Karnataka High Court

Sri Naresh Babu vs Smt Manjula K R on 24 May, 2023

Bench: Pradeep Singh Yerur

                          -1-



IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 24TH DAY OF MAY, 2023
                       BEFORE
 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.7889 OF 2014 (MV-I)

BETWEEN:

SRI NARESH BABU
S/O.RAMAPPA
NOW AGED ABOUT 28 YEARS
R/ATN.KURUBARAHALLI
NANGALI POST, MULBAGAL TALUK
KOLAR DISTRICT-563 132
                                      ... APPELLANT
(BY SRI MANMOHAN D., ADVOCATE)

AND:

1.     SMT.MANJULA K.R.
       W/O.K.V.REDDAPPA
       MAJOR
       R/AT NO.1/P-59/2
       NAKKANAPALLI
       VEKATAGIRI KOTA
       CHITTOOR-517 001
       ANDHRA PRADESH

2.     M/S.ICICI LOMBARD GENERAL
       INSURANCE CO.LTD.
       NO.89, 2ND FLOOR
       SVR COMPLEX, HOSUR MAIN ROAD
       MADIWALA
       BENGALURU -560 068
       REP.BY ITS MANAGER

3.     SRI ELIYAZ
       S/O.JAMAL SAB
       MAJOR
       N.KURAPETA
                             -2-



      MULBAGAL TOWN
      KOLAR DISTRICT-563 131
                                          ... RESPONDENTS
(BY SRI A.N.KRISHNA SWAMY, ADVOCATE FOR R-2;
    R-1 IS SERVED;
    NOTICE TO R-3 IS HELD SUFFICIENT)

     THIS    MISCELLANEOUS        FIRST   APPEAL   IS   FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD
DATED 13.12.2013 PASSED IN MVC NO.4757/2008 ON THE
FILE OF THE JUDGE, COURT OF SMALL CAUSES & XXVI
ACMM AND MOTOR ACCIDENT CLAIMS TRIBUNAL (SCCH-
9), BENGALURU AND ETC.


      THIS APPEAL HAVING BEEN HEARD AND RESERVED
ON 12.01.2023 AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
                        JUDGMENT

This appeal is preferred by the appellant/claimant

challenging the judgment and award passed in MVC

No.4757/2008 dated 13.12.2013 by the Judge, Court of

Small Causes and XXVI ACMM and Motor Accident Claims

Tribunal (SCCH-9), Bengaluru (for short 'the Tribunal'). This

appeal is founded on the premise of inadequacy and

meager compensation awarded and to set aside the liability

fastened as against respondent No.1 and to fix the liability

on respondent No.2 - Insurance Company.

2. Though this matter is listed for admission, with

consent of both learned counsel, matter is taken up for final

disposal.

3. Parties to the appeal shall be referred to as per

their status before the tribunal.

4. Brief facts of the case is as under:

On 06.02.2008 at about 10.30 p.m., near

Buthalabanda turning (NH-4) Palamaner Mandal, Chitoor

District, one Krishnappa and the claimant were traveling in

an Eicher Tempo bearing registration No.AP 03 U 9277

along with vegetable bags from Nangali to Chennai for the

purpose of selling the said vegetables, which they had

grown in their land, the driver of the said Eicher Tempo

drove the same in a rash and negligent manner with high

speed, as a result of which, the said tempo turned turtle,

due to which, the inmates of the vehicle sustained grievous

injuries. Immediately, the claimant was shifted to Devaraj

Urs Hospital, Kolar. According to the claimant, the said

accident was caused due to rash and negligent driving of

the said Eicher Tempo bearing registration No.AP 03 U 9277

by its driver and that respondent No.1 is the owner,

respondent No.2 is the insurer and respondent No.3 is the

present owner of the said vehicle. It is stated that prior to

the accident, he was an agriculturist and was also doing

milk vending business and earning Rs.10,000/- p.m. Hence,

he filed a claim petition before the tribunal seeking

compensation.

