Allowed

Mallappa S/O. Ningappa Karikatti v. Prashant S/O. Gangappa Ninggudagi

Karnataka HC6 Nov 2024MFA/20619/2012

Case brief

AI extract

What is this about?

An appeal challenging a tribunal award that held a vehicle owner liable for compensation paid to a deceased driver's family. The High Court set aside the award against the owner, holding that since the insurer accepted a premium for employee coverage and the deceased was an employee at the time, the insurer must pay.

What did the court decide?

The appeal is allowed. The compensation is liable to be paid by the insurer, and the statutory deposit of the appellant is to be refunded.

Mallappa S/O. Ningappa Karikatti Vs Prashant S/O. Gangappa… — Insurance | Karnataka HC (2024)

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NC: 2024:KHC-D:16216 MFA No. 20619 of 2012

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF NOVEMBER, 2024

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BEFORE THE HON'BLE MR. JUSTICE C.M. POONACHA

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MISCELLANEOUS FIRST APPEAL NO.20619 OF 2012 (MV-I)

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BETWEEN:

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MALLAPPA S/O. NINGAPPA KARIKATTI, AGE: 39 YRS, OCC: OWNER OF THE TRACTOR, R/O: KOTABAGI, TQ: DIST: DHARWAD.

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…APPELLANT

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(BY SRI DEEPAK MAGNUR, ADVOCATE FOR SRI CHANDRASHEKAR P. PATIL, ADVOCATE)

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AND:

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PRASHANT S/O. GANGAPPA NINGGUDAGI, AGE: 23 YEARS, OCC: NILL, R/O: TADAKOD.

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MANJAVVA W/O. BASAPPA AKKIR, AGE: 22 YEARS, OCC: HOUSE HOLD.

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Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka

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YALLAVVA (AFTER MARRIAGE CALLED AS REKHA) KOM CHANDU SARIYA, AGE: 21 YEARS, OCC: HOUSEHOLD, R/O: SAGAWAD, DIST: DUNGARPUR, RAJASTHAN STATE, REPRESENTED BY HER GPA HOLDER PRASHANT S/O. GANGAPPA NIGGUDAGI,

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RESPONDENT NOS.1 TO 3 ARE R/O: TADAKOD, TQ AND DIST: DHARWAD.

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THE GENERAL MANAGER, UNITED INDIA INSUR CO., LTD., SHRINIVAS TALKIES, COMPLEX, DHARWAD.

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…RESPONDENTS

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(BY SMT. KAVITA JADHAV, ADVOCATE FOR R1 TO R3 FOR SRI NEELOPNAT; SMT. PREETI SHASHANK, ADVOCATE FOR R4)

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THIS MFA IS FILED U/S.173(1) OF THE M.V.ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 05.11.2011, PASSED BY THE LEARNED JUDGE, FAST TRACT - I, DHARWAD, IN

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NC: 2024:KHC-D:16216 MFA No. 20619 of 2012

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M.V.C.NO.133/2010, AS AGAINST THE APPELLANT IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

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The present appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988¹ by the owner of the vehicle challenging the judgment and award dated 05.11.2011 passed in MVC No.133/2010 by the Presiding Officer, Fast Track Court-I at Dharwad² , whereunder the Tribunal awarded the compensation of ₹1,62,800/- together with interest at the rate of 6% p.a. and ordered that the 2^nd respondent-owner is liable to pay the compensation awarded. Being aggrieved, the owner of the vehicle, who was arrayed as respondent No.2 before the Tribunal, has filed the present appeal.

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The relevant facts leading to the present appeal are that the respondents 1 to 3/claimants filed a claim petition under Section 166 of the Act claiming compensation for the

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1 Hereinafter referred as “the Act”

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2 Hereinafter referred as “Tribunal”

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death of deceased-Nagavva. It is the case of the claimants that on the date of the accident i.e. on 25.06.2009 the deceasedNagavva, who is alleged to have been employed with respondent No.2-owner of the tractor bearing No.KA-25/T-8961 and trailer bearing No.KA-24/415 for the purpose of loading and unloading agricultural produce i.e., chilies grown in the land of the owner, was traveling in the said vehicle. That, after loading chilies, when deceased-Nagavva was traveling in the said vehicle for the purpose of unloading the same, the vehicle was driven in a rash and negligent manner by its driver causing accident in question wherein deceased-Nagavva sustained grievous injuries and died on the spot. Claiming compensation for the death of deceased-Nagavva the claim petition was filed.

