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2016 DIGILAW 571 (KAR)

Jayamma L. v. Manjunath VS C. M. Narayana Swamy

2016-07-21

S.SUJATHA

body2016
JUDGMENT : S. Sujatha, J. This appeal is directed against the judgment and order passed by Motor Accident Claims Tribunal (Tribunal for short) in MVC. 240/2009. 2. Briefly stated the facts are that the claimants are the wife and children of deceased Manjunatha, who died in the motor vehicle accident on 12.5.2008 owing to the actionable negligence of the driver of the auto rickshaw bearing No. KA. 15-4548. The claimants instituted the claim petition seeking compensation for the death of Manjunatha in the motor vehicle accident. The respondents contested the matter. The Tribunal after analysing the material on record awarded a total compensation of Rs. 3,38,000/- fastening the liability on respondent Nos. 4 and 5. The insurer/respondents 3 and 6 are exonerated from the liability. 3. Being aggrieved, the claimants are before this Court challenging the liability as well as quantum. 4. Sri. M.V. Maheswarappa, learned counsel appearing for the appellant would contend that Rule 100 of the Karnataka Motor Vehicle Rules, 1989 (in short Rules) specifically provides for the owner of the goods to travel in the goods vehicle. The deceased was the owner of the goods travelling in the offending vehicle and succumbed to the fatal injuries sustained in the motor vehicle accident. The offending vehicle was covered by the comprehensive policy. In view of Rule 100 of the Rules and the terms and conditions of the insurance policy, the liability has to be fastened on the insurer to satisfy the award. The Tribunal misreading the relevant Rule 100 of the Rules, exonerated the insurer and fastened the liability on the owner of the offending vehicle. 5. In support of his contention, the learned counsel placed reliance on the judgment of this Court in the case of Divisional Manager, New India Assurance Co. Ltd. v. Shashidhara and another, reported in 2009 ACJ 1778 : (AIR 2009 (NOC) 17 (Kar). 6. The learned counsel appearing for the insurer, Sri. H.S. Lingaraj, placing reliance on the judgment of the Apex Court in the case of National Insurance Co. Ltd. v. Cholleti Bharatamma and others, 2008(2) TAC 374 (SC) : AIR 2008 SC 484 and the judgment of this court in the case of the Branch Manager, National Insurance Co. Ltd. v. Smt. Bellamma and others in MFA. H.S. Lingaraj, placing reliance on the judgment of the Apex Court in the case of National Insurance Co. Ltd. v. Cholleti Bharatamma and others, 2008(2) TAC 374 (SC) : AIR 2008 SC 484 and the judgment of this court in the case of the Branch Manager, National Insurance Co. Ltd. v. Smt. Bellamma and others in MFA. No. 40/2010 (MV) dated 8th June, 2012 would contend that the deceased was travelling in the offending vehicle in the carriage not in the cabin of the vehicle which is evidenced by the complaint and the FIR Inquest report, spot pancha marked as Exs. R2, 3, 4, 5 and 6. 7. The learned counsel further contended that the Tribunal after appreciating the evidence on record vis-a-vis, the judgment of the Apex Court in Cholleti Bharatammas, AIR 2008 SC 484 , case supra, rightly saddled the liability on the owner which cannot be found fault with. 8. Sri. P.B. Raju, learned counsel for respondent Nos. 1, 2 and 3 supports the learned counsel appearing for respondent No. 6 and contends that no relief is sought as against these respondents and the appeal may be dismissed against them. 9. Having heard the learned counsel appearing for the parties, considering the material evidence on record, it is clear that the deceased Manjunatha was travelling on the paddy bags in the carriage of the offending vehicle on the fateful day. This fact is further supported by Exs. P. 2, 3, 4, 5 and 6. Much emphasis is placed by the learned counsel appearing for the appellant on Rule 100 of the Rules to contend that proviso to Rule 100 contemplates that the owner of the goods to travel along with the goods in the goods vehicle. It is apt to refer to Rule 100 of the Rules, which specifies that no person shall be carried in any 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 travelling on duty may be carried in a goods vehicle, the total number of persons so carried in the light transport good vehicle having registered laden weight less than 990 kgs., not more than one, in any other light transport goods vehicle not more than three and in any goods vehicle not more than seven persons. 