a coverage of policy for the
passenger and therefore the Insurance Company has to
indemnify his liability and concept of pay and recovery is
not applicable to this case.
8. I have given my anxious consideration to the
arguments addressed on both sides and also perused the
materials on record.
9. There is no dispute as to the accident that took
place on 06.12.2011 at 10:30 am while the deceased was
transporting coconut in the tractor in question met with an
accident near Kengadu garden cart track injuring him. He
died at Government Hospital, Tiptur, the petitioners being
wife, children and parents as dependents, entitled to claim
compensation. The Tribunal has awarded a compensation
of Rs.5,68,000/-. The petitioners have not questioned the
assessment of quantum of compensation. Hence,
correctness of quantum of compensation cannot be
considered in this appeal.
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10. The deceased being the passenger of the tractor
along with goods, is he covered under policy of insurance
as per Ex.R2. On perusal of Ex.R2, it is pertinent to note
that it is a 'Kissan Package Policy' for the tractor having
seating capacity of '1'. The premium collected for various
coverages such as; fire contents cover for Rs.40,000/-,
burglary for Rs.40,000/-, P.A. for Rs.1,00,000/-, own
damage Rs.1,19,000/-, P.A. for owner driver of
Rs.2,00,000/-, total coverage of Rs.9,50,000/- for which
premium has been collected. Additional premium of
Rs.25/- is collected to the employees. Admittedly, the
deceased was the owner of the coconut garden, hired the
tractor for transporting coconut to his house when he met
with the accident. The coverage to the employee i.e.,
driver is only covered by paying premium of Rs.25/-. No
other passenger or the employee of the tractor-trailor is
covered under the policy. Now, in view of the policy, it did
not cover any of the passenger in the tractor or owner of
the goods travelling in the tractor. In this regard, the
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emphasis is placed by the Insurance Company in
Bramarambike's case (supra), the Co-ordinate Bench
of this Court held that when a person who is travelling on
a mudguard of the tractor, the Insurance Company has no
liability to pay the compensation. The Full Bench of this
Court in Gadhilingappa's case (supra) at para No.23
and 33 of its judgment laid down that a person travelling
on the mudguard of the tractor is not required to be
covered by the statutory insurance as contemplated under
sub-section (1) of Section 147 of the Motor Vehicles Act.
10.1 The Hon'ble Apex Court in
V. Chinnamma's case (supra) at para No.15 laid down
as follows:
"15. A tractor fitted with a trailer may or may not
answer the definition of 'goods carriage' contained in
section 2 (14) of the Motor Vehicles Act. The tractor was
meant to be used for agricultural purposes. The in trailer
attached to the tractor, thus, necessary is required to be
used for agricultural purposes, unless registered
otherwise. It may be, as has been contended by Mrs. K.
Sharda Devi, that carriage of vegetables Uving
ugrivulinmul producs would ivati to 1 an inference that
the tractor was being used for agricultural purposes but
the same by itself would not be construed to mean that
the tractor and trailer can be used for carriage of goods
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by another person for his business activities. The
deceased was a businessman. He used to deal in
vegetables. After he purchased the vegetables, he was
to transport the same to market for the purpose of sale
thereof and not for any agricultural purpose. Tractor and
trailer, therefore, were not being used for agri- cultural
purposes. However, even if it be assumed that the
trailer would answer the description of the 'goods
carriage' as coNtained in section 2 (14) of Motor
Vehicles Act, the case would be covered by the decision
of this court in Asha Rani, 2003 ACJ 1 (SC) and other
decisions following the same, as the accident had taken
place on 24.11.1991, i.e., much prior to coming into
force of 1994 amendment."
10.2. Contrary reliance is placed by the petitioners
in R. Ranganathan -Vs.- Branch Manager, United
India Insurance Co. Ltd.4 laid down that the deceased
who was travelling in the tractor sitting on the mudguard,
the Insurance Company has no liability to pay the
compensation, but at the same time, it has held that the
Insurance Company has to pay and recover from the
owner. The judgment of the Hon'ble Apex Court is on the
facts and circumstances of that case and is not applicable
to the facts of this case. Here in this case, in view of the
judgment of this Court and also the Hon'ble Apex Court,
LAWS (SC)-2022-10-111
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the mudguard passenger or a passenger of the tractor is
not covered under the statutory policy. As discussed
above, referring to the Ex.R2/policy, there is no coverage
for any passenger or a goods passenger travelling in the
tractor. Hence, the Insurance Company cannot be directed
to indemnify the owner.
11. On perusal of the impugned judgment, the
Tribunal though referred to the aspect of the deceased
being the traveller of the tractor, on the ground that the
policy is a 'Kissan Package Insurance Policy' and the
tractor is used for agricultural purpose, directed the
Insurance Company to pay the compensation. The
Tribunal has misconstrued the Kissan Package Insurance
Policy as there is no premium is paid to the passenger of
the tractor except an employee driver. Hence, the finding
recorded by the Tribunal is erroneous and the Insurance
Company can avoid its liability. Hence, the appeal merits
consideration, in the result, the following:
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ORDER
i) Appeal is allowed-in-part.
ii) Impugned judgment is modified.
iii) The Insurance Company is exonerated
from its liability to pay the compensation.
iv) The owner of the tractor is liable to pay the
compensation and he is directed to deposit
the amount of compensation within eight
weeks from the date of receipt of certified
copy of this judgment.
v) Amount in deposit by the Insurance
Company shall be returned to it.
Sd/-
JUDGE
PA
CT:HS
