Karnataka High Court
Basavaraj vs Maibub And Anr on 31 July, 2024
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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NC: 2024:KHC-K:5522
MFA No. 201722 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
MISCL. FIRST APPEAL NO. 201722 OF 2017 (MV-I)
BETWEEN:
BASAVARAJ S/O TUKARAM GUHIHAL,
AGE: 24 YEARS, OCC: HAMAL,
R/O. GUGIHAL, TQ: INDI AND ALSO
R/O. NAGATHAN,
TQ: & DIST: VIJAYAPURA
...APPELLANT
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. MAIBUB S/O SAIPANSAB MASALI,
AGE: 44 YEARS, OCC: BUSINESS,
Digitally signed R/O. CHATTARAKI, TQ: SINDAGI,
by SUMITRA
SHERIGAR DIST: VIJAYAPURA-586101.
Location: HIGH
COURT OF
KARNATAKA 2. THE BRANCH MANAGER
FUTURE GENERALI INDIA INSURANCE CO. LTD.
PASADENA NO.8/1 (OLD NO.125/A)3RD FLOOR,
EZONE BUILDING, ASHOK PILLAR ROAD,
JAYANAGAR,1ST BLOCK,
BENGALURU-560011.
...RESPONDENTS
(NOTICE TO R1 DISPENSED WITH;
SMT. PREETI PATIL MELKUNDI, ADV. FOR R2)
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NC: 2024:KHC-K:5522
MFA No. 201722 of 2017
THJIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING
TO ALLOW THIS APPEAL AND ENHANCE THE COMPENSATION
AS CLAIMED IN THE CLAIM PETITION BY MODIFYING THE
JUDGMENT AND AWARD DATED-27.04.2017 PASSED BY THE
COURT OF IV ADDL.DISTRICT JUDGE AND MEMBER, MACT
NO.XIII, AT VIJAYAPUR IN MVC NO.1548/2013 AND SADDLE
THE LIABILITY ON THE INSURANCE COMPANY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA)
1. The claimant is in appeal seeking enhancement of
compensation and, more importantly, challenging the
exoneration of the liability of the insurer.
2. It was the case of the claimant that he was travelling
in the goods vehicle as a Hamali and when he was about
to unload the goods, the driver of the vehicle suddenly
moved the vehicle and he fell down on the road and at
that time, the vehicle travelled in the reverse direction and
hit him, causing grievous injuries.
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3. The Tribunal, on assessment of the evidence, has
come to the conclusion that the claimant could not have
travelled on the top of the vehicle, as has been noticed in
his cross-examination, and this being a violation of Rule
100(4)(b)(i) of the Karnataka Motor Vehicles Rules, 19891
100. Carriage of persons in goods vehicle.-(1) subject to the
provisions of this rule, no person shall be carried in a goods vehicle:
Provided that the owner or the hirer or a bona fide employee of the
owner or the hirer of the vehicle carried free of charge or a police
officer in uniform traveling on duty may be carried in a goods
vehicles, the total number of persons so carried.-
(i) in light transport goods vehicle having registered laden
weight less than 990 kgs. Not more than one;
(ii) in any other light transport goods vehicle not more than
three; and
(iii) in any goods vehicle not more than seven:
Provided that the provisions of sub-clauses (ii) and (iii) of the
above proviso shall not be applicable to the vehicles plying on
inter-State routs or the vehicles carrying goods from one city
to another city.
(2) Notwithstanding anything contained in sub-rule (i), but subject to the
provisions of sub-rules (4) and (5), a Regional Transport Authority may, by
an order in writing permit that a larger number of persons may be carried in
the vehicle, on conditions that no goods at all are carried, free of charge in
connection with the work for which the vehicle is used, and that such other
conditions as may be specified by the Regional Transport Authority are
observed, and where the vehicle is required to be covered by a permit, the
conditions of the permit.
(3) Notwithstanding anything contained in sub-rules (1) and (2), but subject
to the provisions of sub-rules (4) and (5),-
(a) for the purpose of celebration in connection with the Republic Day or
Independence Day or any other public congregation, the Regional
Transport Officer;
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(for short, 'the Rules'), the liability could not be fastened
on the insurer and the owner would be liable to pay the
compensation.
