IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE L.NARAYANA SWAMY M.F.A. No.460/2015 [MV] BETWEEN :
THE MANAGER THE ORIENTAL INSURANCE CO. LTD. DIVISIONAL OFFICE S.S.COMPLEX SUBASH CHOWK HASSAN NOW REPRESENTED BY THE ORIENTAL INSURANCE CO. LTD. REGIONAL OFFICE TP HUB, SUMANGALA COMPLEX LAMINGTON ROAD HUBLI – 580 020 (BY SRI H.C.VRUSHABHENDRAIAH, ADV.) AND :
1. SHAMANTHA W/O. LATE NANJUNDASWAMY NOW AGED ABOUT 25 YEARS 2. RAKSHA D/O. LATE NANJUNDASWAMY NOW AGED ABOUT 4 YEARS 3. RADHAMMA W/O. SHIVALINGAPPA NOW AGED ABOUT 58 YEARS ...APPELLANT RESPONDENT NO.2 HEREIN SINCE MINOR REPRESENTED BY THEIR NATURAL GUARDIAN / MOTHER THE 1ST RESPONDENT HEREIN.
ALL R/O. SINGANKUPPE VILLAGE ARKALGUD TALUK HASSAN DISTRICT – 573 201 4. SHIVALINGAPPA S/O.PATEL NANJAPPA MAJOR, OWNER OF TRACTOR & TRAILER R/O.SINGANKUPPE VILLAGE MALLIPATTANA HOBLI ARKALGUD TALUK HASSAN DISTRICT – 573 201 …RESPONDENTS (BY SRI MURTHY D.L., ADV. FOR R1 TO R3 SRI KANTHARAJA L., ADV. FOR R4) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 30.07.2014 PASSED IN MVC.NO.1935/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, ARKALGUD, AWARDING A COMPENSATION OF RS.5,60,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT ETC.
THIS M.F.A. COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the insurance company for setting aside the Judgment and Award dated 30.07.2014 passed by the MACT, Arkalgud in MVC No.1935/2012 on the ground of liability. The Tribunal has awarded compensation of Rs.5,60,000/- with interest at the rate of 6% p.a. from the date of petition till the date of payment.
2. The claimants are the wife, minor daughter and mother of deceased, who died in an accident which occurred on 04.03.2011, when he was traveling as assistant driver in a Tractor and Trailer bearing Reg. No.KA-13-TA-978/979, which belongs to respondent No.1 therein. The said Tractor and Trailer was loaded with bricks and accident is caused due to rash and negligent driving of the said vehicle which capsized to the left side of Hegganakere Lift Irrigation Channel, on Hampapura – Kathimallenahalli Road. Due to the impact, the deceased Nanjundaswamy succumbed to the injuries on 05.03.2011.
3. It is stated that the deceased was sitting on the mud guard to assist the driver. Since he died in the said accident, a claim petition was filed by the claimants claiming compensation of Rs.25,00,000/-. It is contended that the deceased was working as an Agriculturist, Businessman and also driver and earning a sum of Rs.15,000/- p.m. After considering the oral and documentary evidence on record and the submissions of the learned counsel on both sides, the tribunal allowed the petition in part by awarding compensation of Rs.5,60,000/- with interest at 6% p.a. from the date of petition till the date of payment.
4. Learned counsel for the appellant – insurance company submits that as para No.8 of the insurance policy, no person shall travel sitting on the mudguard of the said vehicle. As per the insurance policy, the deceased is not covered under the terms and conditions of the policy and he stated that liability cannot be imposed on the insurance company, when the deceased has violated the policy conditions by sitting on the mudguard.
5. He further submits that the judgment and award of the Tribunal is contrary to law and also inconsistent to the Regulation 28 of Road Regulations, 1989. Claimants are the wife, minor child and mother of the deceased and respondent No.1 therein is the owner cum father of the deceased. By sitting on the mudguard, the deceased violated the policy regulations. On all these grounds, the learned counsel prays to allow the appeal by setting aside the Judgment and Award of the Tribunal.
