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2016 DIGILAW 922 (KAR)

Somappa v. Imamsab

2016-12-05

S.SUJATHA

body2016
JUDGMENT : S. Sujatha, J. - The insurer is challenging the judgment and order passed by the Motor Accident Claims Tribunal, Belgaum ('Tribunal' for short) in MVC Nos. 609 and 776 of 2010 and 1614 of 2008, whereas the claimant has filed appeal against the judgment and order in MVC No. 609 of 2010. 2. Since all these matters arise out of the same accident, the same are heard together and disposed of by this common judgment. 3. Briefly stated the facts are: That the claimants instituted petition before the Tribunal seeking compensation for the injuries sustained by them in the road traffic accident which occurred on 3-5-2008 while travelling in a goods vehicle bearing Registration No. KA-24/A-2929 (offending vehicle) along with their goods. It was contended that the accident caused due to the negligence of the driver of the offending vehicle. The insurer contested the claim. The Tribunal, after appreciating the evidence on record, awarded compensation fastening the liability on the insurer of the offending vehicle. Being aggrieved, the Insurance Company is in appeal challenging the liability as well as the quantum in the three cases referred to above whereas the claimant is seeking enhancement of compensation as the quantum of compensation awarded being inadequate in MVC No. 609 of 2010. 4. The learned Counsel appearing for the insurer would refer to Section 147 of the Motor Vehicles Act, 1988 ('Act' for short) which runs thus: "147. Requirements of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which. - (a) ........ (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2). - (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place." The learned Counsel would contend that in terms of Section 147(1) of the Act, only one owner of the goods or his authorised representative carried in the vehicle to entitled for the compensation. The word owner cannot be read as 'owners' of the goods. The word owner cannot be read as 'owners' of the goods. In other words, the learned Counsel submits that the intention of the Legislature in amending Section 147(1) of the Act by Act by Act No. 54 of 1994 with effect from 14-11-1994 is in much as the sole owner of the goods travelling in a goods vehicle to be covered under the statutory policy. No multiple number of owners carrying with their goods travelling in the goods vehicle are entitled for compensation as per the statutory policy issued under Section 147(1) of the Act. 5. Secondly, the learned Counsel placing reliance on the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited v. Cholleti Bharatamma, (2008) 1 SCC 423 would contend that seven persons were travelling in the offending vehicle at the time of the accident out of which three persons claimed compensation. The permitted seating capacity of the offending vehicle was only three including the driver and the cleaner and only one non-fare paying passenger as owner of goods was entitled to travel in a cabin and the claimants travelled in the offending vehicle beyond the seating capacity contrary to the provisions of the Act and Rules. Thus, the Tribunal grossly erred in fastening the liability on the insurer sans the appreciation of this vital aspect. 6. Thirdly, it was contended that the quantum of compensation awarded by the Tribunal is disproportionate to the nature and gravity of the injuries sustained by the claimants and the same requires to the reduced considering the material evidence on record. 7. Per contra, learned Counsel for the claimant in MVC No. 609 of 2010 would contend that the Tribunal failed to appreciate the nature of injuries sustained by the claimant. The quantum of compensation awarded to in utter disregard to the evidence placed by the claimant. The learned Counsel seeks for enhancement of compensation as the compensation awarded by the Tribunal being not the just compensation in terms of the legal principles laid down by the Hon'ble Apex Court in catena of judgments. 8. As regards the liability, the learned Counsel would submit that the insurer has not let in any evidence to rebut the evidence of the claimant in much as the claimant travelling in a goods vehicle as the owner of the goods. 8. As regards the liability, the learned Counsel would submit that the insurer has not let in any evidence to rebut the evidence of the claimant in much as the claimant travelling in a goods vehicle as the owner of the goods. The Tribunal rightly appreciated the evidence to arrive at a conclusion that the claimant was owner of the goods travelling in the goods vehicle, entitled 1 to compensation under Section 147(1) of the Act. 9. Heard the learned Counsel for the parties and perused the material on record. 10. As regards the arguments advanced by the learned Counsel for the insurer in much as the phrase "owner of the goods or his authorised representative", suggests singular owner or authorised representative is not acceptable. At this juncture, it would be beneficial to refer to Section 13 of the General Clauses Act, 1897, wherein it provides that in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, (i) x x x x; (ii) words in the singular shall include the plural and vice versa. 11. In terms of Section 13 of the General Clauses Act, 1897, referred to above, it can be held that the owner or his authorised representative shall include the owners or his authorised representatives. It cannot be read in a restrictive sense. Section 147 of the Act is quite comprehensive in scope and meaning. It has to be given wider, effective and practical meaning so that the object of the Legislature enabling the owners of the Legislature enabling the owners of the goods to be covered under the statutory policy cannot be defeated. 12. It is axiomatic to refer to the judgment of this Court in the case of National Insurance Company Limited, Bangalore v. Alipeer and Another, ILR 2006 Kar. 947 wherein it is categorically held thus: "5. The Rule 100 of Karnataka Motor Vehicles Rules permits certain categories of persons to travel in the goods vehicle. In case of lighter goods vehicle, the permitted capacity of passengers is 2+1 including driver. In the case of heavy goods vehicle, the permitted capacity is 5+1 including the driver. 947 wherein it is categorically held thus: "5. The Rule 100 of Karnataka Motor Vehicles Rules permits certain categories of persons to travel in the goods vehicle. In case of lighter goods vehicle, the permitted capacity of passengers is 2+1 including driver. In the case of heavy goods vehicle, the permitted capacity is 5+1 including the driver. Therefore, as per the tariff regulation if there is a contract to cover the risk of owner of goods travelling in the vehicle under the category of non-fare paid passenger as per IMT 13/14, the insurer will be liable to pay the compensation. 