IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THIS THE 12th DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL M.F.A. No.5864/2010 (MV) c/w M.F.A. No.5867/2010 (MV) IN M.F.A. No.5864/2010 (MV): BETWEEN :
Chowdamma D/o Govindappa Aged about 21 years R/o Nimmoji Kothoor Village and Post, Kasaba Hobli, Chintamani Taluk, Chikkaballapur District.
… Appellant (By Sri G.M.Srinivasa Reddy, Advocate) AND :
1. Sri P.V.Surendra S/o K.Venkatarayappa Lorry owner bearing Reg. No.KA-01-8166 53-52, S.K.R.Market Bangalore-560 002.
2. M/s. United India Insurance Co. Ltd., Polytechnic Road Chintamani (Policyl No.25923 valid from 07.02.2001 to 06.02.2002) … Respondents (R1-Served and unrepresented;
Sri T. Mohan Kumar, Advocate for R2) This MFA is filed under Section 173(1) of the MV Act, 1988 against the judgment and award dated 02.02.2010 passed in MVC No.57/2001 on the file of the Civil Judge (Sr. Dn.) and JMFC, MACT, Chinthamani, partly allowing the claim petition for compensation and seeking enhancement of compensation.
IN M.F.A. No.5867/2010 (MV):
BETWEEN :
Smt. Lakshmidevamma W/o Narayanaswamy Aged about 37 years R/o Nimmoji Kothoor Village and Post, Kasaba Hobli, Chintamani Taluk, Chikkaballapur District.
… Appellant (By Sri G.M.Srinivasa Reddy, Advocate) AND :
1. Sri P.V.Surendra S/o K.Venkatarayappa Lorry owner bearing Reg. No.KA-01-8166 53-52, S.K.R.Market Bangalore-560 002.
2. M/s. United India Insurance Co. Ltd., Polytechnic Road, Chintamani.
(Policy No.25923 valid from 07.02.2001 to 06.02.2002) … Respondents (By Sri T. Mohan Kumar, Advocate for R2; R1-Served and unrepresented) This MFA is filed under Section 173(1) of the MV Act, 1988 against the judgment and award dated 02.02.2010 passed in MVC No.35/2001 on the file of Civil Judge (Sr. Dn.) and JMFC, MACT, Chinthamani, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These MFAs coming on for admission this day, the Court delivered the following:-
J U D G M E N T These two appeals have been preferred by the claimants against the common judgment and award dated 2.2.2010 passed by the Civil Judge (Senior Division) and MACT, Chinthamani, in MVC.Nos.35/2001 and 57/2001.
2. Though these appeals are listed for admission, with the consent of both parties, they are heard finally.
3. Brief facts of the case leading to the case are that on 2.6.2001 at about 9.00 a.m., the claimants- appellants were proceeding in a lorry bearing Regn.No.KA-01-8166 along with other coolies. They were engaged to pluck mango fruits and load them in the said lorry. When they reached Badagurupalli Cross, Chinthamani Chelur Road, the driver of the said lorry drew the same rashly and negligently, due to which, it met with an accident and as a result of the same, both the claimants fell down and sustained grievous injuries.
Immediately thereafter, they were shifted to the hospital wherein they were treated as inpatients. They filed claim petitions before the Tribunal seeking compensation for the accidental injuries suffered by them.
4. In pursuance of the notice issued by the Tribunal, respondent No.1, the owner of the lorry has remained exparte, whereas the respondent-Insurance Company entered its appearance and contested the matter denying the averments of the claim petitions and contending that as the driver of the lorry was not having any valid and effective driving license, the Insurance Company is not liable to pay the compensation. It has further contended that the claimants were not travelling in the lorry as coolies and there is no proof for the same. On these grounds, they prayed for dismissal of the claim petitions.
5. On the basis of the above pleadings the Tribunal after framing necessary issues and after hearing the parties to the lis, has awarded total compensation of Rs.63,100/- to the claimant in MVC.No.35/2001 (appellant in MFA.No.5867/2010) and Rs.33,000/- to the claimant in MVC.No.57/2001 (appellant in MFA.No.5864/2010) with interest at 6% per annum from the date of petitions till realization. But however, as the claimants were travelling as gratuitous passengers, the petitions as against respondent No.2-Insurance Company came to be dismissed. By assailing the impugned judgment and award, the claimants are before this Court in these appeals for enhancement of the amount of compensation awarded by the Tribunal.
