Karnataka High Court

United India Insurance Company Ltd vs Govinda Naika on 1 July, 2024

Author: K.Natarajan

Bench: K.Natarajan

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                                                    MFA No. 7091 of 2021
                                                 C/W MFA No. 693 of 2021




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 1ST DAY OF JULY, 2024

                                      BEFORE
                       THE HON'BLE MR JUSTICE K.NATARAJAN
             MISCELLANEOUS FIRST APPEAL NO. 7091 OF 2021 (MV-D)
                                          C/W
             MISCELLANEOUS FIRST APPEAL NO. 693 OF 2021 (MV-D)


             IN MFA NO.7091/2021

             BETWEEN:

             1.    GOVINDA NAIKA
                   S/O KRISHNA NAIKA,
                   AGED ABOUT 51 YEARS,

             2.    KAMALIBAI
                   W/O GOVINDA NAIKA,
                   AGED ABOUT 46 YEARS,
Digitally
signed by    3.    MAHESH NAIKA
VEDAVATHI
AK                 S/O GOVINDA NAIKA,
Location:          AGED ABOUT 31 YEARS,
High Court
of                 PETITIONERS NO.1 TO 3 ARE
Karnataka
                   R/AT KIDUKANAHALLI VILLAGE,
                   HANDINKERE HOBLI,
                   C. N. HALLI TALUK,
                   TUMKUR DISTRICT.
                                                            ...APPELLANTS
             (BY SRI. M.V.MAHESHWARAPPA, ADVOCATE)
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                                    MFA No. 7091 of 2021
                                 C/W MFA No. 693 of 2021



AND:

1.   THE BRANCH MANAGER
     UNITED INDIA INSURANCE CO. LTD.,
     RAGHAVENDRA COLONY,
     B.H.ROAD, TIPTUR.
     TUMKUR DISTRICT - 522 201.
     INSURER OF VEHICLE BEARING
     TRACTOR TRAILER NO.KA-35-T-3830
     KA - 44-6017.

     SRI. RANGAPPA
     S/O LATE RANGAIAH,
     SINCE DEAD BY LRS.
2.   DAYANANDA S. R.
     S/O LATE SRI. RANGAPPA,
     AGED ABOUT 46 YEARS,
     R/O MARUTHI NAGAR,
     BEHIND ANJANEYA SWAMY TEMPLE,
     HULIYAR TOWN,
     C. N. HALLI TALUK,
     TUMKUR DISTRICT - 522 201.

3.   S. R. GEETHA PRADEEP
     W/O PRADEEP,
     D/O LATE SRI. RANGAPPA,
     AGED ABOUT 42 YEARS,
     R/O ANANYA COMPLEX,
     MARUTHI NAGAR, HULIYAR TOWN,
     C. N. HALLI TALUK,
     TUMKUR DISTRICT - 522 201.
                                           ...RESPONDENTS
(BY SRI. JWALA KUMAR, ADVOCATE FOR R1;
    VIDE ORDER DATED:16/8/23, NOTICE TO R2 & R3 ARE
    DISPENSED WITH)
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                                     MFA No. 7091 of 2021
                                  C/W MFA No. 693 of 2021



     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED. 13.02.2020, PASSED IN MVC NO.1526/2014,
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., AND
XIX MACT, CHIKKANAYAKANAHALLI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.


IN MFA NO.693/2021
BETWEEN:

     UNITED INDIA INSURANCE COMPANY LTD.,
     BRANCH OFFICE: RAGHAVENDRA COLONY,
     B.H.ROAD, TUMAKURU,
     REPRESENTED BY ITS REGIONAL OFFICE,
     KRUSHI BHAVAN, 5TH & 6TH FLOOR,
     NRUPATHUNGA ROAD,
     BENGALURU - 560 009.
                                              ...APPELLANT
(BY SRI. JWALA KUMAR, ADVOCATE)

AND:

1.   GOVINDA NAIKA
     S/O KRISHNA NAIKA,
     AGED ABOUT 51 YEARS,

2.   SMT. KAMALI BAI
     W/O GOVINDA NAIKA,
     AGED ABOUT 46 YEARS,

3.   MAHESH NAIKA
     S/O GOVINDA NAIKA,
     AGED ABOUT 31 YEARS,

     ALL ARE R/AT KIDUKANA HALLI VILLAGE,
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                                       MFA No. 7091 of 2021
                                    C/W MFA No. 693 of 2021



     HANDINAKERE HOBLI, C.N. HALLI TALUK,
     TUMKUR DISTRICT - 572 119.

