IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.1211/2012 (MV) BETWEEN:
T.N. JAYARAM, SINCE DEAD BY HIS LRS.
1. SMT. BHAGYAMMA, W/O LATE T.N. JAYARAM, AGED ABOUT 48 YEARS.
2. MANJUNATH, S/O LATE T.N. JAYRAM, AGED ABOUT 29 YEARS.
3. SUNITHA, D/O LATE JAYARAM, AGED 24 YEARS.
ALL ARE RESIDING AT THOGARIGHATTA, HOLAVANGAHALLI HOBLI, KORATAGER TQ, TUMKUR DISTRICT-572 101. … APPELLANTS (BY SRI MANJUNATH G. KANDEKAR, ADVOCATE FOR APPELLANT NOS.1 AND 2, SRI A.K. BHAT, ADVOCATE FOR APPELLANT NO.3) AND:
1. THE ORIENTAL INSURANCE CO. LTD., TGMA BUILDING, 1ST FLOOR, JC ROAD, TUMKUR-572 101.
2. SMT. VARALAXMAMMA, W/O LATE MANJUNATH, AGED ABOUT 31 YEARS.
3. RAGHU, S/O LATE MANJUNATH, AGED ABOUT 11 YEARS.
4. RAKSHITHA, D/O LATE MANJUNATH, AGED ABOUT 6 YEARS.
BOTH RESPONDENT NO.3 AND 4 ARE MINORS AND THEY ARE REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN 2ND RESPONDENT.
RESPONDENT NO.2 TO 4 ARE PRESENTLY R/AT NO.39, 4TH MAIN, 4TH CROSS, J.C. NAGAR, KURUBARAHALLI, BENGALURU-560 086.
5. NAGARATNAMMA, W/O THIMMAIAH, AGED ABOUT 53 YEARS.
6. THIMMIAH, S/O DODDAIAH, AGED ABOUT 58 YEARS.
RESPONDENT NO.5 AND 6 RESIDING AT BHEEMARAHUTALLI, SAKKARA GOLLAHALLI POST, DODDABALLAPUR TALUK, BENGALURU RURAL DISTRICT-561 203.
... RESPONDENTS (BY SRI R. OMKAR, ADVOCATE FOR R-1, SRI SRINIVAS M.L., ADVOCATE FOR SRI K.M. THIRTHAPPA, ADVOCATE FOR R-2 TO R-6) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 7.2.2011 PASSED IN MVC.NO.1491/2008 ON THE FILE OF MEMBER, MACT-V, VIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU, AWARDING A COMPENSATION OF RS.4,24,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the insured challenging the judgment and award dated 7.2.2011 passed in M.V.C.No.1491/2008, on the file of the Motor Accident Claims Tribunal-V, Court of Small Causes, Bengaluru, fastening liability on the insured.
The brief facts of the case:
2. The case of the claimants before the Court is that the deceased Manjunath was travelling from Thogarighatta to Koratagere on 28.4.2007 at about 8.45 p.m. and the driver of the tractor lost control over the tractor and caused the accident. Due to the impact of the accident, the deceased fell down and the tractor ran over his head and he succumbed to the injuries on the spot. Hence, the claimants claimed the compensation.
3. In response to the claim petition, the respondent Nos.1 and 2 appeared through their counsel and respondent No.1 – Insurance Company filed the written statement. The respondent No.1 in the written statement contended that the policy is subjected to the terms and conditions of the policy and the insured has violated the conditions of the policy and the driver was not holding valid and effective driving licence and hence the Insurance Company is not liable to pay the compensation.
4. The claimants examined one witness as P.W.1 and got marked the documents at Exs.P.1 to 7. On the other hand, the Administrative Officer of the Insurance Company has been examined as R.W.1 and got marked the documents at Exs.R.1 and 2. The Tribunal after considering both oral and documentary evidence allowed the petition granting compensation of Rs.4,24,000/- with interest at 6% per annum. The Tribunal exonerated the liability of the Insurance Company and fastened the liability on the insured on the ground that the deceased was travelling in the tractor as a passenger and not as a coolie.
