Partly allowed

Sri. Bheemaiah v. Smt. Sulochanamma

Karnataka HC21 Nov 2024MFA/4737/2014

Case brief

AI extract

What is this about?

Two injured tractor occupants claiming to be loaders sought enhancement of compensation and insurance liability. Holding they travelled on the mudguard, the court exonerated the insurer but applied pay-and-recovery, and enhanced compensation in both appeals.

What did the court decide?

Both appeals allowed in part; compensation enhanced by Rs.46,500/- and Rs.41,120/- with 6% interest; insurer to pay first instance then recover from owner.

Sri. Bheemaiah Vs Smt. Sulochanamma — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:47439 MFA No. 4737 of 2014 C/W MFA No. 6125 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.4737 OF 2014 C/W MISCELLANEOUS FIRST APPEAL NO.6125 OF 2014 (MV-I)

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IN MFA No.4737/2014

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BETWEEN:

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SRI. BHEEMAIAH S/O LATE PUJARAIAH, AGED ABOUT 56 YEARS, RESIDING AT SANJEEVAIAHNA DODDI, BYRAMANGALA POST, BIDADI HOBLI, RAMANAGARA TALUK & DISTRICT, - 562 109.

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…APPELLANT

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(BY SRI. SHANTHARAJ K, ADVOCATE)

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AND:

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Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA

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SMT. SULOCHANAMMA W/O SUBBARAYAPPA, AGE: MAJOR, RESIDING AT CHOWKAHALLI VILLAGE, BIDADI HOBLI, RAMANAGARA TALUK & DISTRICT – 562 109.

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UNITED INDIA INSURANCE COMPANY LTD., REPRESENTED BY ITS MANAGER, NO. 1119, B.M.C. ROAD, MANDYA – 571 401.

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…RESPONDENTS (BY SRI. B A RAMAKRISHNA ADVOCATE FOR R2; R1 SERVED AND UNREPRESENTED)

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NC: 2024:KHC:47439 MFA No. 4737 of 2014 C/W MFA No. 6125 of 2014

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.01.2014 PASSED IN MVC NO. 92/2008 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO.6125/2014

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BETWEEN:

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KARIYAPPA S/O. LATE MASTHAIAH, AGED ABOUT 56 YEARS, R/AT SANJEEVAIAHANA DODDI, BYRAMANGALA POST, BIDADI HOBLI, RAMANAGARA TALUK - 562 109.

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...APPELLANT

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(BY SRI. SHANTHARAJ K, ADVOCATE)

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AND:

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SMT. SULOCHANAMMA W/O SUBBARAYAPPA, AGED MAJOR, R/AT CHOWKAHALLI VILLAGE, BIDADI HOBLI, RAMANAGARA TALUK-562109.

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UNITED INDIA INSURANCE CO. LTD. REP. BY ITS MANAGER, NO.1119/B.M.C. ROAD, MANDYA – 571 401.

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...RESPONDENTS

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(BY SRI. B A RAMAKRISHNA ADVOCATE FOR R2; R1 SERVED)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.12.2013 PASSED IN MVC NO.86/2008 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGARA, PARTLY ALLOWING THE CLAIM

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PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION

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THESE APPEALS, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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These appeals are filed by the claimants challenging the judgment and award dated 22.01.2014 & 28.12.2013 passed in MVC.Nos.92/2008 & 86/2008 respectively by the Additional Senior Civil Judge, Ramanagara, seeking enhancement of compensation as well as modification of liability fastened on the owner of the offending vehicle by exonerating the Insurance Company.

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It is the case of the claimants that on 26.10.2007 at about 6.00 pm., when the claimants were travelling in a tractor bearing No.KA-05-T-2732 and trailor 2733 as a loader and going to Mayaganahalli, the driver of the tractor drove the vehicle with high speed and in a rash and negligent manner and lost control of the vehicle and

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thereby the vehicle turned turtle. Due to which, the claimants suffered grievous injuries. Therefore, the claimants filed the claim petitions under Section 166 of Motor Vehicle Act (for short 'the Act' ) seeking compensation.

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The Tribunal has awarded compensation of Rs.38,080/- in MVC.No.86/2008 (MFA.No.6125/2014) and Rs.38,100/in MVC.No.92/2008 (MFA.No.4737/2014) along with interest at the rate of 6% p.a., from the date of petition till realization by fixing liability on respondent No.1-owner by exonerating respondent No.2-Insurance Company to pay compensation.

