Karnataka High Court
Chinnavva And Ors vs Kallappa And Anr on 24 October, 2024
-1-
NC: 2024:KHC-K:7879
MFA No. 202181 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MISCL. FIRST APPEAL NO. 202181 OF 2019 (MV-D)
BETWEEN:
1. CHINNAVVA
W/O BASAVARAJ DUDDAGI
AGE:31 YEARS
OCC:HOUSEHOLD
2. ANUSHKA D/O BASAVARAJ DUDDAGI
AGE:6 YEARS
OCC:STUDENT
3. ADARSH S/O BASAVARAJ DUDDAGI
AGE:4 YEARS
OCC:NIL
Digitally signed
by RENUKA
Location: HIGH 4. GANGAMMA W/O SUBHASH DUDDAGI
COURT OF AGE:73 YEARS
KARNATAKA OCC:NIL
ALL ARE R/O NALAVATWAD
TQ.BUDDEBIHAL
DIST.VIJAYAPUR-586 124.
THE APPELLANT NO.2 TO 3 ARE MINORS
REPRESENED BY APPELLANT NO.1
AS MINOR GUARDIAN.
...APPELLANTS
(BY SRI. BIRADAR VIRANAGOUDA, ADVOCATE)
-2-
NC: 2024:KHC-K:7879
MFA No. 202181 of 2019
AND:
1. KALLAPPA
S/O SHIVAPPA KOTTANAND
AGE:43 YEARS
OCC:BUSINESS
R/O H.NO.66, DEVIKOPPA
TQ.KALAGHATAGI
DIST.DHARWAD-581 204.
2. THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD.
1ST FLOOR, HERALAGI BUILDING
BEHIND SIDDESHWAR TEMPLE
VIJAYAPUR-586 101.
(POLICY NO.610100/31/14/6700010308
VALID FROM 25-12-2014 TO 24-12-2015)
...RESPONDENTS
(BY SRI. DEEPAK V. BARAD, ADVOCATE FOR R2;
R1 - SERVED)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
ALLOW THIS APPEAL BY MODIFYING THE JUDGMENT AND
AWARD OF MACT NO.IV AND III ADDL.DIST. AND SESSIONS
JUDGE, VIJAYAPUR DATED 31.07.2019 IN MVC NO.263/2016
AND SADDLED THE LIABILITY ON RESPONDENT NO.2 IN THE
INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
-3-
NC: 2024:KHC-K:7879
MFA No. 202181 of 2019
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
The captioned appeal is filed by the claimants who
are the legal representatives of one Basavaraj S/o.
Subhash Duddagi, who died in a road traffic accident dated
24.12.2015. The claim petition was filed by the widow,
two minor children and mother of the deceased claiming
compensation for having lost the deceased Basavaraj.
2. Respondent No.2/Insurance Company on
receipt of notice contested the proceedings and specifically
contended that the deceased was not at all working as a
teacher at Bendalakatti Government Higher Primary
School and they claimed that he was a gratuitous
passenger and therefore, the claimants are not entitled for
compensation and the Insurance Company is not liable to
indemnify the insured.
3. Additional statement of objections was also filed
disputing the claim of the claimants. Respondent
NC: 2024:KHC-K:7879
No.2/Insurance Company also claimed that the maxicab
hired by the school authorities was carrying excess
passengers and therefore, the Insurance Company claimed
that it is not liable to indemnify the insured.
4. The Tribunal on assessing the evidence though
determined compensation of Rs.51,71,300/-, however,
while deciding the issue relating to liability held that the
deceased was traveling as an unauthorised passenger.
The Tribunal also held that in terms of the policy, the
Insurance Company is not liable to indemnify respondent
No.1/owner of the offending vehicle. Consequently, the
claim petition was dismissed against respondent No.2.
5. Heard the learned counsel for the appellants
and the learned counsel appearing for respondent
No.2/Insuance company.