5. Being aggrieved by the judgment of fastening the liability on the insured, the insured preferred this appeal contending that the deceased was not travelling as a passenger and he was travelling as a coolie. In support of the same, P.W.2 who has been examined, has categorically deposed that they were travelling as coolies in the tractor trailer. The same has not been considered by the Tribunal. The non-consideration of this vital aspects has resulted in miscarriage of justice. The Court below has committed an error in relying upon the inquest as well as the complaint. The complainant is not an eyewitness. She has lodged the complaint based on the information she has received. Hence, the Tribunal has committed an error in fastening the liability on the insured.
6. The learned counsel for the appellant/insured in his argument has vehemently contended that the Tribunal failed to consider the evidence of P.W.2, who was a co-worker and both P.W.2 as well as the deceased were travelling as coolies in tractor trailer. The non-consideration of the evidence of P.W.2 caused miscarriage of justice and hence this Court has to rely upon the evidence of P.W.2 and set aside the liability fastened on the insured and fix the liability on the Insurance Company.
7. Per contra, the learned counsel for the Insurance Company would contend that the very document of complaint given by the wife of the deceased itself shows that the deceased was travelling in the tractor in order to attend a marriage and he was sitting on the engine and he fell down and sustained the injuries. The insured has violated the terms and conditions of the policy in carrying the passengers in the tractor and hence the Tribunal considering Ex.P.1 – complaint and the inquest, rightly came to the conclusion that the Insurance Company is not liable. There is a clear violation of policy conditions and there are no grounds to interfere with the order of the Trial Court. Hence, prayed this Court to dismiss the appeal.
8. Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondents, the points that arise for the consideration of this Court are:
(i) Whether the Court below has committed an error in fastening the liability on the insured instead of Insurance Company?
(ii) What order?
Points (i) and (ii):
9. Having considered the rival contentions of both the counsel, the question involved in this appeal is very short. Whether the Tribunal committed an error in fastening the liability on the insured. The Tribunal while considering both oral and documentary evidence with regard to the liability is concerned, relied upon the evidence of P.W.1, P.W.2 and R.W.1 apart from that the documentary evidence. On perusal of the complaint which is marked as Ex.P.1, it is evident that the wife of the deceased lodged the complaint on 28.4.2007 at about 10.15 p.m. and the accident had taken place at 8.45 p.m. The complaint is given immediately after the accident, i.e., within a span of two hours. On perusal of the complaint, it is specific that they were proceeding to attend the marriage of one Suresh at Koratagere Town, Maruti Choultry and nowhere in the complaint it is stated that he was travelling in the tractor as a coolie. On perusal of the inquest also it is mentioned therein that he was travelling in the tractor to attend the marriage. No doubt an attempt is made before the Tribunal by examining P.W.2. P.W.2 deposed that he himself and the deceased and other persons were travelling in the tractor as coolies and proceeding to load the tractor.
10. In the cross-examination, the Insurance Company elicited that he was travelling in the tractor on the date of the accident. But denied the suggestion that they were proceeding to attend the marriage. It has to be noted that the complaint was given immediately after the accident within a span of two hours and the contents of the complaint is contrary to the pleadings and the Tribunal has taken note of the averments of the complaint, which is marked as Ex.P.1, which came into existence immediately after the accident. The inquest was conducted on the next day and it is mentioned that they were travelling to attend the marriage in the tractor. The documentary evidence of Ex.P.1 and inquest which is marked as Ex.P.6 disclose that they were travelling as passengers. The very contention of the appellant’s counsel that they were working as coolies and travelling as coolies cannot be accepted. The documentary evidence excludes the oral evidence of P.W.2. The evidence of P.W.2 is nothing but an afterthought. Hence, this Court does not find any error committed by the Court below in considering both oral and documentary evidence available on record. I do not find any merit in the appeal to reverse the findings of the Trial Court. The findings of the Trial Court is sound and proper in coming to the conclusion that the deceased was travelling as a passenger and not as coolie.
11. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is dismissed.
(ii) The amount in deposit, if any, to be transmitted to the Tribunal forthwith.
Sd/- JUDGE MD