Karnataka High Court
Mallappa S/O. Ningappa Karikatti vs Prashant S/O. Gangappa Ninggudagi on 6 November, 2024
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MFA No. 20619 of 2012
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.20619 OF 2012 (MV-I)
BETWEEN:
MALLAPPA S/O. NINGAPPA KARIKATTI,
AGE: 39 YRS, OCC: OWNER OF THE TRACTOR,
R/O: KOTABAGI, TQ: DIST: DHARWAD.
...APPELLANT
(BY SRI DEEPAK MAGNUR, ADVOCATE FOR
SRI CHANDRASHEKAR P. PATIL, ADVOCATE)
AND:
1. PRASHANT S/O. GANGAPPA NINGGUDAGI,
AGE: 23 YEARS, OCC: NILL, R/O: TADAKOD.
2. MANJAVVA W/O. BASAPPA AKKIR,
AGE: 22 YEARS, OCC: HOUSE HOLD.
3. YALLAVVA (AFTER MARRIAGE CALLED AS REKHA)
KOM CHANDU SARIYA, AGE: 21 YEARS,
OCC: HOUSEHOLD, R/O: SAGAWAD,
Digitally signed
DIST: DUNGARPUR, RAJASTHAN STATE,
by SAROJA
HANGARAKI
REPRESENTED BY HER GPA HOLDER
Location: High PRASHANT S/O. GANGAPPA NIGGUDAGI,
Court of
Karnataka
RESPONDENT NOS.1 TO 3 ARE R/O: TADAKOD,
TQ AND DIST: DHARWAD.
4. THE GENERAL MANAGER,
UNITED INDIA INSUR CO., LTD.,
SHRINIVAS TALKIES, COMPLEX, DHARWAD.
...RESPONDENTS
(BY SMT. KAVITA JADHAV, ADVOCATE FOR R1 TO R3 FOR
SRI NEELOPNAT; SMT. PREETI SHASHANK, ADVOCATE FOR R4)
THIS MFA IS FILED U/S.173(1) OF THE M.V.ACT, PRAYING TO
SET ASIDE THE JUDGMENT AND AWARD DATED 05.11.2011, PASSED
BY THE LEARNED JUDGE, FAST TRACT - I, DHARWAD, IN
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MFA No. 20619 of 2012
M.V.C.NO.133/2010, AS AGAINST THE APPELLANT IN THE INTEREST
OF JUSTICE AND EQUITY AND ETC.,
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present appeal is filed under Section 173(1) of the Motor
Vehicles Act, 19881 by the owner of the vehicle challenging the
judgment and award dated 05.11.2011 passed in MVC No.133/2010
by the Presiding Officer, Fast Track Court-I at Dharwad2,
whereunder the Tribunal awarded the compensation of
₹1,62,800/- together with interest at the rate of 6% p.a. and
ordered that the 2nd respondent-owner is liable to pay the
compensation awarded. Being aggrieved, the owner of the
vehicle, who was arrayed as respondent No.2 before the
Tribunal, has filed the present appeal.
2. The relevant facts leading to the present appeal are
that the respondents 1 to 3/claimants filed a claim petition
under Section 166 of the Act claiming compensation for the
Hereinafter referred as "the Act"
Hereinafter referred as "Tribunal"
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death of deceased-Nagavva. It is the case of the claimants that
on the date of the accident i.e. on 25.06.2009 the deceased-
Nagavva, who is alleged to have been employed with
respondent No.2-owner of the tractor bearing No.KA-25/T-8961
and trailer bearing No.KA-24/415 for the purpose of loading
and unloading agricultural produce i.e., chilies grown in the
land of the owner, was traveling in the said vehicle. That, after
loading chilies, when deceased-Nagavva was traveling in the
said vehicle for the purpose of unloading the same, the vehicle
was driven in a rash and negligent manner by its driver causing
accident in question wherein deceased-Nagavva sustained
grievous injuries and died on the spot. Claiming compensation
for the death of deceased-Nagavva the claim petition was filed.
