Karnataka High Court
The Divisional Manager vs Sri. Khadar Basha, S/O. Gafoor Sab on 30 September, 2024
-1-
NC: 2024:KHC-D:14671
MFA No. 25511 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA
MFA NO. 25511 OF 2011 (MV-I)
BETWEEN:
THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO. LTD.
PARVATHI NAGAR, MAIN ROAD
NEAR DURGAMMA CIRCLE, BELLARY
NOW BY ITS AUTHORIZED SIGNATORY AND
ASST. MANAGER, ORIENTAL INSURANCE CO. LTD.
REGIONAL OFFICE, SUMANGALA COMPLEX
2ND FLOOR, LAMINGTON ROAD, HUBLI - 580 020 ... APPELLANT
(BY SRI. S.S. JOSHI, ADV.)
AND:
1. SRI. KHADAR BASHA
S/O. GAFOOR SAB, AGE: ABOUT 34 YEARS
R/O: NEW BUS STAND, SANDUR, BELLARY
DIST. NOW RESIDING AT COWL BAZAAR
BELLARY
2. SRI. VENKATESH K,
S/O. HANUMANTHAPPA
Digitally signed by OWNER CUM DRIVER OF LORRY
PRAJWAL A BEARING REGISTRATION NO.KA-35/7885
R/O: NEAR CHECK POST
Location: HIGH COURT
OF KARNATAKA BHAGATH SINGH NAGAR, HOSPET ... RESPONDENTS
(BY SRI. S.M. KALWAD, ADV. FOR R1;
SRI. Y. LAKSHMIKANT REDDY, ADV. FOR R2)
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT AND AWARD DATED 19.07.2011, PASSED IN MVC
NO.843/2009 ON THE FILE OF THE MEMBER, V-MACT, BELLARY,
AWARDING THE COMPENSATION OF RS.1,84,600/- WITH
INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF
PETITION TILL REALISATION.
-2-
NC: 2024:KHC-D:14671
MFA No. 25511 of 2011
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT
ON 01.07.2024, COMING ON FOR PRONOUNCEMENT THIS DAY,
T.G.SHIVASHANKARE GOWDA, J., DELIVERED THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA)
In this appeal, the Insurance Company is
questioning the quantum of compensation and the
liability.
2. For the sake of convenience, the rank of the
parties will be referred to as stood before the Tribunal.
3. Brief facts of the case are, on 19.03.2008 the
petitioner along with load of empty bottles was
travelling in the lorry bearing Reg.No.KA-35/7885
(offending vehicle) from Sandur to Bengaluru. At about
3.00 a.m., near K. R.Halli cross in the early morning on
20.03.2008, another lorry coming from behind this
lorry was dashed against the hind portion in turn it had
hit on the hind portion of lorry going ahead, due to
NC: 2024:KHC-D:14671
which the petitioner sustained injuries. After taking
treatment at Government Hospital, Hiriyur and
Chitradurga, he has approached the Tribunal for grant
of compensation of Rs.8,50,000/-. Claim was opposed
by the Insurance Company. The Tribunal, after taking
the evidence and hearing on both the parties, allowed
the claim by granting compensation of Rs.1,84,600/-
with interest @ 6% per annum and directed the
Insurance Company to deposit the said compensation.
Aggrieved by the same, the Insurance Company is
before this Court on various grounds.
4. Heard the arguments of Sri S.S.Joshi, learned
counsel for the Insurance Company, Sri S.M.Kalwad,
learned counsel for the petitioner and Sri
Y.Lakshmikant Reddy, learned counsel for the owner of
the lorry.
5. It is the contention of the learned counsel for
the Insurance Company that, the petitioner was not
travelling with the goods, no material is placed that at
NC: 2024:KHC-D:14671
the time of accident lorry was carrying the empty
bottles. The petitioner has not placed any evidence to
show that he was doing any scrap business and he was
carrying the goods. Hence, the policy of insurance does
not cover the risk of the gratuitous passenger. The
Tribunal has erroneously assessed the compensation
on the higher side and also fastened the liability
against the Insurance Company. The petitioner was
travelling in a goods vehicle as a gratuitous passenger,
there is a fundamental violation of terms and
conditions of the policy, Insurance Company can avoid
its liability.