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The Tribunal has assigned the reason that the claimants were sitting on the mudguard and hence, it is infraction of terms and conditions of the Insurance Policy and there is violation of Regulation 28 of Rules of the Road Regulations, 1989. Therefore, exonerated the Insurance Company and fixed the liability on the owner of tractor and trailer.

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Learned counsel for the appellants/claimants

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submitted that claimants were loaders/coolie under the employment of respondent No.1 and therefore, their risk is covered under Section 147 of the Act. Therefore, exonerating the Insurance Company is not correct as the Insurance Policy is miscellaneous type of package policy issued to tractor and trailer and also prays for enhancement of compensation.

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Learned counsel for the appellants/claimants has placed reliance on the judgment of this Court as well as the Hon’ble Supreme Court in the case of

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B.T.BASAVARAJA @ BASANNA VS. S.H.JAYANNA REDDY AND ANOTHER¹ and NATIONAL INSURANCE CO., LTD., VS. BALJIT KAUR AND OTHERS² .

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On the other hand, learned counsel for respondent No.2-Insurance Company submitted that, the claimants were not loaders/coolie working under the

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1 MFA.NO.3320/2013 C/W MFA.NO.2413/2013 DD.09.09.2024

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2 (2004) 2 SCC 1

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employment of respondent No.1. Therefore, their risk under Section 147 of Act is not covered and further submitted that the claimants are not loaders/coolie under the employment of respondent No.1. But the claimants on their own were transporting wooden logs in the tractor and trailer for taking them to their own house, but not at the instruction of respondent No.1-owner of tractor and trailer. Therefore, in this way, the claimants were not loaders/coolie.

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It is further submitted from the evidence on record it is proved, that the claimants were sitting on mudguard of the tractor. Hence, the person who sits on the mudguard of the tractor is not covered under Section 147 of Act. In this regard, he places reliance on the following judgments:

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a) Gadhilingappa and Another Vs. K.Guleppa and Others-2021 ACJ 2588

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b) National Insurance Co., Ltd., & Others Vs. Chandrappa and Others – MANU/KA/0982/2011

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The claimant in MVC.No.86/2008 is examined as P.W.1 and claimant in MVC.No.92/2008 is examined as P.W.1 in the respective claim petitions. It is the case of claimants that they were travelling in the tractor and trailer as loaders/coolie under the employment of respondent No.1 at the instruction of respondent No.1 for transportation of wooden logs and in that process, the tractor and trailer met with an accident and sustained injuries.

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Upon considering the evidence of P.W.1, crossexamination of the claimants in their respective petitions, the claimant-Kariyappa in MVC.No.86/2008 has admitted that himself and Bheemaiah have gone for coolie work as loaders, as they were working under the employment of respondent No.1.

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This claimant Kariyappa admitted in the crossexamination that these coolie workers were not transporting the load on behalf of the first respondent, but

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they were transporting to their house in the village. But the claimant Bheemaiah in MVC No.92/2008 admitted in the cross-examination that the wooden logs were belonging to the 1^st respondent/owner and 1^st respondent owner had purchased the said wooden logs and were being transported in the tractor and trailor for giving it to some other persons for construction of shed for silk worms. Therefore, there is variation in the admissions made by these two claimants in the cross-examination of claimants Kariyappa and Bheemaiah. The claimant Kariyapa has stated that they were not transporting wooden logs on behalf of the 1^st respondent, but on their own to their house, they were transporting the wooden logs. But the claimant Bheemaiah had stated that the wooden logs were purchased by 1^st respondent/owner and were being transported on behalf of the 1^st

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respondent/owner to some other person.

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Upon considering these two admissions in their

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evidence respectively, though there is variance as above

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discussed but in the claim petitions they have stated that they were working as loaders/coolie under the employment of respondent No.1. Though the claimant Kariyappa had stated that wooden logs were being taken to their house, but not on behalf of respondent No.1, it can be considered as stray admission. By the pleadings and contention taken by the claimants that they were working as loaders/coolies under respondent No.1/owner is proved from the evidence of claimant Bheemaiah. Therefore, they are considered as loaders/coolie, who were working under the employment of respondent No.1.

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Learned counsel for the appellants/claimants submitted that as per Section 147 of the M.V. Act, the risk of these claimants are also covered as they are loaders/coolie working under the employment of respondent No.1. But on the other hand, learned counsel for the respondent/Insurance Company submitted these claimants and another person were travelling in the tractor trailor by sitting on the mudguard of the tractor.

