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2017 DIGILAW 1068 (KAR)

Hanumanthappa v. National Insu. Co. Ltd.

2017-07-21

S.SUJATHA

body2017
JUDGMENT : S. SUJATHA, J. 1. Since these appeals arise out of the common Judgment passed by the Motor Accident Claims Tribunal, Chitradurga ['Tribunal', for short] in MVC No. 822/2007 connected with MVC No. 823/2007, involving the same accident, the same are clubbed together, heard and disposed of by this common Judgment. 2. MFA Nos. 5082/2010 and 5083/2010 are filed by the Insurance Company challenging the liability aspect whereas MFA No. 9142/2010 is filed by the claimant seeking enhancement of compensation. 3. The facts in brief are : that the claimants preferred petitions before the Tribunal seeking compensation for the injuries sustained by them in the road traffic accident which occurred on 12.3.2007 alleging actionable negligence on the driver of both the vehicles involved in the accident, namely, Tractor-Trailer No.KA-16/T-5490-91 and Lorry bearing No.MH-43/E-6214. The Insurer of both the vehicles appeared and contested the claim. The Tribunal, considering the material evidence on record, awarded total compensation of Rs. 76,600/- in MVC No. 822/2007 and Rs. 8,000/- in MVC No. 823/2007 with interest at 6% per annum from the date of petition till its deposit, fastening the liability on the Insurer of the Tractor-Trailer bearing No. KA-16/T-5490-91. Aggrieved by the same, the Insurance Company is in appeal challenging the liability and the determination of the quantum of compensation is challenged by the claimants as being inadequate. 4. Learned Counsel appearing for the Insurance Company contended that the Tribunal grossly erred in not considering the legal position as found in Rule 100(6) read with Rule 226 of the Karnataka Motor Vehicles Rules which contemplates that no workman can be carried in a Trailer except the attendant. The definition Clause of Central Motor Vehicle Rules, Rule-2 defines the agricultural Tractor-Trailer as a vehicle meant to carry only agricultural material and not a goods vehicle. The policy issued by the Insurance Company as per Exhibit.R3 did not extend the coverage to the Coolies nor such risk is contemplated under Section 147 of the Motor Vehicles Act, 1988 ['Act', for short]. Admittedly, the claimants were travelling in the tractor at the time of the accident as unauthorized passengers. As such, no liability can be mulcted against the company for the breach of the policy conditions. Moreover, no liability to indemnify the insured has arisen in the present case since the alleged Coolies/claimants travelling in the tractor-trailer is being prohibited. 5. Admittedly, the claimants were travelling in the tractor at the time of the accident as unauthorized passengers. As such, no liability can be mulcted against the company for the breach of the policy conditions. Moreover, no liability to indemnify the insured has arisen in the present case since the alleged Coolies/claimants travelling in the tractor-trailer is being prohibited. 5. Learned Counsel appearing for the claimants justifying the impugned Judgment and Order would submit that the claimants were travelling in the trailer as agricultural Coolies. Thus, their risk is covered in terms of Section 147 of the Act. The material evidence on record establishes the same. Considering these aspects, the Tribunal foisted the liability on the Insurer of the tractor trailer. It was further contended that it was specifically contended before the Tribunal that actionable negligence of the driver of both the vehicles was the cause for the accident and substantial evidence was let in, in support of the same. The Tribunal held that the negligence of the driver of the tractor-trailer caused the accident. The claimants being third parties are entitled to the protection under Section 147 of the Act. It was further submitted that the claimants had suffered grievous injuries and had taken treatment as an inpatient for a good number of days and the claimant in MVC No. 822/2007 was advised surgery for the fracture of tibia and fibula suffered by him. The Doctor had assessed the permanent physical disability to the extent of 35-40%, as there is mal union of the right leg which resulted in causing permanent disability. Considering these facts, the compensation awarded by the Tribunal is meagre as far as both the cases are concerned. Accordingly, he seeks for enhancement of compensation. 6. Heard the learned Counsel for the parties and perused the material on record. 7. As regards the liability aspect, prima facie, it appears that the claimants were travelling in the tractor. The evidence of PW.1 in MVC No. 822/2007 proves the same. In the cross-examination, it is admitted as under : VERNACULAR MATTER 8. The said admission of the claimant clearly indicates that the claimants were travelling as passengers in the tractor and they were sitting on the mudguard of the tractor. This Court in the case of National Insurance Co. The evidence of PW.1 in MVC No. 822/2007 proves the same. In the cross-examination, it is admitted as under : VERNACULAR MATTER 8. The said admission of the claimant clearly indicates that the claimants were travelling as passengers in the tractor and they were sitting on the mudguard of the tractor. This Court in the case of National Insurance Co. Ltd. v. Bramaranbike reported in LAWS [KAR] 2005 730 has held that the provisions of Regulation 28 in Appendix-2 pertaining to the Rules of the Road Regulations, 1989, formulated under the Motor Vehicles Act, categorically declares that the driver when driving a tractor shall not carry or allow any person to be carried on the mudguard of a tractor. The effect of the regulation makes any person travelling in the tractor apart from the driver as illegal and would be an unauthorized passenger. The policy of insurance issued does not cover the risk of an inmate of the tractor. The permitted seating capacity for the tractor is only that of a driver and no other person. In such circumstances, there is no legal possibility of coverage of the risk of an inmate of a tractor, being per se illegal, not covered in the policy issued by the Insurer, saddling the liability on the Insurer of the tractor-trailer is unjustifiable and deserves to be set aside. 