Karnataka High Court
The Manager,Bajaj Allianz General ... vs Smt Shekavva W/O Chikappa ... on 5 January, 2024
Author: V.Srishananda
Bench: V.Srishananda
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MFA No. 25459 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.25459 OF 2011 (MV-D)
BETWEEN:
THE MANAGER,
BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD.
RICHARD STARUS BROOKING PROFIT LTD,
BANGALURU, REPRESENTED BY ITS MANAGER
LEGAL, BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY. LTD.
KALBURGI, MANSION LAMINGTON ROAD,
HUBLI.
...APPELLANT
(BY SRI. S.K. KAYAKAMATH, ADVOCATE)
AND:
1. SMT SHEKAVVA
W/O. CHIKAPPA KARLINGANNANAVAR,
Digitally
signed by
BHARATHI
AGE: 36 YEARS, OCC: HOUSEHOLD,
BHARATHI HM
HM Date:
2024.01.22 2. KUMARI HONNAVVA
16:28:32
+0530
D/O. CHIKAPPA KARILINGANNAVAR,
AGE: 18 YEARS, OCC: STUDENT,
3. KUMARI DYAMAVVA
D/O. CHIKAPPA KARILINGANNAVAR,
AGE: 15 YEARS, OCC: STUDENT,
4. KUMARI NETRA
D/O. CHIKAPPA KARILINGANNAVAR,
AGE: 10 YEARS, OCC: STUDENT,
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MFA No. 25459 of 2011
5. BHARAMAPPA
S/O. CHIKAPPA KARILINGANNAVAR,
AGE: 06 YEARS, OCC: STUDENT,
APPELLANT NOS.3 TO 5 ARE MINORS,
REP. BY NATURAL GUARDIAN MOTHER
APPELLANT NO.1,
ALL ARE R/O. KURAGUNDA,
TQ/DIST: HAVERI.
6. HANUMANTAPPA
S/O. YALLAPPA KOTIHAL,
AGE: MAJOR, OCC: OWNER OF THE VEHICLE
(BEARING NO.KA-27/T-7493 AND TRAILER
NO.KA-17/T-4751)
R/O: KALLEDEVAR, TQ: BYADGI, DIST: HAVERI.
...RESPONDENTS
(BY SRI. B.M. PATIL, ADVOCATE FOR R1 TO R5;
R3 TO R5 ARE MINORS REP. BY R1;
R6 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT
AND AWARD DATED 17-08-2011 PASSED IN MVC NO.17/2011
(OLD NO.139/2010) ON THE FILE OF DISTRICT JUDGE (FAST
TRACK COURT) AND MEMBER, MACT, HAVERI, AWARDING THE
COMPENSATION OF RS.5,70,000/- WITH INTEREST AT THE
RATE OF 6% P.A., FROM THE DATE OF PETITION TILL
REALISATION.
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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MFA No. 25459 of 2011
JUDGMENT
Heard learned counsel Sri.S.K.Kayakmath and
Sri.B.M.Patil for insurance company and claimant
respectively.
2. The present appeal is filed challenging the liability of
the insurance company in respect of road traffic accident
claim in MVC No.17/2011 dated 17.08.2011 on the file of
District Judge (Fast Track Court) and MACT, Haveri.
3. Facts in brief which are utmost necessary for disposal
of the appeal are as under:
In respect of road traffic accident occurred on
30.10.2009 at about 8.15 p.m.(ought to have been at 6
p.m.) one Chikkappa was proceeding with Basappa
Talawar, Guddappa Bheemappa Budihal and two others to
load maize in the land of Bheemappa Katenahalli. After
loading the maize in the tractor trailer said Chikkappa was
sitting by the side of the driver and the other coolies were
sitting on the loaded maize. When the tractor trailer unit
was proceeding from the agricultural land, driver of the
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said tractor trailer unit drove the same in rash and
negligent manner with high speed and when tractor
reached near land of Mallappa, a buffalo came across the
road. Therefore, driver has to suddenly apply the break.
As a result Chikkappa fell down from the tractor and
middle wheel of the tractor ran over the Chikkappa.
Chikkappa sustained grievous injuries and died at the
spot. Therefore, dependants of Chikkappa laid claim for
awarding appropriate compensation.
4. Upon issuance of notice, insurance company
appeared before the Court and both owner of the tractor
trailer unit and insurance company filed written statement.
