Sharadabai W/O Sangappa Badiger vs The Branch Manager And Anr
2025 Latest Caselaw 4408 Kant

Karnataka High Court

Sharadabai W/O Sangappa Badiger vs The Branch Manager And Anr on 25 February, 2025

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                                                       NC: 2025:KHC-K:1299
                                                   MFA No. 200695 of 2022




                              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

                        MISCL. FIRST APPEAL NO.200695 OF 2022 (MV-D)

                   BETWEEN:

                   SHARADABAI W/O SANGAPPA BADIGER,
                   AGE: 45 YEARS, OCC: BUSINESS,
                   R/O HONAGANAHALLI,
                   TALUKA AND DISTRICT VIJAYAPURA.

                                                              ...APPELLANT

                   (BY SRI. BIRADAR VIRANAGOUDA, ADVOCATE)

                   AND:

                   1.   THE BRANCH MANAGER,
                        FUTURE GENERAL INSURANCE COMPANY LTD.,
                        PASADENA NO.8/1 (OLD NO.125/A),
Digitally signed        3RD FLOOR, EZONA BUILDING,
by LUCYGRACE
Location: HIGH
                        ASHOK PILLAR ROAD, JAYANAGAR,
COURT OF                1ST BLOCK, BENGALURU-560 001.
KARNATAKA

                   2.   PARVATI W/O DUNDAPPA GULED,
                        AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
                        R/O HONAGANAHALLI,
                        TQ. AND DIST. VIJAYAPURA.

                                                           ...RESPONDENTS

                   (BY SMT. PREETI PATIL MELKUNDI, ADV. FOR R1;
                       SRI. SANGANAGOUDA V. BIRADAR, ADV. FOR R2)
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                                             NC: 2025:KHC-K:1299
                                       MFA No. 200695 of 2022




     THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THE APPEAL BY
MODIFYING     THE    JUDGMENT        AND    AWARD   OF    MOTOR
ACCIDENT CLAIMS TRIBUNAL NO.XIII, VIJAYAPURA DATED
08.09.2021, IN MVC NO.765/2016 AND SADDLE THE LIABILITY
ON RESPONDENT NO.1.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
18.02.2025,   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 appearing for the

appellant and the learned counsel for the respondents.

2. Being aggrieved by the judgment and award

dated 08.09.2021 passed in MVC No.765/2016 by the

learned IV Additional District and Sessions Judge and

Member, MACT-XIII, Vijayapura (hereinafter referred to as

'the Tribunal' for brevity), respondent No.1 therein/owner

of the tractor is before this Court in appeal.

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3. The factual matrix of the case is that, on

25.06.2015, the deceased Ravi, who was aged about 19

years, working as a coolie was about to board a

Tractor/Trailer bearing No.KA-28/TB-4185-86, the driver

of the tractor suddenly moved the vehicle forward in high

speed and in a negligent manner resulting in fall of the

deceased on the road and sustaining fatal injuries and

death. The petitioners are the parents of the deceased.

They contended that, the accident occurred due to the

negligence on the part of the driver of the tractor.

Therefore, the owner and insurer of the vehicle are liable

to pay the compensation.

4. The petition was opposed by respondent No.1

on the ground that there was no such negligence on the

part of the driver of the tractor. It was contended that, the

compensation claimed is highly exorbitant, imaginary and

untenable and also denied the age, income and occupation

of the deceased. The written statement of respondent

No.1 does not mention the manner in which the accident

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occurred. It was contended that the vehicle was insured

with respondent No.2. Therefore, any compensation that

may be awarded has to be fastened upon respondent

No.2.

5. Respondent No.2-Insurance Company in its

written statement contended that, though the tractor-

trailer unit was covered under the insurance policy issued

by it, there was violation of the terms and conditions of

the policy. It was contended that the deceased Ravi was

an unauthorised passenger, illegally traveling on the

tractor engine and therefore, the policy having covered the

risk of only the driver of the vehicle, there being a

prohibition under regulation No.28 of the Motor Vehicle

Regulations, it is not liable to pay the compensation to the

petitioner. It was contended that the seating capacity of

the tractor was only one i.e., the driver only and except

the driver, no one was allowed to travel on the engine of

the tractor. The deceased was travelling on the said

tractor engine. It was contended that, the contention of

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the petitioners itself would result in absolving the liability

of respondent No.2-Insurance Company. Interalia, it was

also contended that the compensation claimed is highly

exorbitant, imaginary and untenable. It denied the age,

income and occupation of the deceased. Apart from that, it

was also contended that, the driver of the tractor was not

having a valid driving license at the time of the accident.

6. On the basis of the rival contentions, the

following issues and additional issues were framed by the

Tribunal:

"ISSUES

1. Whether petitioners prove that, on 25.6.2015 at about 12.00 hours, when deceased was standing on the road, near the field of Hadimani, on Talewad-Kudagi Road, at that time, the driver Tractor/Trailer bearing Reg.No.KA-28/TB- 4185-86 came in a rash and negligent manner and dashed to the deceased, due to which, deceased sustained grievous injuries and died on the spot?