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The driver of the vehicle was arrayed as respondent No.1, owner of the vehicle as respondent No.2 and the insurer as respondent No.3 before the Tribunal. The owner of the vehicle entered appearance before the Tribunal and filed his statement of objections denying case put forth by the claimants. The insurer also filed statement of objections denying the case put forth by the claimants and also specifically contended that the deceased was an unauthorized passenger in

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NC: 2024:KHC-D:16216 MFA No. 20619 of 2012

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the insured vehicle and that the owner having denied the relationship of employer and employee with the deceased and that the claim petition was liable to be rejected.

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The claimant No.1 was examined as PW1. Ex.P1 to Ex.P12 have been marked in evidence. The representative of the insurer was examined as RW1. Ex.R1 to Ex.R4 have been marked in the evidence. The Tribunal by its judgment and award dated 05.11.2011 partly allowed the petition and awarded compensation of ₹1,62,800/- with interest at the rate of 6% p.a. and ordered that the owner-respondent No.2 is liable to pay the compensation awarded. Being aggrieved, the owner has filed the above appeal.

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Heard the submissions of the learned counsel Sri. Deepak C Maganur, for learned counsel Sri. Chandrashekhar P Patil, for the appellant-owner, the learned counsel Smt. Kavita Jadhav for learned counsel Sri. Arun L Neelopant for respondents 1 to 3/claimants and the learned counsel Smt. Preeti Shashank for the respondent No.4-insurer.

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It is the vehement contention of the learned counsel for the appellant that the complaint (Ex.P1) discloses

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that the deceased was employed by the owner and they were being carried in the tractor-trailer after loading chilies for the purpose of unloading. It is further contended that under the policy of insurance (Ex.R2) both the tractor and trailer were insured. That, the insurer has collected a premium of ₹25/- as ‘WC to one employee’. Hence, it is contended that the Tribunal erred in holding the owner of the vehicle liable to pay the compensation awarded. It is further contended that the quantum of compensation awarded is on the higher side.

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The learned counsel for the claimants justifies the order passed by the Tribunal and submits that the claimants are entitled for payment of compensation.

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The learned counsel for the insurer justifies the judgment passed by the Tribunal and submits that the owner having denied the relationship of employer-employee with the deceased at the time of filing of the statement of objections, now, in the present appeal, cannot be permitted to plead contrary to the same and contend that the deceased was the employee of the owner. It is further contended that the relationship of employer-employee has not been proved and

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the deceased was an unauthorized passenger in the insured vehicle. It is further contended that the Tribunal has adequately appreciated the relevant factual matrix in the matter and held the owner of the vehicle liable to pay the compensation, which ought not to be interfered with by this Court in the present appeal.

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The submissions of the learned counsels for the parties have been considered and the materials on record have been perused including the records of the Tribunal. The question that arises for consideration in this appeal is “whether the Tribunal is justified in fastening the liability to pay the compensation on the owner of the vehicle”?

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The relevant factual matrix with regard to the occurrence of the accident, involvement of the insured vehicle in the accident and the fact that the insurer has issued a policy of insurance in respect of the said vehicle is not in dispute.

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It is forthcoming from the policy of insurance (Ex.R2) that the tractor bearing No.KA-25/T-8961 as well as trailer bearing No.KA-24/415 is mentioned. It is further forthcoming that the insurer has collected premium of ₹5,117/-

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towards OD-Basic, ₹23/- as loading on OD premium, which are towards own damages. Further, the insurer has collected a sum of ₹800/- towards TP-Basic, ₹100/- towards compulsory PA coverage to owner-driver for a sum of ₹2,00,000/- and ₹25/as “WC to one employee”.

