Partly allowed

Smt Honnamma, v. the Royal Sundaram Alliance Insurance Co. Ltd.

Karnataka HC25 Nov 2022MFA/3659/2014

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the motor accident appeal, modifying the Tribunal's award. It held the insurance company is statutorily liable for compensation to employees of goods vehicles regardless of separate premium payment and enhanced the total compensation to Rs. 13,28,940/- with 6% interest.

What did the court decide?

The impugned award modified; compensation enhanced to Rs. 13,28,940/- with 6% interest; liability fastened on the Insurance Company; insurance company directed to pay.

Smt Honnamma, Vs the Royal Sundaram Alliance Insurance Co. Ltd. — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.3659/2014 (MV-D)

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BETWEEN:

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SMT. HONNAMMA, W/O LATE NAGARAJAPPA, AGED ABOUT 37 YEARS.

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KUM BHAGYA, D/O LATE NAGARAJAPPA, AGED ABOUT 13 YEARS.

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KUM. RAMYA, D/O LATE NAGARAJAPPA, AGED ABOUT 10 YEARS.

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APPELLANT NOS.1 AND 2 ARE MINORS, REP BY APPELLANT NO.1 SMT.HONNAMMA.

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ALL ARE R/AT JAYANAGAR, (BELAVALAKATTE) VILLAGE, HOSA JOGA POST, HONNALI-577 217, DAVANAGERE DISTRICT.

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...APPELLANTS

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(BY SRI V.B. SIDDARAMAIAH, ADVOCATE)

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AND:

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THE ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD., OFFICE AT 3^RD FLOOR,

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EMKAY’S SHALIMAR COMPLEX, KANKANADY, MANGALORE – 575 002.

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SRI H. NAGARAJ, S/O HONNAPPA, MAJOR, R/AT GURUPURA, GANAPATHI TEMPLE VIDYA NAGAR POST, SHIMOGA CITY-577 201.

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SRI KEERYANAIK, S/O RAMANAIK, MAJOR, R/AT BEERAGONDANAHALLI, UJJINIPURA VILLAGE, HONNALI TALUK-577 217, DAVANAGERE DISTRICT.

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...RESPONDENTS

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(BY SRI C.R. RAVISHANKAR, ADVOCATE FOR SRI K. SURYANARAYAN RAO, ADVOCATE FOR R1, R2 AND R3 ARE SERVED AND UNREPRESENTED)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 2.4.2014 PASSED IN MVC NO.121/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT, HARIHAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Heard the learned counsel for the appellant and the

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learned counsel for respondent No.1.

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This appeal is filed challenging the judgment and award dated 02.04.2014, passed in M.V.C.No.121/2012, on the file of the Senior Civil Judge, Member, Additional MACT, Harihar (‘the Tribunal’ for short).

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3. The factual matrix of the case of the claimants

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before the Tribunal is that the deceased Nagarajappa was traveling in the tractor and trailer as a coolie in order to unload the soil, which was loaded in the tractor and due to the rash and negligent driving of the driver of the tractor and trailer, the tractor and trailer was toppled and he fell down and sustained injuries and succumbed to the injuries. Hence, the claim was made before the Tribunal. The claimants in support of their case examined the wife of the deceased as P.W.1 and got marked the documents at Exs.P.1 to 10. On the other hand, the respondent examined two witnesses as R.W.1 and R.W.2 and got marked the documents at Exs.R.1 to 7 i.e., authority letter, policy

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schedule, charge-sheet, notice, agreement and RC books. The Tribunal after considering both oral and documentary evidence placed on record allowed the claim petition in part granting compensation of Rs.9,50,000/- with 6% interest. However, the liability was fastened on the owner in coming to the conclusion that no separate premium was paid. Hence, the present appeal is filed by the claimants.