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2. Whether petitioners are entitled for compensation as claimed? If so, to what extent?

3. What order or award?

ADDITIONAL ISSUE

1. Whether respondent No.2 proves that, respondent No.1 violated Policy condition?"

7. Petitioner No.2 was examined as PW.1 and one

eyewitness was examined as PW 2. Exs.P1 to P6 were

marked on their behalf. On the other hand, respondent

No.2 examined the official of the RTO as RW.1 and its own

official as RW.2. Exs.R1 to R3 were marked in their

evidence.

8. After hearing the arguments by both sides, the

Tribunal held that the accident occurred while the

deceased was traveling on the tractor and relying on the

judgment of the Division Bench of this Court in the case of

Naganna @ Goudar Nagrajappa and another v/s.

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G.O.Jagadeesh and others1, by observing that

regulation No.28 prohibited any other person from

traveling on the tractor, dismissed the petition as against

respondent No.2-Insurance Company and fastened the

liability on respondent No.1-owner of the vehicle. Interalia,

there being no documentary evidence regarding the

income of the deceased, the Tribunal held the notional

income at Rs.8,000/- per month and awarded

compensation of Rs.9,37,000/- under different heads as

below:

1. Towards future loss of Rs.8,64,000/- dependency

2. Filial consortium Rs. 40,000/-

3. Towards loss of Estate Rs. 16,500/-

4. Towards funeral expenses Rs. 16,500/-

Total Rs.9,37,000/-

9. Being aggrieved by the said judgment and

award, respondent No.1 - owner of the vehicle has

approached this Court in appeal.

2021 (2) KCCR 1233 (DB)

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10. On being served with the notice, the

respondents No.1 - insurance company and the

respondent No.2 claimant have appeared though their

respective learned counsel.

11. It is stated that during pendency of the petition,

the petitioner No.1 died. Therefore, it is only the petitioner

No.2 who is arrayed as respondent No.2 in this appeal.

12. The Tribunal records have been secured. The

arguments of learned counsel appearing for both sides are

heard.

13. The learned counsel appearing for the appellant

- owner the vehicle submits that the FIR and other

evidence available on record would clearly show that the

deceased - Ravi had got down from the vehicle to answer

a nature call and thereafter, he was about to board the

tractor, at that time, the driver moved the vehicle in a

negligent manner, resulting in the accident. It is

contended that when the accident occurred, the deceased

- Ravi was not on the tractor, but he was about to board

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the tractor. This would indicate that the driver had not

consented or allowed the deceased to travel on the engine

of the tractor. It is submitted that when the deceased was

on the road, the accident has occurred. Therefore, the

tribunal erroneously fastened the liability on the appellant

- owner of the vehicle.

14. Per contra, the learned counsel appearing for

the respondent No.1 - insurance company contends that

the evidence of the PW.1, PW.2 and the police papers

clearly indicate that the deceased was about to board on

the engine of the tractor. Therefore, the intention of the

deceased was to board the engine of the of the tractor. He

submits that even prior to the accident, the deceased was

traveling on the tractor by the side of the driver, which is

not permitted. In that view of the matter, the intention of

the deceased and the driver of the tractor being clear,

there is violation of Regulation No.28. Therefore, the

Tribunal has rightly come to the conclusion that the

insurance company is not liable to pay the compensation.

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He further submits that the testimony of the RW.1 would

clearly indicate that the seating capacity of the tractor is

only one. Hence, he defends the reasoning of the Tribunal

and seeks dismissal of the appeal.

15. Learned counsel appearing for respondent

No.2/petitioner No.2 contends that the deceased was still

standing on the ground when the accident had occurred.

Therefore, he supports the contention of the appellant

herein. He also submits that the compensation awarded is

on the lower side.

16. In the light of the above submissions, the

question that arises for consideration is,

Whether the Tribunal is justified in fastening the liability on the appellant - owner of the vehicle by inferring that the deceased intended to board the tractor?

17. It is necessary to note that judgment of the Full

Bench of this Court in the case of Gadhilingappa @

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Gadhilinga and another vs K. Guleppa and others2

would show that if the accident occurs while the injured or

the deceased is traveling on the engine of the tractor, then

there is a clear violation of the terms and conditions of the

policy. Therefore, the insurance company is not liable to

pay the compensation. The policy being issued to cover

only one person, who is the driver. There being no seating

capacity of more than one, it has to be held that it was

meant for the driver. In this regard, the Full Bench of this

Court relied upon the Judgment in the case of Shivaraj vs

Rajendra and another3 and several other judgments and

came to the conclusion that if the injured or the deceased

was travelling by sitting on the mud-guard or any other

instruments attached to the tractor, then the insurance

company is not liable to pay the compensation. However,

it is to be noted that if the injured or the deceased was

travelling on the trailer, he being a person who may be

covered under Rule 100 of the Motor Vehicles Rules, the

ILR 2021 Karnataka 3377

2018 (4) AKR 579

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Insurance Company may not be entitled for a protection

under Section 147 of the Motor Vehicles Act.