6. Per contra, it is contended by the learned
counsel for the petitioner that, the lorry was started its
journey at Sandur along with loaded empty bottles to
be carried to the Bengaluru. At the place of accident
the lorry had hit against the another lorry going ahead
and at the same time lorry is coming behind it also hit
on the hind portion of the said lorry. The petitioner was
travelling with the empty bottles, there is a clear
NC: 2024:KHC-D:14671
averments in the complaint as well as the further
statement before police and the evidence, the
petitioner has asserted that he was travelling in the
lorry along with goods. The Insurance Company has
issued a package policy with Zone-C. The seating
capacity of the lorry is 2+1. The petitioner being
carried along with the goods he is a third party and the
Insurance Company is bound to indemnify the owner.
7. Learned counsel for the owner of the lorry has
contended that, the lorry was moving from Sandur to
Bengaluru with a loaded empty bottles. The lorry was
met with an accident near Hiriyur. The Police have
charge sheeted against the driver of the lorry. The
charge sheet is not challenged by the Insurance
Company. The prosecution papers clearly point out the
petitioner was travelling with empty bottles to the
Bengaluru. No evidence is placed by the Insurance
Company that the lorry was not carrying the empty
bottles. Since the petitioner was travelling in the lorry
with goods, policy of insurance covers the risk of the
NC: 2024:KHC-D:14671
passenger with goods and his liability has to be
indemnified by the Insurance Company.
8. I have given my anxious consideration to the
arguments addressed on behalf of both parties and
perused the records.
9. On careful perusal of the prosecution papers
such as FIR, complaint, charge sheet, mahazar, IMV
report and certified copy of order sheet in
C.C.No.784/2008 goes to show that there was an
accident on 20.03.2008 in the early morning near
K.R.Halli cross of Hiriyur taluk. The petitioner being
inmate of the lorry sustained the injuries and he was
admitted to the district Hospital, Chitradurga where in
the morning the Police have recorded the statement of
the petitioner and set the law into motion. The
averments made in the compliant clearly points out
that the petitioner was loaded the lorry with empty
bottles at Sandur and he was carrying the same to
Bengaluru, due to the impact he has sustained the
NC: 2024:KHC-D:14671
injuries. The investigation culminated in filing of the
charge sheet under Section 279, 337 of IPC against the
second respondent who is the owner-cum-driver of the
lorry. Spot mahazar also IMV report shows that front
portion as well as hind portion of the lorry was
damaged. The second respondent as the owner-cum-
driver has pleaded guilty of the offences and paid the
fine. Therefore, the prosecution papers sufficiently
explains that the petitioner while traveling in the lorry
along with goods met with an accident due to
actionable negligence of the driver.
10. The petitioner claims that he has sustained
fracture of ankles of both the legs and he has relied on
Ex.P7 the medical records issued by the District
Hospital, Chitradurga, it goes to show that the
petitioner has suffered swollon in both the left and
right foot with tenderness and lacerated wound. The
case sheet pertains to the District Hospital also show
that no evidence of fractures is seen and without he
was examined. After treatment, he was discharged
NC: 2024:KHC-D:14671
from the Hospital. The petitioner though claims the
fractures, the preliminary medical records produced by
him did not point out the same. But only through the
evidence of PW.2 he is trying to demonstrate that he
has suffered fracture of right foot, fracture of right
ankle, fracture of lateral mallelous, fracture of 2nd, 3rd,
4th, 5th metatarsal bones.
11. PW.2-Dr.Kanthesh Reddy Yellapura, who runs
a Shreya Clinic at Bellary makes an assessment that
the petitioner has sustained 50% of the limb disability
and 30% of permanent partial disability. In the course
of cross-examination, he has admitted that he has not
treated the petitioner nor he was aware of the nature
of injuries that was sustained.
12. It is pertinent to note that the petitioner has
approached PW.2 only in the year 2011 for the sake of
assessment of disability, there is no evidence that the
petitioner has taken treatment. When the medical
records of the Government Hospital clearly point out
NC: 2024:KHC-D:14671
the petitioner was having swollon foot of both the legs
with no evidence of fracture. All of a sudden in the
year 2011 he has come with multiple fractures. Hence,
the evidence of PW.2 cannot be sustained as is
examined the petitioner 3 years after the accident.
Even if it is taken into consideration, the nature of
injuries that the petitioner has sustained the Tribunal
assessing loss of future income is not proper and
proportionate compensation has to be awarded to the
petitioner.