     SRI. RANGAPPA
     S/O LATE RANGAIAH,
     SINCE DIED BY HIS LR'S

4.   DAYANANDA S.R.
     S/O LATE SRI. RANGAPPA
     AGED ABOUT 46 YEARS,
     R/AT MARUTHI NAGAR,
     BEHIND ANJANEYA SWAMY TEMPLE,
     HULIYUR TOWN, C N HALLI TALUK,
     TUMKUR DISTRICT - 572 218.

5.   S. R. GEETHA PRADEEP
     W/O PRADEEP,
     D/O LATE SRI. RANGAPPA,
     AGED ABOUT 44 YEARS,
     R/AT ANANYA COMPLEX,
     MARUTHI NAGAR,
     BEHIND ANJANEYA SWAMY TEMPLE,
     HULIYAR TOWN, C. N. HALLI TALUK,
     TUMKUR DISTRICT - 522 201.
                                             ...RESPONDENTS
(BY SRI. M.V.MAHESHWARAPPA, ADVOCATE FOR R1 TO R3;
     R4 & R5 ARE SERVED BUT UNREPRESENTED)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED. 13.02.2020 PASSED IN MVC NO.1526/2014 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, XIX MACT,
CHIKKANAYAKANAHALLI, AWARDING COMPENSATION OF
RS.10,62,000/- WITH INTEREST AT 6 PERCENT P.A. FROM THE
DATE OF PETITION TILL REALIZATION.

     THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                                               MFA No. 7091 of 2021
                                            C/W MFA No. 693 of 2021



                              JUDGMENT

M.F.A. No.7091/2021 is filed by the claimants for

enhancement of compensation and M.F.A. No.693/2021 is filed

by the insurance company challenging the liability of

compensation granted by the Court of Senior Civil Judge and

JMFC, Motor Accident Claims Tribunal-XIX,

Chikikanayakanahalli in M.V.C. No.1526/2014, dated

13.02.2020.

2. Heard the arguments of learned counsel appearing for

the parties.

3. The appellants in M.F.A. No.7091/2021 are the

petitioners, the appellant in M.F.A. No.693/2021 is the

respondent No.1-insurer and respondent Nos.2 and 3 are

respondent Nos.2(a) and 2(b) in the said MVC No.1526/2014.

The rank of the parties before the tribunal is retained for the

sake convenience.

4. The case of the petitioners is that the petitioners filed

the claim petition under Section 166 of the Motor Vehicles Act,

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1988, seeking compensation for the death of one Manja Nayaka

in the road traffic accident on 27.07.2013. It is contended that

the deceased was the son of the 1st petitioner and the deceased

was working in the tractor-trailer of respondent No.2 bearing

registration No.KA-35-T-3830/KA-44-T-6017 as a labour for

loading and unloading. On the date of incident, at about 11.30

a.m., the driver of the said tractor-trailer driven the same in

rash and negligent manner, due to which the tractor and trailer

fell down and the deceased struck inside the tractor-trailer and

sustained injuries and succumbed to the injuries on the spot.

Hence, the petitioners claimed the compensation of Rs.15

lakhs.

5. After issuance of notice, respondents appeared and

filed written statements. Respondent No.1-insurance company

contended that the driver of the said tractor and trailer had no

valid driving licence and had no valid permit. The insurance

policy was issued by its company, but subject to the terms and

conditions and the insured had not paid additional premium for

covering the risk of the coolies or occupants of the said vehicle.

Hence, the respondent No.1-insurance company was not liable

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to pay the compensation. Hence, prayed for dismissing the

petition.

6. Respondent No.2-owner of the offending vehicle

appeared and contended that the tractor and trailer was

insured with respondent No.1-insurance company and the

policy was enforced on the date of the accident. The driver of

the tractor and trailer had the valid driving licence. Hence,

respondent No.2 was not the proper party to the proceedings.

Hence, prayed for dismissing the petition.

7. On the basis of the pleadings, the Tribunal framed the

following issues:

ISSUES

1. Whether the petitioners prove that the deceased Manja naik S/o Govinda Naik died in the accident took place on 27-07/2013, at about 11.30 a.m., near Bricks Factory, Bommenahalli village, Handanakere Hobli, due to rash and negligent driving of Tractor bearing Reg. No. KA- 35-T-3830/KA-44-T-6017 by its driver?

2. Whether the petitioners prove that they are entitled for any compensation? If so, to what extent and from whom?

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3. What order or award?

8. In order to prove the case, petitioner No.1 himself

was examined as P.W.1 and got marked the documents as per

exhibits P.1 to P.7. On the other hand, respondent No.2(a) was

examined as R.W.1. RTO of Tiptur was examined as R.W.2.

