Karnataka High Court
Prabhavati D/O Jatteppa Talawar @ Koli ... vs Adayya S/O Muppayya Math And Anr on 25 February, 2025
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MFA No. 200533 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISC. FIRST APPEAL NO.200533 OF 2021 (MV-D)
BETWEEN:
1. PRABHAVATI D/O JATTEPPA TALAWAR @ KOLI,
AGE: 36 YEARS, OCC: NIL,
2. ROOPA D/O JATTEPPA TALAWAR @ KOLI,
AGE: 24 YEARS, OCC: NIL,
BOTH ARE R/O RAJAJI NAGAR,
VIJAYAPURA.
...APPELLANTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
Digitally signed AND:
by
LUCYGRACE
Location: HIGH
COURT OF
1. ADAYYA S/O MUPPAYYA MATH,
KARNATAKA AGE: 46 YEARS, OCC: BUSINESS,
R/O: SINDAGI, POST: KHADAMPUR,
TALUK AND DISTRICT BAGALKOT-587 101.
2. THE BRANCH MANAGER,
NATIONAL INSURANCE COMPANY LIMITED,
1ST FLOOR, HERALAGI BUILDING,
BEHIND SIDDESHWAR TEMPLE,
VIJAYAPURA-586 101.
...RESPONDENTS
(BY SRI. SANGANABASAVA B. PATIL, ADV. FOR R1;
SRI. RAHUL R. ASTURE, ADV. FOR R2)
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MFA No. 200533 of 2021
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND
ENHANCE THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION BY MODIFYING THE JUDGMENT AND AWARD DATED
08.08.2018 PASSED BY THE COURT OF III ADDITIONAL
SENIOR CIVIL JUDGE AND MEMBER, MACT.NO.XII, AT
VIJAYAPURA, IN MVC.NO.1078/2014.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 18.02.2025 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE C M JOSHI)
Heard the learned counsel for the appellants and the
learned counsel for the respondents.
02. Being aggrieved by the judgment and award in
MVC.No.1078/2014, by the learned III Additional Senior Civil
Judge and MACT, Vijayapura dated 08.08.2018; the petitioners
are before this Court.
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03. The factual matrix of the case, is that, on
18.04.2014 at about 11:00 a.m. when the deceased Yallappa
was traveling as a Hamal in a Tractor bearing Reg.No.KA-29-
TA-7546 and the Trailers bearing Reg.Nos.KA-29/TA-5982 and
KA-29-TA-7547, towards Muttagi from Takkalaki, near the land
of Goudappa Biradar, the driver of the same, drove the said
vehicle in a negligent manner and made the deceased to fall
down from the vehicle, resulting in the accident. The deceased
sustained serious injuries and died on the spot. The body of the
deceased was taken to the Golasangi. After the required
procedure, it was handed over to the petitioners who are
sisters of the deceased. It was alleged that accident was due to
the negligent driving by the driver of the said Tractor. The
petitioners also contended that the deceased - Yallappa was
doing coolie work and was earning Rs.7,500/- per month. The
petitioners have lost their earning member. Therefore, the
petitioners are entitled for an adequate compensation. It was
also stated that a police case came to be registered. Ultimately,
the charge-sheet was filed against the driver of the Tractor.
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04. On issuance of notice, the respondent No.1 who is
the owner of the Tractor did not appear despite service of
notice. Therefore, he was placed ex-parte. The respondent No.2
appeared before the Tribunal and filed its written statement.
The respondent No.2 - insurance company in its written
statement contended that it had issued a miscellaneous and
special type of vehicle 'B' package policy concerning the Tractor
Reg.No.KA-29-TA-7546 and Trailers Reg.No.TA-5982 and TA-
7547. The policy was subject to terms and conditions
mentioned therein. It was contended that the deceased was
sitting on the left side of the driver on the mudguard. The
seating capacity of the Tractor was only one. Moreover, the
Regulation No.28 of the Road Regulations, 1989 was violated.
