Karnataka High Court
Gopal S/O Shivaraj Pawar vs Adeppa S/O Chandappa Halliikhede on 11 January, 2024
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MFA.CROB No. 1542 of 2013
C/W RP No. 200063 of 2015
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MRS. JUSTICE LALITHA KANNEGANTI
MFA CROSS-OBJ.NO.1542 OF 2013 (MV)
C/W
REVIEW PETITION NO.200063 OF 2015
IN MFA CROSS OBJ. NO.1542/2013 :-
BETWEEN:
GOPAL S/O SHIVARAM PAVAR
AGE: 50 YEARS, OCC: AGRICULTURE AND
OWNER OF TRACTOR AND TRALLY
REGN. NO.KA-39/T-1361 & 1362
R/O. MASHAL THANDA, U/V KHERDA-B
TQ: BASAVAKALYAN DIST: BIDAR-585401.
...CROSS-OBJECTOR
(BY SRI. S. S. SAJJANSHETTY, ADVOCATE)
Digitally signed
by
KHAJAAMEEN L AND:
MALAGHAN
Location: High 1. ADEPPA S/O CHANDAPPA HALLIIKHEDE
Court of
Karnataka AGE: 66 YEARS, OCC: COOLIE,
2. SUNDRAMMA W/O ADEPPA HALLIKHEDE
AGED: 61 YEARS, OCC: HOUSE HOLD,
3. CHANDU S/O ADEPPA HALLIKHEDE
AGE: 25 YEARS, OCC: COOLIE
4. SANJEEVKUMAR
S/O ADEPPA HALLIKHEDE
AGE: 35 YEARS, OCC: COOLIE
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MFA.CROB No. 1542 of 2013
C/W RP No. 200063 of 2015
ALL R/O VILLAGE OKALI, TQ:GULBARGA,
NOW RESIDING AT SHARANA-NAGAR,
TQ: BASAVAKALYAN DIST: BIDAR-585401.
5. VASANT S/O GOPAL PAVAR
AGE: 34 YEARS, OCC: DRIVER
OF THE TRACTOR AND TROLLY
NO.KA-39/T-1361, 1362
R/O. MASHAL THANDA, U/V, KHERDA-B
TQ: BASAVAKALYAN DIST: BIDAR-585401.
6. THE MANAGER,
ICICI, LAMBORDA GENERAL
INSURANCE CO. LTD.,
ICICI BANK TOWERS,
BANDRA KULA COMPLEX, MUMBAI-400051
THROUGH ITS DIVISIONAL MANAGER,
ICICI LAMBORDA GENERAL INSU. CO. LTD.,
KOTHARI COMPLEX, MOHAN LODGE,
GULBARGA-585101.
...RESPONDENTS
(BY SRI S. G. PATIL, ADV. FOR R1 TO R4;
SRI. MANJUNATH MALLAYYA SHETTY ADV. FOR R6;
V/O DATED 25.10.2017 NOTICE TO R5 IS DISPENSED WITH)
THIS MFA. CROB. IS FILED UNDER ORDER 41 RULE 22
OF CPC, PRAYING TO ALLOW THE CROSS OBJECTION BY
SETTING ASIDE THE JUDGMENT AND AWARD DATED
20.05.2009 PASSED IN MVC NO.173/2007 BY THE CIVIL JUDGE
(SR.DN.) AND ADDL. MACT AT BASAVAKALYAN AND FURTHER
BE PLEASED TO MODIFY THE AWARD MAKING THE
RESPONDENT NO.3 INSURANCE COMPANY LIABLE AND
DIRECTING THE ENTIRE AWARD AMOUNT PAYABLE TO THE
CLAIMANTS IN ACCORDANCE WITH LAW IN THE FACTS AND
CIRCUMSTANCES OF THE CASE ALONG WITH INTEREST BY
DISMISSING THE MFA.NO.31453/2009 (MV) FILED BY THE
RESPONDENT NO.6 HEREIN ABOVE AND ETC.,
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MFA.CROB No. 1542 of 2013
C/W RP No. 200063 of 2015
IN REVIEW PETITION NO.200063/2015:-
BETWEEN:
GOPAL S/O SHIVARAM PAWAR
AGE: 52 YEARS, OCC: AGRICULTURE AND
OWNER OF TRACTOR AND TRALLY
REGN. NO. KA-39/T-1361 & 1362
R/O. MASHAL THANDA, U/V KHERDA-B
TQ: BASAVAKALYAN DIST: BIDAR-585401.
