IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY ACTING CHIEF JUSTICE MFA NO.3908 OF 2012 (MV) BETWEEN:
H.B. THIMMAIAH S/O H.R. BASAIAH AGED ABOUT 50 YEARS R/O GOWDAGERE VILLAGE CHALLAKERE TALUK – 577 522 CHITRADURGA DISTRICT.
... APPELLANT (BY SRI S.C. VIJAYAKUMAR, ADVOCATE) AND:
1. DURUGAPPA S/O HOSAHALLY AGED ABOUT 39 YEARS WEAVER 2. SMT. RENUKAMMA W/O DURUGAPPA AGED 36 YEARS COOLIE WORK BOTH ARE R/AT GOWDAGERE VILLAGE CHALLAKERE TALUK – 577 522 CHITRADURGA DISTRICT.
3. THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD.
DIVISIONAL OFFICE, P.J. EXTENSION M.M.K. COMPLEX DAVANAGERE – 577 002.
... RESPONDENTS (BY SRI K.M. NAGARAJA, ADVOCATE FOR R1 & R2 SRI B.C. SEETHARAMA RAO, ADVOCATE FOR R3) ---
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.01.2012 PASSED IN MVC NO.70/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, CHALLAKERE, AWARDING A COMPENSATION OF RS.2,25,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the owner of the vehicle seeking to set aside the judgment and award dated 09.01.2012 passed by the Tribunal insofar as it relates to fastening the liability on him to satisfy the award amount.
2. A complaint came to be filed by the father of the deceased alleging that on 28.04.2011, the owner- cum-driver of tractor bearing registration No.KA-16/ T-7033-34 shifted manure from the complainant’s land and after unloading the same, he drove the vehicle in a rash and negligent manner and dashed against the daughter of the complainant resulting in her death. On the basis of the said complaint, a case was registered in Crime No.57/2011 for the offences punishable under Sections 279 and 304(A) of IPC and after investigation, charge sheet came to be filed. Upon claim petition being filed by the parents of the deceased, the Tribunal awarded total compensation of Rs.2,25,000/- with interest at 6% p.a. and held the owner of the vehicle liable to pay the said sum. Feeling aggrieved, the owner of the vehicle has come up in this appeal.
3. The only ground urged by learned counsel for the appellant is that during the cross-examination, PW.1, who is the father of the deceased, has stated that it was agreed to load the manure for an amount of Rs.500/- whereas, in Ex.P.1 -FIR, there is no mention regarding the same. He further submitted that this aspect has been misinterpreted by the Tribunal by holding that the owner of the vehicle had agreed for loading and unloading of manure from the land of PW.1 for Rs.500/- and hence, shifted the liability on the owner. He, therefore, requests for setting aside that part of the award.
4. Learned counsel for the respondents, by relying on the evidence of PW.1 in his cross-examination and by referring to Ex.P.7 - charge sheet, submits that the appellant was transporting manure to his land, which amounts to using the vehicle for non-agricultural purpose and therefore, the Tribunal has rightly fastened the liability on him. Hence, prayed for dismissal of the appeal.
5. I have heard learned counsel for the parties and have gone through the evidence of PW.1, Ex.P.1 - FIR and also Ex.P.7 - charge sheet.
6. The cross-examination of PW.1 reveals that it was agreed to load the manure from the land belonging to PW.1 and to unload the same to the land of the accused for an amount of Rs.500/-. However, Ex.P.1 -FIR is silent regarding the amount and also as to whose land the manure was to be unloaded. It is stated in Column No.7 of Ex.P.7 - charge sheet that while the accused was returning back from his land after unloading the manure, the accident has taken place. A conjoint reading of Ex.P.1 and Ex.P.7 with reference to cross-examination of PW.1 go to show that the accident took place while transporting the manure.
7. It is seen from the material on record that the manure was transported to the land belonging to the owner, which is an activity related to agriculture and not for commercial purpose. Further, collection of Rs.500/- was for value of the manure and not for transporting the manure. Virtually, the manure was purchased by the owner from the complainant and was unloaded to his land. The insurance company has failed to establish that the tractor was used for commercial purpose and an attempt is made to avoid payment of compensation. In these circumstances, I hold that the vehicle was used for agricultural purpose for which the policy was issued.
In the result, the appeal is allowed. The judgment and award of the Tribunal dated 09.01.2012 is modified insofar as it relates to fastening the liability on the owner of the vehicle. The insurance company is hereby directed to satisfy the compensation amount awarded by the Tribunal within a period of eight weeks.
The amount in deposit is ordered to be refunded to the appellant.
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ACTING CHIEF JUSTICE ca