6. In support of his submission, learned counsel relied upon the judgment in MFA No.8193/2006 (MV) dated 03.07.2014 between United India Insurance Co. Ltd., and Smt. Tholasiramma and others, in which the deceased was traveling sitting on the mudguard, the driver of the Tractor has hit the stone, due to which, deceased has sustained grievous injuries. Accordingly, judgment and award of the Tribunal was set aside by allowing the appeal. In 2012 (1) AIR Kar R 77 between Oriental Insurance Co. Ltd. and Smt. Shobha and others, in para No.10, it has been held that:-
“10. The policy is in respect of an engine of a Tractor which has got only one seating capacity which is provided for driving the Tractor. In other words, when seating capacity of the Tractor engine is only one and the liability is in respect of the driver, we are of the opinion driver was not justified in fixing the liability on the Insurance Company.”
This Court in MFA.No.1350/2006 c/w MFA.Crob.No.161/2006 dated 15.11.2010 between Smt. Geetha and others and Mahadeva @ Shivananjegowda and others, has held that liability shall be fastened on the owner and driver of the offending vehicle and not on the insurer.
7. Yet in another case, reported in 2011 (4) AIR Kar R 251 between National Insurance Co. Ltd., Bengaluru and Chandrappa and others, it has been held that:-
“there is violation of policy, as person traveling on mudguard, risk of such person is not covered under policy or provision of M.V.Act – Insurer is not liable.”
8. In MFA No.7468/2002 dated 05.07.2005 between United Insurance Co. Ltd. and Channawwa and others referring to the Regulation 28 of the Road Regulations, 1989, appeal was allowed and the order of the Workmen’s Compensation Commission was set aside on the fact that the deceased was traveling on the mudguard.
9. Learned counsel referred to the FIR which has been registered at the instance of respondent No.1 and referred the complaint which initiated the criminal proceedings against the driver of the Tractor for the offences punishable under Sections 279, 337, 304 (A) of IPC in Crime No.71/2011 by Arkalgud police. He also referred to the Inquest report and submitted that as per the complaint and inquest report, deceased was traveling on the mudguard and hence, the claimants are not entitled for any compensation.
10. Heard the learned counsel for the appellant.
The judgments referred by the appellant’s counsel to the effect that, as per Regulation 28 of the Road Regulations, 1989, persons are not supposed to sit on the mudguard and travel by the side of the driver which should be considered strictly and nobody is entitled to sit by the side of the driver. In case of any injury, the risk will not be covered by the insurance company as the person has violated the terms and conditions of the policy. The submission of the appellant is that, FIR and Inquest Report reveals that deceased was sitting on the mudguard.
11. It is seen from the records that neither the driver nor the owner or any person has given complaint. But the eyewitness has seen the incident and has reported to the police that deceased was sitting on the mudguard. The person who is said to be an eyewitness has not seen the incident and was not present in the spot. Though he makes the statement for the purpose of FIR and charge sheet, it needs to be proved. If he had stated so it cannot be considered as it requires to be proved by the insurer or respondent No.1, which has not been proved. The first respondent therein, who is none other than the father of the deceased has filed written statement and submitted that claim petition has to be dismissed since the claimants are not entitled for any compensation and as soon as the deceased fell down, the bricks loaded in the Tractor and Trailer have also fallen on the deceased. This shows the negligence on the part of the deceased himself. But, that itself is not sufficient to take into consideration that when the insurer is responsible to take specific ground that deceased and injured were traveling in the tractor and trailer, then, it is burden on them to prove that the deceased was traveling on the mudguard. On these grounds, claimants shall not be denied with the compensation.
12. The another ground taken by the insurance company is that, deceased being the son of respondent No.1 – owner of the offending vehicle, he will be put into shoes of proving the accident, which also cannot be considered. Son of the owner of the offending vehicle or any person can also claim the compensation if he is considered as an employee or a third party in any case. In the instant case, the deceased though happens to be the son of respondent No.1 therein, he is entitled for the compensation under the provisions of Section 166 of the M.V. Act.
13. In the given facts and circumstances of the case and the observations made above, appeal deserves to be dismissed. Accordingly, the appeal is hereby dismissed.
14. Amount in deposit to be transferred to *concerned Tribunal, forthwith.
Sd/- JUDGE MH/-
* Corrected vide Chamber Order dated:03.09.2018