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2011 DIGILAW 792 (KAR)

National Insurance co. Ltd. v. Rudregowda @ Rudre Gowdappa ShivannaGowda

2011-08-08

SUBHASH B.ADI

body2011
Judgment :- 1. These appeals are by the Insurer questioning the liability whereas the cross-objections are filed by the claimants seeking enhancement of compensation in respect of common judgment and award in MVC.Nos. 1002 to 1006/99 dated 17.2.2007 on the file of the MACT, Tumkur. 2. The Tribunal has awarded compensation of Rs. 50,800/-, Rs. 17,000/-,Rs. 47,000/-Rs.9,600/- and Rs. 16,000/- respectively with interest. 3. The case of the claimants was that on 12.10.1999 they had loaded 58 bags of onion in a lorry bearing No.KA. 27-748 and along with the goods they were travelling in the same lorry to Bangalore. On its way to Bangalore, on account of rash and negligent driving by the driver of the said lorry, it turned turtle as a result of which the claimants sustained grievous injuries. The claim petition was contested by the insurer inter-alia denying the accident, injuries, income and also denied that the claimants were travelling along with the goods. The Tribunal on appreciation of the evidence on record held that the claimants were travelling along with the goods and held that the insurer is liable to indemnify the liability of the owner. As against fastening of liability the insurer is in appeal and the claimants have filed cross-objections seeking enhancement of compensation. 4. The learned counsel for the insurer submitted that under section 147 risk of the only one owner or his authorized representative of the goods is covered and does not cover the risk of more than one owner or representative of the goods. The lorry has the seating capacity of 1+5 in the cabin. Rule 100 of the Karnataka Motor Vehicles Rules stipulates seating capacity of any heavy goods vehicles at not more than seven, in which, the risk of driver is compulsorily covered under section 147 of the provisions, in addition to that, the employees like cleaner is also covered and as such if the risk of cleaner and the driver is excluded, there is no provision for covering the risk of more than one owner or representatives of the goods. Learned counsel further submitted that it is only the owner or his representative alone is covered under section 147 and not more than one owner or one representative. 5. On the other hand, the learned counsel appearing for the claimants submitted that section 147 requires compulsory coverage of the risk of owner or representative of the goods. Learned counsel further submitted that it is only the owner or his representative alone is covered under section 147 and not more than one owner or one representative. 5. On the other hand, the learned counsel appearing for the claimants submitted that section 147 requires compulsory coverage of the risk of owner or representative of the goods. In addition to that, the risk of the driver is statutorily covered under section 147 of the Act. On interpretation of provisions of section 147, the Apex Court in the judgment reported in 2008 (1) SCC 423 in the matter of NATIONAL INSURANCE COMPANY VS. CHOLLETI BHARATAMMA (2008) 1 SCC 423 has held that non-fare paid passenger as a owner of the goods can travel in a cabin and as the deceased in the said case had admittedly travelled in the cabin subject to the seating capacity of the vehicle, the risk of such owners of the goods who had travelled in the cabin according to the seating capacity is covered under section 147 of the Act. He has further relied on an unreported judgment in MFA. 4455/06 wherein a Division Bench of this Court in the case of owners travelling along with the vegetables in a lorry, has held that the insurer is liable to pay the compensation which was in respect of more than one owner. He also submitted that the compensation awarded by the Tribunal as against the injuries is on the lower side and hence the compensation requires to be enhanced. 6. In view of the above submission the point that arise for consideration in these appeals are:- “1.Whether under section 147 the risk of more than one owner or representative is covered or not? 2. Whether the compensation awarded by the Tribunal requires enhancement?” 7. A reading of the provisions of section 147 makes it clear that, in order to comply with the requirement of coverage of insurance, the policy must cover the risk of owners or representatives of the goods apart from the statutory coverage of the driver. Rule 100 of the Karnataka Motor Vehicles specifies the number of person to be carried in the goods vehicles. It is not in dispute that the vehicle involved in the accident in question is a heavy goods carriage and Rule 100(3) stipulates the seating capacity at seven. Rule 100 of the Karnataka Motor Vehicles specifies the number of person to be carried in the goods vehicles. It is not in dispute that the vehicle involved in the accident in question is a heavy goods carriage and Rule 100(3) stipulates the seating capacity at seven. Thus, there is no dispute as regards the seating capacity of a lorry at 1+ 6. In this case, there are five claimants who allege that they were travelling along with the goods their evidence also shows that they were travelling with the onions loaded in the lorry. No doubt section 147 Sub-section (1) (b) (i) refers to the word “owner or authorized representative”. But a reading of the provisions of section 147 of the act with rule 100 of the Karnataka Motor Vehicle Rules creates no doubt that in case of heavy goods carriage