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The learned counsel for the appellants would vehemently contend that the vehicle which was involved in the accident is tractor and trailer and the same is a goods vehicle and even though no separate premium is paid, the Insurance Company is statutorily liable to pay the compensation and it should be compulsorily covered and hence prayed this Court to shift the liability on the Insurance Company. In support of his argument, the learned counsel relied upon the Division Bench judgment of this Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. SRI MARUTHI AND OTHERS reported in ILR 2011 KAR 4139 , wherein it is held that the combination

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of tractor-trailer is nothing short of a goods carriage. Therefore,

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when once it is held as goods carriage vehicle, by virtue of Section II-1(1) of fully worded policy and also provisions of Section 147, the claim of the claimants on hand is covered. It is also held that depending upon the user of the vehicle whether for agricultural purpose or for commercial purpose, the liability of the insurer would be decided. When the intention of the legislation was to cover compulsorily all the risk arising out of the use of the motor vehicle and that the liability of the insurer is co-extensive with that of the insured subject to Section 147(1)(b), coolies or employees are compulsorily covered. Therefore, the argument that Rule 100(6) read with Rule 226 of the Karnataka Motor Vehicles Rules is relevant is rejected and the same will not authorize or permit the insurer to avoid the liability. By reading Sections 147 and 149, it is clear that the legislative intent was that the insurer has to compulsorily cover all the risks arising out of and use of motor vehicle and the liability of the insurer is co-extensive with that of insured.

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Per contra, the learned counsel for respondent No.1

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submits that there was a dispute with regard to the relationship

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between the parties i.e., employer and employee. The learned counsel submits that the liability is only under the Workmen Compensation Act and not under the Motor Vehicles Act.

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Having heard the respective learned counsel and also on perusal of the material available on record i.e., Exs.P.1 to 3, it is very clear that the complaint was given making an accusation that the accident was occurred due to the negligence on the part of the driver of the tractor and trailer and the police have investigated the matter and filed the charge-sheet in terms of Ex.P.3. The contention of the Insurance Company before the Tribunal is that no premium was collected and the Tribunal also in paragraph No.21 comes to the conclusion that the insured has not paid extra premium to cover the risk of the employee and therefore there is no contractual liability on the insurer to cover the risk of the employee of respondent No.1. Having considered the reasoning given by the Tribunal, the Tribunal committed an error in coming to such a conclusion that separate premium has not been paid. When the liability of the Insurance Company is a statutory liability, compulsorily it should be covered in a case of

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goods vehicle with regard to the employees are concerned. The principles laid down in the judgment in the case of Maruthi (supra), is aptly applicable to the case on hand and hence there is a force in the contention of the learned counsel for the claimants that the Tribunal committed an error in fastening the liability on the insured instead of Insurance Company. The very contention of the learned counsel for the Insurance Company that the Tribunal rightly considered the material on record when there was no premium cannot be accepted. Hence, the liability to pay the compensation is fastened on the Insurance Company.

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Now coming to the aspect of quantum of compensation is concerned, it is an accident of the year 2012 and the Tribunal committed an error in taking the income of Rs.5,000/- per month and the notional income would be Rs.7,000/- per month. The Tribunal committed an error in adding 50% of the future prospects and the deceased was not having any permanent source of income and he was a coolie. Under the circumstances, it is appropriate to add 40% of income

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towards future prospects. Now the ‘loss of dependency’ is calculated as under:

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Monthly income – Rs.7,000/Add: 40% towards Future prospects - Rs.2,800/-------------Rs.9,800/Less: 1/3^rd towards Personal expenses - Rs.3,267/-------------Rs.6,533/-------------Loss of dependency = Rs.11,75,940/- (Rs.6,533 /- x 12 x 15) --------------

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The claimants being the wife and children of the

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deceased are entitled for an amount of Rs.40,000/- each i.e.,

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Rs.1,20,000/- under the head loss of consortium and loss of

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love and affection and an amount of Rs.33,000/- under the head funeral expenses and loss of estate.

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In all, the claimants are entitled for compensation of

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Rs.13,28,940/- as against Rs.9,50,000/- with 6% interest.

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In view of the discussions made above, I pass the following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The impugned judgment and award of the Tribunal dated 02.04.2014, passed in M.V.C.No.121/2012, is modified granting compensation of Rs.13,28,940/- as against Rs.9,50,000/- with interest at 6% per annum from the date of petition till deposit.

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(iii) The liability is fastened on the Insurance Company.

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(iv) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today.

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(v) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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Smt Honnamma, v. the Royal Sundaram Alliance Insurance Co. Ltd.

Case brief

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What did the court decide?

Smt Honnamma, v. the Royal Sundaram Alliance Insurance Co. Ltd.

Case brief

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