While owner of the tractor trailer unit contended that
Chikkappa was sitting on the hood of the engine,
insurance company denied entire claim petition averments
and also contended that there is violation of policy
conditions and therefore, claim petition is to be dismissed.
5. Tribunal after considering relevant aspect of the
matter raised the following issues:
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Issues:
"1. Whether petitioners prove that, Chikkappa S/o Baramappa
Karlingannavar died due to injuries sustained in the road
traffic accident occurred on 30.10.2009 at 20.50 p.m. on
Kuragund Baradi road near Malappa Negalur's land due to
rash and negligent driving of the Tractor and Trailer
bearing Reg. No.KA-27/T-7493 and Ka-17/T-4751 by its
driver?
2. Whether the petitioners are entitled for compensation? If so,
for how much and from whom?
3. To what order or award?"
6. In order to prove the case of the claimants, first
claimant got examined herself as PW.1 and placed on
record 8 documents which are exhibited and marked as
Ex.P1 to P.8 comprising of ration card, FIR, copy of the
complaint, Spot mahazer, seizure panchanama, charge
sheet, motor vehicle accident report and postmortem
report.
7. On behalf of respondents, one Shwetha was
examined as RW1 and 3 documents were placed on record
which were exhibited and marked as Ex.R1 to R3
comprising of letter of authorization, 'B' register extract
and insurance policy.
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8. On cumulative consideration of oral and documentary
evidence placed on record, the learned trial judge heard
the parties in detail and applied the principles of law
enunciated in the decisions relied on by the parties,
allowed the claim petition in part by granting
compensation of Rs.5,70,000/- with interest at 6% p.a. to
be recoverable from the owner and insurance company
jointly and severally.
9. Being aggrieved by the same, the insurance company
has filed the present appeal on the following grounds:
"01. The impugned judgment and award is
opposed to the law and facts. Hence, the
impugned judgment and award is liable to be set
aside.
2. That the deceased was traveling on the
mudguard of the Tractor. As per Regulation No.28
of Road Regulations 1989, no person is permitted
to travel on the mudguard of the Tractor. The
deceased has traveled on the mudguard the
respondent-insured has permitted the deceased to
be travel on mudguard in contravention of the said
Regulation. The liability fastened against
respondent-insurer is contrary to ratio laid down
by the Hon'ble High Court of Karnataka in the case
National Insurance Company Ltd., Vs.
Bramarambika and others reported in 2006
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ACJ 671. Hence, the impugned judgment and
award is liable to be set aside.
3. That the seating capacity of the Tractor is only
one i.e, driver and the deceased was traveling on
the mudguard of the Tractor beyond the seating
capacity. The risk of such person is not envisaged
under Section 147 of the Motor Vehicles Act. The
liability fastened against the appellant insurer is
contrary to the law. Hence, the impugned
judgment and award is liable to be set aside.
4. The deceased had been to the land of Bhimappa
Chikkappa Katenahalli as a coolie. The deceased
was under the employment of the said person.
There was no relationship of employee and
employer between the deceased and respondent-
insured. However, the Tribunal has saddled the
liability against the appellant insurer by observing
that the respondent-insurer has collected a sum of
Rs.25/- to cover the risk of legal liability for
operation/maintenance. The reasoning assigned
by the Tribunal are unsustainable in law, as itself
has invented a new case though it was not
pleaded by the petitioner. Hence, the impugned
judgment and award is liable to be set aside.
5. That the Hon'ble High Court of Karnataka in the
case of National Insurance Company Ltd., Vs.
Chinnamma reported in 2004 SAR (Civil) 774
(Supreme Court); Oriental Insurance
Company Limited Vs. Hanumantappa reported
in I.L.R. 1992 Karnataka Page-1335 has held
that Tractor & Trailer together constitutes goods
vehicle and under Section 147 of Motor Vehicles
Act risk of the gratuitous passengers in a goods
vehicle is not required to be covered under the
policy. The Hon'ble Supreme Court in the case of
New India Assurance Company Ltd Vs. D.
Asha Rani reported in 2003 (1) TAC page No.1
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and several other Judgments has held that the
insurer is not liable to pay the compensation for
gratuitous passengers. The Tribunal by ignoring
the ratio laid down in the afore-mentioned case
has erroneously saddled the liability against the
appellant insurer. Hence, the impugned judgment
and award is liable to be set aside.