6. Learned counsel for the appellants has contended that the claimant in MVC.No.35/2001 has lost her right hand finger. She sustained amputation of right middle finger and amputation of right ring finger. Due to the said injuries, she is now unable to work as coolie. This aspect has not been properly appreciated and considered by the Tribunal. The compensation awarded by the Tribunal under various heads is on the lower side. The claimant in MVC.No.57/2001, has sustained the fracture of lower end of radium. She was inpatient from 2.6.2001 to 27.6.2001 and spent huge amount for medical expenses. But no amount for medical expenses is granted by the Tribunal. The appellants were travelling in the lorry as loaders and unloaders and the owner of the lorry took them for the purpose of plucking mango fruits and loading them in the said lorry. When the said lorry was intended to proceed for the purpose of said work and at that time the accident has taken place, the policy which has been issued by the respondent-Insurance Company covers the risk of the loaders and unloaders. He has further contended that an additional premium of Rs.135/- has also been collected for the purpose of covering the risk of loaders and unloaders and as such he prayed that Insurance Company is liable to pay the compensation and hence, the Tribunal ought not to have dismissed the petitions as against the Insurance Company. On these grounds, he requested to allow the appeals.
7. Per contra, the learned counsel appearing for the Insurance Company has vehemently argued and contended that as per Section 147 of the Motor Vehicles Act (‘Act’ for short), the liability in respect of the death of the deceased or bodily injury to any person, including owner of the goods or his authorized representative carried in the goods vehicle is going to be covered only in respect of authorized representatives carried in the vehicle or the third party who is carried along with the properties. He has further contended that in the instant case, the appellants were proceeding in the lorry as coolies and apart from that some other persons were also travelling in the said vehicle and the said vehicle was empty at the time of accident. The claimants were not proceeding along with the goods. Hence, in view of the amended Act, the Insurance Company is not liable to pay any compensation to the claimants. He has further contended that by reason of the 1994 Amendment what was added is ‘including the owner of the goods or his authorized representative carried in the vehicle’. The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorized representative carried in the vehicle besides the third parties and hence, the Insurance Company is not liable to pay the compensation. In order to substantiate the said contention, he has relied upon a decision of the Apex Court in the case of M/s.National Insurance Co.Ltd., Vs. Baljit Kaur & others, reported in AIR 2004 SC 1340.
8. He has further contended that the claimant in MVC.No.57/2001 cannot be considered to be a coolie since she was aged about 12 years at the time of accident. The minor cannot be considered as a loader or unloader in the said lorry and also she cannot be considered as a coolie so as to cover the risk by virtue of the insurance policy. At any stretch of imagination, the Insurance Company cannot be held to be liable to pay compensation. Keeping in view the facts and circumstances, the Tribunal has rightly rejected the claim petitions as against the Insurance Company and thereby he prays for dismissal of the appeals.
9. It is his further contention that if at all the Court comes to the conclusion that the Insurance Company is liable to pay the compensation, one more opportunity has to be given to the Insurance Company to substantiate its case by producing additional evidence before the Tribunal, as such he prays for remanding the matter back to the Tribunal for fresh disposal in accordance with law.
10. I have gone through the contentions raised by the learned counsel appearing for the parties and perused the records.
11. As could be seen from the records, the claimant in MVC.No.35/01 (appellant in MFA.No.5867/2010) has lost her right hand finger. She sustained amputation of right middle finger and amputation of right little finger. She was admitted in the hospital as inpatient and took the treatment for five days. It is the specific contention of the learned counsel for the appellants that because of the said injuries she suffered permanent disability and now she cannot carry any coolie work and as such the Tribunal ought to have awarded the compensation towards permanent disability which she has suffered in the accident in question.
12. On perusal of the records it would indicate that in order to substantiate the fact that she sustained the permanent disability and what is the percentage of the permanent disability, the doctor who has treated her, has not been examined and no documents have also been produced by the claimant. But however, as could be seen from the wound certificate at Ex.P4, she lost her right hand middle finger, and little finger. In the absence of any material, after taking the judicial notice, this Court can grant some amount towards discomfort, disfiguration and amputation. In that light, if an amount of Rs.40,000/- is granted towards pain and suffering, it would meet the ends of justice.
13. As the claimant has been treated for 25 days and there is amputation of the fingers, she might have taken rest for minimum period of three months and at that time, she might have lost her earnings. In that light, she is entitled to an amount of Rs.9,000/- towards loss of income during laid up period.
14. The Tribunal has not considered the loss of amenities to the claimant because of the amputation of the fingers. Hence, an amount of Rs.25,000/- is awarded under the head of loss of amenities.
15. By taking into consideration the medical expenses spent under Ex.P5, the Tribunal has awarded Rs.3,100/- and the same is left undisturbed. Though the learned counsel for the appellants has submitted that the claimant in MVC.No.35/2001 has spent huge amount towards medical expenses, no documentary evidence is produced in that regard. Hence, it cannot be enhanced.
16. The Tribunal has come to the conclusion that an amount Rs.50,000/- has to be awarded towards amputation of two fingers which has no basis. But however looking to the facts and circumstances, and she has lost two fingers, the said amount is not disturbed.
17. Since the appellant-claimant was inpatient for a period of 25 days and she also took treatment for a period of three months, she might have taken the assistance of an attendant and she might have incurred some amount for diet, food and nourishment. In that light, an amount of Rs.10,000/- is awarded under the said head.