...PETITIONR
(BY SRI. S. S. SAJJANSHETTY, ADVOCATE)
AND:
1. ADEPPA S/O CHANDAPPA HALLIIKHEDE
AGE: 66 YEARS, OCC: COOLIE,
2. SUNDRAMMA W/O ADEPPA HALLIKHEDE
AGED: 61 YEARS, OCC: HOUSE HOLD,
3. CHANDU S/O ADEPPA HALLIKHEDE
AGE: 25 YEARS, OCC: COOLIE
4. SANJEEVKUMAR S/O ADEPPA HALLIKHEDE
AGE: 35 YEARS, OCC: COOLIE
ALL R/O VILLAGE OKALI, TQ: GULBARGA,
NOW RESIDING AT SHARANA-NAGAR,
TQ: BASAVAKALLYAN DIST: BIDAR-585401.
5. VASANT S/O GOPAL PAVAR
AGE: 35 YEARS, OCC: DRIVER
OF THE TRACTOR AND TROLLY
NO. KA-39/T-1361, 1362
R/O. MASHAL THANDA, U/V, KHERDA
TQ: BASAVAKALYAN DIST: BIDAR-585401.
6. THE MANAGER,
ICICI, LAMBORDA GENERAL INSURANCE CO. LTD.,
ICICI BANK TOWERS, BANDRA KULA COMPLEX,
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MFA.CROB No. 1542 of 2013
C/W RP No. 200063 of 2015
MUMBAI-400051
THROUGH ITS DIVISIONAL MANAGER,
ICICI LAMBORDA GENERAL INSU. CO. LTD.,
KOTHARI COMPLEX, MOHAN LODGE,
GULBARGA-585101.
NOW REPRESENTED BY
THE MANAGER LEGAL,
ICICI LAMBORDA GENERAL INSURANCE
IIND FLOOR BELLAD AND COMPANY
GOKUL ROAD HUBLI-580020.
...RESPONDENTS
(BY SRI S. G. PATIL, ADV. FOR R1 TO R4;
SRI MANJUNATH MALLAYYA SHETTY ADV. FOR R6;
V/O DATED 07/12/2021 NOTICE TO R5 IS DISPENSED WITH)
THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE
1 READ WITH SECTION 114 OF CPC, PRAYING TO ALLOW THIS
REVIEW PETITION ALONG WITH MFA CROB NO.1542 OF 2013
(MV) BY SETTING ASIDE THE JUDGMENT AND AWARD DATED
20.05.2009 PASSED IN MVC NO.173 OF 2007 BY THE CIVIL
JUDGE (SR.DN.) AND ADDL. MACT AT BASAVAKALYAN AND
FURTHER BE PLEASED TO MODIFY THE AWARD MAKING THE
RESP/INSURER/INS. CO. LIABLE AND DIRECTING THE ENTIRE
AWARD AMOUNT PAYABLE TO THE CLAIMANTS ACCORDANCE
WITH LAW BY THEM AND DIRECTING NOT TO RECOVER FROM
THE PETITIONER CONFIRMING DISMISSAL OF MFA NO.
31453/2009 (MV) FILED BY THE RESPONDENT NO.6/INSURER
HEREIN ABOVE AND ETC.,
THIS MFA CROB. AS WELL AS REVIEW PETITION COMING
ON FOR DISMISSAL, THIS DAY, THE COURT MADE THE
FOLLOWING:
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MFA.CROB No. 1542 of 2013
C/W RP No. 200063 of 2015
JUDGMENT
The MFA.CROB.NO.1542/2013 is filed by the
owner of the offending vehicle aggrieved by the judgment
and award passed in M.V.C.No.173/2007, on the file of the
Civil Judge (Sr. Dn) and Addl. MACT, at Basavakalyan,
dated 20.05.2009, whereby the Tribunal granted an
amount of Rs.2,94,000/- as compensation and ordered
that the respondent No.3 - insurance company is directed
to pay the award amount with accrued interest with liberty
to recover the said award amount from the insured i.e.,
appellant herein.
