Allowed

United India Insurance v. Smt Savitrabai

Karnataka HC3 Jun 2021MFA/3447/2015

Case brief

AI extract

What is this about?

The Insurance Company appealed against a motor accident compensation award. The court held that while the deceased traveling on the tractor mudguard was not covered under the statutory insurance policy per Section 147(1) of the M.V. Act, the insurer remains liable to pay compensation with liberty to recover it from the vehicle owner. The appeal was allowed in part.

What did the court decide?

The appeal is allowed in part. The insurer is directed to pay compensation to claimants with liberty to recover the same from the vehicle owners.

United India Insurance Vs Smt Savitrabai — Contract and Commercial Disputes | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF JUNE 2021

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BEFORE

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THE HON’BLE MRS.JUSTICE M.G.UMA

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M.F.A.No.3447 OF 2015 (MV)

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BETWEEN:

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UNITED INDIA INSURANCE COMPANY LIMITED OFFICE AT NO.273/13, MALLIKARJUNA COMPLEX, PARASIMANDIRA ROAD, DAVANGERE-577002 REPRESENTED BY THE DIVISIONAL MANAGER D.O.NO.34/3, M.M.K. COMPLEX, AKKAMAHADEVI ROAD, P.J.EXTENSION, DAVANGERE-577002 … APPELLANT

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(BY SRI: P.B.RAJU, ADVOCATE)

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AND:

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SMT.SAVITRABAI W/O LATE BHEEMA NAIK 38 YEARS, COOLIE WORK

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KUM.SHALINI

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D/O LATE BHEEMA NAIK 20 YEARS, STUDENT

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KUM.SHARAVATI

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D/O LATE BHEEMA NAIK AGE 19 YEARS,

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ANUPRASAD

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S/O LATE BHEEMA NAIK 18 YEARS, STUDENT

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ALL ARE R/O BOMMANAHALLI THANDA KODAGANUR POST, DEVANAGERE TALUK-577002

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SMT. CHANDRAMMA W/O GANGA NAIKA, OWNER OF TRACTOR TRAILER NO. KA-17-TA575 & 576, SINCE THEY DEAD, REPRESENTED BY LRS

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CHANDRA NAIKA S/O GANGA NAIKA, 57 YEARS,

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HANUMANTHA NAIK, S/O GANGA NAIKA, 50 YEARS,

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CHANDRA NAIKA, S/O GANGA NAIKA, 45 YEARS,

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RESPONDENT NO.6 TO 8 ARE R/O BOMMENAHALLI THANDA, KODAGANUR POST, DAVANGERE TALU-577002

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… RESPONDENTS

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(BY SRI PRASANNA.B.R. ADVOCATE FOR R1-4, R6-8 ARE SERVED AND UNREPRESENTED R6-8 ARE LR’S OF DECEASED OF R5)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.02.2015 PASSED IN MVC No.22/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MEMBER, MACT-4, DAVANAGERE, AWARDING A COMPENSATION OF RS.5,55,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THIS APPEAL COMING ON FOR FURTHER ARGUMENTS THIS DAY THROUGH VIDEO CONFERENCE THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The Insurance Company aggrieved by the impugned judgment and award dated 18.02.2015 passed in MVC No.22 of 2013 by the learned Principal Senior Civil Judge and MACT-

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IV, Davanagere (for short ‘the Tribunal’), awarding compensation of Rs.5,55,000/- with interest at 6% per annum in favour of the claimants to be paid by the insurer, has preferred this appeal.

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2. The brief facts of the case are that:

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The respondents-claimants before the Tribunal contend that on 23.05.2012 at about 9.30 p.m., the deceased Bheema Naik was proceeding along with respondent No.2 in tractor and trailer bearing registration No.KA-17/TA-575 and 576 from Channagiri Taluk, Kashipura village, near Tyavanagi-Doddaghatt, respondent No.2 being the owner of the said tractor and trailer drove the same in rash and negligent manner, as a result of which, Bheema Naik fell down from the tractor and wheel of the said tractor ran over him. Immediately, he was shifted to hospital but in the meantime, he breathed his last. It is contended by the claimants that the deceased Bheema Naik was working as coolie and earning Rs.250/- to 300/- per day. The claimants are wife and children and they are the legal heirs entitled for compensation.

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The claim of the claimants is resisted by the appellant herein which was respondent No.4 before the Tribunal. It is its contention that there was breach of condition and the risk of the deceased who was traveling on the mudguard of the tractor was not covered under the policy. Therefore, the claim against respondent No.4 i.e., appellant herein is to be dismissed.

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In support of the contention of the claimants, the wife of the deceased was examined as PW1 and got marked Exs.P1 to P26. Respondents got examined RWs.1 to 3 and got marked Exs.R1 and R2 in support of their contention. The Tribunal considering all these materials on record came to the conclusion that the claimants are entitled for compensation of Rs.5,55,000/- with interest at 6% per annum and the respondents are jointly and severally liable to pay compensation to the claimants. However, in view of the insurance policy, the insurer was directed to deposit the compensation to be paid to the claimants. Being aggrieved, the insurer is in appeal.

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Heard Sri P B Raju, learned counsel for the appellant and Sri Prasanna B R, learned counsel for respondent Nos.1 to 4. Perused the materials including Trial Court records.