18. In view of the above, the claimant in MVC.No.35/2001 is awarded total compensation of Rs.1,37,100/-. After deducting the amount of Rs.63,100/- already awarded by the Tribunal, she is awarded additional compensation of Rs.74,000/- with interest at 6% per annum.
19. In so far as the claimant in MVC.No.57/2001 (appellant in MFA.No.5864/2010) is concerned, the records disclose that she has sustained fracture of lower end of radium. She was admitted to hospital on 2.6.2001 and discharged on 27.6.2001. Keeping in view the injuries and other aspects of the matter, I feel that the compensation awarded by the Tribunal under the various heads appears to be on the lower side.
20. In that light, an amount of Rs.40,000/- is awarded for pain and suffering; an amount of Rs.10,000/- is awarded towards attendant charges, diet and nourishment and other charges; Rs.9,000/- for loss of income during laidup period.
21. Though during the course of evidence, it has been stated that an amount of Rs.20,000/- has been spent towards medical expenses, no document was produced in this behalf. In view of the injuries sustained by the claimant and she was admitted in the hospital, if an amount of Rs.2,000/- is awarded towards medical expenses, it would meet ends of justice. The amount of Rs.25,000/- awarded for fracture of lower end of left radius is left undisturbed.
22. In that light, the claimant in MVC.No.57/2001 is granted total compensation of Rs.86,000/-. After deducting the amount of Rs.32,455/- which is rounded off to Rs.33,000/- already awarded by the Tribunal, she is awarded additional compensation of Rs.53,000/- with interest at 6% per annum.
23. It is the specific contention of the Insurance Company that the claimants were the passengers in the goods carriage vehicle and they were not working as loaders and unloaders, as such the Insurance Company is not liable to pay any compensation. But as could be seen from the records, it was specifically contended by the claimants that the said vehicle was brought for the purpose of taking the claimants in the said lorry as coolies to carry them to the place of the mango trees to pluck mango fruits from the trees and to load them in the lorry. Even the claimants have deposed to the said effect. During the course of cross-examination by the Insurance Company nothing has been elicited so as to discard the said evidence. Be that as it may, though the Insurance Company has raised such contention, in order to substantiate the same they have not stepped into the witness box and have not produced any evidence. In the absence of any such material, it cannot be held that claimants were not loaders and unloaders.
24. On careful consideration of the insurance policy, an amount of Rs.135/- has been specifically collected to cover the risk of loaders and unloaders of the said vehicle. When a specific contract has been entered into between the insured and the insurer to cover the risk of loaders and unloaders, then under the circumstances, the contention of the Insurance Company cannot be accepted in law. Though the learned counsel for the Insurance Company has brought to the notice of this Court the provisions of Section 147 of the Act, on careful consideration of the said provision and when a specific contract has been entered into between the insured and the insurer to cover the risk of the loaders and unloaders by paying additional premium, then under such circumstances, the said provisions of Section 147 of the Act are not applicable to the facts of the present case.
25. It is well established principle of law that the provisions of the policy if read as a whole, make clear that the insurer has undertaken to indemnify the insured’s legal liability for the risks of coolies employed by him in connection with loading and/or unloading the motor vehicle arising in the course of its use. In the case of United India Insurance Co.Ltd. Vs. Thimmawwa, reported in ILR 1989 KAR 1303, this Court has specifically observed that when insurer and insured have entered into such an agreement, then under such circumstances, the risk of the coolie is to be covered under the policy which has to be indemnified and the insurer is liable to pay the compensation.
26. Keeping in view the ratio laid down in the aforesaid decision, not fastening the liability on the Insurance Company to pay the compensation by the Tribunal, appears to be not justifiable and liability has to be fixed on the Insurance Company.
27. Though during the course of arguments, it is contended by the learned counsel for the Insurance Company that the claimant in MVC.No.57/2001 was aged about 12 years and she cannot be considered to be a coolie for the purpose of loading and unloading the lorry, the situations of the case are to be taken into consideration while considering the beneficial legislation. When there is a specific contention of the claimants that she was going in the said lorry as a loader and unloader to pluck mango fruits and to load them in the lorry, under such circumstances, she can also be considered as a coolie even though she being aged about 12 years. If at all there is any violation of the Child Labour Act, it is a different proceeding under different forum wherein the owner of the lorry can be prosecuted or punished in this behalf. The Tribunal in question is not having any jurisdiction to take into account on that aspect and dismiss the claim petition in that regard.
In view of the above, the appeals are partly allowed. The liability has been fixed on the Insurance Company to pay the compensation to the claimants. The impugned judgment and award is modified to the extent as indicated above.
The Insurance Company is directed to deposit the additional compensation amount with interest thereon within six weeks from the date of receipt of a copy of this order, before the Tribunal.
Registry to draw the decree accordingly and send back the records forthwith.
Sd/- JUDGE *ck/-