13. The petitioner having sustained foot injuries
has to be compensated with Rs.25,000/- towards pain
and suffering, Rs.5,000/- towards medical expenses,
loss of amenities and discomfort at Rs.25,000/-,
incidental expenses such as attendant, food and
nourishment and conveyance charges at Rs.5,000/-
and nature of injuries will certainly laid up to the
petitioner for 6 months and by taking his income at
Rs.4,000/- he has to be awarded Rs.24,000/-. The
medical evidence is not inspiring the confidence of the
- 10 -
NC: 2024:KHC-D:14671
Court and the petitioner has failed to establish the
fractures as well as the disability. Thus, in all, the
petitioner is entitled to Rs.84,000/- instead of
Rs.1,84,600/- assessed by the Tribunal.
14. As regarding liability is concerned, the Officer
of the Insurance Company is examined as RW.1 whose
evidence points out that the petitioner was not
traveling along with goods that he was traveling as
gratuitous passenger. Contrary to be found from the
prosecution papers that at the time of accident it is the
petitioner who was carrying the empty bottles from
Sandur to Bengaluru. Hence, he cannot be treated as a
gratuitous passenger.
15. Ex.R1 is the policy of insurance, it is a three
wheeler package policy, the seating capacity of the
lorry is 2+1. The policy was issued subject to limitation
of use that the lorry was not used for carrying the
passengers except employees (other than the driver)
not exceeding the number permitted in the registration
- 11 -
NC: 2024:KHC-D:14671
document and coming under the purview of Workmen's
Compensation Act 1923.
16. In view of the specific limitation imposed on
the use of the lorry and perusal of the schedule of the
policy, the Insurance Company has collected
Rs.5,920/- towards basic T.P cover, Rs.100/- collected
towards T.P. cover to the owner-cum-driver, no
premium was collected towards the owner who carries
the goods. The evidence of the petitioner itself clearly
demonstrate that he is the owner of the goods and he
was not the employee or coolie with two of the
employees who can be permitted to travel. Hence, the
petitioner cannot be a third party to cover his risk.
17. The Full Bench of this Court in New India
Assurance Co. Ltd. V. Yallava and Another1 has
held that a owner of the goods carried in the vehicle
without the coverage of insurance policy is a
fundamental breech and Insurance Company can avoid
2020 ACJ 2560
- 12 -
NC: 2024:KHC-D:14671
its liability as there is a defense available under
Section 149(2)(a) of the Motor Vehicles Act. It is also
contended that when such a fundamental breech of
policy had taken place, it is duty on the part of the
Insurance Company to satisfy the award and to
recover the same from the owner under the principle of
pay and recovery.
18. The Division Bench in the said judgment
referred and discussed in the various judgments
including Amrit Paul Singh & Another V. TATA AIG
General Insurance 2, National Insurance Co. Ltd.
V. Swaran Singh3 and New India Assurance Co. Ltd.
V. Asha Rani4.
19. Herein this case the petitioner is the owner of
the goods traveling in the vehicle, policy of insurance
though covers the risk of the two laborers which can
be carried the petitioner is not the coolie and he is not
a gratuitous passenger. Hence, the lorry carrying the
2018 ACJ 1768
2004 ACJ 1 SC
2003 ACJ 1 SC
- 13 -
NC: 2024:KHC-D:14671
petitioner along with his goods amounts to
fundamental breech of terms and conditions of the
policy. In view of the principle laid down in Yallavva's
case (supra), it is a fit case for applying the principle of
pay and recovery. Hence, the finding recorded by the
Tribunal in awarding excess compensation and
directing the Insurance Company to indemnify the
insured is erroneous and calls for interference.
20. In view of the above discussions, the appeal
merits consideration, in the result, the following:
ORDER
(i) Appeal is allowed in part;
(ii) The impugned judgment and award is
modified;
(iii) The petitioner would be entitled to total
compensation of Rs.84,000/- instead of
Rs.1,84,600/- awarded by the Tribunal
with interest at 6% p.a. from the date of
petition till the date of deposit;
- 14 -
NC: 2024:KHC-D:14671
(iv) Owner of the lorry is held liable to pay the
compensation;
(v) The Insurance Company is directed to
deposit the compensation with interest
(supra) within eight weeks from the date of
receipt of certified copy of this judgment
with liberty to recover the same from the
owner of the lorry in the same proceedings.
Sd/-
(T. G. SHIVASHANKARE GOWDA)
JUDGE
MKM
