Karnataka High Court
United India Insurance Company Limited vs Smt Bharathi on 16 January, 2024
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NC: 2024:KHC:2253
MFA No. 5593 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 5593 OF 2013 (MV-I)
BETWEEN:
1. UNITED INDIA INSURANCE COMPANY LIMITED
REGIONAL OFFICE
5TH & 6TH FLOORS
KRISHI BHAVAN
NRUPATHUNGA ROAD,
HUDSON CIRCLE
BANGALORE-560001
REP BY ITS ADMINISTRATIVE
OFFICER MR SANDEEP KUMAR
...APPELLANT
(BY SRI. KRISHNA KISHORE S., ADVOCATE)
AND:
1. SMT BHARATHI
AGED ABOUT 42 YEARS
W/O LATE K RAMACHANDRA
Digitally signed
by BHARATHI
S 2. CHI. KESHAVA
Location: HIGH
COURT OF AGED ABOUT 6 YEARS
KARNATAKA S/O LATE K RAMACHANDRA
SINCE MINOR, REP BY HIS
MOTHER THE FIRST RESPONDENT
3. SMT. RATHNAMMA
AGED ABOUT 52 YEARS
W/O LATE K N KEMPANNA
RESPONDENTS NO.1 TO 3 ARE
RESIDENT OF KANDAVARA
CHIKKABALLAPUR TALUK & DISTRICT 562101
4. CHIKKANARAYANAPPA
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MFA No. 5593 of 2013
S/O VENKATARAYAPPA
MAJOR
R/AT SADALI VILLAGE
SIDLAGHATTA TALUK
KOLAR DIST 562105
NOW CHIKKABALAPUR DIST
...RESPONDENTS
(BY SRI. K V SHYAMA PRASADA., ADVOCATE FOR R1 & R2
NOTICE TO R3 IS DISPENSED WITH V/O DTD 16.3.2017
NOTICE TO R4 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 12.4.2013 PASSED IN MVC
NO.8282/2011 ON THE FILE OF THE 11TH ADDITIONAL JUDE, MACT,
COURT OF SMALL CAUSES, BANGALORE, AWARDING A
COMPENSATION OF RS.5,47,000/- WITH SIMPLE INTEREST @ 6%
P.A FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The above appeal is filed by the insurer challenging
the judgment and award dated 12.4.2013 passed in MVC
No.8282/2011 by the XI Additional Judge, MACT, Court of
Small Causes, Bangalore1, seeking for enhancement of
compensation.
2. For the sake of convenience, the parties herein
are referred as per their rank before the Tribunal.
Hereinafter referred to as the 'Tribunal'
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3. The relevant facts necessary for consideration
of the present appeal are that one K.Ramachandra2 was
travelling on a tractor trailer on 15.7.2011 as its
loader/coolie under the first respondent, when the said
tractor being driven by its driver in a rash and negligent
manner met with an accident, as a result of which the
deceased succumbed to the injuries sustained in the said
accident. Claiming compensation for the death of the
deceased, his wife, son and mother filed a claim petition
arraying the owner and insurer of the tractor trailer as
respondents in the claim proceedings.
4. The claimant No.1 was examined as PW.1.
Exs.P1 to P12 were marked in evidence. The officer of the
second respondent - insurer was examined as RW.1.
Exs.R1 to R3 were marked in evidence. The Tribunal by
its judgment and award dated 12.4.2013 allowed the claim
petition and awarded a compensation of `5,47,000/-
together with interest at 6% p.a. and held that respondent
Hereinafter referred to as the 'deceased'
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Nos.1 and 2 are jointly and severally liable to pay the
compensation and directed the second
respondent - insurer to pay the compensation awarded.
Being aggrieved, the present appeal is filed.
5. The sole contention putforth by the learned
counsel for the appellant - insurer is that the risk of the
deceased was not covered under the policy of insurance
having regard to the fact that in the insured vehicle i.e.,
the tractor trailer, the seating capacity is only one i.e., for
the driver of the vehicle and there is no provision for
carrying any other person in the said vehicle. Hence, the
policy of insurance issued by the insurer does not cover
the risk of the deceased. In support of his submissions he
relies on the judgment of a Full Bench of this Court in the
case of Gadhilingappa @ Gadhilinga and Anr., v.
K.Guleppa & Ors.,3
6. Per contra, learned counsel for the claimants
justifies the judgment and award passed by the Tribunal
ILR 2021 KAR 3377
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and submits that the Tribunal has rightly noticed that the
insurer has collected additional premium of `25/- to cover
the risk of 'WC to one employee". Hence, the finding
recorded by the Tribunal is just and proper. He further
submitted that the tractor trailer is a goods vehicle and
the insurer is liable to pay the compensation awarded by
the Tribunal.
7. The submissions of both the learned counsel
have been considered and the material on record including
the records of the Tribunal have been perused. The
question that arises for consideration is, whether the
finding of the Tribunal regarding liability is just and
proper?
