Karnataka High Court
Nagawwa W/O Bhimappa Harijan vs Babanna S/O Madeppa Bolashetti on 10 July, 2023
Bench: M.G.Umaj
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MFA No. 20967 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M.G.UMA
MISCELLANEOUS FIRST APPEAL NO.20967/2011 (MV-D)
BETWEEN:
1. SMT. NAGAWWA W/O. BHIMAPPA HARIJAN,
AGE:38 YEARS, OCCU: HOUSEHOLD WORK,
R/O: JALIKOPPA, TQ: BAILHONGAL - 591 102,
DIST: BELGAUM.
2. KUMAR SHRIKANT S/O. BHIMAPPA HARIJAN,
AGE: 19 YEARS, OCC: STUDENT,
R/O: JALIKOPPA, TQ: BAILHONGAL - 591 102,
DIST: BELGAUM.
...APPELLANTS
(BY SRI MADANMOHAN M. KHANNUR, ADVOCATE)
AND:
1. SRI BABANNA S/O. MADEPPA BOLASHETTI,
AGE: MAJOR(CORRECT AGE NOT KNOWN)
OCCU: AGRICULTURE, R/O: JALIKOPPA,
TAL: BAILHONGAL - 591 102, DIST: BELGAUM. (OWNER
Digitally OF THE VEHICLE BEARING NO. KA-24/T-5651/5662).
signed by
VINAYAKA
BV 2. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE COMPANY LIMITED,
SHANBHAG CHAMBERS, KIRLOSKAR ROAD,
BELGAUM - 590 016. ( INSURANCE OF THE VEHICLE
NO. KA-24/T-5651/5652).
...RESPONDENTS
(BY SRI P. G. CHIKKANARAGUND, ADVOCATE FOR R1;
SRI JAINAR, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988, MODIFY THE
JUDGMENT AND AWARD DATED 15/10/2010 PASSED IN
MVC.NO.1047/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE,
ASSISTANT SESSIONS JUDGE AND ADDITIONAL MOTOR ACCIDENT
CLAIM TRIBUNAL, BAILHONGAL AND ETC.
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MFA No. 20967 of 2011
THIS MFA, COMING ON FOR FINAL HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The claimant is before this Court impugning the judgment
and award dated 15.10.2010 passed in MVC.No.1047/2007 on
the file of the learned Senior Civil Judge and Additional MACT,
Bailhongal (hereinafter referred to as the 'Tribunal'), allowing
the claim of the claimants awarding compensation of
Rs.3,72,000/- with interest at 6% per annum and directing
respondent No.1 to pay the same, while dismissing the claim
against respondent No.2-insurer.
2. The parties are referred to as per their ranks before
the Tribunal for the sake of inconvenience.
3. Brief facts of the case are that the claimant Nos.1
and 2 have filed the claim petition in MVC.No.1047/2007
against respondent No.1 being in the owner and respondent
No.2 being the insurer of the tractor-trailer bearing Reg.No.KA-
24/T-5651 & 5652, contending that Bhimappa the husband of
claimant No.1 and father of claimant No.2 was working as a
coolie under respondent No.1. On 04.09.2006, the deceased
was traveling in the tractor-trailer while, returning from his
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MFA No. 20967 of 2011
agriculture work, due to rash and negligent driving of the
tractor-trailer, the same was turtled. As a result of which, he
sustained fatal injuries and died at the spot.
4. It is contended that the deceased was aged 40
years and was an agricultural coolie. The petitioners being the
wife and son who are the legal representatives were depended
on the deceased. Therefore they are entitled to claim
compensation from respondent No.1-owner and respondent
No.2-insurer of the tractor-trailer. Accordingly, they prayed for
allowing the claim petition.
5. Respondent No.1-owner filed the objections
admitting his ownership over the tractor-trailer, the deceased
Bhimappa being working as a coolie and traveling in the
tractor-trailer on the date of the accident. However, it is
contended that the vehicle was insured with respondent No.2
and it is respondent No.2 who is liable to pay the
compensation.
6. Respondent No.2 filed the objections denying the
contentions of the claimants that the deceased was traveling in
the tractor-trailer as a coolie. It is contended that the deceased
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was an unauthorized passenger and therefore, these claimants
are not entitled for any compensation. Accordingly, prayed for
dismissal of the claim petition.