Therefore. the insurance company is not liable to pay any
compensation. It is contended that the deceased was an un-
authorized passenger as the Tractor was not meant for carrying
goods. As such, the insurance company be absolved from
paying any compensation. Inter-alia it was also contended that
there were violations of the provisions of Section 134 (C) and
158 (6) of the Motor Vehicles Act and that the compensation
claimed by the petitioners is highly exorbitant, imaginary and
untenable in law. They denied the age, income and occupation
of the deceased.
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05. On the basis of the above pleadings, the Tribunal
framed the necessary issues. The petitioner No.1 was examined
as PW.1 and a witness was examined as PW.2 and Ex.P.1 to 6
were marked in the evidence. The official of the respondent
No.2 was examined as RW.1 and the policy was marked as
Ex.R1.
06. After hearing the arguments from both the sides,
the Tribunal proceeded to award the compensation of
Rs.5,95,000/- and fastened the liability on the respondent No.1
- owner of the Tractor and absolved the liability of the
respondent No.2 - insurance company. The Tribunal held that
the seating capacity of the Tractor was only one. Therefore, the
deceased being an un-authorized passenger in the engine of
the Tractor, there is violation of the terms and conditions of the
policy as well as Rule 28. Therefore, the insurance company is
not liable to pay the compensation to the petitioners.
07. Being aggrieved by the judgment and award, the
petitioners are before this Court contending that the
compensation awarded by the Tribunal is on the lower side. The
fastening of the liability on the respondent No.1 is not
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sustainable in law. In fact the respondent No.2 - insurance
company should have been saddled with liability to pay the
compensation.
08. On issuance of notices, the respondent No.1 has
appeared through his counsel and the respondent No.2 -
insurance company has also appeared through its counsel
before this Court.
09. The records of the Tribunal have been secured. The
arguments by both the sides were heard.
10. The learned counsel appearing for the petitioners
submits that the nature of the policy issued by the respondent
No.2 is a special package policy and the insurance company
had received a sum of Rs.50/- towards the liability of one
employee. Therefore, the deceased being an employee of the
owner of the vehicle, the liability has to be fastened upon the
insurance company. He points out that the policy also covers
the Trailers bearing Reg.No.KA-29-TA-7547 and TA-5982.
Therefore, the deceased was traveling on the Tractor and
Trailer Unit, which was used for transporting the sugarcane, the
Tribunal erred in fastening liability on the respondent No.1. In
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this regard, he relied on the judgment of the Apex Court in the
case of Shivaraj vs Rajendra and another1. Insofar as the
quantum of the compensation is concerned, the learned counsel
for the petitioners contended that the notional income
considered by the Tribunal is on the lower side. Therefore,
there is a need for reassessment of the compensation.
11. The learned counsel appearing for the respondent
No.1 - owner of the vehicle also reiterated the above
contentions of the learned counsel for the petitioners.
12. Per Contra, the learned counsel appearing for the
respondent No.2 - insurance company has a place reliance on
the judgment of the Full Bench of this Court, in the case of
Gadhilingappa @ Gadhilinga and another vs K. Guleppa
and others2. He submits that the judgment of this Court in the
case of Gadhilingappa (supra), elaborately discussed about
the judgment of the Apex Court in the case of Shivaraj (supra)
also. Therefore, he submits that the deceased being a traveler
on engine of the vehicle, the Tribunal has rightly exonerated
the insurance company from the liability.
2018 (4) AKR 579
ILR 2021 Karnataka 3377
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13. In the light of the above submissions, the points
that arise for consideration are as below :-
I. Whether the Tribunal is justified in saddling the
respondent No.1 with the liability to pay the
compensation to the petitioners.?
II. Whether the quantum of the compensation is
proper and correct.?
