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Karnataka High Court · body

2011 DIGILAW 666 (KAR)

Manager Oriental Insurance v. Nagesh

2011-07-04

H.S.KEMPANNA, K.L.MANJUNATH

body2011
Judgment :- H.S. Kempanna, J. Though this appeal had been listed for admission before us with the consent of the learned counsel for the respective parties, it was taken up for final disposal. 2. This appeal is by the insurer challenging the liability fastened on them on the ground that the risk of the claimant who is a police constable, being a gratuitous passenger in the goods vehicle involved in the accident, is not covered under the policy of the insurance issued by the appellant u/s.147 of the M.V. Act 1988. 3. The factual matrix of the case are as follows:- The first respondent-claimant instituted claim petition u/s.166 of the M.V. Act claiming compensation in respect of the personal injuries which he sustained in a motor accident that took place on 31.1.2000 at about 10.45 p.m. near K. Sathyavara gate situated on Bangalore-Hoskote road involving the lorry bearing Regn. No.CAW 7100 owned by the second respondent and insured with the appellant-insurer at the relevant point of time. It is the case of the claimant that he was aged 31 years, working as a police constable at Nandagudi police station drawing a salary of Rs.4342/-p.m. as on the date of accident. On 31.1.2000 he along with his colleague constables had been deputed for night beat duty at Pillagumba industrial estate which is situated at some distance from the police station where they were working. On being deputed for night duty as there was no conveyance, they boarded the lorry bearing No.CAW 7100 in order to go to their place of work i.e. Pillagumba Industrial Estate for beat duty. It is their case that after they boarded the lorry on account of it being driven at high speed in a rash and negligent manner by its driver, when it was near K. Sathyavara gate situated on Bangalore-Hoskote road, it went and dashed against an on coming lorry bearing No.CAA 998. On account of the impact the claimant sustained severe injuries on his both legs. He was immediately shifted to Sanjay Gandhi hospital for treatment. He spent huge money for his treatment, despite the same his both legs below the knee were amputated. On account of amputation of his both legs, he lost his future prospects and also the benefits that he was entitled to by way of encashment of surrender leave. Accordingly, he sought for grant of compensation from the respondents. He spent huge money for his treatment, despite the same his both legs below the knee were amputated. On account of amputation of his both legs, he lost his future prospects and also the benefits that he was entitled to by way of encashment of surrender leave. Accordingly, he sought for grant of compensation from the respondents. After service of notice, the second respondent owner remained absent. Hence, he was placed exparte. The appellant/insurer appeared and contested the claim of the claimant. They contended that the accident in question has not taken place on account of rash and negligent driving of the lorry by its driver. They further contended that the driver of the lorry did not possess valid and effective driving licence to drive the same at the time of accident, as such, the owner has committed breach of terms and conditions of the policy. They also denied all the other averments made by the claimant in his petition and contended that as per accident has not taken place due to the fault of the driver of the lorry, they are not liable to pay any compensation. Accordingly, sought for dismissal of the petition. The tribunal on the basis of the above pleadings framed the following issues:- 1) Whether the Petitioner proves that he sustained grievous injuries in the road traffic accident that occurred on 31.01.2000 at about 10.45 p.m. while he was proceeding on work to Pillagumbaa industrial area in the lorry bearing Regn.No.CAW 7100 and while the said lorry was proceeding near K. Sathyavara gate, Hosakote road, due to the rash and negligent driving of the lorry by its driver? 2) Whether the Petitioner proves that he is entitled for compensation? If so, what amount? 3) What order or award? The claimant in support of his case got himself examined as PW1 and 3 more witnesses including the doctor who had treated him as PWs 2 to 4. He produced in all 16 documents which came to be marked as exhibits P1 to P16. On behalf of the respondents, they did not lead any evidence or got marked any documents in support of their case. He produced in all 16 documents which came to be marked as exhibits P1 to P16. On behalf of the respondents, they did not lead any evidence or got marked any documents in support of their case. The Tribunal on considering the oral and documentary evidence on record held that the accident in question has taken place on account of the rash and negligent driving of the lorry bearing No.CAW 7100 by its driver and accordingly, the claimant has established actionable negligence. Further, the Tribunal looking to the evidence of the claimant, his witnesses and the documents placed on record, awarded a sum of Rs.4,80,000/- with interest at 8% p.a. from the date of the petition till realization. It further saddled the liability of payment of compensation on the appellant/insurer. 