3. The driver of the vehicle was arrayed as respondent
No.1, owner of the vehicle as respondent No.2 and the insurer
as respondent No.3 before the Tribunal. The owner of the
vehicle entered appearance before the Tribunal and filed his
statement of objections denying case put forth by the
claimants. The insurer also filed statement of objections
denying the case put forth by the claimants and also specifically
contended that the deceased was an unauthorized passenger in
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the insured vehicle and that the owner having denied the
relationship of employer and employee with the deceased and
that the claim petition was liable to be rejected.
4. The claimant No.1 was examined as PW1. Ex.P1 to
Ex.P12 have been marked in evidence. The representative of
the insurer was examined as RW1. Ex.R1 to Ex.R4 have been
marked in the evidence. The Tribunal by its judgment and
award dated 05.11.2011 partly allowed the petition and
awarded compensation of ₹1,62,800/- with interest at the rate
of 6% p.a. and ordered that the owner-respondent No.2 is
liable to pay the compensation awarded. Being aggrieved, the
owner has filed the above appeal.
5. Heard the submissions of the learned counsel Sri.
Deepak C Maganur, for learned counsel Sri. Chandrashekhar P
Patil, for the appellant-owner, the learned counsel Smt. Kavita
Jadhav for learned counsel Sri. Arun L Neelopant for
respondents 1 to 3/claimants and the learned counsel Smt.
Preeti Shashank for the respondent No.4-insurer.
6. It is the vehement contention of the learned
counsel for the appellant that the complaint (Ex.P1) discloses
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that the deceased was employed by the owner and they were
being carried in the tractor-trailer after loading chilies for the
purpose of unloading. It is further contended that under the
policy of insurance (Ex.R2) both the tractor and trailer were
insured. That, the insurer has collected a premium of ₹25/- as
'WC to one employee'. Hence, it is contended that the Tribunal
erred in holding the owner of the vehicle liable to pay the
compensation awarded. It is further contended that the
quantum of compensation awarded is on the higher side.
7. The learned counsel for the claimants justifies the
order passed by the Tribunal and submits that the claimants
are entitled for payment of compensation.
8. The learned counsel for the insurer justifies the
judgment passed by the Tribunal and submits that the owner
having denied the relationship of employer-employee with the
deceased at the time of filing of the statement of objections,
now, in the present appeal, cannot be permitted to plead
contrary to the same and contend that the deceased was the
employee of the owner. It is further contended that the
relationship of employer-employee has not been proved and
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the deceased was an unauthorized passenger in the insured
vehicle. It is further contended that the Tribunal has adequately
appreciated the relevant factual matrix in the matter and held
the owner of the vehicle liable to pay the compensation, which
ought not to be interfered with by this Court in the present
appeal.
9. The submissions of the learned counsels for the
parties have been considered and the materials on record have
been perused including the records of the Tribunal. The
question that arises for consideration in this appeal is "whether
the Tribunal is justified in fastening the liability to pay the
compensation on the owner of the vehicle"?
10. The relevant factual matrix with regard to the
occurrence of the accident, involvement of the insured vehicle
in the accident and the fact that the insurer has issued a policy
of insurance in respect of the said vehicle is not in dispute.
11. It is forthcoming from the policy of insurance
(Ex.R2) that the tractor bearing No.KA-25/T-8961 as well as
trailer bearing No.KA-24/415 is mentioned. It is further
forthcoming that the insurer has collected premium of ₹5,117/-
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towards OD-Basic, ₹23/- as loading on OD premium, which are
towards own damages. Further, the insurer has collected a sum
of ₹800/- towards TP-Basic, ₹100/- towards compulsory PA
coverage to owner-driver for a sum of ₹2,00,000/- and ₹25/-
as "WC to one employee".