6. In the rural lifestyle of India, with very poor inadequate transport infrastructure, the agriculturists often jointly engage a goods vehicle for transportation of their agricultural produce. In such a situation, the owners/representatives of the goods are eligible to travel along with their goods. However, the number of such owners/representatives should not exceed permitted seating capacity as stated in Rule 100 of Karnataka Motor Vehicles Rules, in that view, the contention that the entire lorry should have been exclusively hired by only one person and only in respect of such owner of goods, the insurer incurs liability under Section 147 is an untenable argument." 13. Further, it is apt to refer to Rule 100 of the Karnataka Motor Vehicles Rules. The same is extracted herein for ready reference: "100. Carriage of persons in goods vehicle. - (1) Subject to the previous of this rule, no person shall be carried in 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, die 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." 14. The Hon'ble Apex Court in the case of B.V. Nagaraju v. Oriental Insurance Company Limited, Divisional Officer, Hassan, (1996) 4 SCC 647 , has held thus: "It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry six workmen, excluding the driver. If those six workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the poser, keeping apart the load it was not carrying. Here it is nobody's case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a persons or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident." 15. Further, in the case of National Insurance Company Limited v. Swaran Singh and Others (2004) 3 SCC 297 , the Hon'ble Apex Court has held as under : "49. Such a breach on the part of the insured must be established by the insurer to show that not only the insured used or caused or permitted to be used the vehicle in breach of the Act but also that the damage he suffered flowed from the breach." 16. In the case of Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100 the Hon'ble Apex Court has held thus: "It becomes very clear from a perusal of the above mentioned case-law of this Court that the Insurance Company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the Insurance Company. In the instant case, the respondent-company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle. Further, as has been held in the case of B.V. Nagaraju (supra), that for the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end." 17. In the case of National Insurance Company Limited v. Anjana Shyam and Others, 2007 AIR SCW 5237 the Hon'ble Apex Court has held thus: "16. Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the Insurance Policy as permitted to be carried by the permit itself. As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the Insurance Company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts to compensation awarded to the extent of the number of passengers covered by the Insurance Policy." 18. Admittedly, the offending vehicle in question was a light transport goods vehicle having registered laden weight more than 990 kgs. In terms of Rule 100 of Karnataka Motor Vehicles Rules, it is settled legal position that the insurer is liable to indemnify the owner in much as three persons carried in the goods vehicle along with their goods other than the driver. The claim in the present case is with respect to three persons. The liability of the insurer being confined to three persons, the insurer cannot be afforded to eschew from the liability. 19. The learned Counsel for the appellant placed much emphasis on the judgment of Cholleti Bharatamma's case supra, to contend that the claimants were travelling in the goods vehicle as gratuitous passengers, the owner of the goods travelling along with the goods to be restricted to only one person. The Hon'ble Apex Court has laid down the dictum in the context of Andhra Pradesh Motor Vehicles Rules. The Hon'ble Apex Court has laid down the dictum in the context of Andhra Pradesh Motor Vehicles Rules. Rule 277(3) and Rule 252 of the Andhra Pradesh Motor Vehicles Rules being not in pari materia with Rule 100 of the Karnataka Motor Vehicles Rules, the said judgment is distinguishable and not applicable to the facts and circumstances of the present case. As aforesaid, Rule 100 of the Karnataka Motor Vehicles Rules, being framed in accordance with Section 65 of the Act, the case of the insurer has to be examined in accordance with Section 147(1) of the Act read with Rule 100 of the Karnataka Motor Vehicles Rules. Applying the principles of law laid down by this Court in Alipeer's case cited supra, the insurer is liable to indemnify the owner of the goods vehicle since it is an indisputable fact that the claimants were travelling in the offending vehicle along with their goods i.e., with wheat bags, channa (pulse) bags. It was the specific contention of the claimants that they were carrying the goods to sell the same in Dharwad Market. It is significant to note that no evidence is let in by the Insurance Company to rebut the evidence of the claimants. Insurance Company has not stepped into the witness-box to substantiate that the claimants were travelling in the goods vehicle as gratuitous passengers. On the other hand, the copy of the complaint marked at Ex. P. 1 and all the police records clearly establishes the claimants transporting their goods namely, wheat and pulse in the offending vehicle at the time of the accident. Further, it is pertinent to note that the insurer has not even made an attempt to make available the copy of the Insurance Policy to establish the breach of terms and conditions of the policy. The Insurance Company has become more wiser in the appellate stage to contend that the Tribunal erred in not appreciating the material evidence on record. As could be seen, the Tribunal profusely analysed the material evidence to arrive at a conclusion that the claimants were travelling as owners of the goods in the offending vehicle. As such the insurer cannot be exonerated from the liability in view of the amendment to Section 147(1) of the Act with effect from 14-11-1994. Thus, the argument advanced at the hands of the learned Counsel for the insurer on this point fails. 20. As such the insurer cannot be exonerated from the liability in view of the amendment to Section 147(1) of the Act with effect from 14-11-1994. Thus, the argument advanced at the hands of the learned Counsel for the insurer on this point fails. 20. As regards the quantum of compensation, the Tribunal has appreciated the evidence in extenso and the compensation awarded is just and equitable in the facts and circumstance of the case. No good ground is made out by the parties to warrant interference with the well-reasoned judgment and order. For the reasons aforesaid, appeals being sans merit, stands dismissed. Amount in deposit shall be transferred to the jurisdictional Tribunal for disbursement.