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It is forthcoming from the complaint (Ex.P1), which was lodged on 25.06.2009 that the tractor and trailer was taken for the purpose of loading chilies as per the instructions of the owner of the said vehicle and after the chilies were loaded, when various workmen were traveling in the said vehicle for the purpose of unloading the chilies, due to rash and negligent driving by the driver of the said vehicle, the accident has occurred.

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The Tribunal considering the aspect regarding

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liability has recorded the following findings.

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“According to Advocate for respondent, deceased was going along with the goods and hence there is no coverage for the decease in the policy. Hence respondent No.3 is not liable to pay above said compensation. PW.1 in his evidence has stated the same fact. It is also stated that the driver of the tractor trailer was having driving licence to drive LMV

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tractor Non- Transport. But, this vehicle tractor trailer driver is special type of vehicle and it has to be used for agricultural purpose and risk of driver is only covered. Hence, this respondent is not liable to pay the compensation and respondent No.2 who is the owner to pay the compensation. He was crossexamination by Advocate for petitioner. During the cross-examination he has denied that deceased was working as a Hamali. As per policy the owner of the vehicle has paid premium of Rs.25,000/- WC to employee.

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As per Ex.R.1, driving licence produced by respondent No.1, the driver of the vehicle was having driving licence to drive both tractor and trailer. Even though as per endorsement produced by the respondent No.2 at Ex.R.4, the driver was having driving licence to drive tractor only. Therefore, it is clear that driver of the vehicle was having valid driving licence to drive both tractor/trailer. Hence this contention raised by Advocate for respondent No can be considered.

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However, as per policy Ex.R.1, it is clear that there is no coverage for passenger who was moving along with goods in the tractor trailer. Therefore, the owner of the vehicle respondent No.2 has pay above said compensation.”

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(Emphasis supplied)

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It is forthcoming that the Tribunal has recorded a finding that the tractor-trailer being a special type of vehicle and used for agricultural purposes, risk of driver alone is covered. Although the Tribunal has noticed regarding collection of premium as ‘WC to one employee’, the Tribunal has recorded a finding that there is no coverage for passenger, who was moving along with the driver in the tractor-trailer.

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Having noticed the contents of the complaint dated 25.06.2009 (Ex.P1), it is clear that the deceased was traveling in the insured vehicle on the instructions of its owner for the purpose of loading and unloading of chilies and hence, was traveling in the insured vehicle during the course of employment with the owner.

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The vehement contention by the learned counsel for the insurer that the owner having denied the relationship of employer-employee between him and the deceased in the statement of objections cannot be permitted to plead contrary in the present appeal will not aid to the case of the insurer having regard to the fact that the finding recorded regarding employer-employee is being made on appreciation of

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material available on record notwithstanding the pleading made by the owner either before the Tribunal or in the present appeal.

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It is further forthcoming that the insurer has accepted premium of ₹25/- towards “WC to one employee”. Although statement of objections have been filed by the insurer and the representative of the insurer has been examined as RW1, the coverage made with regard to “WC to one employee” in respect of which a premium of ₹25/- has been accepted has not been explained. Although it is contended by the insurer that the coverage of insurance by accepting said premium is to the driver of the vehicle, the said contention cannot be accepted having regard to the fact that the driver of the vehicle is statutorily required to be covered.

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It is further relevant to note that though the insurer has taken a defence regarding driving licence of the driver of the vehicle, the same has been negatived by the Tribunal and hence there is no requirement to give a finding regarding the said aspect of the matter.