12. It is forthcoming from the complaint (Ex.P1),
which was lodged on 25.06.2009 that the tractor and trailer
was taken for the purpose of loading chilies as per the
instructions of the owner of the said vehicle and after the
chilies were loaded, when various workmen were traveling in
the said vehicle for the purpose of unloading the chilies, due to
rash and negligent driving by the driver of the said vehicle, the
accident has occurred.
13. The Tribunal considering the aspect regarding
liability has recorded the following findings.
"According to Advocate for respondent, deceased was
going along with the goods and hence there is no
coverage for the decease in the policy. Hence
respondent No.3 is not liable to pay above said
compensation. PW.1 in his evidence has stated the
same fact. It is also stated that the driver of the
tractor trailer was having driving licence to drive LMV
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tractor Non- Transport. But, this vehicle tractor trailer
driver is special type of vehicle and it has to be used
for agricultural purpose and risk of driver is only
covered. Hence, this respondent is not liable to pay
the compensation and respondent No.2 who is the
owner to pay the compensation. He was cross-
examination by Advocate for petitioner. During the
cross-examination he has denied that deceased was
working as a Hamali. As per policy the owner of the
vehicle has paid premium of Rs.25,000/- WC to
employee.
As per Ex.R.1, driving licence produced by
respondent No.1, the driver of the vehicle was having
driving licence to drive both tractor and trailer. Even
though as per endorsement produced by the
respondent No.2 at Ex.R.4, the driver was having
driving licence to drive tractor only. Therefore, it is
clear that driver of the vehicle was having valid
driving licence to drive both tractor/trailer. Hence this
contention raised by Advocate for respondent No can
be considered.
However, as per policy Ex.R.1, it is clear that
there is no coverage for passenger who was moving
along with goods in the tractor trailer. Therefore, the
owner of the vehicle respondent No.2 has pay above
said compensation."
(Emphasis supplied)
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14. It is forthcoming that the Tribunal has
recorded a finding that the tractor-trailer being a special type of
vehicle and used for agricultural purposes, risk of driver alone
is covered. Although the Tribunal has noticed regarding
collection of premium as 'WC to one employee', the Tribunal
has recorded a finding that there is no coverage for passenger,
who was moving along with the driver in the tractor-trailer.
15. Having noticed the contents of the complaint
dated 25.06.2009 (Ex.P1), it is clear that the deceased was
traveling in the insured vehicle on the instructions of its owner
for the purpose of loading and unloading of chilies and hence,
was traveling in the insured vehicle during the course of
employment with the owner.
16. The vehement contention by the learned
counsel for the insurer that the owner having denied the
relationship of employer-employee between him and the
deceased in the statement of objections cannot be permitted to
plead contrary in the present appeal will not aid to the case of
the insurer having regard to the fact that the finding recorded
regarding employer-employee is being made on appreciation of
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material available on record notwithstanding the pleading made
by the owner either before the Tribunal or in the present
appeal.
17. It is further forthcoming that the insurer has
accepted premium of ₹25/- towards "WC to one employee".
Although statement of objections have been filed by the insurer
and the representative of the insurer has been examined as
RW1, the coverage made with regard to "WC to one employee"
in respect of which a premium of ₹25/- has been accepted has
not been explained. Although it is contended by the insurer that
the coverage of insurance by accepting said premium is to the
driver of the vehicle, the said contention cannot be accepted
having regard to the fact that the driver of the vehicle is
statutorily required to be covered.
18. It is further relevant to note that though the
insurer has taken a defence regarding driving licence of the
driver of the vehicle, the same has been negatived by the
Tribunal and hence there is no requirement to give a finding
regarding the said aspect of the matter.