02. The learned counsel for the appellant submits
that the MFA.No.31453/2009 filed by the insurance
company questioning the pay and recover order passed by
the Tribunal, this Court by an order dated 13.08.2014 has
dismissed the appeal. The owner of the vehicle has
preferred this cross-objection stating with the main ground
that the policy is comprehensive policy. The Tribunal has
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given a finding that the labourers are not covered. In that
case the question of pay and recover would not arise. It is
a insurance company who is liable to pay the
compensation.
03. He has relied on the order passed by the Co-
ordinate Bench of this Court in case of the Divisional
Manager National Insurance Company Limited
Gulbarga vs. Mallappa and others, wherein the Court
has held that as the vehicle is covered by a farmers
package policy, the coolies engaged in the Tractor were
statutorily covered under Section 147 of the Motor Vehicle
Act. He has also1 relied on another order passed in the
case of ICICI Lombard General Insurance Company
Limited vs. Sukappa and others2, wherein a similar
view has been taken by the Division Bench of this Court.
He has also relied on the another order passed by the
Hon'ble Supreme Court in the case of Dhondubai vs.
dated 17.10.2021
dated 05.04.2018
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Hanmantappa Bandappa Gandigude since deceased
through his Lrs and others3. He has relied another
judgment of the Hon'ble Supreme Court in the case of
IFFCO Tokio General Insurance Co. Ltd., vs. Geeta
Devi and others4. It is submitted that the burden is on
the insurance company to prove that whether he is an
unauthorized passenger or there is any violation of the
terms and conditions of the policy. It is the contention of
the learned counsel for the cross-objector that the said
burden is not discharged by the insurance company and
the insurance company is liable to pay the compensation.
04. The learned counsel for the respondent -
insurance company submits that it is the case of the
claimant that the deceased was traveling on the Tractor
along with the driver. It is submitted that even as per the
policy also no person is permitted to travel on the Tractor.
It is submitted that the policy do not cover the risk of the
labourer.
2023 Livelaw (SC) 725
dated 30.10.2023
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05. Having heard the learned counsel on either
side, perused the entire material on record.
06. The Tractor and Trailer was insured by the
respondent - insurance company and the policy is issued
for the purpose of agriculture. The finding of the Tribunal
that the labourers are not covered, is contrary to the
policy. The Tribunal without any basis had come to such
conclusion. Then coming to the next aspect that the
deceased was traveling on the Tractor. The learned
counsel for the cross-objector submits that insurance
company has not adduced any evidence. Admittedly, there
is no material on record to show that the deceased was
not traveling on the Tractor along with the driver. When
there is only provision for the driver to sit, the driver has
permitted the deceased to sit on the Mudguard. In those
circumstances, it is the owner who is liable to pay the
compensation. It is submitted that the owner is never
cross-examined. When it is the case of the claimant that
he is traveling in the Trailer but not in the Tractor, in that
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case if it is the case of the insurance company that the
deceased was traveling along with the driver, then the
burden lies on the insurance company. Whereas in this
case, it is already admitted by the claimants that the
deceased was traveling along with the driver, which is
disputed by the owner of the vehicle, the burden alone lies
on the owner of the vehicle. The Tribunal had applied the
principles of pay and recover as the deceased is third
party to the insurance policy. The appeal filed by the
owner questioning the pay and recovery order passed by
the Tribunal, the same was dismissed by this Court.
Further in the light of the same cross-objection of the
owner is deserves to be dismissed.
07. Accordingly, the cross-objection filed by the
cross-objector is hereby dismissed.
08. The amount in deposit shall be forthwith
transmitted to the Tribunal.
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09. The R.P.No.200063/2015 is filed to review
the order passed by this Court on 13.08.2014, is also
dismissed as no grounds are made out for reviewing the
order.
10. Amount in deposited shall be forthwith
transmitted to the Tribunal.
Sd/-
Judge
KJJ
CT:VD