6. The Judgment and award passed by the
Tribunal is opposed to law, probabilities of the
case and evidence on record.
7. No legal proceedings or litigation either past or
present concerning any part of the subject matter
of the dispute is pending.
8. The Appellant herein has not challenged the
impugned Judgment and Award/Order before any
other Forum."
10. Learned counsel Sri.S.K.Kayakmath, representing
insurance company, reiterating the grounds urged in the
appeal memorandum vehemently contended that only one
person is allowed to sit in the tractor. No person is allowed
to sit on bonnet or engine hood. As such, at no stretch of
imagination, he could be covered under the insurance
policy and therefore, it is a case of clear violation of policy
conditions and fastening the liability on the insurance
company is thus incorrect and has resulted in miscarriage
of justice and sought for allowing the appeal.
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11. He drew the attention of this court on Section 149 of
the M.V. Act 1988, wherein, the duty of the insurer to
satisfy the judgment and award against the person insured
in respect of third parties risk enumerated. For ready
reference, Section 149 of the MV Act, 1988 is culled out
herein under:
149. Duty of insurers to satisfy judgments
and awards against persons insured in
respect of third party risks.--
(1) If, after a certificate of insurance has been
issued under sub-section (3) of section 147 in
favour of the person by whom a policy has been
effected, judgment or award in respect of any
such liability as is required to be covered by a
policy under clause (b) of sub-section (1) of
section 147 (being a liability covered by the terms
of the policy) [or under the provisions of section
163A] is obtained against any person insured by
the policy, then, notwithstanding that the insurer
may be entitled to avoid or cancel or may have
avoided or cancelled the policy, the insurer shall,
subject to the provisions of this section, pay to the
person entitled to the benefit of the decree any
sum not exceeding the sum assured payable
thereunder, as if he were the judgment debtor, in
respect of the liability, together with any amount
payable in respect of costs and any sum payable
in respect of interest on that sum by virtue of any
enactment relating to interest on judgments.
(2) No sum shall be payable by an insurer under
sub-section (1) in respect of any judgment or
award unless, before the commencement of the
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proceedings in which the judgment or award is
given the insurer had notice through the Court or,
as the case may be, the Claims Tribunal of the
bringing of the proceedings, or in respect of such
judgment or award so long as execution is stayed
thereon pending an appeal; and an insurer to
whom notice of the bringing of any such
proceedings is so given shall be entitled to be
made a party thereto and to defend the action on
any of the following grounds, namely:--
(a) that there has been a breach of a specified
condition of the policy, being one of the following
conditions, namely:--
(i) a condition excluding the use of the
vehicle--
(a) for hire or reward, where the vehicle is on
the date of the contract of insurance a
vehicle not covered by a permit to ply for hire
or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit
under which the vehicle is used, where the
vehicle is a transport vehicle, or
(d) without side-car being attached where
the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named
person or persons or by any person who is not
duly licensed, or by any person who has been
disqualified for holding or obtaining a driving
licence during the period of disqualification; or
(iii) a condition excluding liability for injury
caused or contributed to by conditions of war,
civil war, riot or civil commotion; or
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(b) that the policy is void on the ground that it
was obtained by the non-disclosure of a material
fact or by a representation of fact which was false
in some material particular.
(3) Where any such judgment as is referred to
in sub-section (1) is obtained from a Court in a
reciprocating country and in the case of a foreign
judgment is, by virtue of the provisions of section
13 of the Code of Civil Procedure, 1908 conclusive
as to any matter adjudicated upon by it, the
insurer (being an insurer registered under the
Insurance Act, 1938 and where or not he is
registered under the corresponding law of the
reciprocating country) shall be liable to the person
entitled to the benefit of the decree in the manner
and to the extent specified in sub-section (1), as if
the judgment were given by a Court in India:
PROVIDED that no sum shall be payable by
the insurer in respect of any such judgment
unless, before the commencement of the
proceedings in which the judgment is given, the
insurer had notice through the Court concerned of
the bringing of the proceedings and the insurer to
whom notice is so given is entitled under the
corresponding law of the reciprocating country, to
be made a party to the proceedings and to defend
the action on grounds similar to those specified in
sub-section (2).