4.1 Respondent Nos.1 and 2 appeared before the

Court through their counsel and filed their statement of

objections. Respondent No.3 remained absent. In the

written statement, respondent No.1 has admitted that she

is the RC owner of the offending vehicle. It is further stated

that the said vehicle is insured with respondent No.2 and as

on the date of accident, the policy was in force and hence,

respondent No.2 is liable to indemnify her (respondent

No.1). It is further contended that prior to the date of

accident, she sold and delivered the possession of Eicher

Tempo bearing registration No.AP 03 U 9277 to respondent

No.3 one Eliyaz, S/o.Jamal Sab, resident of N.Kurapeta,

Mulbagal town and the said vehicle was in his exclusive

custody and control at the time of accident.

4.2 Respondent No.2, in the written statement has

admitted the issuance of policy in favour of respondent

No.1 pertaining to the said Eicher Tempo and also admitted

the validity of the insurance policy as on the date of

accident. Except admitting the said facts, respondent No.2

has denied rest of the averments of the petition as false

and untenable. It is further stated that the said vehicle is a

goods vehicle meant to carry goods only, as such, no

person can travel in that vehicle. The claimant by traveling

in the said vehicle has violated the policy terms and

conditions and hence, respondent No.2 is not liable to pay

compensation. It is further stated that the driver of the

said vehicle has no valid and effective driving licence to

drive the said vehicle. Hence, sought for dismissal of claim

petition.

4.3 On the basis of pleadings, the tribunal framed

relevant issues for consideration. In order to substantiate

the issues and to establish the case, the claimant got

examined himself as PW.1 and another witness as PW.2

and got marked documents as Exs.P1 to P16, whereas

respondents examined witnesses as RWs.1 to 3 and got

marked documents on behalf of respondent No.2 as Exs.R1

to Ex.R5.

4.4 On the basis of material evidence both oral and

documentary, the tribunal awarded the compensation of

Rs.83,000/- with interest at the rate of 6% per annum and

respondent No.2 was exonerated from paying compensation

to the claimant. However, liability was fixed on respondent

No.1 and directed her to deposit the compensation.

4.5 Being aggrieved by inadequate and meager

compensation and fastening the liability only against

respondent No.1 and exonerating the liability against

respondent No.2-Insurance Company, the claimant is

before this Court seeking enhancement of compensation

and suitable modification of fastening the liability against

respondent No.2-Insurance Company.

5. It is the vehement contention of learned counsel

for appellant-claimant that the tribunal has committed a

gross error in not considering the material aspect both oral

and documentary while awarding compensation to the

injuries sustained by the claimant in the road traffic

accident. The tribunal has committed an error in not

appreciating the evidence adduced by the claimant.

5.1 It is also vehemently contended by learned

counsel that the tribunal has committed an error in

exonerating the liability of respondent No.2-Insurance

Company and has committed miscarriage of justice by

fastening the liability against respondent No.1-owner of the

vehicle. Learned counsel further contends that even

according to insurance policy, the coverage was in

existence for three persons, one being the driver, cleaner

and the owner of the goods. In the present case, there are

two claim petitions filed, one by the injured-claimant herein

and the other by the legal representatives of deceased

Krishnappa, who was also traveling with the claimant.

5.2 It is the contention of learned counsel for

claimant that since two claim petitions are filed and there

being no claim made either by the driver or cleaner of the

vehicle, the tribunal ought to have fastened the liability

against respondent No.2-Insurance Company, more so, for

the fact that the insurance policy coverage for three

persons. Learned counsel also contends that as per Rule

100(ii) of Karnataka Motor Vehicles Rules, 1989, the light

transport goods vehicle having registered laden weight of

less than 990 kgs. the carrying capacity is not more than

three. Since only two claim petitions are filed, the liability

would have to be fastened against respondent No.2-

Insurance Company rather than respondent No.1-onwer of

the vehicle.