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NC: 2024:KHC-D:16216 MFA No. 20619 of 2012

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The learned counsel for the respondent-

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insurer has relied on a judgment of Co-ordinate Bench of this

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Court in the case of Division Manager, United Insurance Company Ltd., v. Akkavva³ wherein it was held as follows:

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“25. In this connection, it is pertinent to refer to the decision of this Court in the case of United India Insurance Co. Ltd. v. Hanumanthappa, 2006 ACJ 2794 (Karanataka). In the said decision, it has been held that there is no statutory liability on the part of the insurer to cover the risk of all types of employees of the insured owning a motor vehicle, but only such of those employees within the meaning of workmen under the Workmen’s Compensation Act will have to be covered compulsorily. Therefore, the employees who are employed in connection with the motor vehicle as defined under Section 2(1)(n) will have the benefit of statutory coverage and the court also further held that on fact as the deceased and insured were not the employees employed in connection with the motor vehicle, but employed for agricultural work, the award against the insurer is bad in law. While laying down the above law, this Court also placed reliance on the decision of the Apex Court in National Insurance Co. Ltd. v. V. Chinnamma, 2004 ACJ 1909 (SC). and Ors.

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3 2008 ACJ 508

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The reliance placed by the learned counsel for

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the insurer on the judgment will not aid the case of the insurer since in the said case, the tractor-trailer was carrying 60-70 passengers when the accident occurred, which is not so in the present case wherein a claim petition has been filed only in relation to death of one employee.

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It is relevant to notice that the judgment of the Division Bench of this Court in the case of Oriental Insurance Company Limited, Ballari v. Mallikethi

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Basappa and others⁴ has been held as follows:

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“7. We would have appreciated the arguments of Mr. Seetharama Rao, provided the policy issued by the Company was only in respect of the engine of the Tractor but not the Trailer. The seating capacity of an engine is only one and only Driver can sit and drive the vehicle. The policy issued is not only for the Tractor, but also for the Trailer. It is known to the whole world that the loaders as employees of the owner can always sit in the Trailer either for loading purpose or unloading purpose. On considering the policy, we are of the opinion the appellant has undertaken to cover the risk of one Employee or a Driver. In the instant

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4 2012 (3) AIR Kar R 428

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case, the deceased was an employee who died in the accident during the course of his employment.”

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(Emphasis supplied)

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In view of the aforementioned, it is clear that

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the deceased being employee of the owner of the vehicle involved in the accident and the insurer having accepted a sum of ₹25/- to cover the risk of “WC to one employee” and no other claim having been made in respect of same accident, it is abundantly clear that the insurer is liable to pay the compensation awarded by the Tribunal.

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The finding of the Tribunal exonerating the insurer from payment of compensation awarded and fastening the same on the owner of the vehicle is contrary to the material on record and liable to be interfered with.

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Having regard to the judgment of the Division Bench in the case of Mellikethi Basappa⁴ and the factual matrix as noticed above, the finding of the Tribunal fastening the liability on the owner and exonerating the insurer from payment of the compensation is erroneous and is liable to be interfered with.

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NC: 2024:KHC-D:16216 MFA No. 20619 of 2012

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25. In view of the discussions made above, the

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above question framed for consideration is answered in the negative.

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Hence, the following:

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ORDER

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i) The above appeal is allowed and the judgment and award dated 05.11.2011, passed in MVC No.133/2010 by the Presiding Officer, Fast Track Court-I at Dharwad is modified only to the extent of holding that the compensation ordered to be paid by the Tribunal together with accrued interest is liable to be paid by the insurer of the vehicle, who is arrayed as respondent No.3 before the Tribunal and respondent No.4 in the present appeal. The finding of the Tribunal fastening the liability to pay the compensation awarded on the owner of the vehicle, who is respondent No.2 before the Tribunal and the appellant herein is set aside.

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ii) The judgment and the award of the Tribunal in all other respects remain unaltered.

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iii) The Statutory deposit of ₹25,000/- made by the appellant in the present appeal be refunded to the appellant.

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iv) Modified award to be drawn.

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Sd/(C.M. POONACHA) JUDGE

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YAN CT-ASC List No.: 1 Sl No.: 48

Mallappa S/O. Ningappa Karikatti v. Prashant S/O. Gangappa Ninggudagi

Case brief

What is this about?

What did the court decide?

Mallappa S/O. Ningappa Karikatti v. Prashant S/O. Gangappa Ninggudagi

Case brief

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What did the court decide?

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