10. 10. In the light of the rival submissions advanced by both the parties and in the background of Rule 1 (X) of the Rules, the only question to be considered by this Court is whether the deceased person permitted to travel in the goods vehicle along with the goods in the carriage is entitled to protection under Section 147 of the Act. This issue is no more resintegra. The Hon’ble Apex Court ha elaborately considered this issue in Cholleti Bharatammas case, AIR 2008 SC 484 (supra) and held that the only person who can travel in the cabin of the vehicle would be construed as the owner and not a person travelling in the carriage. In other words, the owner of the goods means only the persons who travel in the cabin of the vehicle. 11. Undisputedly, in the present case, the deceased was travelling on the paddy bags in the carriage of the goods vehicle. Thus, applying the principle of law rendered by the Apex Court in Cholleti Bharatammas case, AIR 2008 SC 484 (supra), it can be held that the deceased Manjunatha was not the owner of the goods since admittedly, he was travelling in the carriage not in the cabin. Further, as held by the Hon’ble Apex Court in the aforementioned case, travelling with the goods itself does not entitle anyone to protection under Section 147 of the Motor Vehicles Act. The deceased having violated the Rules and travelling in the carriage is not entitled for any protection under Section 147 of the Act. It is also pertinent to note that even if any additional premium is collected by the insurer, any contractual liability cannot be in violation of the statute. Any terms and conditions of he insurance policy against the Act and Rules would not come to the assistance of the claimants to seek the benefit flowing from the insurance policy. This very issue fell for consideration before the co-ordinate Bench of this Court in the case of Smt. Bellamms (supra) and this Court has held that the person travelling the carriage along with the goods is not entitled to the protection under Section 147 of the Act and no liability can be fastened on the insurance company to indemnify the owner when there is specific violation of the Act and Rules. 12. 12. Respectfully following the aforesaid judgments, I am of the considered opinion that the Tribunal was right in dismissing the claim against the respondent Nos. 1 to 3 and 6 and saddling the liability on the owner i.e., respondent Nos. 4 and 5. As regards the quantum of compensation is concerned, it is evident from the records that the deceased was aged about 54 years and his wife and children have filed the claim petition seeking compensation for the untimely death of the sole earning member of the family. Considering the loss of love and affection to the wife and children and the age of the wife, it would be appropriate to award compensation Rs. 50,000/- for loss of consortium and Rs. 1,00,000/- towards loss of love and affection. This view is fortified by the judgment of the Apex Court in the case of Rajesh and others v. Rajbir Singh and others (2013) 9 SCC 54 . 13. It is also pertinent to note that the deceased was an agriculturist. In the absence of any adequate evidence placed on record by the claimants, the Tribunal determined the monthly income of the deceased notionally at Rs. 3,500/- p.m. However, in view of the consistent determination made by this Court in catena of judgments in similar cases, the monthly income of the deceased can be safely re-determined at Rs. 4,500/- p.m. Thus, loss of dependency works out to Rs. 3,96,000/- deducting ?rd towards personal expenses of the deceased with the multiplier 11 considering the age at 55 years. Thus, the total compensation awarded by the Tribunal is modified as under : 1. Loss of dependency Rs. 3,96,000/- 2. Loss of Estate Rs. 10,000/- 3. Loss of consortium Rs. 50,000/- 4. Transportation of dead body and funeral expenses Rs. 25,000/- 5. Loss of love and affection Rs. 1,00,000/- Total Rs. 5,81,000/- The total compensation awarded by the Tribunal is modified to Rs. 5,81,000/- as against Rs. 3,38,000/-. 14. The claimants/appellants shall be entitled to total compensation of Rs. 5,81,000/- with interest at 6% p.a. from the date of petition till date of realization. 15. In the result, the appeal stands allowed to the extent indicated above. However, the liability is fixed on the respondent No. 5 to satisfy the award.