7. On the basis of these pleadings, the following issues
were came to be framed:
"1. Whether the petitioners prove that the accident
occurred on 4-9-2006 at about 6.30 a.m. on Dodawad-
Belawadi, due to Tractor trailer bearing No.KA.24/T-
5651-5652 and husband of petitioner No.1 father of
petitioner No.2 by name Bhimappa Fakirappa Harijan
sustained grievous injuries and died due to the injuries
sustained by him in the accident?
2. Whether the petitioners are entitle for compensation?
If so, to what extent and from whom?
3. What order or award?"
8. The claimants examined PWs.1 and 2 and got
marked Exs.P1 to P9 in support of their contentions.
Respondent No.2 examined RW1 to deny its liability and got
marked Exs.R1 and 2 in support of its defence.
9. The Tribunal after taking into consideration all these
materials on record, came to the conclusion that the claimants
have proved the accident in question, but held that since the
driver and the owner permitted the deceased to travel in the
tractor-trailer, it amounts to violation of the terms and
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conditions of the policy and therefore held that it is only
respondent No.1 who is liable to pay the compensation and
directed him to pay Rs.3,72,000/-, while dismissing the claim
against respondent No.2.
10. Being aggrieved by the same, the claimants are
before this Court.
11. Heard Sri. Madanmohan M.Khannur, learned
counsel for the appellants, Sri. P.G.Chikkanaragund, learned
counsel for respondent No.1 and Sri. S.C.Jainar, learned
counsel for respondent No.2.
12. Learned counsel for the appellants-claimants
submitted that the claimants have preferred this appeal seeking
enhancement of compensation, challenging fastening of liability
on respondent No.1 and dismissing the claim against
respondent No.2. He submitted that the materials on record
disclose that the deceased was traveling as a coolie in the
tractor-trailer owned by respondent No.1 which was insured
with respondent No.2. The accident had occurred on
04.09.2006. Deceased was aged 40 years as per post mortem
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report. The Tribunal has also not awarded just compensation.
Therefore, the same is to be enhanced.
13. Learned counsel further submitted that one of the
injured in the very same accident had preferred the claim
petition before the Workmen Commissioner under Workmens'
Compensation Act. The same was allowed directing the insurer
to pay the compensation. Respondent No.2 herein had
challenged the said judgment before this Court in
MFA.No.9379/2007. The said appeal was came to be dismissed
by this Court, vide judgment dated 22.03.2011. Under such
circumstances, respondent No.2 cannot avoid its liability.
Hence, he prays for allowing the appeal.
14. Per contra, learned counsel for respondent No.2
opposing the appeal submitted that the deceased was traveling
as unauthorized passenger. Even as per the FIR registered at
the earliest point of time, more than 17 persons were traveling.
Those persons were never working as coolies under respondent
No.1. PW1 in his cross examination categorically admitted that
about 15-20 persons were traveling in the tractor-trailer.
Similarly, PW2 was also a co-passenger in the trailer,
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categorically admitted that more than 17 persons were
traveling in the trailer. He further stated that they were going
for coolie work under one Mr. Madalagi resident of Dodawad
and not under respondent No.1. The witness also categorically
stated that respondent No.1 used to collect fair from the owner
of the land, i.e., Mr. Madalagi, for carrying the coolies to his
land. Therefore, it is a clear case of violation of the terms and
conditions of the policy, which is produced as per Ex.R.1.
Learned counsel submit that as per Ex.R.1, the insurance policy
is Kisan Package Policy which is meant for agriculture work for
respondent No.1 alone, he cannot use it for carrying coolies for
the land belonging to others. Therefore, deceased was an
unauthorized passenger and the claimants are not entitled for
any compensation.
15. Learned counsel has placed reliance on the decision
of the Co-ordinate Bench of this Court in Divisional Manager,
United India Insurance Company Vs. Smt. Akkavva
Mahadevappa1 in support of his contention and prayed for
dismissal of the appeal, in the interest of justice.
2008 ACJ 508
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MFA No. 20967 of 2011
16. Perused the material on records including the trial
Court records.
17. The point that arises for consideration in this appeal
is:
Whether the impugned judgment and award
passed by the Tribunal requires for interference by
this Court?
18. My answer to the above point is 'partly in the
affirmative' for the following:
REASONS
19. It is the contention of the claimants that deceased
was aged 40 years at the time of accident. Ex.P.6 is the
postmortem report, according to which the deceased was aged
40 years. Therefore, the appropriate multiplier would be '15'.