5.3 In support of his arguments, learned counsel for

appellant has relied on the following decisions:

i) Pushpa v. Shakuntala reported in 2011(1) AIR Kar R 815;

ii) Somappa v. Imamsab reported in 2017(2) Kar.L.J.665;

iii) Krishnashetty v. Oriental Insurance Co. Ltd.

reported in 2009(6) AIR Kar R 198;

iv) United India Insurance Co. Ltd. v.

Vijayakumar reported in 2009(1) AIR Kar R 175;

6. Per contra, learned counsel representing

respondent No.2-Insurance Company vehemently contends

that there is no illegality or error committed by the tribunal

with regard to fastening the liability as against respondent

No.1 and so also, the award of compensation is just and

reasonable based on the materials placed before the Court.

Learned counsel further contends that in all there were six

persons traveling in the goods vehicle and the permissible

limit for travel in a goods vehicle cannot exceed more than

three being driver, cleaner and owner of the goods. It is

also relevant that all these persons would have to travel in

cabin of the vehicle and not sitting on top of the goods or

along with the goods. Therefore, when a person travels in

the goods vehicle along with the goods and not in the cabin

would be disentitled to coverage of the policy. In the

present case, since there were more than six persons

traveling, the claimant would not be entitled to coverage

under policy and there by respondent No.2-Insurance

Company would not be liable to compensate the claimant.

He further contends that the tribunal has rightly fastened

the liability considering all these aspects, against

respondent No.1-owner of the offending vehicle for having

violated the terms and conditions of the policy. On these

grounds, he seeks to dismiss the appeal.

6.1 In support of his arguments, learned counsel for

respondent No.2-Insurance Company has relied on the

following decisions:

i) National Insurance Co. Ltd. v. Cholleti Bharatamma reported in 2008 ACJ 268;

ii) Balu Krishna Chavan v. The Reliance General Insurnace Company Ltd. & Ors. reported in 2022 LiveLaw (SC) 932;

iii) Sanjeev Kumar Samrat v. National Insurance Co. Ltd. reported in LAWS(SC)-2012-12-28 (DD 11.12.2012, Civil Appeal No.8925/2012);

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iv) The Branch Manager v. Smt.Bellamma & Others (DD 08.06.2012, MFA.No.40/2010);

7. Having heard learned counsel for appellant-

claimant and respondent-Insurance Company, the points

that arises for consideration are:

"(i) Whether the claimant is entitled to enhancement of compensation ?

(ii) Whether the liability requires to be fastened on respondent No.2-Insurance Company, in view of policy being in force?

(iii) What Order?"

8. It is not in dispute that the accident occurred on

06.02.2008 at about 10.30 p.m. when the claimant was

proceeding along with one Krishnappa in Eicher tempo

vehicle bearing registration No.AP 03 U 9277 transporting

vegetable bags from Mangali to Chennai. It is also not in

dispute that the goods vehicle in which the vegetable bags

were being transported met with a road traffic accident due

to vehicle being over turned and a criminal case came to be

registered by way of FIR as per Ex.P2, subsequently

culminated into a chargesheet as per Ex.P3. The Police

records produced by the claimant clearly depict the

rashness and negligence as against the driver of the goods

vehicle due to which the accident occurred. These aspects

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of involvement of vehicle, occurrence of accident, filing of

chargesheet have been proved by production of these Police

records vide Exs.P1 to P6. The medical records of the

claimant have been produced and marked at Exs.P7 to P16.

These documents are not seriously controverted by the

Insurance Company thereby the occurrence of the accident

is proved, rashness and negligence by the driver of the

offending goods vehicle is also proved.

8.1 Now coming to the aspect of awarding

compensation for the injuries suffered by the claimant, the

Doctor has been examined as PW.2, who is an Orthopedic

Surgeon at R.L.Jalappa Hospital, has opined that the

claimant has suffered physical impairment of 15% to the

left limb and 5% to the whole body. The tribunal has not

accepted the version of the Doctor for the reason that no

formula and guidelines has been mentioned for opining

15% disability to the left limb and 5% to the whole body.

