Karnataka High Court
New India Assurance Co. Ltd vs Periswamy on 3 November, 2023
Bench: T G Gowda
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MFA No. 7626 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 7626 OF 2014 (MV-D)
BETWEEN:
NEW INDIA ASSURANCE CO. LTD.
NO.40, LAKSHMI COMPLEX
OPP: VANI VILAS HOSPITAL
FORT, K.R. ROAD
BANGALORE-560 002
BY ITS MANAGER
...APPELLANT
(BY SRI. O MAHESH, ADV.)
AND:
1. PERISWAMY
AGED ABOUT 61 YEARS
S/O VEERASWAMY
2. SMT. VEERAMMA
AGED 60 YRS
W/O PERISWAMY
Digitally signed by MALA 3. KUM. LAKSHMI
KN AGED 31 YRS, D/O PERISWAMY
Location: HIGH COURT
OF KARNATAKA ALL ARE R/AT SWATHANTRANAGARA
VIRGONANAGARA POST
BANGALORE-560 049
4. K. BALAKRISHNA
MAJOR, S/O KUPPUSWAMY
NO.2, BASAVANAPURA
K.R.PURAM, BANGALORE-560 036 ... RESPONDENTS
(BY SMT. M. D. ANURADHA URS., ADV. FOR R3;
R1 & R2 ARE NO MORE;
R3 IS THE LR OF R1 & R2; R4 SERVED)
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MFA No. 7626 of 2014
THIS MFA IS FILED UNDER SECTION 173(1) OV MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 31.8.2013
PASSED IN MVC NO.5614/2003 ON THE FILE OF THE 14 TH
ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES,
BANGALORE, AWARDING A COMPENSATION OF RS.3,51,000/-
WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL
PAYMENT.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.09.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the Insurance Company has
challenged the judgment dated 31.08.2013 passed
in M.V.C.No.5614/2003 by the M.A.C.T., Court of
Small Causes, Bengaluru City (SCCH-10) ('the
Tribunal' in short).
2. For the sake of convenience, the rank of the
parties shall be referred to as per their status before
the Tribunal.
3. The brief facts of the case are, the son of
petitioner Nos.1 and 2 and brother of petitioner No.3
by name Yuvaraj, the deceased, was working as
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MFA No. 7626 of 2014
Cleaner, Coolie and Commission Agent under
respondent No.1. On 05.05.2003 at about 7.00
p.m., a lorry bearing registration No.MYS-4706,
which was carrying load of stones and some workers
sitting on the stone-load, met with an accident
involving a Tractor bearing No.KA-34/115 on
Hosakote-Chintamani Road at Yelachenayakanahalli
Gate where the lorry dashed against the Tractor and
fell into road side ditch resulting in death of several
coolies, who were sitting on the stone-load of the
lorry. The deceased, who was a cleaner, also
succumbed to death in the said accident. The
petitioners as dependents of the deceased
approached the deceased in M.V.C.No.5614/2003.
The dependants of other deceased have also filed the
claim petitions numbered in M.V.C.Nos.3478, 3480,
3481 and 3483/2003. All these matters have taken
up together by the Tribunal and disposed of by a
common judgment.
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MFA No. 7626 of 2014
4. Claim was opposed by the owner and insurer
of the lorry. The Tribunal by taking the evidence
pronounced the common judgment in all these cases
assessing compensation of Rs.3,51,000/- with
interest @ 6% per annum and fastened the liability
against the Insurance Company to pay compensation
in respect of the deceased and in respect of other
cases, directing the owner of the lorry to pay
compensation. The Insurance Company aggrieved
by the fastening of the liability against it has filed
this appeal on various grounds.
5. Heard the arguments of Sri.O.Mahesh,
learned counsel for the Insurance Company and
Smt.M.D.Anuradha Urs, learned counsel for
petitioner No.3.
6. It is the contention of the learned counsel for
the Insurance Company that the Tribunal has
recorded a finding that the deceased was working as
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MFA No. 7626 of 2014
Cleaner under the owner of the lorry and the liability
is covered under the policy contrary to the materials
on record. The deceased was a passenger in a
goods vehicle, he was not an employee of the
insured, the insurance policy is not covered with
liability of the deceased. The Tribunal has
misunderstood that the deceased was working as a
cleaner under the owner of the lorry.