14. Insofar as the point No.1 is concerned, it is
necessary to consider the evidence on record. The FIR which is
produced at Ex.P.1 and the complaint at Ex.P.2 would show
that the complaint was lodged by one Dhareppa. It is stated
that the complainant and the deceased along with few others,
were cutting the sugarcane and the sugarcane was loaded into
the Tractor and Trailer Unit. After loading the sugarcane, the
labourers sat by the side of the driver on the engine. They went
towards the Takkalaki cross. All of them got down at Takkalaki
cross, but the driver of the Tractor and Yallappa went towards
the sugar factory. On the next morning, the complainant came
to know that the deceased - Yallappa had died. On going to the
spot, he came to know that the driver had allowed the
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deceased - Yallappa to sit on the right side and Kallappa to sit
on the left side. While going towards the sugar factory, the said
Yallappa fell down and sustained injuries and the Tractor run
over him. The driver had not informed the accident to the
police. Therefore, he sought action against the driver. After
investigation the police filed the chargesheet as per Ex.P.5.
Therefore, the police papers which consist of the charge-sheet,
spot mahazar, complaint etc., show that deceased - Yallappa
was traveling by the side of the driver on the mud-guard of the
engine of the Tractor. The driver drove the same in a negligent
manner and caused the accident. In the accident the deceased
- Yallappa fell down and died at the spot. There is absolutely
no material to show that either the said Yallappa was sitting on
the Trailer or otherwise.
15. The cross-examination of the PW.1 also show that
she categorically admits the contents of the FIR. Obiviously, the
PW.1 was not an eyewitness to the accident.
16. The PW.2 - Gundappa claims that he is an
eyewitness to the accident. He states that the deceased was
traveling in a Tractor and Trailer Unit going towards the
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Mutttagi from Takkalaki side. There was an accident and the
deceased died in the accident. In the cross-examination it is
elicited that PW.2 was walking behind the Trailers and the
Trailers were loaded with a sugarcane. It is elicited that 03
persons were present in the Tractor i.e., the driver and the 02
passengers i.e., Yallappa and Kallappa. He also admit the
contents of the FIR and the complaint. The elicitation in his
cross-examination is clear and cogent. Therefore, the
conclusions of the Tribunal that the deceased - Yallappa was
traveling in the Tractor, but not on the Trailer is proper and
correct. There cannot be any doubt about this factual finding of
the Tribunal.
17. The next question would be whether the insurance
company is liable to pay the compensation or not. The policy,
which is at Ex.R1 would show that it is a miscellaneous and
special type of vehicles 'B' package policy. The schedule of the
premium shows that Rs.100/- was paid towards the compulsory
P.A. to owner cum driver and Rs.50/- was paid towards W.C. to
employee. There is no dispute by the insurance company about
the receipt of the said premium.
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18. The RW.1 in his testimony states that, the
employee may be a paid driver or any other person, who can
be used for the purpose of agricultural work. He states that the
receipt of the premium towards the employee does not enlarge
the seating capacity of the vehicle. Therefore, the sitting on the
mud-guard by the deceased is not permitted under the policy.
As such, there is a violation of the terms and conditions of the
policy. The judgment of the Full Bench of this Court in the case
of Gadhilingappa (supra), precisely lays down the law
concerning the situation where a person is traveling on the
mud-guard or any other instrument which is attached to the
Tractor.
19. The 04 questions, which were considered by the Full
Bench of this Court on a reference made to it reads as below :-
I. Whether a person traveling on a mud-guard of a
Tractor can construed as an authorized passenger or
an unauthorized passenger and liability of such
person is covered or not.?
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II. Whether the persons who are working either on the
ploughing or causing machines attached to the
tractor can be construed as employees so as to
cover their risk statutorily under Section 147 of M.V.
Act, though there is only one seating capacity in the
tractor apart from the driver.?
III. Whether the crushing machine or ploughing machine
or any other instrument attached to the tractor can
be considered to be an attachment to the tractor so
as to cover the risk of the insured in respect of
employees and the polcy taken in respect of the
tractor alone.?
IV. What is the effect of Section 147 of M.V. Act to
cover the statutory risk under the said situation.?
