Dismissed

The Divisional Manager v. Shobha W/O Kumar Huded

Karnataka HC12 Aug 2022MFA/100020/2014

Case brief

AI extract

What is this about?

The High Court dismissed the Insurance Company's appeal against a Motor Accident Compensation Tribunal award. The Court held the victim was pushing, not riding, the tractor at the time of the accident, distinguishing prior precedents regarding mudguards. Liability and compensation quantum were upheld.

What did the court decide?

The appeal filed by the Insurance Company challenging the MACT judgment and award was dismissed.

The Divisional Manager Vs Shobha W/O Kumar Huded — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 12^th DAY OF AUGUST, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE H.P. SANDESH

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MFA NO 100020 OF 2014 (MV)

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BETWEEN

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THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO.LTD., DAVANAGERE, REP.BY REGIONAL MAANGER NEW INDIA ASSURANCE COMPANY LIMITED, T.P.HUB, SRINATH COMPLEX, II FLOOR, NEW COTTON MARKET, HUBLI-580 022

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...APPELANT

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(By Sri. M K SOUDAGAR, ADVOCATE)

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AND

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1 . SMT. SHOBHA W/O KUMAR HUDED AGE: 27 YEARS, OCC: HOUSEHOLD, R/O: HOLABIKONDA VILLAGE, TQ: HIREKERUR, DIST: HAVERI

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2 . KUMAR SUDEEP S/O KUMAR HUDED AGE: 6 YEARS, OCC: STUDENT SINCE MINOR R/BY HIS MOTHER SHOBHA W/O KUMAR HUDED, R/O: HOLABIKONDA VILLAGE,

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TQ: HIREKERUR DIST: HAVERI

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3 . KARABASAPPA S/O KUMAR HUDED AGE: 6 YEARS, OCC: STUDENT SINCE MINOR R/BY HIS MOTHER SHOBHA W/O KUMAR HUDED, R/O: HOLABIKONDA VILLAGE, TQ: HIREKERUR, DIST: HAVERI

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4 . SRI. PARAMESHAPPA S/O TIRAKAPPA @ TIRAKANAGOUDA GIRIMALLI @ GOUDAR @ PATIL AGE: MAJOR, OCC: BUSINESS R/O: HOLABIKONDA VILLAGE, TQ: HIREKERUR, DIST: HAVERI

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…RESPONDENTS

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(By Sri. M.H. PATIL, ADVOCATE FOR R1 R4 SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30-10-2013 PASSED IN MVC NO.309/2011 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC., HIREKERUR, AWARDING THE COMPENSATION OF Rs.7,18,500/WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL ITS REALISATION.

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THIS APPEAL COMING ON FOR ORDERS ON 04.08.2022 AND THE SAME HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the Insurance Company challenging the judgment and award dated 30.10.2013 passed in MVC No.309/2011 on the file of Senior Civil Judge & JMFC., Hirekerur (‘Tribunal’ for short), fastening the liability and also the quantum of compensation as awarded by the Tribunal.

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The factual matrix of the case of the claimants before the Tribunal is that they are the wife and two minor sons of the deceased Kumar contending that the said deceased Kumar and another person by name Krishnappa as per the directions of the insured – respondent No.4 herein was proceeding on the Tractor for removal of mud from the Hyaro Disk which was stuck and the same was driven by the insured himself and when they came to Holabikonda Village, on the bank of Channappa Pond road, due to wet on the road, the insured driver directed the deceased Kumar and another person to push the tractor engine. When they were so pushing the tractor engine, the said tractor engine

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suddenly started and the tractor went ahead and the driver lost control over the tractor and the same fell down on the deceased, who was allegedly pushing the tractor to the backside, as a result, he had suffered fatal injuries. Hence, the claimants are before the Tribunal stating that the deceased was aged about 27 years and earning Rs.8,000/per month. The claim petition was allowed in part granting compensation of Rs.7,18,500/- with interest at 6% p.a., from the date of the petition till its realization.