However, the fact remains that PW.2, Dr.Venugopal has

clearly stated that the claimant was given a conservative

treatment in the Hospital and has deposed before the Court

stating that he incurred 5% disability to the whole body. I

do not find any reason to disbelieve the version of the

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Doctor, as there is no contradicting material placed on

hand.

8.2 Towards pain and suffering, the tribunal has

awarded Rs.45,000/-, which is just and reasonable and the

same is retained.

8.3 Towards diet, conveyance and attendant charges,

Rs.3,500/- is awarded, whereas the claimant was inpatient

for 07 days. I deem it appropriate to award Rs.10,000/-

under this head.

8.4 Towards loss of income during laid up period,

Rs.3,150/- is awarded by the tribunal, which is on the

lesser side. The notional income chart for the year of

accident of 2008 is Rs.4,500/-, based on which, if three

months is taken as a period of recuperation and to get back

to work, Rs.13,500/- is awarded under this head.

8.5 Towards loss of amenities and unhappiness in life,

Rs.15,000/- is awarded by the tribunal and the same is

enhanced to Rs.25,000/-.

8.6 Towards medical expenses Rs.10,370/- is

awarded by the tribunal based on Exs.P11 and P12. I do not

find any reason to interfere and the same is retained.

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8.7 The claimant is aged 22 years, in view of there

being no documentary proof of income, the notional income

chart prescribes Rs.4,500/- for the relevant period and the

same is taken for consideration. The applicable multiplier

would be '18'. The evidence of Doctor, PW.2 suggests

disability of 5% to the whole body and the same cannot be

ignored merely because the formula and guidelines are not

stated by the Doctor. Under the circumstances, loss of

income due to disability would be Rs.48,600/-

(Rs.4,500/- x 12 x 18 x 5%).

8.8 The tribunal has awarded a sum of Rs.6,000/-

towards discomfort and mental stress in life. The same

does not call for interference and is retained.

8.9 In view of the above discussions, the claimant

would be entitled for enhancement of compensation as

mentioned in the table below:

As awarded by this Heads Court (Rs.) Pain and suffering 45,000.00 Diet, conveyance and attendant charges 10,000.00 Loss of income during laid up period 13,500.00 and rest for two weeks Loss of amenities and unhappiness 25,000.00 in life Discomfort and mental stress in life 6,000.00 Medical expenses 10,370.00

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Loss of income due to disability 48,600.00 TOTAL 1,58,470.00

9. The second point for consideration is whether the

tribunal is right in exonerating the liability as against

respondent No.2-Insurance Company. The fact remains that

the claimant was traveling along with the goods in the

goods vehicle. Therefore, he is not gratuitous passenger

and neither was he a fare paid passenger. It is established

that the claimant and deceased Krishnappa were traveling

with the goods. There is no clinching evidence on behalf of

respondents to controvert the statement made by the

claimant herein and PW.1 in MVC.No.2136/2018 (wife of

deceased Krishnappa).

9.1 It is also seen that there are only two claim

petitions filed and three persons are permitted as per the

policy and two persons have come before the Court unless

the contrary is proved, it has to be assumed that both

these persons were traveling in the cabin.

9.2 Rule 100 of Karnataka Motor Vehicles Rules,

1989 reads as under:

"100. Carriage of persons in goods vehicle.− (1) Subject to the provisions of this

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rule, no person shall be carried in a goods vehicle:

Provided that the owner or the hirer or a bona fide employee of the owner or the hirer of the vehicle carried free of charge or a police officer in uniform travelling on duty may be carried in a goods vehicle, the total number of persons so carried,−

(i) in light transport goods vehicle having registered laden weight less than 990 kgs. not more than one;

(ii) in any other light transport goods vehicle not more than three; and

(iii) in any goods vehicle not more than seven:

Provided that the provisions of sub-

clauses (ii) and (iii) of the above proviso shall not be applicable to the vehicles plying on inter-State routes or the vehicles carrying goods from one city to another city.