4. The appellant-insurance company being aggrieved by the judgment and order of the Tribunal fastening the liability on them are in appeal before this court. 5. The learned counsel for the appellant insurer submitted that as the claimant was a gratuitous passenger and as the policy issued is an Act policy u/s.147 of the Act, his risk is not covered under the policy and therefore, the Tribunal has erred in saddling the liability on the appellant. He further submitted that though Rule 100 of the Karnataka Motor Vehicles Rules 1989 permits a police officer on duty to be carried in a goods vehicle, as the said rules are not framed u/s.147 of the Act coming under Chapter XI by virtue of the delegated powers u/s.212 of the M.V.Act, the risk of the claimant is not covered as he is a gratuitous passenger and therefore, the impugned judgment and order of the Tribunal fastening the liability on them cannot be sustained. However, the learned counsel did not assail the impugned judgment and award in respect of the quantum of compensation that has been awarded to the claimant. In support of his submission he relied upon the following decisions:- a) Ramesh Kumar & Others vs. National Insurance Company Limited & Others, reported in ILR 2002 KAR 870; b) The New India Assurance Co. Ltd. Vs. Asha Rani & Others, reported in AIR 2003 SC 607 ; c) The Oriental Insurance Co. Ltd. Vs. Devireddy Konda Reddy & Others, reported in AIR 2003 SC 1009 ; and d) National Insurance Co. Ltd. Vs. Asha Rani & Others, reported in AIR 2003 SC 607 ; c) The Oriental Insurance Co. Ltd. Vs. Devireddy Konda Reddy & Others, reported in AIR 2003 SC 1009 ; and d) National Insurance Co. Ltd., vs. Baljit Kaur & Others, reported in 2004 (1) TAC 366 (SC)” 6. Per contra Sri. S.P. Shankar, learned senior counsel who assisted the court as Amicus curiae supporting the impugned judgment and award passed by the tribunal submitted that as the claimant admittedly was traveling in the goods vehicle as a police personnel in discharge of his duties by virtue of Rule 100 of the M.V. Rules 1989, he is not a gratuitous passenger as contended by the insurer. On the other hand, he would be an authorized passenger traveling in a goods vehicle or in the alternative he would be a third party in terms of the definition contemplated u/s.145(g) of the M.V.Act, 1988. He further contended that as the Karnataka Motor Vehicle Rules 1989 which is a replica of Rule 163 of the Karnataka Motor Vehicles Rules, 1963 framed under the old Act of 1939 which is holding field ever since 1963 and has not been challenged so far by any one, it is binding on the insurer. Therefore, as the claimant was traveling in the goods vehicle in discharge of his duties as a police officer he cannot be considered to be a gratuitous passenger as contended by the appellant-insurer. He further submitted in view of the judgment of this Court reported in ILR 1998 Kar 523 in the case of United India Ins. Co. Ltd. Vs. Chandramma and others wherein it has been held by this Court that the insurance company is liable to pay compensation for the death of police constable on duty while being carried in a goods vehicle which decision is holding field for over a decade and in view of the principles of stare decisis as held by the Apex Court in the case of Shanker Raju v. Union of India (2011 (2) Supreme Court Cases 132, the insurer now cannot thwart its liability or avoid payment of compensation on the ground that the claimant was a gratuitous passenger in the vehicle involved in the accident. Accordingly, prayed for dismissal of the appeal. 7. Accordingly, prayed for dismissal of the appeal. 7. The learned counsel for the respondent-claimant adopting the submission of learned Senior Counsel supported the impugned judgment and award of the Tribunal. 8. Taking the rival submissions into consideration, the papers that were made available to us at the time of hearing, the points that arise for our consideration are:- i) Whether the first respondent-claimant is a gratuitous passenger, as contended by the insurer and as such his risk is not covered under the policy issued by them; ii) Whether the impugned judgment and order of the Tribunal fastening the liability on the appellant-insurer is sustainable or calls for interference?” 