20. The questions No.1 and 2 are succinctly answered
by the Full Bench in Para No.23 and 33, which reads as below:-
"23. The Apex Court has reiterated that a tractor
could lawfully accommodate only one person,
namely, the driver. The Apex Court categorically
held that the appellant in the said case had traveled
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in the Tractor as a passenger even though the
tractor could accommodate only one person namely
the driver. It was categorically held that the insurer
was not liable to indemnify the owner of the tractor
for the liability of a passenger traveling on the
tractor. Hence, in view of the dictum of the Apex
Court referred above, the liability of a person sitting
on the mud-guard of a tractor is not required to be
covered by statutory insurance policy, as
contemplated by sub-Section (1) of Section 147 of
the M.V. Act.
33 :- Hence, in view of the decision of the Apex
Court in the case of V. Chinnamma, Shivaraj and
Darshana Devi, (supra) and the analysis made
above, we have no manner of doubt that a liability
of a person working either on the ploughing or
crushing machines attached to the tractor and who
is traveling on the mud-guard of the tractor is not
required to be covered by the statutory insurance as
contemplated under sub-Section (1) of Section 147
of the M.V. Act."
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21. The question No.3 is not relevant for the purpose of
this case.
22. In view of the above, it is evident that this Court
had considered the ratio laid down in the case of Shivaraj
(supra) rendered by the Apex Court, which is now relied by the
learned counsel for the appellants.
23. It is pertinent to note that in the case of Shivaraj
(supra), in Paras No.9 and 10, the Apex Court holds as below:-
"9. The High Court, however, found in favour of
respondent No.2 (insurer) that the appellant
traveled in the tractor as a passenger which was in
breach of the policy condition, for the tractor was
insured for agriculture purposes and not for
carrying goods. The evidence on record
unambiguously pointed out that neither was any
trailer insured nor was any trailer attached to the
tractor. Thus, it would follow that the appellant
traveled in the tractor as a passenger, even
though the tractor could accommodate only one
person namely the driver. As a result, the
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Insurance Company (respondent No.2) was not
liable for the loss or injuries suffered by the
appellant or to indemnify the owner of the tractor.
That conclusion reached by the High Court, in our
opinion, is unexceptionable in the fact situation of
the present case.
10. At the same time, however, in the facts of the
present case the High Court ought to have directed
the Insurance Company to pay the compensation
amount to the claimant (appellant) with liberty to
recover the same from the tractor owner, in view
of the consistent view taken in that regard by this
Court in National Insurance Co. Ltd., v. Swarna
Singh and Ors., Mangla Ram v. Oriental Insurance
co. Ltd., Rani and Ors. v. Rajesh Kumar Singh and
others. In other words, the High Court should have
partly allowed the appeal preferred by the
respondent No.2. The appellant may, therefore,
succeed in getting relief of direction to respondent
No.2 Insurance Company to pay the compensation
amount to the appellant with liberty to recover the
same from the tractor owner (respondent No.1)."
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24. From the bare reading of Para Nos.9 and 10 as
above, it is clear that the Apex Court had exercised the power
under Article 142 of the Constitution of India, while ordering
pay and recover. This aspect has been considered by the Full
Bench of this Court in the case of Gadhilingappa (supra).
Therefore, when a person is traveling on the mud-guard of the
Tractor, the seating capacity of which is one, obviously he is
not covered under the statutory policies.
25. It is also pertinent to note that the Full Bench of
this Court has observed in Para Nos.20 and 22 that the
Regulation No.28 of the Road Regulations, which deals with
driving of the Tractors and Goods Vehicles, and by virtue of
Regulation 28, a driver of a Tractor is not permitted to carry or
allow any person to be carried including on its mud-guard. It
was also observed that in the case of Shivaraj (supra), the
Apex Court had reiterated that the Tractor could accommodate
only one person i.e., the driver. Therefore, it cannot be said
that another person traveling on the mud-guard, was permitted
to travel. It was also categorically held that the insurer was not
liable to indemnify the owner.