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19. The learned counsel for the respondent-
insurer has relied on a judgment of Co-ordinate Bench of this
Court in the case of Division Manager, United Insurance
Company Ltd., v. Akkavva3 wherein it was held as follows:
"25. In this connection, it is pertinent to refer to the
decision of this Court in the case of United India
Insurance Co. Ltd. v. Hanumanthappa, 2006 ACJ
2794 (Karanataka). In the said decision, it has been
held that there is no statutory liability on the part of
the insurer to cover the risk of all types of employees
of the insured owning a motor vehicle, but only such
of those employees within the meaning of workmen
under the Workmen's Compensation Act will have to
be covered compulsorily. Therefore, the employees
who are employed in connection with the motor
vehicle as defined under Section 2(1)(n) will have the
benefit of statutory coverage and the court also
further held that on fact as the deceased and insured
were not the employees employed in connection with
the motor vehicle, but employed for agricultural work,
the award against the insurer is bad in law. While
laying down the above law, this Court also placed
reliance on the decision of the Apex Court in National
Insurance Co. Ltd. v. V. Chinnamma, 2004 ACJ 1909
(SC). and Ors.
2008 ACJ 508
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20. The reliance placed by the learned counsel for
the insurer on the judgment will not aid the case of the insurer
since in the said case, the tractor-trailer was carrying 60-70
passengers when the accident occurred, which is not so in the
present case wherein a claim petition has been filed only in
relation to death of one employee.
21. It is relevant to notice that the judgment of
the Division Bench of this Court in the case of Oriental
Insurance Company Limited, Ballari v. Mallikethi
Basappa and others4 has been held as follows:
"7. We would have appreciated the arguments of
Mr. Seetharama Rao, provided the policy issued by
the Company was only in respect of the engine of
the Tractor but not the Trailer. The seating
capacity of an engine is only one and only Driver
can sit and drive the vehicle. The policy issued is
not only for the Tractor, but also for the Trailer. It
is known to the whole world that the loaders as
employees of the owner can always sit in the
Trailer either for loading purpose or unloading
purpose. On considering the policy, we are of the
opinion the appellant has undertaken to cover the
risk of one Employee or a Driver. In the instant
2012 (3) AIR Kar R 428
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case, the deceased was an employee who died in
the accident during the course of his employment."
(Emphasis supplied)
22. In view of the aforementioned, it is clear that
the deceased being employee of the owner of the vehicle
involved in the accident and the insurer having accepted a sum
of ₹25/- to cover the risk of "WC to one employee" and no
other claim having been made in respect of same accident, it is
abundantly clear that the insurer is liable to pay the
compensation awarded by the Tribunal.
23. The finding of the Tribunal exonerating the
insurer from payment of compensation awarded and fastening
the same on the owner of the vehicle is contrary to the material
on record and liable to be interfered with.
24. Having regard to the judgment of the Division
Bench in the case of Mellikethi Basappa4 and the factual matrix
as noticed above, the finding of the Tribunal fastening the
liability on the owner and exonerating the insurer from
payment of the compensation is erroneous and is liable to be
interfered with.
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25. In view of the discussions made above, the
above question framed for consideration is answered in the
negative.
26. Hence, the following:
ORDER
i) The above appeal is allowed and the
judgment and award dated 05.11.2011,
passed in MVC No.133/2010 by the
Presiding Officer, Fast Track Court-I at
Dharwad is modified only to the extent of
holding that the compensation ordered to
be paid by the Tribunal together with
accrued interest is liable to be paid by the
insurer of the vehicle, who is arrayed as
respondent No.3 before the Tribunal and
respondent No.4 in the present appeal. The
finding of the Tribunal fastening the liability
to pay the compensation awarded on the
owner of the vehicle, who is respondent
No.2 before the Tribunal and the appellant
herein is set aside.
ii) The judgment and the award of the
Tribunal in all other respects remain
unaltered.
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iii) The Statutory deposit of ₹25,000/- made
by the appellant in the present appeal be
refunded to the appellant.
iv) Modified award to be drawn.
Sd/-
(C.M. POONACHA)
JUDGE
YAN
CT-ASC