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Therefore, as per decision of the Full Bench of this Court in the case of GADHILINGAPPA's case for the persons, who travel by sitting on the mudguard, the risk is not covered as per Section 147 of the Act. Therefore, the Insurance Company is not liable to pay the compensation and justified the judgment and award passed by the trial Court.

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Upon considering evidence of both the claimants - Kariyappa and Bheemaiah, it is unequivocally proved that these claimants and another coolie worker by name Raju were travelling in the tractor trailor by sitting on the mudguard. The claimant Kariyappa has admitted in his cross-examination that himself, Bheemaiah and Raju were sitting on the tractor engine. The claimant Bheemaiah in his cross-examination has admitted that himself, Kariyappa and Raju were sitting on the front portion of the Tractor. Upon considering the admissions of these claimants it is unequivocally proved that the claimants were sitting either on the engine or on the

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mudguard of the tractor. Since there is no space to sit on the tractor engine and therefore, it can be safely inferred from the evidence revealed that these claimants were sitting on the mudguard of the tractor. Then the question comes before this Court for consideration is whether for the persons who travel by sitting on the mudguard, whether the risk is covered under Section 147 of the Act. In very similar facts and circumstances involved in the case, when the above said point is referred by several judgments of Two Division Benches of this Court referred to the Full Bench and the Hon’ble Full Bench of this Court

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in GADHILINGAPPA's case has held that for persons, who travels by sitting on the mudguard, the risk is not covered as per Section 147 of the M.V. Act. It is profitable to refer the law laid down in the judgment at paragraph numbers 33 and 34 which reads as follows :-

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"33. Hence, in view of the decisions of the Apex Court in the case of V. Chinnamma, Shivaraj and Darshana Devi (supra) and he analysis made above, we have no manner of

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NC: 2024:KHC:47439 MFA No. 4737 of 2014 C/W MFA No. 6125 of 2014

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doubt that the liability of a person working eiher on the ploughing machine or crushing machine attached to the tractor and who is traveling on the mudguard of the tractor is not required to be covered by the statutory insurance as contemplated under sub-section (1) of section 147 of the MV Act.

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Question Nos.(II) and (III) :

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34. The question Nos.(II) and (III) relate to the persons who are working either on the ploughing machine or crushing machine or any other instrument/equipment attached to a tractor. The question is whether they can be construed as employees so as to cover their risk statutorily under section 147 of the MV Act. Considering the definition of 'trailer' which we have already quoted above, a ploughing machine or a crushing machine attached to a tractor is not a trailer. The definition of 'semitrailer' contained under clause (39) of section 2 makes it very clear that a 'semi-trailer' is not a trailer. A semi-trailer means a vehicle not mechanically propelled (other than a trailer), which is intended to be connected to a motor vehicle and which is so constructed that a

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portion of it is super-imposed on, and a part of whose weight is borne by, that motor vehicle. Therefore, every instrument including ploughing machine or curshing attached to a tractor will not necessarily be a trailer. At the highest, it can be a semi-trailer. Even assuming that the said two categories of equipment are semitrailers, the same are not the motor vehicle covered by clause (28) of section 2 of the MV Act. Since a semi-trailer is not a motor vehicle, the provisions of Section 147 of the MV Act deals with insurance of motor vehicles. Even assuming that it is an attachment to the tractor, it is not required to be covered by a statutory policy of insurance as such attachments are not motor vehicles. In view of sub-clauses (a) to (c) of clause (i) of proviso to sub-section (1) of section 147 of the MV Act, the liability of employees working on such instruments like ploughing machine or crushing machine attached to a tractor is not required to be covered by a policy of insurance in respect of a tractor issued in terms of sub-section (1) of section 147 of the MV Act."

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Therefore, for the persons who sit on the mudguard and travel the compulsory risk as per Section 147 of the Act is not covered. Therefore, as per the principle of law laid down by the Hon’ble Full Bench of this Court, the Insurance Company is not liable to pay compensation and the Tribunal is correct in holding that the Insurance Company is not liable, but the owner of the tractor and trailor is liable to pay compensation. The decision relied on by the counsel for the claimant/appellant in B.T. BASAVARAJA case supra, that even for the persons who sits on the mudguard of the tractor, the risk is covered under Section 147 of the M.V.Act, cannot be followed as it is per in curium and contrary to the decision of Full Bench of this Court in GADHILINGAPPA .