The retired RTO of Tiptur was examined as R.W.3. A

representative of respondent No.1-insurance company was

examined as R.W.4 and 13 documents were marked as per

exhibits R.1 to R.13.

9. The Tribunal after appreciation of the materials on

record, answered issue No. 1 in the affirmative and issue No.2

partly in affirmative and granted the compensation of

Rs.10,62,000/- with interest at 6% per annum from the date of

petition till realization. The Tribunal held that petitioner No.3 is

not entitled for any compensation.

10. Being aggrieved by the same, the claimants have

filed the appeal in M.F.A. No.7091/2021 for enhancement of the

compensation, while the insurance company has also filed the

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appeal in M.F.A. No.693/2021 for setting aside the liability fixed

on the insurance company.

11. Having heard the learned counsel appearing for the

parties and perused the records.

12. The points for consideration in these appeals are:

(i) Whether the Tribunal is justified in fixing the liability on the insurance company ?

(ii) Whether the petitioners/claimants are entitled for enhancement of compensation ?

(iii) If so, what order ?

13. On perusal of the records, it is clear that the accident

was occurred on 27.07.2013, while the deceased was travelling

in tractor and trailer as a labour and the same was said to be

driven by its driver. In this regard, a complaint, FIR and

charge sheet has been filed. The charge sheet was filed

against the driver of the tractor and trailer and not against the

labour. Hence, the contention of the respondent-insurance

company is that the vehicle was used for the commercial

purpose and it was to be used for agricultural purpose. The

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insurance policy was issued only for the agricultural purpose.

The tractor was used for the commercial purpose for shifting

the mud. There is violation of conditions of the policy and

therefore, there is no liability on the insurance company.

14. The petitioners' counsel contended that the vehicle

was driven by its driver for shifting the mud and the deceased

was travelling in the vehicle as a labour for loading and

unloading. The deceased fell down due to negligent driving of

the driver of the tractor and trailer. Therefore, the contention of

the learned counsel for respondent-insurance company that the

mud was shifted in the offending vehicle and therefore, it was

used as commercial purpose and not for agriculture, is not a

ground to say that it was used for commercial purpose. The

vehicle might be used for commercial or agricultural purpose,

but the liability on the insurance company cannot be

exhonerated. The insured has paid extra premium and has

purchased comprehensive policy which covers labours and

coolies. In support of his contentions, the learned counsel for

the petitioners has relied upon the judgment of the Division

Bench of this Court in the case of NATIONAL INSURANCE

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COMPANY LIMITED Vs. SRI MARUTHI AND OTHERS

reported in ILR 2011 KAR 4139 and also the other judgments

of the Co-ordinate Benches of this Court.

15. On perusal of exhibit R.1-insurance policy, the policy

for the vehicle tractor and trailer was issued for agricultural

purpose. Admittedly, the vehicle was proceeded along with the

deceased, who was travelling as a coolie. The police records

say that the accident was occurred when the tractor was

proceeding by carrying the mud. It may be for the land, but the

accident occurred near the brick factory, that itself is not a

ground for exhonerating liability on the respondent-insurance

company. Respondent No.2-owner was examined and he has

also stated that the accident was occurred by the driver of the

offending vehicle and the deceased was travelling as a coolie

and mud was found in the tractor. Whether mud was carried

for commercial or it was carried for agricultural purpose, is not

criteria to exempt the liability of insurer. The Division Bench of

this Court in case of Sri Maruthi (cited supra), at paragraph 37,

has held as under:

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37. The wordings of the fully worded policy makes it clear that the vehicle in question is a goods vehicle. Therefore, the respondents were justified in saying appellant cannot plead other than what is stated in the policy. If the general exception in the policy were to exclude the liability of the insurer to cover the coolies employed for loading and unloading then the argument of the appellants was justified. Though the fully worded policy refers to the terms of contract between the parties, IMT 7, 21, 24, 36 and 48, on perusal of the same except IMT 36 none of the other IMTs. are relevant. As a matter of fact IMT 7 & 48 do not find a place in the fully worded policy. IMT 21 refers to exclusion of riots, strikes and terrorism coverage. IMT 24 refers to replacement of parts. When the very policy is referred to as a special package policy, unless the insured was fully made known the exact terms of contract by including them in the terms of policy, it is nothing but with-holding necessary and important information from the insured.

