Partly allowed

The Branch Manager v. Smt. Chithamma

Karnataka HC11 Aug 2022MFA/6155/2017

Case brief

AI extract

What is this about?

The High Court dismissed the insurance company's appeal on coverage, holding the deceased was covered as an owner traveling with goods under Rule 100. However, it allowed the appeal in part on quantum, modifying compensation from Rs. 7,47,000 to Rs. 6,37,000 based on Supreme Court principles on consortium.

What did the court decide?

Compensation reduced from Rs. 7,47,000 to Rs. 6,37,000, with adjustment to heads of loss of consortium and love and affection.

The Branch Manager Vs Smt. Chithamma — Constitutional and Fundamental Rights | Karnataka HC (2022)

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1 MFA NO.6155/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF AUGUST, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A.NO.6155/2017 (MV-D)

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BETWEEN :

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THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO.LTD., TUMKUR BRANCH, TGMA BUILDING, J.C.ROAD, TUMKUR TOWN, TUMKUR, NOW REPRESENTED BY ITS REGIONAL MANAGER, LEO SHOPPING COMPLEX, 44/45 RESIDENCY ROAD, BANGALORE-560025.

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… APPELLANT

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(BY SMT. HARINI SHIVANANDA, ADVOCATE THROUGH V/C)

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AND :

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SMT. CHITHAMMA, W/O LATE CHIKKEERANNA, AGED ABOUT 49 YEARS,

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SMT. ERAMMA W/O KARIYANNA, D/O LATE CHIKKEERANNA, AGED ABOUT 26 YEARS, RESIDING AT HUNASEMARADAHATTI, KASABA HOBLI, MADUGIRI TALUK-575204.

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2 MFA NO.6155/2017

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JAYARAMA S/O LATE CHIKKEERANNA, AGED ABOUT 23 YEARS,

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SHIVALINGAMMA, D/O LATE CHIKKEERANNA, AGED ABOUT 15 YEARS,

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RESPONDENT NO.1, 3 AND 4 ARE R/A. KATAGENAHATTI VILLAGE, KASABA HOBLI, MADHUGIRI TALUK-577202.

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RAJANNA S/O UGRAPPA, MAJOR, R/A. KAMBAIAHNAPALYA, KASABA HOBLI, MADUGIRI TALUK, TUMKUR DISTRICT-577202. ... RESPONDENTS

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(BY SRI. PATEL D., KAREGOWDA, ADVOCATE FOR R1 TO R3, R4 AND R5 ARE SERVED)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:05.04.2017 PASSED IN MVC NO.33/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JDUGE & JMFC, MACT, MADHUGIRI, AWARDING COMPENSATION OF DRS.7,47,000/- WITH INTERSEST @@6% P.A.FROM THE DATE OF PETITION ETC.,

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

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3 MFA NO.6155/2017

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J U D G M E N T

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This appeal is filed by the Insurance Company challenging the judgment and award dated 05.04.2017 passed in MVC.No.33/2013 by the Prl. Senior Civil Judge & MACT, Madhugiri, on the ground that the Insurance Company is not liable to pay compensation as the risk of death of the deceased is not covered as he was traveling in the goods auto rickshaw and being aggrieved by quantum of compensation awarded.

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2. Brief facts of the case are as under:

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On 28-06-2013 Chikkeeranna and one Shivanna

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of Kataganahatti village had been to Sugganahalli for the purpose of purchasing goats and after purchasing goats, they carried the said goats in a luggage auto bearing Reg.No.KA-06-C-4868 (herein after called as offending vehicle for short) and the said Chikkeranna was returning to Kataganahatti in the said vehicle.

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4 MFA NO.6155/2017

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When they were near Honnudiker-Golur Road, Tumkur Taluk at 12-30 p.m., the driver of the offending vehicle driven the same with high speed and in a rash and negligent manner and in a curve near Honnudike Gosala Channabasaveswara Swamy Temple, said luggage auto capsized and caused accident. As a result, the offending vehicle fell on the said Chikkeeranna and he sustained fatal injuries on his chest, legs and arms. Immediately after the accident, he was shifted to Government District Hospital, Tumkur, for treatment and while taking treatment, he succumbed to the injuries.

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Learned counsel for the appellantInsurance Company vehemently submitted that fastening of liability on the Insurance Company by the Tribunal is not correct for the reason that the seating capacity of Goods Autorickshaw bearing No.KA-06-C4868 is only one as per Ex.R1-insurance policy and evidence of RW.1 to RW.3, the seating capacity is

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5 MFA NO.6155/2017

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proved to be one only. Therefore, there is no risk covered other than one person who is the driver. Therefore, for the death of the deceased, in the present case, the risk is not covered. Therefore, prays to allow the appeal.