(4) Where a certificate of insurance has been
issued under sub-section (3) of section 147 to the
person by whom a policy has been effected, so
much of the policy as purports to restrict the
insurance of the persons insured thereby by
reference to any conditions other than those in
clause (b) of sub-section (2) shall, as respects
such liabilities as are required to be covered by a
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policy under clause (b) of sub-section (1) of
section 147, be of no effect:
PROVIDED that any sum paid by the insurer in
or towards the discharge of any liability of any
person which is covered by the policy by virtue
only of this sub-section shall be recoverable by the
insurer from that person.
(5) If the amount which an insurer becomes
liable under this section to pay in respect of a
liability incurred by a person insured by a policy
exceeds the amount for which the insurer would
apart from the provisions of this section be liable
under the policy in respect of that liability, the
insurer shall be entitled to recover the excess from
that person.
(6) In this section the expressions "material
fact" and "material particular" means, respectively
a fact or particular of such a nature as to influence
the judgment of a prudent insurer in determining
whether he will take the risk and, if so at what
premium and on what conditions, and the
expression "liability covered by the terms of the
policy" means a liability which is covered by the
policy or which would be so covered but for the
fact that the insurer is entitled to avoid or cancel
or has avoided or cancelled the policy.
(7) No insurer to whom the notice referred to in
sub-section (2) or sub-section (3) has been given
shall be entitled to avoid his liability to any person
entitled to the benefit of any such judgment or
award as is referred to in sub-section (1) or in
such judgment as is referred to in sub-section (3)
otherwise than in the manner provided for in sub-
section (2) or in the corresponding law of the
reciprocating country, as the case may be."
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12. Drawing the attention of this court to the
circumstances under which the insurance company is duty
bound to honour its commitment, Sri.S.K.Kayakmath
contended that a person sitting on the hood of the engine
of the tractor, is thus, not covered under the policy and
also under provision of M.V. Act and therefore, fastening
the liability on the insurance company is incorrect and
sought for allowing the appeal.
13. In that regard he placed reliance on the Full Bench
judgment of this Court in the case of Gadhilingappa and
others Vs. K.Guleppa and others in MFA Crob
No.100001/2016 and connected matters and contended
that the Full Bench took into consideration all relevant
aspects of the matter and ruled that the insurance
company is not liable to satisfy the judgment and award
where there is a violation of either statutory requirements
or violation of policy conditions are made out.
14. Per contra, Sri.B.M.Patil contended that the deceased
was not sitting on the hood of the engine as is contended
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by the first respondent and in fact he was sitting next to
the driver and therefore, there is no statutory violation nor
the policy conditions are violated and as admittedly the
deceased had gone along with the tractor-trailer unit for
loading maize and he was supposed to come back to his
place in the very same tractor itself and therefore
fastening of liability on the insurance company is thus
valid.
15. He also places on record the latest judgment of the
Hon'ble Apex Court in the case of V.Renganathan and
Another vs. Branch Manager, United India Insurance
Company Limited and Another reported in 2023 ACJ
623 and contended that even assuming that there is
violation of policy conditions, the insurance company is
bound to pay the compensation at the first instance and is
entitled to recover the same from the owner and sought
for dismissal of the appeal.
16. Relevant portion of the said judgment is culled out
hereunder for easy reference:
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"5. We find no fault with the finding of the High Court
that the insurance company could not be held liable for
the payment of compensation in view of the judgment of
3-Judge Bench of this court in the case of New India
Assurance Co. Ltd. v. Asha Rani, 2003 ACJ 1 (SC).
However, at the same time, we find that in view of the
settled position, the High Court ought to have partly
allowed the appeal. We may gainfully refer to the
observations of this court in similar facts at para 10 of
the judgment of this court in Shivaraj v. Rajendra, 2018
ACJ 2755 (SC).
6. As already observed, the facts in the present case
are similar to the facts in the case of Shivaraj v.
Rajendra (supra).
7. In the present case also, the High Court ought to
have partly allowed the appeal preferred by the
insurance company and ought to have directed it to pay
the amount of compensation to the appellants and
granted liberty to recover the same from the tractor
owner.
8. We are, therefore, inclined to allow the appeal. We
uphold the finding of the High Court that the respondent
No. 1-insurance company cannot be held liable for
payment of compensation. At the same time, we direct
the respondent No. 1-insurance company to pay the
compensation to the appellants-claimants as determined
by the learned Tribunal with interest as specified in the
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order within three months from today with liberty to
recover the said amount from the owner of the vehicle."