4. Rule 100 of the Karnataka Motor Vehicles Rules
declares that no person should be carried in a goods
(b) For the purpose of enabling a co-operative society or class of co-
operative societies owning or hiring a goods vehicle to carry its
members under its authority in such goods vehicle when used for the
purpose of carrying goods of the society in the ordinary course of its
business, the Secretary of the Regional Transport Authority;
(c) where it considers expedient in public interest in respect of vehicles
owned or hired by it, and in respect of other vehicles on such
inescapable grounds or urgent nature to be specified in the order, the
State Government may, by general or special order, permit goods
vehicle to be used for the carriage of persons for the purpose
aforesaid, and subject to such conditions, as may be specified in the
order.
(4) No person shall be carried in any goods vehicle.-
(a) unless an area of not less than 0.40 square meter of the floor of the
vehicle is kept open for each person; and
(b) in such manner-
(i) that such person when carried on goods is otherwise in
danger of falling from the vehicles;
(ii) that any part of his body, when he is in a sitting
position is at a height exceeding three meters from the
surface upon which the vehicle rests.
(5) The provisions of this rule shall not apply to motor vehicles registered
under Section 60.
(6) No person other than an attendants required by Rule 226 shall be
carried on a trailer which is a goods vehicle.
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vehicle. The first proviso to sub-rule (1), however, states
that the owner or the hirer or a bona fide employee of the
owner or the hirer of the vehicle can be carried in the
goods vehicle, in the case of a light transport goods
vehicle to an extent of three persons.
5. Thus, though the normal Rule is that no person
should be carried in a goods vehicle, however, an
employee of the owner can be carried in the goods vehicle.
If it is a light goods transport vehicle, three employees can
be carried.
6. Sub-rules (2) and (3) of Rule 100 deals with a
situation where, permission can be granted by the
Regional Transport Officer to carry a larger number of
persons, provided that no goods are carried and for the
purpose of Republic Day, Independence Day, or any other
public congregations or the purposes mentioned therein.
Therefore, sub-rule (2) and sub-rule (3) of Rule 100, in
fact, permit persons also to be carried in a goods vehicle
subject to the conditions prescribed therein.
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7. Sub-rule (4) of Rule 100 declares that no persons
should be carried in any goods vehicle, unless an area of
not less than 0.40 square metre of the floor of the vehicle
is kept open for each person, and in such a manner that,
that person, when carried on the goods, is otherwise in
danger of falling from the vehicle.
8. It is therefore clear that it is permissible for the
persons to be carried even in a goods vehicle subject to
the compliance of the conditions prescribed in sub-rule
(4). The fact that under Rule 100(4)(b)(i), the Rule
permits a person to be carried on the goods, so long as he
is not in the danger of falling from the vehicle, by itself
establishes that a person can travel on the very goods
itself with the only condition being that he is not in a
position of falling down from the vehicle.
9. Sub-rule (6) of Rule 100 stipulates that no person
other than an attendant or attendants required by Rule
226 should be carried on a trailer, which is a goods
vehicle.
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10. Therefore, on a plain reading of Rule 100, it is also
permissible for persons to travel in a goods vehicle,
subject to the conditions stated therein.
11. In that view of the matter, the findings of the
Tribunal that the claimant could not have travelled on the
goods of the vehicle cannot be sustained. There is no
evidence on record to indicate that the claimant was being
carried on the goods in such a manner that he was in the
danger of falling from the vehicle. The evidence suggests
that the accident occurred when the claimant was
unloading the goods from the vehicle and when the vehicle
suddenly moved.
12. It is therefore clear that the findings recorded by the
Tribunal cannot be sustained and having regard to Rule
100(4)(b)(i) of the Rules, the claimant being an employee
of the owner of the vehicle was entitled to travel in the
goods vehicle.
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13. It may also be pertinent to state here that the
assertion of the claimant that he was an employee of the
owner of the vehicle was not disputed by the owner, who
had been arrayed as respondent No.1 and who chose to
remain unrepresented.
14. The insurance company also did not adduce any
evidence to establish that the owner and the claimant
were colluding with each other.
15. In this view of the matter, the findings of the
Tribunal insofar as it relates to exonerating the insurance
company of its liability cannot be sustained and it is held
that the insurance company is liable for the compensation
awarded by the Tribunal.
16. As far as the compensation is concerned, it is noticed
that having regard to the injuries suffered by the claimant,
the sums determined by the Tribunal are just and proper
and do not call for any enhancement.
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17. The appeal is therefore allowed in part and only the
finding of the Tribunal regarding exoneration of the
insurance company of its liability is set aside. In all other
respects, the award of the Tribunal is confirmed.
18. In view of the disposal of the appeal, all pending
interlocutory applications, if any, stand disposed of.
Sd/-
(N.S.SANJAY GOWDA)
JUDGE
RK