6. A thorough analysis of P.W.2's testimony
reveals that the deceased, Basavaraj, was indeed one of
the official occupants of the vehicle involved in the
NC: 2024:KHC-K:7879
incident. He was traveling with the school children and
staff from Bendalakatti Government Higher Primary School
on an organized school trip to Dharmasthala. Despite a
comprehensive cross-examination, the Insurance
Company did not provide any explicit suggestion indicating
that the deceased was an unauthorized passenger. In
evaluating the full scope of P.W.2's evidence, who serves
as a crucial witness in this matter, the Court is satisfied
beyond doubt that, on the unfortunate day of the accident,
the deceased was accompanying the school's students and
teachers as part of the school trip. P.W.2's admission that
the deceased was traveling alongside other staff from the
school further undermines the respondent No.2/Insurance
Company's argument that Basavaraj was an unauthorized
passenger. As a result, the assertion that the Insurance
Company should be exempted from compensatory liability
does not hold. Additionally, P.W.2, who is the principal of
the school, confirmed that Basavaraj had been employed
by the school for five years prior to the accident, and that
he was included in the trip at the express request of the
NC: 2024:KHC-K:7879
children's parents. This point, brought forward during
cross-examination, conclusively demonstrates that it was
both at the request of the parents and the school
authorities' initiative that the deceased was brought along
for the trip. The Tribunal, however, did not adequately
appreciate these findings. Without substantial evidence
presented by the Insurance Company proving that
Basavaraj had no legitimate association with the school
staff and had boarded the vehicle as an unauthorized
passenger en route, this Court finds it unreasonable to
absolve the Insurance Company from its obligation to
compensate the claimants in this case.
7. The Tribunal's conclusion that liability was
restricted because the insurance policy covered only 12
passengers, with the driver allegedly permitting excess
passengers beyond the permissible 12+1 limit fails to
shield the Insurance Company in this case. The Apex
Court, in National Insurance Company v. Anjana
NC: 2024:KHC-K:7879
Shyam and Others1, established that even in situations
where the vehicle exceeds the permissible passenger
count, the insurer's liability to compensate remains intact,
as the insurer is still obligated to indemnify and pay any
compensation decreed by the Tribunal. This ruling directly
impacts the present matter and counters the Tribunal's
finding, which attempted to limit the Insurance Company's
liability based on the passenger count.
8. In the current case, evidence indicates that the
accident involved a total of approximately 33 passengers
in the vehicle. Despite this, the claimants effectively
demonstrated during cross-examination that no other
claims, beyond this particular petition, have been filed
before the Tribunal concerning this accident. This further
supports the position that any issues regarding excess
passengers do not preclude the insurer's responsibility for
compensation in this case.
2000 ACJ 1585
NC: 2024:KHC-K:7879
9. Based on the principles outlined by the Apex
Court in the cited judgment, the Tribunal's determination
that the deceased, Basavaraj, was an unauthorized
passenger appears both unreasonable and contrary to the
available evidence. Consequently, this finding cannot be
sustained and must be set aside.
10. This Court recognizes that the vehicle in
question, a maxicab, was specifically hired by the school
authorities for the field trip, and that the deceased,
Basavaraj, was included in the trip with the explicit
consent of the school authorities and the parents of the
school children. This Court is therefore satisfied that
Basavaraj was not traveling as an unauthorized passenger.
Consequently, in light of the Apex Court's ruling, the
Insurance Company remains liable for compensatory
payments. The Tribunal's initial decision to exempt the
Insurance Company from liability and place the burden on
the vehicle owner, thereby dismissing the claim against
NC: 2024:KHC-K:7879
respondent No.2/Insurance Company, is accordingly set
aside.
11. Insofar as quantum is concerned, this Court is
of the view that compensation determined under the head
of loss of dependency and other heads does not warrant
any interference.
12. For the foregoing reasons, this Court proceeds
to pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and award dated
31.7.2019 passed in MVC.No.263/2016 by the
III Additional District and Sessions Judge &
MACT-IV, Vijayapura, is hereby modified.
(iii) Respondents 1 and 2 are jointly and
severally liable to pay Compensation with
interest at the rate of 6% p.a. from the date of
petition till its realization.
- 10 -
NC: 2024:KHC-K:7879
(iv) The order of the Tribunal insofar as
apportionment remains unaltered.
(v) The amount in deposit, if any, shall be
remitted to the Tribunal to enable claimants to
withdraw the same.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
ALB