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26. When we examine the receipt of a sum of Rs.100/-
towards the driver cum owner and Rs.50/- towards employee,
it cannot be said that the policy permits traveling of an
employee in violation of Regulation No.28. Therefore, a
constructive meaning of the Regulation No.28 and the receipt
of Rs.50/- under the policy show the workman contemplated
under the policy refers to a cleaner or a loader, but he is not
permitted to travel in the engine. By virtue of Rule 100 of the
Motor Vehicle Rules, the loader or unloader is permitted to
travel with the goods if it is a goods vehicle. Of course, the
Tractor is considered to be a special vehicle, but not the goods
vehicle as held in the case of Gadhilingappa (supra). Even if
we construe that it is a goods vehicle, such loader and unloader
are permitted to travel only on the Trailers, which are meant
for transportation of the goods. Therefore, examined from any
angle, the contention of the appellants herein that the policy
had covered the deceased, who was traveling on the mud-
guard of the Tractor, cannot be accepted.
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27. It is also pertinent to note that this Court had an
occasion to consider a similar situation in the case of
Raghavendra @ Raghavendra Reddy vs Sri. K.
Ramachandran Murthy and others, in MFA.No.3154/2019
c/w MFA.No.5232/2019 dated 14.12.2023. A similar
circumstance was considered by this Court. It was ultimately
held that the insurance company is not liable to pay the
compensation. In the said judgment also the Full Bench of this
Court in the case of Gadhilingappa (supra), the judgment of
the Apex Court in the case of Shivaraj (supra), were
considered in detail.
28. In the light of the above discussion, the Point No.1
is answered in the Negative.
29. Coming to point No.2, regarding the quantum of the
compensation, the Tribunal has noted that the deceased was
aged about 24 years. Therefore, the appropriate multiplier
would be 18. There is no dispute about the same. The only
point raised by the learned counsel appearing for the appellants
about the notional income.
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30. Evidently, there is no documentary evidence to
prove the income of the deceased. The guidelines issued by the
KSLSA for settlement of disputes before Lok-Adalath prescribe
a notional income of Rs.7,500/- per month for the year 2014.
In umpteen number of judgments, this Court has held that the
guidelines issued by the KSLSA are in general conformity with
the wages fixed under the Minimum Wages Act. Therefore, they
are acceptable. Hence, the notional income of the deceased is
considered at Rs.7,500/-, by deducting 50% towards the
personal expenses of the diseased, as he was a bachelor.
Therefore the loss of dependency is calculated as Rs.7,500/-
x 12 x 18 x 50% = Rs.8,10,000/-.
31. In addition to the above compensation, the
petitioners are entitled for compensation of Rs.52,000/-
towards loss of love and affection, Rs,19,500/- towards
funeral expenses and Rs.19,500/- towards loss of estate,
as held by the Hon'ble Supreme Court in the case of National
Insurance Company Limited vs. Pranay Sethi3. The
compensation being determined after 09 years of the said
judgment, 10% for each of the 03 years period has to be
added. Therefore, the petitioners are entitled for compensation
as below:-
(2017) 16 SCC 680
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Sl. Heads Compensation Awarded by
this Court
No.
1. Loss of dependency Rs.8,10,000/-
2. Love and affection Rs.52,000/-
3. Funeral expenses Rs.19,500/-
4. Loss of Estate Rs.19,500/-
Total Rs.09,01,000/-
Less: Awarded by the Rs.05,95,000/-
Tribunal
Total enhancement Rs.03,06,000/-
32. Hence, the point No.2 raised is answered
accordingly. In the light of the above discussions, the following
order:-
ORDER
I. The appeal is allowed in part.
II. The judgment of the Tribunal in MVC.No.1078/2014
dated: 08.08.2018, holding that the respondent No.1 -
owner is liable to pay the compensation, is hereby
confirmed. The petition against the respondent No.2 is
dismissed.
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III. The appellant is entitled for a sum of Rs.03,06,000/- in
addition to what has been awarded by the Tribunal along
with interest at the rate of 6% p.a. from date of petition
till the date of deposit..
IV. The respondent No.1 is directed to deposit the
compensation amount within a period of 03 months from
today.
V. Rest of the order passed by the Tribunal regarding
deposit, disbursement of the compensation etc., remain
unaltered.
Sd/-
(C M JOSHI)
JUDGE
KJJ
CT: AK