17. In the light of the rival contentions of the parties,
this Court bestowed its attention to the material on record
and also meticulously considered the principles of law
enunciated in the judgment of Full Bench of this Court in
Gadhilingappa and also the judgment of the Hon'ble
Apex Court in V.Renganathan supra.
18. Sri.S.K.Kayakamath drew attention of this Court to
Section 149 of Motor Vehicles Act as referred to supra.
Section 149 of Motor Vehicles Act is having a heading
wherein duty of the insurer to satisfy the judgment and
award against the person insured is mentioned.
19. In other words, Section 149 of Motor Vehicles Act
contemplates several circumstances under which the
insurance company is bound to satisfy the judgment and
award against the insured insofar as third party risk is
concerned.
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20. In the case on hand, the deceased is a third party.
According to Sri.S.K.Kayakamath, the deceased cannot be
construed as a third party as the policy did not cover the
risk of a person other than the driver. The material on
record would go to show that in the claim petition, it is
contended that Chikkappa was sitting next to the driver in
the tractor. According to the first respondent, the
deceased was sitting on the hood of engine of the tractor.
Except making a statement in the written statement, first
respondent did not choose to examine himself nor any
eyewitnesses have been examined to establish the fact
that the deceased was actually sitting on the hood of the
engine of the tractor.
21. The Tribunal after taking into consideration the
material evidence placed on record by the parties, held
that the deceased was not sitting on the hood of the
engine as is contended by the first respondent and
therefore fastened the liability on the insurance company
as well as the owner of the tractor.
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22. The evidence placed on record in the form of oral
testimony of RW.1 also did not make out a case that the
deceased was sitting on the hood of the engine of the
tractor. Not a whisper is made in the examination-in-chief
about the place where the deceased was sitting. Whereas,
PW.1 has specifically stated in her examination-in-chief
that the deceased was sitting next to the driver. No cross-
examination has been made by Insurance Company in this
regard even by suggesting that the deceased was not
sitting next to the driver.
23. Under such circumstances, the finding recorded by
the Tribunal that the deceased was sitting next to the
driver in the tractor is thus established and requires no
interference by this Court.
24. This would take this Court to the next limb of the
argument canvassed on behalf of insurance company by
Sri.S.K.Kayakamath that in such circumstances where the
sitting capacity of the tractor is only one and when there is
excess passenger in the tractor, such excess passenger be
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allowed to be covered by the insurance policy. There is
sufficient force in such argument canvassed on behalf of
insurance company that excess passenger is not allowed
to be covered by the insurance policy.
25. The Full Bench judgment of this Court while dealing
with similar aspects of the matter, taking into
consideration all other judgments that were available on
the point of law, came to the conclusion that in such
circumstances the insurance company is not liable to pay
the compensation.
26. However, in the case of V.Renganathan supra in
almost similar situation where a person was sitting on the
mudguard of the tractor has laid the claim, the Hon'ble
Apex Court passed an order stating that in such
circumstances, the insurance company is liable to pay the
compensation at the first instance and is entitled to
recover the same from the owner. Said judgment is
admittedly passed on 11.10.2022 i.e. subsequent to
passing of judgment of the Full Bench of this Court. Even
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otherwise, the judgment of the Hon'ble Apex Court would
prevail over the judgment of Full Bench of this Court or
the Division Bench of this Court.
27. Therefore, a case is made out by the appellant -
insurance company to modify the impugned judgment and
award to the extent that liability fastened on the insurance
company needs to be modified by directing the insurance
company to pay the compensation at the first instance and
to recover the same from owner in the very same
proceedings.
28. In view of the foregoing discussion, following order is
passed:
ORDER
(i) Appeal is allowed in part.
(ii) While maintaining the judgment and award
passed by the Tribunal with regard to quantum
of compensation, fastening of liability on the
insurance company is modified.
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(iii) The adjudged compensation is ordered to be
paid by the appellant - insurance company at the
first instance and is entitled to recover the same
from the owner of the tractor-trailer unit in the
very same proceedings.
(iv) No order as to costs.
(v) Amount in deposit, if any, is ordered to be
transmitted to the concerned Tribunal forthwith
for disbursement.
Sd/-
JUDGE
HMB upto para 13
SH