vehicle, the cabin is so built to accommodate one driver and six persons. Rule 100 of the Karnataka Motor Vehicles Rules authorizes carrying of six persons other than the driver. Six persons who are covered under section 147 of the Act, who travel in cabin are authorized persons to travel. It is also clear that the owner or authorized representatives of the owner of the goods is permitted to travel with goods. The harmonious construction of the provisions of section 147 of the Act read with Rule 100 of the Karnataka Motor Vehicles Rules leaves no doubt that the risk of such authorized persons under section 147 of the Act is covered. Just because the word “Owner or representative” is singular it does not mean that only one owner or representative of the owner of goods is permissible. As long as the number of person to be carried in the cabin of the goods vehicle as authorized under Rule 100 of the Karnataka Motor Vehicles Rules is not violated, such person’s risk is covered under section 147 of the Act and the insurer is liable to indemnify the liability of the owner. In the decision of the Apex court in 2008 (1) SCC 423 in the matter of CHOLLETI BHARATAMMA, the Apex Court has observed that, the owner of the goods means only the person who travels in the cabin of the vehicle. In the decision of the Apex court in 2008 (1) SCC 423 in the matter of CHOLLETI BHARATAMMA, the Apex Court has observed that, the owner of the goods means only the person who travels in the cabin of the vehicle. The Apex Court considering the seating capacity and on interpretation of rule 277 (3) of the Andhra Pradesh Motor Vehicles Rules has held that no person shall be carried in the goods vehicle except as provided in the rule under the statute and as the only person, who is permitted to carry in goods vehicle is the owner or hirer or bona fide employee of owner or hirer and total number of such persons, who could be carried in goods vehicle is not more than seven including the driver. 8. The coverage of the risk of the employees or the owners or representatives is dependant on the seating capacity in the cabin. No person as the owner of the goods is allowed to travel on the top of the lorry and risk of such person is not covered. No doubt, section 147(1) (b) (i) does not mention owners or representatives. But having regard to the seating capacity in the cabin and having regard to the fact that Rule 100 provides number of persons to be carried in a goods vehicle, it cannot be said that the owners to the extent of the seating capacity excluding the driver and employee if any the risk of other owners who were found to be travelling along with the goods is not covered under the policy. Even the Division Bench of this Court, though there is no direct pronouncement, has confirmed the award granting compensation in respect of two owners travelling in a same lorry along with goods. 9. In my opinion, there is no limitation to grant the compensation excluding the employees under Section 147 of the M.V. Act. No doubt, the learned counsel for the Insurer submitted that the seating capacity of the cabin is 5 + 1 as per the RC, but has not disputed that the vehicle involved in the accident is a heavy goods vehicle. Under rule 100 the seating capacity is 6 + 1 . Even the policy shows that other than the driver, six persons, can travel in the cabin. Here in this case, the claimants travelling in the vehicles as owners are only five. Under rule 100 the seating capacity is 6 + 1 . Even the policy shows that other than the driver, six persons, can travel in the cabin. Here in this case, the claimants travelling in the vehicles as owners are only five. Excluding the cleaner, who is the person travelling in the lorry as an employee, the risk of claimants as the owners of the goods is covered under the policy. As such, the finding of the Tribunal that the insurer is liable to indemnify the liability of the owner in respect of five claimants is well founded and based on legal interpretation considering the reference to word “owner” or “representative” under Section 147 of the Act to mean as owners or representative as per the provisions of Section 13 of the General Clauses Act. 10. As far as enhancement of compensation is concerned, the claimant in MVC. 1002/99 though has suffered five injuries, there is no evidence of any fracture. No doubt, the doctor has stated that there is 5 % disability due to the injuries to the leg. However, the Tribunal has awarded compensation of Rs. 50,800/-. In my opinion, the compensation has been reasonably awarded. Even in MVC. 1006/09 the claimant has suffered three injuries. One of the injuries appears to be grievous in nature. Having regard to the same the compensation is enhanced from Rs. 16,000/- to Rs. 25,000/- i.e. additional compensation of Rs. 9,000/- with interest. The claimant in MVC. 1004/09 has suffered four injuries. Having regard to the nature of the injuries, reasonable compensation has been awarded. The claimant in MVC. No. 1003/99 also has suffered three injuries. Injury No. 1 is fracture of nasal bone disfigurement of face. Compensation of only Rs. 17,000/- is awarded. In my opinion, ends of justice would be met if the same is enhanced by another Rs. 25,000/- 11. Accordingly, the cross-objections in MFA. CROB. No. 189 and 191 are partly allowed and the claimants are held entitled to additional compensation of Rs. 9,000/-and Rs. 25,000/- respectively. Other cross objections are dismissed. The appeals filed by the insurer are dismissed. The amount in deposit be transferred to the Tribunal.