9. Re. Point No.1:- Facts are not in dispute. The claimant being a police constable and in the discharge of his duties was traveling in the goods vehicle involved in the accident is not disputed to before us. Further, the claimant having met with accident, injuries sustained, treatment taken and the amount spent is also not disputed before us. The accident having taken place on account of the rash and negligent driving of the lorry bearing No.CAW 7100 by its driver and the claimant having established actionable negligence is also not disputed before us. The prop contention of the appellant-insurer is that as the claimant is a gratuitous passenger in the vehicle involved in the accident, his risk is not covered under the policy issued as it is an Act policy issued u/s.147 of the Act and therefore no liability can be fastened on them. 10. Therefore the question that arises in this case is, the claimant-police constable who admittedly was traveling in the goods vehicle in the discharge of his duties can be construed as a gratuitous passenger and as such his risk is not covered under the policy issued as it is an Act policy issued u/s 147 of the M.V. Act 1988. 11. As already pointed out, the claimant being a police constable and traveling in the vehicle involved in the accident in the discharge of his official duty is not disputed to before us. It is also not the case of either the claimant or the insurer that the claimant was traveling in the goods vehicle as a fare paid passenger or as a non-fare paying passenger. 12. It is also not the case of either the claimant or the insurer that the claimant was traveling in the goods vehicle as a fare paid passenger or as a non-fare paying passenger. 12. Rule 100 of the Karnataka Motor Vehicle Rules, 1989 authorizes a police officer on duty in uniform to travel in a goods vehicle. The said Rule reads as follows:- “100. Carriage of persons in goods vehicle:- (1) Subject to the provisions of this rule, no person shall be carried in a goods vehicle: Provided that the owner or the hirer or a bona fide employee of the owner or the hirer of the vehicle carried free of charge or a police officer in uniform traveling on duty may be carried in a goods vehicle, the total number of persons so carried, - (i) in light transport goods vehicle having registered laden weight less than 990 kgs. not more than one; (ii) in any other light transport goods vehicle not more than three; and (iii) in any goods vehicle not more than seven: Provided that the provisions of sub-clauses (ii) and (iii) of the above proviso shall not be applicable to the vehicles plying on inter-State routes or the vehicles carrying goods from one city to another city. (2) Notwithstanding anything contained in sub-rule (i), but subject to the provisions of sub-rules (4) and (5), a Regional Transport Authority may, by an order in writing permit that a larger number of persons may be carried in the vehicle, on condition that no goods at all are carried, free of charge in connection with the work for which the vehicle is used, and that such other conditions as may be specified by the Regional Transport Authority are observed, and where the vehicle is required to be covered by a permit, the conditions of the permit. (3) Notwithstanding anything contained in sub-rules (1) and (2), but subject to the provisions of sub-rules (4) and (5); (a) for the purpose of celebrations in connection with the Republic Day or Independence Day or any other public congregation, the Regional Transport Officer; (b) for the purpose of enabling a co-operative society or class of co-operative societies owning or hiring a goods vehicle to carry its members under its authority in such goods vehicle when used for the purpose of carrying goods of the society in the ordinary course of its business, the Secretary of Regional Transport Authority; (c) where it considers expedient in public interest in respect of vehicles owned or hired by it, and in respect of other vehicles on such inescapable grounds of urgent nature to be specified in the order, the State Government may, by general or special order, permit goods vehicle to be used for the carriage of persons for the purposes aforesaid, and subject to such conditions, as may be specified in the order, (4) No persons shall be carried in any goods vehicle;- (a) unless an area of not lessthan 0.40 square metre of the floor of the vehicle is kept open for each person; and (b) in such manner – (i) that such person when carried on goods is otherwise in danger of falling from the vehicles; (ii) that any part of his body, when he is in a sitting position is at a height exceeding three metres from the surface upon which the vehicle rests. (5) The provisions of this rule shall not apply to motor vehicles registered under Section 60. (6) No person other than an attendant or attendants required by Rule 226 shall be carried on a trailer which is a goods vehicle.” 