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Further submitted that the deceased had

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travelled in the luggage autorickshaw along with goats, but for this traveling, the risk is not covered as per the insurance policy. Therefore, it is submitted that the Insurance Company be exonerated from liability. Further submitted that there is no evidence on the part of the claimants that the deceased had travelled in the cabin or in the body of the autorickshaw, which is meant for carrying goods, the deceased sat and travelled and therefore, as per the principles of law laid down at Paragraph No.19 in the case of NATIONAL INSURANCE CO., LTD., VS. CHOLLETI BHARATAMMA AND OTHERS reported in ( 2008) 1 SCC 423 , the risk of the deceased is not

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6 MFA NO.6155/2017

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covered. It is further submitted that the owner of the goods means only the person who travels in the cabin of the vehicle, but in the present case, there is no evidence on the part of the claimants either oral or documentary evidence that the deceased had travelled in the cabin of the goods autorickshaw. Therefore, submitted that the risk of the deceased is not covered. Further submitted that, as per Rule 100 of the Karnataka Motor Vehicles Rules, 1989, (for short "the Rules") only one person is permitted to travel in the goods vehicle, if the gross laden weight of the vehicle is less than 990 kg and it is the driver and not any other person. Therefore, submitted that the risk of the deceased is not covered as he travelled in the goods vehicle.

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Learned counsel for the appellantInsurance Company relied on the judgment of Hon'ble Apex Court in CHOLLETI BHARATAMMA 's case

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7 MFA NO.6155/2017

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(stated supra). Therefore, learned counsel for the Insurance Company submitted that the Insurance Company be exonerated from payment of compensation. Hence, prays to allow the appeal.

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On the other hand, learned counsel for respondent Nos.1 to 3/claimants submitted that the deceased was travelling along with goods in the Goods Auto Rickshaw bearing No.KA-06-C-4868 and met with an accident and died. Therefore, as per Section 147 of the Motor Vehicles Act, 1988 (for short "the MV Act") as well as Rule 100 of the Rules, the risk of the person who travels along with the goods being the owner or authorized employee of the owner is covered. Therefore, submitted that the risk of the deceased is covered and it is rightly held by the Tribunal. The Tribunal has relied on many judgments of the Hon'ble Apex Court and of this Court and came to the conclusion that the risk of the deceased is covered as per Section 147 of the Act and held that

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8 MFA NO.6155/2017

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both the owner and the insurer of the goods autorickshaw are jointly and severally liable to pay the compensation and directed the Insurance Company to indemnify the owner of the autorickshaw.

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Learned counsel for the

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respondents/claimants has relied on the judgments of this Court as under:

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(i) Divisional Manager, New India Assurance Co., Ltd., Vs. Shashidhara and Another reported in 2009 ACJ 1778

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(ii) M/s Oriental Insurance Co., Vs. Patha Nayaka and Another (in MFA.NO.2125/2010 c/w connected matters, DD: 22.09.2020) (iii) The Manager, IFFCO-TOKIO General Insurance Co., Ltd., Vs. Eramma and Another (in MFA.NO.30291/2011 DD:

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16.11.2011).

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Therefore, prays to dismiss the appeal filed by the Insurance Company.

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9 MFA NO.6155/2017

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In the present case, the accident was occurred when the deceased had been to Sugganahalli for the purpose of purchase of goats and after purchasing goats, the same was carried in the luggage autorickshaw bearing No.KA-06-C-4868 and when the autorickshaw reached near Honnudiker-Golur Road, Tumkur Taluk, at 12:30 p.m., the driver of the said autorickshaw drove the same with high speed and in a rash and negligent manner and in curve, the autorickshaw capsized and caused the accident. In the said accident, the deceased had sustained fatal injuries on his chest, legs and arms. Immediately, he was shifted to the Government Hospital, Tumkur and while taking treatment, he succumbed to the injuries. Therefore, it is the contention of the claimants that the deceased was traveling along with the goods, which are goats. Therefore, for the death of the deceased, the risk is covered as per Section 147 of the MV Act and as per Rule 100 of the Rules. This

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10 MFA NO.6155/2017

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contention is negatived by the learned counsel for the Insurance Company for the reason that as per Ex.R.1insurance policy and evidence of R.W.1 to R.W.3, it is proved that the seating capacity is only one who is the driver. Therefore, the risk of any person who is traveling in the goods autorickshaw is not covered. Therefore, submitted that the Insurance Company is not liable to pay compensation. Learned counsel for the Insurance Company placed reliance on the judgment of the Hon'ble Apex Court in CHOLLETI BHARATAMMA 's case (stated supra).