6.1. The learned counsel has referred to the
evidence placed before the Tribunal particularly, the
evidence of the owner of the lorry and also the
recitals made in the FIR/Ex.P1, the description of the
deceased as CW-4 in the charge sheet as per Ex.P2
and also the medical records of St.John's Medical
College Hospital where it was described that he was
travelling on the stone-load on the lorry. Learned
counsel also referred to the evidence of the owner of
the lorry, who was examined as RW-2, that in the
affidavit evidence, he has not admitted that the
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MFA No. 7626 of 2014
deceased was coolie. In fact, the owner of the lorry
admitted that deceased Subramani and Shivaraj are
the coolies, who were in the cabin at the time of
accident. According to him, from the totality of the
evidence, the deceased was one among the other
workers of the quarry, who were sitting on the
stone-load at the time of accident, there is no cover
under Ex.R1/policy to indemnify the insured and
sought for interference.
7. Per contra, learned counsel for petitioner
No.3 has contended that the deceased was working
under respondent No.1/owner of the lorry and in this
regard, she referred to the evidence of PW-
1/petitioner no.1/Periaswamy wherein he has
asserted that the deceased was working as a coolie
in the lorry. Learned counsel urged that in the
pleadings as well as the evidence, there is a specific
plea taken that the deceased was a cleaner of the
lorry. The Tribunal has considered the materials on
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MFA No. 7626 of 2014
record and rightly recorded its finding that the
deceased was a cleaner in the lorry at the time of
accident and the policy of insurance since collected
extra premium of Rs.50/- for two employees, the
risk is covered, insurer has to indemnify the insured
and she has supported the impugned judgment.
8. I have given my anxious consideration to the
arguments advanced on both sides and also perused
the materials on record.
9. This is second round of litigation. At the
earlier point of time, the claim petition was decided
along with other four claim petitions by the Tribunal
and all those cases have been clubbed together in
M.F.A.No.12094/2006 c/w M.F.A.Nos.12095, 12096,
12097/2006 and 912/2007. The Division Bench of
this Court by order dated 08.10.2012 set aside the
finding recorded by the Tribunal and remanded all
the matters permitting the parties to lead evidence
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MFA No. 7626 of 2014
with a direction to the Tribunal to ascertain who are
all the coolies and who is the cleaner of the lorry and
permitted the owner of the lorry to file objection
statement. After remand, the matter was taken up
afresh and the first respondent has filed written
statement before the Tribunal after framing the
necessary additional issues and recording additional
evidence, the impugned judgment came to be
passed.
10. At the earlier point of time, when the claim
petition was decided, compensation of Rs.2,99,200/-
with interest @ 6% was awarded by the Tribunal by
judgment dated 27.02.2006. Now by the impugned
judgment dated 31.08.2013, it has been modified by
assessing compensation of Rs.3,51,000/- with
interest @ 6% per annum. Petitioner Nos.1 and 2,
in the meantime, died and the petitioner No.3 is
their legal representative. Since the petitioner has
not come before the Court questioning the adequacy
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MFA No. 7626 of 2014
and inadequacy of the compensation, the only issue
is liability on the part of the Insurance Company to
indemnify the insured.
11. In the written statement, the first
respondent/owner of the lorry has taken a specific
plea that one Subramani and Shivaraj were
employed by him to unload the lorry. He has
specifically denied that the deceased Yuvaraj was not
working under him as a coolie or as a cleaner.
According to the respondent No.1, the deceased was
sitting on the footpath and was crushed under the
lorry due to over turn.
12. The Insurance Company has taken a
specific plea that the deceased Yuvaraj was not
working under the owner as cleaner or coolie. He
was a quarry worker sitting on the stone-load and
crushed to death due to the accident. Ex.P1 is the
complaint filed by one Jayappa Uruf Jayaramappa.
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MFA No. 7626 of 2014
On a careful perusal of the averments made in
Ex.P1, it is pertinent to note that the deceased
Yuvaraj was a quarry worker, after finishing quarry
work, he was traveling with co-passengers on the
stone-load on the body of the lorry. Ex.P2 is the
charge sheet wherein deceased Yuvaraj is cited as
CW-4. His address shows that he is a stone-cutter.
Neither in the FIR nor in the charge sheet, there is
any reference that the deceased was either coolie or
a cleaner of the lorry. There is no dispute that soon
after the accident, the deceased was taken to
St.John's Medical College Hospital, Bangalore.
History furnished in the hospital is that the deceased
was on a lorry loaded with stones, which colluded
with the Tractor and he fell off the lorry and many
stones fell on his head and chest. Ex.P8 is the case
sheet to that effect. Ex.P12 is the inpatient records
of the St.John's Medical College Hospital, Bangalore.