8. In the claim petition, it is specifically averred
that the deceased was a coolie. PW.1 in the examination
in chief has deposed at para 3 of her affidavit that the
deceased was travelling in the insured vehicle as a
coolie/loader cum unloader. There is no cross-
examination of PW.1 on this aspect of the matter. The
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official of the insurer was examined as RW.1. It is his
testimony that the deceased was a gratuitous passenger in
the tractor trailer and that he admittedly sat on the engine
top and hence, the insurer is not liable to pay the
compensation. It is his further testimony that no
passenger or coolie is allowed to travel in the tractor
trailer, that too in the engine top and that no premium is
collected from the owner to cover the risk of the person to
travel sitting on the engine top. It is forthcoming that in
the cross-examination RW.1, he admits that `25/- is
collected towards one employee. It is his voluntary
statement that it is for the driver. But it is further
admitted that in the policy the word 'driver' is not
mentioned.
9. It is forthcoming from a perusal of the policy of
insurance - Ex.R2 that apart from the premium collected
towards the basic of a sum of `1,350/-, a premium for
trailor in a sum of `950/- is collected, as also compulsory
PA to owner-cum-driver for a limit of `2.00 lakhs a
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premium of `100/- is collected. In addition, a premium of
`25/- is collected as 'WC to one employee'. The risk of a
driver is required to be covered by the insurer statutorily
as required under Section 147(1)(b)(ii) of the Motor
Vehicles Act, 1988. Hence, it is clear that the insurer has
collected an additional premium of `25/- to cover the risk
of one employee.
10. Learned counsel for the appellant has relied on
the Full Bench decision of this Court in the case of
Gadhilingappa @ Gadhilinga and Anr.,3 wherein, 3
questions were referred to the Full Bench for
consideration. Question Nos.1 and 2 are extracted
hereinbelow for ready reference:
"I) Whether a person travelling on a mud-guard of
a tractor can be construed as an authorized passenger
or an unauthorized passenger and liability of such
person is covered or not?
II) Whether the persons who are working either
on the ploughing or crushing machines attached to the
tractor can be construed as employees so as to cover
their risk statutorily under Section 147 of MV Act though
there is only one seating capacity in the tractor apart
from the driver? "
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10.1 While answering the same, the Full Bench has
recorded the following findings:
"33. Hence, in view of the decisions of the Apex Court in
the case of V. CHINNAMMA, SHIVARAJ AND
DARSHANA DEVI (supra) and the analysis made
above, we have no manner of doubt that a liability of a
person working either on the ploughing or crushing
machines attached to the tractor and who is travelling on
the mud-guard of the tractor is not required to be
covered by the statutory insurance as contemplated
under sub-Section (1) of Section 147 of the MV Act.
34. The question Nos (ii) and (iii) relate to the
persons who are working either on the ploughing or
crushing machines or any other instrument/equipment
attached to a tractor. The question is whether they can
be construed as employees so as to cover their risk
statutorily under Section 147 of the M.V. Act. ................
Chapter-XI deals with the insurance of motor vehicles
and, therefore, even the provision of Section 147 of the
M.V. Act deals with insurance of motor vehicles. Even
assuming that it is an attachment to the tractor, it is not
required to be covered by a statutory policy of insurance
as such attachments are not motor vehicles. In view of
sub-clauses (a) to (c) of clause (i) of proviso to sub-
section (1) of Section 147 of the M.V. Act, the liability of
employees working on such instruments like ploughing or
crushing machine attached to a tractor is not required to
be covered by a policy of insurance in respect of a tractor
issued in terms of sub-section (1) of Section 147 of the
M.V. Act. "
(emphasis supplied)
11. It is clear from the aforementioned, that the
Full Bench has specifically held that the liability of a person
who is travelling on the mud guard of the tractor is not
NC: 2024:KHC:2253
liable to be covered by a statutory inference as
contemplated under sub-section (1) of Section 147 of the
Act. In the present case, the Tribunal has specifically
recorded a finding fastening the liability on the insurer
having regard to the insurer having accepted a premium of
`25/- to cover the risk of one employee.
12. It is the vehement contention of the learned
counsel for the appellant that the seating capacity in a
tractor is only one and it is for its driver and hence, the
question of covering any other person other than a driver
does not arise and that the premium of `25/- is to cover
the wider legal liability for a driver. There is no factual
basis for that submission inasmuch as, if the only person
who could be covered in a policy of insurance to be issued
in respect of a tractor is the driver, the appellant insurer
has not explained as to the person who would be covered
in respect of the additional premium of `25/- wherein, the
risk of an employee is covered. Further, the contention
that the additional premium would cover the wider legal
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liability in respect of a driver, is also without any basis
since neither in the statement of objections filed by the
insurer nor in the evidence adduced by RW.1, the said
aspect is forthcoming.
13. Having regard to the aforementioned, the
appellant has failed to demonstrate that the finding
recorded by the Tribunal is in any manner erroneous or
contrary to the other material on record or any specific
provision of the statute. In view of the same, the
appellant has failed in demonstrating that the finding
recorded by the Tribunal is erroneous and warrants
interference by this Court in the present appeal. Hence,
the question framed for consideration is answered in the
affirmative.
14. In view of the aforementioned, the following:
ORDER
i) The above appeal is dismissed;
ii) The judgment and award dated 12.4.2013 passed
in MVC No.8282/2011 XI Additional Judge,
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MACT, Court of Small Causes, Bangalore, is
affirmed.
iii) The amount deposited by the appellant before
this Court be transmitted to the Tribunal for
disbursement in terms of the award of the
Tribunal.
No costs.
Sd/-
JUDGE
ND