Depending upon the user of the vehicle whether for agricultural purpose or for commercial purpose, the liability of the insurer would be decided. When the intention of the Legislation was to cover compulsorily all the risk arising out of the use of the motor vehicle and that the

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liability of the insurer is co-extensive with that of the insured subject to Section 147 (1)(b), coolies or employees are compulsorily covered. Therefore, the argument that Rule 100(6) r/w Rule 226 of the Karnataka Motor Vehicles Rules is relevant is rejected and the same will not authorise or permit the insurer to avoid the liability.

16. On perusal of the aforesaid judgment, it is

categorically held that whether the said vehicle was used for

commercial purpose or agricultural purpose, the liability of the

insurance company cannot be exonerated. Based upon the

aforesaid judgment, the Co-ordinate Benches of this Court, in

the case of THE DIVISIONAL MANAGER, UNITED INDIA

INSURANCE CO. LTD. Vs. SAVITRI AND OTHERS in M.F.A.

No.21440/2012 decided on 24.01.2019 and in the case of SRI

AJJEGOWDA Vs. SMT. LATHA AND OTHERS in M.F.A.

No.4842/2016 decided on 08.09.2021, have taken a similar

view and fastened liability on the insurance company.

Therefore, considering the facts of the case and the evidence

on record, I am of the view that the Tribunal has rightly fixed

the liability on the insurance company. Therefore, there is no

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need to interfere with fastening the liability on the respondent-

insurance company.

17. Learned counsel for the respondent-insurance

company has also relied upon the judgment in the case of THE

ORIENTAL INSURANCE CO. LTD. Vs. B. ROOPA AND

OTHERS in M.F.A. No.5690/2014 decided on 26.12.2023,

where the Co-ordinate Bench of this Court has exonerated the

liability of the insurance company relying upon the judgment of

the Hon'ble Supreme Court in the case of NATIONAL

INSURANCE CO. LTD. Vs. V. CHINNAMMA AND OTHERS

reported in 2004 ACJ 1909. In Chinnamma's case, the

vegetable was carrying to the market, which was not for

agricultural purpose. Whereas, here, in this case, the diseased

was travelling as a coolie and the offending vehicle was used

for loading and unloading the mud. Therefore, the judgment

relied on by the learned counsel for the respondent-insurance

company is not applicable to the case on hand. Accordingly,

the liability is fixed on the respondent-insurance company.

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18. As regards quantum of compensation, the diseased

died in the year 2013. When the income of the deceased is not

proved, the national notional income for the year of accident

would be considered. As per the notional income recognized by

the Karnataka State Legal Services Authority, an income of

Rs.8,000/- per month would be considered for the accident of

the year 2018. The deceased was aged 21 years at the time of

the accident and 40% towards future prospects would be

taken, which comes to Rs.3,200/- (Rs.8,000 x 40%).

Therefore, the notional income of the deceased would be

Rs.11,200/- per month (Rs.8,000 + Rs.3,200). The deceased

was unmarried and hence, if 50% is deducted towards his

personal expenses, it comes to Rs.5,600/- per month. Then,

the loss of dependency would be Rs.12,09,600/- (Rs.5,600 x 12

x 18).

19. As per the judgment of the Hon'ble Supreme Court in

the case of MAGMA GENERAL INSURANCE CO. LTD. -V-

NANU RAM [2018 ACJ 2782], each of the claimants are

entitled for compensation of Rs.40,000/- under the head of

'loss of love and affection and consortium'. Therefore, the

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same would be Rs.1,20,000/- is awarded under the said head.

Rs.30,000/- is awarded towards loss of estate.

20. Hence, the compensation awarded by the Tribunal is

modified as below:

     Loss of dependency                                 12,09,600/-
     Loss of love and affection                          1,20,000/-
     and consortium
     Loss of estate                                       30,000/-


                      Total                            13,59,600/-

21. Accordingly, I pass the following:

ORDER

(i) The appeal filed by the appellant-insurance

company in M.F.A. No.693/2021 is hereby dismissed.

(ii) The appeal filed by the appellant-petitioners in

M.F.A. No.7091/2021 is allowed in part.

(iii) The judgment of the Tribunal dated 13.02.2020

passed in M.V.C. No.1526/2014 by the Senior Civil Judge and

JMFC, Motor Accident Claims Tribunal-XIX,

Chikikanayakanahalli, is hereby modified.

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(iv) The appellants/claimants are entitled for the total

compensation of Rs.13,59,600/- as against Rs.10,62,000/-

awarded by the Tribunal from the date of petition till

realization.

(v) Petitioner No.3 is entitled for Rs.40,000/- as

compensation towards loss of love and affection and

consortium.

(vi) The respondent-insurance company is directed to

deposit the enhanced compensation with interest at 6% per

annum, within 60 days from the date of receipt of a copy of the