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Being aggrieved by the judgment and award, the appeal is filed by the Insurance Company contending that the MACT., grossly erred in mulcting the liability on the Insurance Company inspite of the vehicle used for commercial purpose for ploughing the land of one Shri. Basavaraj Hosamani, which has been revealed in complaint – Ex.P1. The other ground urged by the Insurance Company is that the MACT., grossly erred in mulcting the liability on the Insurance Company inspite of the driver was not holding valid and effective driving license to drive the category of the

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vehicle which he was driving at the time of the accident since he was possessed the license only to drive the medium passenger vehicle, and all together different category of the vehicle.

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The other contention of the Insurance Company is that the victim had suffered fatal injuries while travelling by sitting on the tractor engine just prior to he meeting with an accident. The other contention of the Insurance Company is that the Tribunal has committed an error in assessing the

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income of the deceased as Rs.4,500/- per month and erroneously deducted 1/4^th instead of 1/3^rd while calculating ‘loss of dependency’. Hence, it requires an interference of this Court.

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The learned counsel appearing for the appellant – Insurance Company in support of his arguments, he relied upon the judgment of this Court in the case of NATIONAL

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INSURANCE CO. LTD., v. BRAMARANBIKE AND OTHERS

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reported in 2006 ACJ 671 , wherein, this Court held that the person was permitted to travel on the mudguard of a tractor,

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the Insurance Company is not liable to pay any

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compensation.

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The learned Counsel also relied upon the judgment of the Full Bench of this Court in the case of GADHILINGAPPA @ GADHILINGA v. K. GULEPPA AND

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OTHERS dated 20.04.2021 , wherein also this Court held that the person who is sitting and travelling on the mudguard is not entitled for compensation on account of the injury or fatal injuries.

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The learned Counsel also relied upon the judgment of the Apex Court in the case of RAMCHANDRA v. REGIONAL MANAGER, UNITED INDIA INSURANCE

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COMPANY LIMITED reported in 2014(1) Kar. L.J. 374 (SC) , wherein, the Apex Court discussed with regard to the extent of liability of the Insurance Company.

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Per contra, the learned counsel appearing for respondent No.1/claimant would submit that at the time of the accident, the deceased was not travelling; only on the instructions of the driver of the tractor he was pushing the

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tractor along with the complainant and he was not sitting on the mudguard when the accident was taken place. The learned counsel also would submit that the claimants are entitled to maintain either the claim petition under the Motor Vehicles Act or under the Workmen Compensation Act. Hence, the contention of the Insurance Company cannot be accepted. The learned counsel would submit that the compensation awarded is on the lower side and not considered the future prospects and the compensation awarded on other heads also on the meager side. Even the Insurer himself has deposed before the Court that he was making the payment of Rs.6,000/- per month and taken the lower income and not awarded the just and reasonable compensation on the other conventional heads also. Hence, it requires an interference of this Court to enhance the compensation.

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Having heard the learned counsel appearing for

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the respective parties and on perusal of the material

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available on record, the points that would arise for consideration of this Court are:

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(i) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company and is there any violation of policy conditions?

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(ii) Whether the Tribunal has committed an error in awarding an exorbitant compensation as contended by the Insurance Company?

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(iii) What order?

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Point No.(i):

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The main contention of the Insurance Company is that in terms of Ex.P1, the victim was travelling in the tractor along with the complainant and also the driver in order to plough the land belongs to one Basavaraj Hosamani. It has to be noted that Ex.P1 – complaint is given by the complainant – Krishnappa and the said witness has not been examined before the Tribunal. No doubt, on perusal of Ex.P1, he has stated that they were going to plough the land of Basavaraj Hosamani and the averment is very clear that the

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tractor was proceeding to use for the purpose of ploughing the land and while doing so they found the wet on the tank bund road and hence, the owner-cum-driver of the tractor instructed to push the vehicle and both of them alighted from the vehicle while pushing the tractor, an incident was taken place. Hence, it is clear that at the time of the accident, the victim was pushing the tractor and he was not sitting on the mudguard of the tractor as contended by the Insurance Company and also the incident was taken place while pushing the tractor. I have already pointed out that the author of Ex.P2 has not been examined before the Tribunal in order to prove the said fact and the charge-sheet is also very clear in terms of Ex.P3, that while pushing the tractor only an incident was taken place and not fell down from the tractor while sitting on the mudguard as contended by the Insurance Company. Hence, the judgments of this Court in NATIONAL INSURANCE CO. LTD., V. BRAMARANBIKE AND