(2) Notwithstanding anything contained in sub-rule (i), but subject to the provisions of sub-rules (4) and (5), a Regional Transport Authority may, by an order in writing permit that a larger number of persons may be carried in the vehicle, on condition that no goods at all are carried, free of charge in connection with the work for which the vehicle is used, and that such other conditions as may be specified by the Regional Transport Authority are observed,

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and where the vehicle is required to be covered by a permit, the conditions of the permit.

(3) Notwithstanding anything contained in sub-rules (1) and (2), but subject to the provisions of sub-rules (4) and (5),−

(a) for the purpose of celebrations in connection with the Republic Day or Independence Day or any other public congregation, the Regional Transport Officer;

(b) for the purpose of enabling a co-

operative society or class of co- operative societies owning or hiring a goods vehicle to carry its members under its authority in such goods vehicle when used for the purpose of carrying goods of the society in the ordinary course of its business, the Secretary of the Regional Transport Authority;

(c) where it considers expedient in public interest in respect of vehicles owned or hired by it, and in respect of other vehicle on such inescapable grounds of urgent nature to be specified in the order, the State Government may, by general or special order, permit goods vehicle to be used for the carriage of persons for the purposes aforesaid, and subject to

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such conditions, as may be specified in the order.

(4) No persons shall be carried in any goods vehicle,−

(a) unless an area of not less than 0.40 square metre of the floor of the vehicle is kept open for each person;

                   and
             (b) in such manner−
                   (i)    that such person when carried
                          on    goods      is   otherwise    in
                          danger      of   falling   from   the
                          vehicles;
                   (ii)   that any part of his body, when
                          he is in a sitting position is at a
                          height exceeding three metres
                          from the surface upon which
                          the vehicle rests.

(5) The provisions of this rules shall no apply to motor vehicles registered under Section 60.

(6) No person other than an attendant or attendants required by Rule 226 shall be carried on a trailer which is a goods vehicle."

9.3 Number of persons that are permitted to travel

in a goods carriage as per the above said Rule is not more

than three. In case there were more than three claimants

before the tribunal, then the question of coverage of policy

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beyond the said three persons would have to be saddled on

the owner of the goods vehicle for violation of the terms

and conditions of the policy. In the present case, there are

only two claimants. The present claimant being the injured

person and the other claimant, who succumbed to the

injuries represented by his legal representatives are before

the Court. Under the circumstances, when there are only

two claim petitions filed, the Insurance Company cannot

absolve its liability on the ground that there were excess

passengers violating the terms and conditions of the policy.

9.4 I am in agreement with the contentions put-forth

by learned counsel for claimant that the Insurance

Company cannot be absolved of its liability to pay the

compensation in the present facts and circumstances of the

case as no contradicting material evidence are placed

before the Court.

9.5 Under the above circumstances, I am of the

opinion that the tribunal has committed an error in

exonerating respondent No.2-Insurnace Company and

fastening the liability only on respondent No.1. It is also

relevant to note that the registration certificate of the

vehicle is in the name of respondent No.1 though she has

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transferred the vehicle on 21.01.2008 to respondent No.3

and the accident having occurred on 06.02.2008, the RC

owner and the Insurance Company would be jointly and

severally to pay the compensation to the claimant.

In view of the above, I pass the following:

ORDER

i) The appeal is allowed-in-part;

ii) The claimant would be entitled to a total

compensation of Rs.1,58,470/- as against

Rs.83,000/- awarded by the tribunal with 6%

interest from the date of petition till its realisation;

iii) The order of the tribunal exonerating respondent

No.2-Insurace Company and fixing the liability only

on respondent No.1 is set aside;

iv) Respondent Nos.1 and 2 are jointly and severally

liable to pay the compensation;

v) In view of policy being in force, respondent No.2-

Insurance Company shall deposit the

compensation amount along with interest @ 6%

from the date of petition till realisation. The said

compensation shall be paid within a period of six