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I perused the facts and evidence and principles of law laid down in CHOLLETI BHARATAMMA 's case (stated supra). In CHOLLETI BHARATAMMA 's case (stated supra), the facts and evidences are that the deceased was traveling in the lorry as a fare paying passenger by paying a sum of Rs.20/- to the driver. Therefore, the claimants in the

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11 MFA NO.6155/2017

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above stated case were not traveling along with their goods being owner or authorized employee of the owner of the goods. Therefore, under these circumstances, it was held that the claimants in the above stated case held to be gratuitous passengers, since the Insurance Company is not liable to pay compensation. In the above stated case, the Hon'ble Apex Court has interpreted the Rules namely "Andhra Pradesh Motor Vehicles Rules" and as per the said Rules, other than in cabin in the goods vehicle, if other persons have traveled, then the risk is not covered. Therefore, in this context, at Paragraph No.19, the Hon'ble Apex Court has held that the owner of the goods means only the person who travels in the cabin of the vehicle.

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”19. It is now well settled that the owner of the goods means only the person who travels in the cabin of the vehicle”.

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The above observation is made based on the

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Andhra Pradesh Motor Vehicles Rules.

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12 MFA NO.6155/2017

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Therefore, the facts and evidences in the above stated case and in the present case are different. In the present case, it is proved that the deceased had travelled in the goods autorickshaw along with goats as the deceased had purchased the goats and thus, the deceased had travelled being the owner of the goats. Therefore, this makes difference between the facts in the above stated case and in the present case. Therefore, the judgment of CHOLLETI BHARATAMMA ’s case (stated supra) is not applicable in the present case.

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Also considering the judgments of this Court in the cases of Patha Nayaka, Shashidhara and Eramma (stated supra), the facts in these cases are that the claimants have travelled in the goods carriage vehicle being the owner of the goods. Therefore, it was held that as per Rule 100 of the Rules and as per Section 147 of the MV Act, the risk of

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13 MFA NO.6155/2017

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the person who travelled along with the goods being the owner or authorized representative of the goods is covered. Therefore, under this principle of law, the facts are considered in the present case. From Ex.P1FIR, Ex.P2-complaint, and Ex.P7- charge sheet and also from the evidence of P.W.2, it is proved that the deceased was traveling in the goods autorickshaw bearing No.KA-06-C-4868 along with goats, which was purchased in the fair and after purchasing and after loading the goats in the said autorickshaw and while returning to their village, the autorickshaw was capsized and in the said accident, the deceased died. Therefore, in the present case, other than the driver, the deceased had also travelled along with his goods, which are loaded in the autorickshaw being the owner of it. Therefore, under these circumstances, Rule 100 of the Karnataka Motor Vehicles Rules, 1989, is to be applied.

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14 MFA NO.6155/2017

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12. Rule 100 of the Karnataka Motor Vehicles

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Rules, 1989, stipulates as follows:

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“100. Carriage of persons in goods vehicle.-(1) Subject to the provisions of this rule, no person shall be carried in a goods vehicle:

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(i) in light transport goods vehicle having registered laden weight less than 990 kgs. not more than one;

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(ii) in any other light transport goods vehicle not more than three; and

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(iii) in any goods vehicle not more than seven:

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Provided that the provisions of sub-clauses (ii) and (iii) of the above proviso shall not be applicable to the vehicles plying on inter-State routs or the vehicles carrying goods from one city to another city.

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(2) Notwithstanding anything contained in sub-rule (i), but subject to the provision of sub-rules (4) and (5), a Regional Transport Authority may, by an order in writing permit that a larger number of persons may be carried in the vehicle, on condition that no goods at all are carried, free of charge in connection with the work for which the vehicle is used, and that such other conditions as may be specified by the Regional Transport Authority are observed, and where the vehicle is required to be covered by a permit, the conditions of the permit.

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(3) Notwithstanding anything contained in sub-rules (1) and (2), but subject to the provisions of sub-rules (4) and (5),-

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(a) for the purpose of celebrations in connection with the Republic Day or Independence Day or any other public congregation, the Regional Transport Officer;

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15 MFA NO.6155/2017

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(b) for the purpose of enabling a co-operative society or class of co-operative societies owning or hiring a goods vehicle to carry its members under its authority in such goods vehicle when used for the purpose of carrying goods of the society in the ordinary course of its business, the Secretary of the Regional Transport Authority;

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(c) where it considers expedient in public interest in respect of vehicles owned or hired by it, and in respect of other vehicles on such inescapable grounds of urgent nature to be specified in the order, the State Government may, by general or special order, permit goods vehicle to be used for the carriage of persons for the purposes aforesaid, and subject to such conditions, as may be specified in the order.