No materials are placed before the Court to prove the income of
the deceased. The accident had occurred on 04.09.2006. In
the absence of any material to prove the income of the
decased, the guidelines for settling disputes before the Lok
Adalath could be taken into consideration. Hence, the monthly
income of the deceased could be reasonably taken at
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Rs.3,750/-. The claimants are the wife and son of the
deceased. Therefore, 1/3rd of the income will have to be
deducted towards personal income of the deceased.
20. In view of the principles laid down by the Apex
Court in Kirti and Another Vs. Oriental Insurance
Company Limited 2 case, 25% of the assessed income is to be
added towards future prospects. Hence, the loss of
dependency would be Rs.4,50,625/- (Rs.3,750/- + 25% x 1/3 x
12 x 15).
21. The claimants are also entitled for loss of
consortium at Rs.44,000/- each. They are also entitled for
compensation towards funeral expenses at Rs.16,500/-.
Therefore, the compensation to which the claimants are entitled
to, is as under:
Sl. Particulars Amount
No.
1. Loss of dependency 4,50,625.00
2. Loss of consortium 88,000.00
3. Funeral expenses 16,500.00
Total 5,55,125.00
Tribunal award 3,72,000.00
Enhancement 1,83,125.00
(2021) 2 SCC 166
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22. Learned counsel for the claimants contended that
the insurer is liable to pay compensation as admittedly the
deceased was traveling in the tractor-trailer at the time of
accident. He also contended that in the connected matter the
insurer was saddled with liability, which was challenged in
M.F.A. No. 9379/2007 and the same was dismissed.
23. On going through the judgment in M.F.A. No.
9379/2007, it is clear that the claimants have claimed
compensation before the Commissioner under Workmen's
Compensation Act. Considering the claim of the workmen,
compensation was awarded. The appeal was came to be
dismissed upholding the finding of the Commissioner. But in
the present case the appellants have not chosen to claim
compensation under the Workmen's Compensation Act, but
they invoked Sec. 166 of M.V. Act for claiming compensation.
The first information and FIR produced as per Exs.P.1 and P.2
disclose that about 15-20 persons were traveling in the tractor-
trailer and they were proceeding for coolie work. PW2, the co-
passenger categorically stated that they were proceeding for
coolie work in the land of one Mr. Madalagi of Dodwad and
definitely not under respondent No.1. He further stated that
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respondent No.1 used to collect the fair from the said Mr.
Madalagi.
24. Ex.R.1 is the copy of the insurance policy which is a
Kissan Package Policy, with the terms and conditions mentioned
therein. As per the terms of the policy, the insurer has agreed
to indemnify the insured against loss or damage to property or
incur liability or the insured or managing staff or employees of
the insured permanently working under him sustain bodily
injury or death due to the accident occurred during the period
of insurance.
25. The materials on record disclose that respondent
No.1 used the tractor-trailer for transporting the coolies to the
lands of other persons which is definitely not covered under
Ex.R.1. Therefore, the contention of the learned counsel for
the claim that the insurer is liable to pay compensation, cannot
be accepted.
26. The co-ordinate bench of this Court in Akkavva
(supra) considered a similar situation and held that the vehicle
which was insured for agricultural purpose cannot be used for
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any other purpose and if so used in contravention of the policy,
the insurer will not be liable to indemnify the insured.
27. The said decision aptly applies to the facts of the
case. Therefore, I am of the opinion that the Tribunal after
taking into consideration the materials on record has arrived at
a right conclusion and saddled liability only on Ex.R.1. I do not
find any reason to interfere with the said finding recorded by
the Tribunal. In view of the above, I answer the above point
'partly in the affirmative' and proceed to pass the following:
ORDER
The appeal is allowed in part with costs.
Consequently, the impugned judgment and award dated
15.10.2010 passed in M.V.C. No. 1047/2007 by the Senior Civil
Judge, Asst. Sessions Judge & Member of AMACT, Bailhongal, is
modified to the extent that the claimants are entitled for
compensation of Rs.5,55,125/- with interest at 6% per annum
from date of petition till realization from respondent No.1 as
against Rs. 3,72,000/- awarded by the Tribunal.
It is further held that the claim of the claimants to saddle
liability on respondent No.2-insurer, is rejected. Consequently,
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dismissal of the claim petition against respondent No.2 is
confirmed.
Amount in deposit, if any, made by respondent No.2,
shall be refunded to the authorized person on due
identification.
Send back the trial Court records along with a copy of this
judgment and award.
SD/-
JUDGE
RH, BVV