9. The Hon'ble Apex Court in the case of Oriental Insurance Co. Ltd. v. Brij Mohan and Others reported in [2007] 7 SCC 56 has categorically held that the tractor insured only for the purpose of carrying out agricultural works used for cutting or levelling the field and carrying the labourers cannot amount to carrying out agricultural work and the claim cannot be maintainable. But, however, exercising the power under Article 142 read with Article 136 of the Constitution of India, issued directions for doing complete justice to the parties. However, the law declared by the Hon'ble Apex Court is that in such circumstances, the Insurer is not liable to indemnify the Award. 10. As regards the arguments canvassed by the learned Counsel for the Claimants, inasmuch as, the negligence of the driver of the lorry to consider the claimants as third parties and to fasten the liability on the insurer of the lorry, no material evidence is available on record. In the charge sheet, negligence of the driver of the tractor-trailer is mentioned. As regards the arguments canvassed by the learned Counsel for the Claimants, inasmuch as, the negligence of the driver of the lorry to consider the claimants as third parties and to fasten the liability on the insurer of the lorry, no material evidence is available on record. In the charge sheet, negligence of the driver of the tractor-trailer is mentioned. The said driver of the tractor-trailer has pleaded guilty and admitted negligence for the cause of the accident. Except for the ipse dixit statement of the claimants, no cogent evidence is available on record to fix the contributory negligence on the part of the driver of the lorry and to saddle the liability on the Insurer of the lorry. Hence, the arguments of the learned Counsel for the claimants on this point cannot be countenanced. 11. As regards the challenge to the quantum of compensation, it is evident that the claimant in MVC No. 822/2007 has suffered fracture of tibia and fibula and has taken treatment as an inpatient from 12.3.2007 to 13.4.2007. The Doctor who was examined as PW.3 has assessed the disability to the extent of 35- 40% to a particular limb. Considering the nature and gravity of the injuries sustained by the claimant and period of hospitalization, this Court finds that it would be just and proper to award the sum of Rs. 15,000/- towards pain and suffering, mental agony. 12. It is obvious that the impact of the injuries sustained by the claimant, he has to suffer, the discomforts and inconveniences for the rest of his life, undergoing trauma and agony, besides foregoing many of the amenities of life which he would have otherwise enjoyed. In the circumstances, this Court finds it just and proper to award a sum of Rs. 25,000/- towards loss of amenities. In all other respects, the compensation awarded by the Tribunal remains undisturbed. 13. The compensation awarded by the Tribunal in MVC No. 822/2007 is modified as under : SI. No. Particulars Amount (in Rs.) 1 Pain and sufferings, mental agony 15,000 2 Medical expenses 1,000 3 Attendant, food and nourishment, transportation 3,000 4 Loss of amenities 25,000 5 Loss of future income 57,600 Total: 1,01,600 14. As regards MVC No. 823/2007, it is discernible that the claimant has suffered simple injuries. No. Particulars Amount (in Rs.) 1 Pain and sufferings, mental agony 15,000 2 Medical expenses 1,000 3 Attendant, food and nourishment, transportation 3,000 4 Loss of amenities 25,000 5 Loss of future income 57,600 Total: 1,01,600 14. As regards MVC No. 823/2007, it is discernible that the claimant has suffered simple injuries. No medical bills or any other documents were produced to establish the factum of the expenses incurred by him towards medical expenses or any other expenses relating to the treatment. In the absence of any substantial evidence on record, awarding global compensation of Rs. 8,000/- is just and reasonable and the same do not call for any interference by this Court. 15. Hence, the following : ORDER (i) The compensation awarded by the Tribunal in MVC No. 822/2007 is modified to Rs. 1,01,600/- as against Rs. 76,600/-. The award amount shall carry interest at 6% per annum from the date of the petition till the realization. (ii) The total compensation awarded by the Tribunal in MVC No. 823/2007 at Rs. 8,000/- globally with interest at 6% per annum from the date of the petition till the date of deposit is confirmed. (iii) The liability foisted on the Insurer of the Tractor-Trailer No. KA-16/T-5490-91 is set aside. The liability is fastened on the registered owner of the Tractor-Trailer No. KA-16/T-5490-91. (iv) The disbursement of the award amount shall be in terms of the order passed by the Tribunal. Appeals stand disposed of in terms of the above.