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(4) No persons shall be carried in any goods vehicle,-

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(a) unless an area of not less than 0.40 square metre of the floor of the vehicle is kept open for each person; and

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(b)in such manner-

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(i) that such person when carried on goods is otherwise in danger of falling from the vehicles;

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(ii) that any part of his body, when he is in a sitting position is at a height exceeding three metres from the surface upon which the vehicle rests.

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(5) The provisions of this rule shall not apply to motor vehicle registered under Section 60.

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(6) No person other than an attendant or attendants required by Rule 226 shall be carried on a trailer which is a goods vehicle.”

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16 MFA NO.6155/2017

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As per Rule 100 of the Karnataka Motor Vehicles Rules, 1989, the person travels in the goods vehicle as the owner or the hirer or a bonafide employee of the owner or the hirer of the vehicle carried free of charge and according to the class of vehicle, the number of persons are permitted to travel in the goods carriage vehicle. In the present case, admittedly, the registered laden weight of the goods autorickshaw/APE Luggage Auto as per Ex.R.1insurance policy is 975 kg, which means, it is less than 990 kg as stipulated in Clause (i) of Rule 100 of the Rules. Therefore, one person is permitted to travel in the goods vehicle as owner or hirer or authorized employee of the owner of the goods. Here, the person permitted to travel in the goods carriage vehicle is not the driver, but other than the driver. The contention of the learned counsel for the Insurance Company is that under Rule 100 of the Rules, the person mentioned is none other than the driver. This contention of the

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17 MFA NO.6155/2017

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Insurance Company cannot be accepted for the reason that the words are very clear that the owner or the hirer or a bonafide employee of the owner or the hirer of the vehicle carried free of charge or a police officer in uniform traveling on duty may be carried in a goods vehicles and number of such persons is depending upon the class of vehicle as mentioned in the Proviso (2) of Rule 100 of the Rules. Therefore, in the present case, the registered laden weight of the autorickshaw bearing No.KA-06-C-4868 is 975 kgs. Therefore, the person other than the driver is permitted to travel in the goods carriage vehicle along with his goods being the owner of the goods. Therefore, just because, in the insurance policy, the seating capacity is only one, that does not absolve the liability of the Insurance Company in view of Section 147 of the MV Act and Rule 100 of the Rules.

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18 MFA NO.6155/2017

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It is also another contention of the learned counsel appearing for the Insurance Company that there is no evidence on the part of the claimants to prove that the deceased had travelled in the cabin of the vehicle. Therefore, submitted the deceased had travelled in the body of the autorickshaw. Therefore, the risk of the deceased is not covered as per the judgment of CHOLLETI BHARATAMMA’s case (stated supra) as held at Paragraph No.19 as above stated. The said interpretation made by the Hon'ble Apex Court in CHOLLETI BHARATAMMA 's case (stated supra) is based on the rules pertaining to the Andhra Pradesh Motor Vehicles Rules. Therefore, it was held that the owner of the goods means only the person who travels in the cabin of the vehicle. But upon considering Section 147 of the Act and Rule 100 of the Rules, there is no mentioning whether the person can travel in the cabin or not, but as per Section 147 of the Act, if the person travels in the

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19 MFA NO.6155/2017

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goods vehicle along with his goods being the owner or authorized employee of owner of the goods, then the risk is covered. Therefore, the same is stipulated under Rule 100 of the Rules as above stated. Here, in the present case, the registered laden weight of autorickshaw is 975 kg., which is less than 990 kg as provided in Clause (i) of Rule 100 of the Rules. Therefore, one person is permitted as per this Rule, but travels in the goods vehicle being the owner of the goods. Therefore, as per Section 147 of the Act clubbed with Rule 100 of the Rules, the risk of death of the deceased is also covered. Therefore, in this regard, the contention urged by the Insurance Company cannot be accepted.

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I also find the support from the judgment of this Court in Shashidhara ’s case that the person mentioned in Rule 100 of the Rules is not the driver, but other than the driver as stipulated at

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20 MFA NO.6155/2017

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Paragraph No.6 in Shashidhara ’s case which reads as under:

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“6. As is plain from the reading of the rule, it refers to persons other than the driver. Hence, it is clear that one person could have been carried in the concerned vehicle. Hence, there is no infirmity in the claim having been allowed by the Tribunal.

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No case is made out. Appeal is dismissed. The amount in deposit is to be transferred to the Tribunal for the benefit of claimant-respondent.”