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In the case of BALJIT KAUR supra a minor boy travels in the cabin of the lorry as gratuitous passenger, hence under these facts and circumstances, it was ordered that liability of the Insurance Company is exonerated, but order of pay and recovery is made. The Hon’ble Supreme

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Court in the case of V.RANGANATHAN AND OTHERS VS.

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THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED AND OTHERS³ on the factual matrix that the deceased has travelled by sitting on the mudguard of the tractor, which met with an accident and died, it was held that the Insurance Company is not liable to pay compensation but an order of pay and recovery was made. Further the Hon’ble Supreme Court in the case of SHIVARAJ Vs. RAJENDRA AND ANOTHER⁴ under similar set of facts and circumstances held that the claimant traveled on the tractor as a passenger the Insurance Company was not liable to pay compensation, but an order of pay and recovery was made.

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Under these circumstances, the Hon’ble Supreme Court in similar set of facts and circumstances also stated an order of pay and recovery is made directing the Insurance Company to pay the compensation at the first instance and then recover it from the owner of the

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3 MANU-SC-1705-2022

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4 (2018) 10 SCC 432

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offending vehicle. Therefore, by following the aforesaid judgment of the Hon’ble Supreme Court, in these cases also it is found that the claimants have travelled by sitting on the mudguard of the Tractor. Though, as per the judgment of Full Bench of this Court in GADHILINGAPPA's case, the claimants risk is not covered under Section 147

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of the Act, the liability of Insurance Company is exonerated, but on the principle of pay and recovery as discussed above, it is directed the Insurance Company shall pay the compensation at the first instance to the claimants and then recover it from the respondent No.1/owner of the tractor and trailor. Accordingly, in this case also an order of pay and recovery is made. Liberty is reserved to the Insurance Company to file execution petition directly before the concerned jurisdictional Executing Court for recovery of the amount from the 1^st respondent/owner after satisfying the amount to the claimants.

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Regarding quantum of compensation:

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In MFA No.6125/2014 (MVC No.86/2008):

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In this appeal it is proved that the claimant suffered fracture of right hand and the Tribunal in MVC No.86/2008 has awarded compensation as follows :-

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1.	Pain and agony	Rs.15,000/-
2.	Loss of income during treatment	Rs. 3,000/-
3.	Rest, nourishment and Attendant Charges	Rs. 500/-
4.	Loss of Amenities	Rs. 5,000/-
5.	Loss of future income	Rs.14,580/-
	Total	Rs.38,080/-

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The amount of compensation awarded by the Tribunal towards pain and agony is found to be on the lesser side, hence the claimant is entitled for enhancement of compensation. Accordingly a sum of Rs.20,000/- is awarded towards injuries, pain and suffering

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Accident has occurred on 26.10.2007, therefore, notional income of Rs.4,000/- per month is to

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be considered. Further the compensation of Rs.8,000/- (Rs.4,000/- x 2) is awarded towards loss of income during treatment period/laid up period.

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The claimant has not produced documents relating to medical bills and hospital charges. Even though the claimant has not produced any documentary evidence for having spent amount towards medical expenses and the treatment details, but it is a fact that the claimant must have spent some amount towards medical expenses and incidental charges and accordingly, taking judicial notice of this fact, compensation of a sum of Rs.5,000/- is awarded towards medical expenses and incidental charges i.e., food, nourishment, attendant charges, travelling and conveyance etc.

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Further a compensation of Rs.15,000/- is awarded towards loss of amenities.

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PW.2 is the Doctor, who has stated that claimant has suffered total permanent physical impairment at 14.5%, but has not stated what is the disability towards whole body. Though PW.2 is not the treated Doctor, but is a qualified medical practitioner who can assess the disability. Therefore, considering that the claimant has suffered 14.5% permanent physical disability to left hand, but impairment to the whole body is to be considered at 5%. In the wound certificate the age of the claimant is shown as 50 years. Therefore, the age of the claimant is considered as 50 years. Accordingly the multiplier to be adopted is '13'. Therefore, loss of income due to disability is hereby quantified as follows:-

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Rs.4,000 x 5/100 x 13 x 12 = Rs.31,200/-

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Thus in all the claimant would be entitled to

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enhanced compensation as follows :-

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1.	Injuries, pain and suffering	Rs.20,000/-
2.	Loss of income during treatment	Rs. 8,000/-
	for two months (4,000 x 2)

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3.	Medical and incidental charges food, nourishment and Attendant Charges	Rs. 5,000/-
4.	Loss of Amenities	Rs.15,000/-
5.	Loss of income due to disability	Rs.31,200/-
	Total	Rs.79,200/-

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The Tribunal has awarded compensation of Rs.38,080/-. But, the appellant/claimant is entitled to total compensation of Rs.79,200/-. Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.41,120/- (Rs.79,200/- - Rs.38,080/-) along with interest at the rate of 6% p.a., from the date of petition till the date of payment.