13. These rules have been framed by the State of Karnataka in exercise of the powers conferred u/s.96(xxxi) of the Motor Vehicles Act, 1988. The said section 96(xxxi) mandates that no person shall be carried in a goods vehicle and the State is authorized to make Rules in that behalf. The State of Karnataka in exercise of its delegated powers u/s.96 (xxxi) of the M.V.Act 1988 read with all sovereign powers has framed Karnataka Motor Vehicles Rules, 1989 which comprises Rule 100 of the Karnataka Motor Vehicles Rules. The said Rules are a replica of Rule 163 of Karnataka Motor Vehicles Rules, 1963. The State of Karnataka in exercise of its delegated powers u/s.96 (xxxi) of the M.V.Act 1988 read with all sovereign powers has framed Karnataka Motor Vehicles Rules, 1989 which comprises Rule 100 of the Karnataka Motor Vehicles Rules. The said Rules are a replica of Rule 163 of Karnataka Motor Vehicles Rules, 1963. In other words Rule 100 of M.V.Rules 1989 corresponds to Rule 163 of Karnataka Motor Vehicle Rules, 1963. 14. The said Rule has stood the test of time and has held the field from the year 1963 till this date. The validity of Rule 100 of the Motor Vehicle Rules, 1989 or Rule 163 of the Karnataka Motor Vehicle Rules 1963 has not been challenged by any one so far. Therefore, Rule 100 of the M.V. Rules 1989 is binding on the insurer. 15. A reading of Rule 100 of the M.V. Rules 1989 permits a police officer on duty in uniform to travel in a goods vehicle. The owner or his agent cannot deny a police officer in uniform on duty to travel in his vehicle i.e. goods vehicle. If he denies, he will be committing breach of the said Rule. If the police officer is not permitted by the owner or his agent to travel in the goods vehicle, they will be placed in the shoes of a person placed in between the deep sea and the devil. Therefore, by virtue of that Rule they have to permit a police officer in uniform on duty to travel in the goods vehicles. If that is so, in our view, he becomes an authorized person to travel in the goods vehicle and he would be a third party in terms of the definition u/s. 145 (g) of the M.V. Act, 1988. Therefore, he cannot be construed as a gratuitous passenger in the vehicle. 16. It is brought to our notice that in almost all the States Rules have been framed similar to Rule 100 of the KMV Rules, 1989. These statutory rules have not been challenged by any one including the insurer as being violative of the provisions of either M.V. Act 1988 or the Constitution. 17. In similar circumstance this Court in the case of United India Insurance Co., Ltd. Vs. These statutory rules have not been challenged by any one including the insurer as being violative of the provisions of either M.V. Act 1988 or the Constitution. 17. In similar circumstance this Court in the case of United India Insurance Co., Ltd. Vs. Smt. Chandramma & Others reported in ILR 1998 KAR 523 has held as follows:- “Head Note” MOTOR VEHICLES ACT, 1939 (Central Act No.4 of 1939) SECTION – 96 Two Police Constables after completing their duty, Boarded a Lorry proceeding towards the police station to which they were attached. Within a short while thereafter there was a violent collision between this Lorry and another stationery Truck parked on the Highway without parking lights. Tribunal awarded compensation holding that they were not passengers. In the Appeal filled by the Insurer the High Court HELD – deceased constable had every reason to be traveling in the Lorry as a member of the Law Enforcement Machinery and as such entitled to compensation as he would not come within the excluded category.” A perusal of what has been held in the above decision it discloses that a police officer traveling in a goods vehicle as a member of the Law Enforcement Machinery is entitled to compensation as he would not come within the excluded category. In this case, as already pointed out it is undisputed that the claimant was traveling in the goods vehicle involved in the accident as a police constable in the discharge of his official duty. Therefore, by virtue of rule 100 and what has been laid down in the aforementioned decision, it has to be held that he cannot be construed to be a gratuitous passenger, on the other hand, he would be an authorized person to travel in the goods vehicle and he would not come within the excluded category. This decision rendered by this Court is holding field over a decade. The same has not been assailed by the aggrieved parties before the Apex court. In that view of the matter, the principles of stare decicis as held by the Supreme Court in the decision reported in (2011 (2) Supreme Court Cases 132 (Shanker Raju vs. Union of India) would squarely apply. The Apex Court in the said decision has held as follows:- “The doctrine of stare decisis 10. In that view of the matter, the principles of stare decicis as held by the Supreme Court in the decision reported in (2011 (2) Supreme Court Cases 132 (Shanker Raju vs. Union of India) would squarely apply. The Apex Court in the said decision has held as follows:- “The doctrine of stare decisis 10. It is a settled principle of law that a judgment, which has held the field for a long time, should not be unsettled. The doctrine of stare decisis is expressed in the maxim “stare decisis et non quieta movere”, which means “to stand by decisions and not to disturb what is settled”. Lord Coke aptly described this in his classic English version as “those things which have been so often adjudged ought to