18. With this background of law, let us examine the

evidence on record.

19. The FIR produced at Ex.P.1 would indicate that

the complaint was filed by one Dundappa Guled, who is

none else than the father of the deceased. It is stated in

the complaint that the deceased - Ravi went in a tractor

belonging to one Sangappa Badiger. It is stated that he

came to know about the accident on next morning.

Therefore, he rushed to the spot and came to know from

one Sadashiva, who was an eyewitness, that when the

driver stopped the tractor and the deceased had gone for

nature call and returned, he was about to board the

engine of the tractor, the driver moved the vehicle in a

negligent manner. Therefore, he fell down and suffered

head injury and died.

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20. The perusal of the spot mahazar, which is at

Ex.P.3 also shows that the tractor trailer unit bearing

Reg.No.KA-28-TB-4185-86 were at the spot when the

mahazar was conducted. The mahazar also states that the

accident had occurred when the deceased returned after

the nature call and was about to board the tractor.

Nowhere, either the FIR or the spot mahazar, shows that

prior to such incident, the deceased was traveling on the

engine of the tractor or whether he was traveling on the

trailer.

21. The available evidence or the police papers do

not mention as to where he was travelling or where he

boarded the tractor till the spot of the accident.

22. PW.2 who claims that he is an eyewitness,

states that when he was standing near the field of one

Hadimani the deceased was on the road and he was about

to board the tractor trailer unit bearing Reg.No.KA-28-TB-

4185-86, the driver moved the vehicle and the deceased

fell on the road and suffered the injury.

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23. In the cross-examination, it is elicited that he is

from the same village and he had not given any statement

before the police. There is absolutely no suggestion that

the deceased had boarded the tractor. It is also pertinent

to note that the testimony of the PW.2 and the RW.1 do

not mention anything as to whether the deceased had

traveled prior to the accident on the engine of the Tractor.

24. The above evidence clearly shows that there is

no such material which would establish that prior to the

accident, the deceased had traveled on the engine of the

tractor. What is available only is that when after the

nature call, the deceased was about to board the tractor,

the accident occurred. By this count, the intention of the

deceased is clear, but the conduct of the driver of the

tractor would not show that he had permitted the

deceased to travel on the engine of the tractor. It is

possible that the deceased had traveled on the tractor

prior to the accident, for, the trailer was also attached to

the tractor at the time of the accident.

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25. Under these circumstances, the evidence

available on record is clear that the accident had occurred

when the deceased tried to board on the engine, but not

Trailer. In fact, there is nothing on record to show that he

had traveled on the engine of the Tractor prior to the

accident. This aspect being very clear from the evidence

and such evidence having not contradicted from any of the

witnesses, it is difficult to hold that the claim is hit by the

principles laid down in the case of Gadhilingappa

(supra). Therefore, this factual error has been committed

by the Tribunal.

26. It is also pertinent to note that if the accident

had occurred while the deceased was already on board the

tractor and if he was attempting to get down from the

tractor and the accident had occurred, the principles under

Section Regulation No.28 would have been made

applicable. Hence, the conclusions reached by the Tribunal

that the insurance company is not liable to pay the

compensation, appears to be incorrect. The intention of

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the legislature is to provide maximum cover to the victims

of the accident. It being a beneficial legislation, an

interpretation of the available material that would be

detrimental to the beneficiaries cannot be accepted.

Similarly, when the evidence is clear that the deceased

was trying to board the tractor, the Insurance Company

cannot escape its liability to pay the compensation.

27. There is absolutely no material that prior to the

accident, the deceased had traveled on the engine of the

tractor. Hence, it is held that the Tribunal is not justified in

fastening the liability on the appellant herein.

28. In that view of the matter, for the above said

reasons, the point raised is answered in the negative.

Hence, the appeal succeeds. Accordingly, the following

ORDER

I. The appeal is allowed.

II. The impugned judgment fastening the liability on the appellant - owner of the vehicle, is set aside.

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III. The appellant - owner of the vehicle is exonerated from paying the compensation to the petitioners.

IV. The liability is fastened upon respondent No.1 -

Insurance Company.

V. The Insurance Company shall deposit the compensation amount as awarded by the Tribunal, within a period of four weeks from the date of receipt of copy of this judgment, as per Section 168 (3) of the Motor Vehicles Act.

VI. The rest of the order passed by the Tribunal remain unaltered.

VII. The amount in deposit is ordered to be refunded to the appellant - owner of the vehicle.

Sd/-

(C M JOSHI) JUDGE

LG