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OTHERS ’s case and GADHILINGAPPA ’s case (supra), are not applicable to the facts of the case on hand and the Court has to look into the facts of each case and the Insurance

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Company also not disputes the fact that an incident was taken place while pushing the tractor. Hence, the judgments which have been referred by the Insurance Company are not comes to the aid of the Insurance Company. Hence, I do not find any force in the contention of the Insurance Company.

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The other contention is that the driver of the vehicle was not having a valid driving license to drive the tractor. On perusal of the document – Ex.R1, it discloses that the driver was also authorized to drive the class or description of the motor vehicle i.e., tractor-trailer unit and in order to prove the fact that he was not having a driving license to drive the vehicle in question, not examined the competent authority whether he was having the driving license or not except the oral evidence of RW.2. No doubt, in paragraph No.3 of the affidavit of RW.2, he has stated that the driver was not having a valid driving license. In the cross-examination, he categorically admits that the policy was given for agricultural purpose and the fact is that the vehicle was also proceeding to plough the land is not in

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dispute and only the contention that it was in order to plough the land of Basavaraj Hosamani.

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I have already pointed out that the statement

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which was given by the person was not examined before the Tribunal to substantiate the same. Apart from that, in the cross-examination, a specific question was put viz., he was having the driving license to drive the vehicle. No doubt, in paragraph No.5 of the affidavit, it is stated that he was not having the valid and effective driving license except the self – serving testimony of RW.1 and no material has been placed. I have already pointed out that with regard to the effective driving license is concerned not examined the competent person, who has issued the driving license and in terms of Ex.R1, it is mentioned that he was also authorized to drive the TT Unit. Hence, the very contention of the Insurance Company that he was not having a valid driving license also cannot be accepted and no cogent evidence is placed to substantiate the said contention. Hence, I do not find any force in the contention of the learned counsel for the

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appellant – Insurance Company that the Tribunal has committed an error in fastening the liability on the Insurance Company. Hence, I answer point No.(i) as ‘negative’.

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Point No.(ii):

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The very contention of the Insurance Company is

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that the exorbitant compensation has been awarded by taking the monthly income of Rs.4,500/- and the accident was taken place on 03.11.2009 and the Tribunal has taken the notional income of Rs.4,500/- and the same is not exorbitant as contended by the Insurance Company. RW.1 - owner-cum-driver in his evidence also, he deposed that he was paying the salary of Rs.6,000/- per month but the same was not taken while considering the income of the deceased. He also says that he was paying Rs.50/- as batta and a suggestion was made that he was paying Rs.8,000/- per month. But the same was denied and he claims that he was paying Rs.6,000/- and Rs.50/- as batta. The income taken by the Tribunal is not on higher side but committed an error in deducting the amount 1/4^th instead of 1/3^rd since the

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claimants are only the wife and two children. However, on perusal of the judgment of the Tribunal in paragraph No.13, not added the future prospects and taken the multiplier as 17 rightly since he was aged about 27 years in terms of the post-mortem report. Apart from that, awarded a sum of Rs.5,000/- towards ‘loss of consortium’ and an amount of Rs.20,000/- each to two children on the head of ‘loss of love and affection’ and also committed an error in awarding an amount of Rs.5,000/- only towards funeral expenses and no appeal is filed by the claimants. In the absence of documentary proof with regard to the income, notional income would be Rs.5,000/-. But the Tribunal has taken Rs.4,500/-. Hence, the very contention that the exorbitant compensation has been awarded by the Tribunal cannot be accepted and the compensation awarded is on lesser side. Hence, the very contention of the Insurance Company is that the compensation awarded is on the higher side also cannot be accepted. Hence, I answer point No.(ii) also as ‘negative’.

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Point No.(iii):

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