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Learned counsel for the appellant contended that

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even though the insurance policy was a package policy, the risk of any other person other than the driver of the tractor is not covered. The deceased was sitting on the mudguard of the tractor and his risk is not at all covered under the policy or under the Act. Learned counsel relied on the decision of Shivaraj vs. Rajendra and Another [(2018) 10 SCC 432] and the decision of this Court in the case of Gadhilingappa @ Gadhilinga and another Vs K Gulepa and Others [MFA Crob. No.100001/2016 in MFA No.102649/2015 dated 20.04.2021] in support of his contention. Hence, he prays for interference and to absolve the insurer from its liability.

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Per contra , learned counsel for respondent Nos.1 to 4 who are claimants before the Tribunal contended that the policy in question is package policy and even though it is

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contended that there is breach of policy condition, insurer is liable to pay the compensation. However, the insurer may be entitled to recover the same from the owner of the offending vehicle. In support of his contention, he has placed reliance on the decision of Shamanna & Another vs. Divisional Manager, Orient Insurance Company Ltd., and others , [AIR 2018 SC 3726] and accordingly, prays for dismissal of the appeal as devoid of merits.

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In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:

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“Whether the Tribunal erred in fixing the liability on the Insurance Company and the same is liable to be interfered with?”

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My answer to the above point is in ‘Partly Affirmative’ for the following reasons:

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The point to be considered is whether the risk of the person traveling in the tractor is covered under the policy that was issued by the appellant. The full court decision rendered by this Court in Gadhilingappa (supra) makes it

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clear that the risk of the person sitting on the mudguard of the tractor is not required to be covered by the statute as contemplated under Sub Section (1) of Section 147 of the M.V. Act. It is helpful to extract paras 22 and 23 of the said judgment, which read as under:

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“22. Question No (I) framed by the learned Single Judge is whether liability of a person travelling on a mud-guard of a tractor is required to be covered by an insurance policy. The Road Regulations have been framed by the Central Government in exercise of its powers under Section 118 of the M.V. Act. Section 118 of the M.V. Act which is under Chapter-VIII deals with the control of traffic. Section 118 empowers the Central Government to make Regulations for the driving of motor vehicles by a notification in the Official Gazette. Regulation 28 of the Road Regulations which deals with driving of tractors and goods vehicles reads thus:

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“28. Driving of tractors and goods vehicles

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- A driver when driving a tractor shall not carry or allow any person to be carried on the tractor. A driver of goods carriage shall not carry in the driver’s cabin more number of persons than that is mentioned in the Registration Certificate and shall not carry passengers for hire or reward.”

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(Underline supplied)

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Hence, by virtue of the above Regulation, a driver of a tractor is not permitted to carry or allow any

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person to be carried on a tractor including on its mudguard. On this aspect, a decision of the Apex Court in the case of Shivaraj (supra) is very relevant. In paragraphs 10 and 11 of the said decision, the Apex Court held thus:

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“10. The High Court, however, found in favour of Respondent 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 travelled in the tractor as a passenger, even though the tractor could accommodate only one person, namely, the driver. As a result, the Insurance Company (Respondent 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.

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11. 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 appellant claimant 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.

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Swaran Singh (2004) 3 SCC 297, Mangla Ram v. Oriental Insurance Co. Ltd, (2018) 5 SCC 656, Rani v. National Insurance Co. Ltd, (2018) 8 SCC 492 and including Manuara Khatun v. Rajesh Kumar Singh, (2017) 4 SCC 796. In other words, the High Court should have partly allowed the appeal preferred by Respondent 2. The appellant may, therefore, succeed in getting relief of direction to Respondent 2 insurance company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner, Respondent 1.”

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(Underline supplied)

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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 travelled 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 travelling 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.

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Further, in the case of Shivaraj’s (supra), the Honb’le Apex Court categorically held that the appellant who

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was traveling in the tractor as a passenger even though the tractor could accommodate only one person namely, the driver, the Insurance company was not liable to pay compensation to the injuries suffered by the appellant.

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In the case of Shamanna (supra), the Hon’ble Apex Court held that even though there is breach of policy condition, pay and recovery can be ordered in the case of third party risk.

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In view of these decisions rendered by the Hon’ble Apex Court, the position of law is very clear that even when the risk of the deceased traveling in the tractor is not covered under the policy and there is breach of policy conditions, the liability of the insurer to pay compensation to the third party cannot be refused. Therefore, I am of the opinion that the risk of the deceased is not covered under the policy, but, however, the appellant-insurer is liable to pay the compensation as determined by the Tribunal and recover the same from the owner of the offending vehicle. Accordingly, I answer the above point in ‘Partly Affirmative’.

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In view of the discussions made above, I proceed

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to pass the following:

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O R D E R

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The appeal is allowed in part.

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The impugned judgment and award dated 18.02.2015 passed in MVC No.22 of 2013 by the learned Principal Senior Civil Judge and MACT-IV, Davanagere, is hereby modified.

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It is held that the appellant-insurer is liable to pay compensation to respondent Nos.1 to 4, who are the claimants before the Tribunal, with liberty to recover the same in accordance with law, from respondent Nos.5 to 8 who are the LRs of the owner of the offending vehicle.

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The amount, if any, deposited before this Court is ordered to be transmitted to the Tribunal, forthwith.

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Sd/JUDGE

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nms

United India Insurance v. Smt Savitrabai

Case brief

What is this about?

What did the court decide?

United India Insurance v. Smt Savitrabai

Case brief

What is this about?

What did the court decide?

What the court decided

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