rest in peace”. The underlying logic of this doctrine is to maintain consistency and avoid uncertainly. The guiding philosophy is that a view which has held the filed for a long time should not be disturbed only because another view is possible. This has been aptly pointed out by Chandrachud, C.J. in Waman Rao v. Union of India thus: (SCC p.393, para 40)” The Apex Court in the aforementioned decision has held that the guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible. As already pointed out in this case, the judgment rendered by this Court in Chandramma’s case (ILR 1998 KAR 523) would squarely go to show that a police constable in uniform on duty can be construed as an authorized person to travel in the goods vehicle. If that is so, we fail to appreciate the submission of the counsel for the appellant/insurer that the claimant-police constable in this case is a gratuitous passenger and therefore, no liability can be fastened on the appellant Insurance Company. 18. Apart from this Section 147 of the MV Act, 1988 stipulates the limits of liability and requirement of motor policy. The limits of liability is narrowed down to TTPD i.e. Third Party Property Damage vide Section 147 (2)(b). This is the departure from Section 95 of M.V. Act 1939, heeding to the recommendation of Law Commission. The Law Commission in its 149th Report vide Para 3.16 has declared the aims and objects of consolidating the provisions of M.V. Act 1988. The limits of liability is narrowed down to TTPD i.e. Third Party Property Damage vide Section 147 (2)(b). This is the departure from Section 95 of M.V. Act 1939, heeding to the recommendation of Law Commission. The Law Commission in its 149th Report vide Para 3.16 has declared the aims and objects of consolidating the provisions of M.V. Act 1988. Section 147(2)(a) would reflect the requirements of a policy and also the limit of liability. Report of the Law Commission was faithfully implemented in making the liability of the insurer both concurrent and coextensive with that of the owner of the vehicle i.e. insured. The intention of law is clear that whatever liability is foisted on the insured is the liability of the Insurer and insured except in two instances, viz., the liability under Workmen’s Compensation Act in respect of employees under a “Liability only Policy” and in respect of third party property damage. These limits of liability could also be enlarged by contractual bargain. Insurer can collect higher/extra premium and undertake unlimited liability even in respect of those two instances. 19. In the present case as the claimant/respondent was traveling in the vehicle involved in the accident as an authorized person as the insured is made liable by virtue of what is contemplated u/s.147(2)(a) of the Act, the liability of the insured will have to undertaken by the insurer. 20. Thus, in our view as the claimant/respondent was traveling in the vehicle involved in the accident as a police constable in discharge of his duties, he cannot be construed as a gratuitous passenger as contended by the appellant/insurer. On the other hand, he would be an authorized person to travel in the goods vehicle. 21. Apart from this we are also of the view that a policy of insurance cannot be interpreted in any manner to defeat the benevolent provisions of the social legislation like Chapter 10 and 11 of the M.V. Act, 1988. Therefore, we do not find any merit in the contentions urged by the learned counsel for the appellant/insurer. 22. Insofar as the proposition of the learned counsel for the appellant/insurance Co. Therefore, we do not find any merit in the contentions urged by the learned counsel for the appellant/insurer. 22. Insofar as the proposition of the learned counsel for the appellant/insurance Co. that the risk of a gratuitous passenger traveling in a goods vehicle is not covered under the Act policy and the law laid down by the Apex court relied upon by the counsel for the appellant is well accepted and it was also not disputed before us. But in this case as the claimant respondent was traveling in the goods vehicle as a police personnel in the discharge of his duties, he will be an authorized person to travel in the goods vehicle as held above by us and in that view of the matter the aforementioned decisions relied upon by the learned counsel for the appellant will not in any way come to their aid to thwart their liability. 23. Re. Point No.2: For the reasons adverted to on point No.1 as we have held that respondent/claimant cannot be held to be a gratuitous passenger as contended by the insurer, the impugned judgment and order fastening the liability on the appellant/insurer does not call for any interference. Accordingly, we do not find any merit in this appeal. We place on record our appreciation for the assistance that is rendered to us by Sri. S.P. Shanker, learned Senior counsel in the above case. 24. In the result, for the foregoing reasons, we proceed to pass the following:- ORDER The appeal is dismissed.