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In MFA No.4737/2014 (MVC No.92/2008):

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In this appeal it is proved that the claimant suffered fracture of right 10^TH RIB, compression fracture T- 12 and fracture of nosal bone and the Tribunal has awarded compensation as follows :-

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1.	Pain and suffering	Rs.20,000/-
2.	Loss of amenities	Rs. 5,000/-

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3.	Loss of future earnings		Rs. 8,100/-
4.	Rest, nourishment attendant charges	and	Rs. 500/-
5.	Loss of income treatment	during	Rs.4,500/-
	Tot	al	Rs.38,100/-

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Compensation of an amount of Rs.30,000/- awarded by the Tribunal towards pain and agony stands undisturbed.

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Accident has occurred on 26.10.2007, therefore, notional income of Rs.4,000/- per month is to be considered. Further the compensation of Rs.8,000/- (Rs.4,000/- x 2) is awarded towards loss of income during treatment period/laid up period.

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The claimant has not produced documents relating to medical bills and hospital charges. Even though the claimant has not produced any documentary evidence for having spent amount towards medical expenses and the treatment details, but it is a fact that the claimant must have spent some amount towards medical expenses

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and incidental charges and accordingly, taking judicial notice of this fact, compensation of a sum of Rs.5,000/- is awarded towards medical expenses and incidental charges i.e., food, nourishment, attendant charges, travelling and conveyance etc.

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Further a compensation of Rs.20,000/- is awarded towards loss of amenities.

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PW.2 is the Doctor, who has stated that claimant has suffered total permanent physical impairment at 10%, but has not stated what is the disability towards whole body. Therefore, considering that the claimant has suffered 10% permanent physical disability, impairment the whole body is to be considered at 5%. In the wound certificate the age of the claimant is shown as 60 years. Therefore, the age of the claimant is considered as 60 years. Accordingly the multiplier to be adopted is '9'. Therefore, loss of income due to disability is hereby quantified as follows:-

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Rs.4,000 x 5/100 x 9 x 12 = Rs.21,600/-

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Thus in all the claimant would be entitled to

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enhanced compensation as follows :-

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1.	Injuries, pain and suffering	Rs.30,000/-
2.	Loss of income during treatment for two months (4,000 x 2)	Rs. 8,000/-
3.	Medical and incidental charges food, nourishment and Attendant Charges	Rs. 5,000/-
4.	Loss of Amenities	Rs.20,000/-
5.	Loss of income due to disability	Rs.21,600/-
	Total	Rs.84,600/-

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The Tribunal has awarded compensation of Rs.38,100/-. But, the appellant/claimant is entitled to total compensation of Rs.84,600/-. Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.46,500/- (Rs.84,600/- - Rs.38,100/-) along with interest at the rate of 6% p.a., from the date of petition till the date of payment.

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Hence I proceed to pass the following:-

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ORDER

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a. MFA No.4737/2014 and MFA No.6125/2014 are

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allowed in part .

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b. In MFA No.4737/2014. the judgment and award dated 22.01.2014 passed in MVC No.92/2008 by the Additional Senior Civil Judge, Ramanagara, is modified and the appellant/claimant is entitled to enhanced compensation of Rs.46,500/- (Rs.84,600/- - Rs.38,100/-) along with interest at the rate of 6% p.a., from the date of petition till the date of payment.

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c. In MFA No.6125/2014, the judgment and award dated 28.12.2013 passed in MVC.No.86/2008 by the Additional Senior Civil Judge, Ramanagara, is modified and the appellant/claimant is entitled to enhanced compensation of Rs.41,120/- (Rs.79,200/- - Rs.38,080/-) along with interest at the rate of 6% p.a., from the date of petition till the date of payment.

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d. In both the above appeals, the 2^nd

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respondent/Insurance Company at the first instance is liable to pay compensation to the claimants and then recover it from 1^st

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respondent/owner of the offending vehicle bearing No.KA-05-T-2732.

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e. The enhanced compensation shall not carry interest for the delayed period of 40 days in MFA.No.4737/2014 and 171 days in MFA.No.6125/2014.

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