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Therefore, as per Rule 100 of the Rules, the person means other than the driver. Therefore, in this regard also, the contention of the Insurance Company that the person stated is only the driver cannot be accepted. Therefore, the Tribunal after appreciating the evidence on record has correctly and in a true prospective manner and by following the principles of law laid down by the Hon'ble Apex Court and of this Court has held that, since the deceased had travelled in the goods vehicle as owner along with the goods, therefore, death of deceased is also covered and the Insurance Company is liable to pay

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21 MFA NO.6155/2017

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compensation. Hence, I do not find any merit in the appeal. Therefore, the appeal is liable to be dismissed.

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Regarding quantum of compensation:

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Learned counsel for the Insurance

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Company submitted that the compensation amount awarded by the Tribunal under each heads is not correct and the same needs to be reduced.

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On the other hand, the learned counsel for the respondents/claimants submitted that the compensation awarded under each head is correct and proper. Hence, there is no need to make any modification in this regard. Hence, prays to dismiss the appeal on the quantum also.

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The Tribunal has awarded compensation under various heads as follows

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22 MFA NO.6155/2017

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1	Loss of dependency	Rs. 4,32,000/-
2	Loss of care and guidance to petitioner No.4	Rs. 1,00,000/-
3	Loss of love and affection to petitioner No.4	Rs. 20,000/-
4	Loss of consortium to petitioner No.1	Rs. 1,00,000/-
5	Loss of estate to petitioner No.4	Rs. 20,000/-
6	Funeral expenses and transportation	Rs. 25,000/-
7	Loss of estate, love and affection and care and guidance to the petitioner No.3	Rs. 50,000/-
	TOTAL	Rs. 7,47,000/-

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There is no cross-objection or appeal by the claimants challenging the quantum, but the same is challenged by the Insurance Company as stated above. The Tribunal has awarded double compensation under the heads loss of love and affection and loss of consortium, which are to be modified. But as per the principles of law laid down by the Hon’ble Apex Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others reported in 2018 ACJ 2782, each claimants are entitled to Rs.40,000/- under the head loss of consortium. Here, in the present case, there are four

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23 MFA NO.6155/2017

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claimants. Hence, they are entitled to Rs.1,60,000/under the head loss of consortium. Therefore, Rs.1,60,000/- is awarded under the head loss of consortium including loss of love and affection. The compensation of Rs.1,00,000/- under the head loss of care and guidance to petitioner No.4, Rs.20,000/under the head loss of love and affection to petitioner No.4 and Rs.1,00,000/- under the head loss of consortium to petitioner No.1, and Rs.50,000/- under the head loss of estate, love and affection and care and guidance to petitioner No.3 are liable to be set aside. In those places, total compensation of Rs.1,60,000/- is awarded under the head loss of consortium. To this extent, the judgment and award passed by the Tribunal is liable to be modified and this modification is only insofar as quantum is concerned.

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Thus, the appellant/claimant is entitled to the compensation as follows:

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24 MFA NO.6155/2017

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1	Loss of dependency	Rs. 4,32,000/-	Kept in tact
2	Loss of consortium	Rs. 1,60,000/-
3	Loss of estate to petitioner No.4	Rs. 20,000/-	Kept in tact
4	Funeral expenses and transportation	Rs. 25,000/-	Kept in tact
	TOTAL	Rs. 6,37,000/-

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Therefore, insofar as quantum of

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compensation is concerned, the appeal filed by the Insurance Company is liable to be allowed in terms as above stated. Therefore, the respondents/claimants are entitled for compensation of Rs.6,37,000/- as against the compensation of Rs.7,47,000/- awarded by the Tribunal. Hence, I proceed to pass the following

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ORDER

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The appeal filed by the Insurance Company is

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allowed-in-part .

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The impugned judgment and award dated 05.04.2017 passed in MVC.No.33/2013 by the Prl. Senior Civil Judge & MACT, Madhugiri, is modified to the extent that the appellants/claimants are entitled to total compensation of Rs.6,37,000/- with interest

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at the rate of 6% per annum from the date of petition till realization. The other observations made by the Tribunal are not disturbed.

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The deposit amount shall be transmitted to the Tribunal. If there is any difference of amount as above stated in excess, the same shall be refunded to the appellant-Insurance Company.

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The registry is directed to transmit the TCR to

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the Tribunal along with a copy of this order.

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No order as to costs.

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The Branch Manager v. Smt. Chithamma

Case brief

What is this about?

What did the court decide?

The Branch Manager v. Smt. Chithamma

Case brief

What is this about?

What did the court decide?

What the court decided

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