It is recorded in it that, on 05.05.2003, the deceased
was admitted to the said hospital with a history of
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MFA No. 7626 of 2014
RTA at 6.00 p.m. on Chintamani main road. The
history furnished is:
"The patient was sitting in a lorry laden with
stones from the quarry.
The lorry was trying to overtake a tractor.
When the tractor made an abrupt turn, lorry
overturned while trying to avoid the tractor.
Patient was injured by the impact on hitting
ground as well as stones falling on him."
13. It is pertinent to note that, during the course
of cross-examination of PW-1, there is a specific
denial that the deceased was not working with the
first respondent as cleaner or coolie. Respondent
No.1/owner is examined as RW-2. In his affidavit
evidence, he has reiterated the averments made in
his written statement denying that the deceased was
not working as a coolie under him. He admitted that
one Subramani and Shivaraj, who were sitting in the
lorry cabin, were employed by him to unload the
materials in the lorry. In the course of cross-
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MFA No. 7626 of 2014
examination, he did not admit that the deceased was
a cleaner.
14. A reference is made that the voluntary
statement of the witness when he was cross-
examined in M.V.C.No.3480/2003, where he has
stated that the deceased was travelling as a cleaner.
The deceased in M.V.C.No.3480/2003 is not the
deceased Yuvaraj, it was one Ambika, daughter of
one Madaiah, aged 11 years. It is found from the
material on record that some children of the workers
were also being carried in the lorry loaded with
stones.
15. If the evidence of the owner of the lorry is
taken in totality, nothing is found in support of the
petitioners that the deceased Yuvaraj was a cleaner
travelling in the lorry. It is pertinent to note that at
any point of time, the deceased Yuvaraj was working
in the lorry even as coolie. If the address furnished
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MFA No. 7626 of 2014
in Ex.P2/charge sheet is taken into consideration, it
explains that he is a quarry worker and not the
cleaner or the coolie in the lorry in question.
16. Ex.R1 is the policy of insurance, which
explains that collection of Rs.50/- as premium for
"WC to employee 2". Even if the contention of the
petitioners is accepted, in view of the statement of
the owner of the lorry in the written statement and
also on oath in the witness box, it is thus clear that
Subramani and Shivaraj were the coolies in the lorry
employed by the owner for unloading. There is no
specific mention in the insurance policy that it has a
cover for the cleaner also.
17. RW-3/Shekaraiah is the officer of the
Insurance Company. In the cross-examination, he
has admitted that the terms of Ex.R1/policy covers
the risk of the driver and two coolies. If that is so,
driver and two coolies of the lorry died in the
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MFA No. 7626 of 2014
accident. If at all the policy has to cover, it has to
cover the driver of the lorry Kuppaswamy, coolies
Subramani and Shivaraj and even if the deceased is
accepted for logical purpose, the policy is not
covering the risk of the cleaner.
18. As rightly contended by the learned
Counsel for the Insurance Company, having regard
to the material on record and particularly, the
evidence relied upon by the petitioners culls out that
the deceased was the quarry worker, he was
travelling on the load of the stones and met with
fatal accident, but contrarily, the claim petition was
made claiming that the deceased was the cleaner of
the lorry. As discussed above, there is no evidence,
which points out that the deceased was the cleaner
of the lorry. Absolutely there is no recital or any
admission either in the written statement or in the
affidavit of the owner of the lorry that the deceased
was the cleaner of the lorry. The Tribunal has read
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the pleadings and evidence incorrectly and came to
an erroneous conclusion.
19. Thus, in view of the above discussion, the
finding recorded by the Tribunal with regard to
liability on the part of the Insurance Company to
indemnify the insured is contrary to the pleadings
and the evidence on record. Hence, it calls for
interference. Accordingly, the appeal merits
consideration. In the result, the following:
ORDER
(i) The appeal is allowed in part;
(ii) The impugned judgment is modified;
(iii) The liability on the part of the Insurance
Company to pay compensation is exonerated;
(iv) The owner of the lorry is liable to pay
compensation and is directed to deposit the
compensation awarded by the Tribunal within
8 weeks from today.
(v) Rest of the order of the Tribunal is kept intact.
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(vi) The amount in deposit shall be transmitted to
the Tribunal for disbursement to the
Insurance Company.
Sd/-
JUDGE
KNM
CT:HS
