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2018 Supreme(Kar) 1216
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
M/s Oriental Insurance Company – Appellant
Versus
Smt. Sannamma W/o Late Thimmegowda – Respondent
MFA No. 5572 of 2011, MFA Crob. No. 25 of 2017
Decided On : 13-12-2018
Advocate Appeared:
For the Appellant : Sri. B.S. Umesh.
For the Respondents: Smt. Suma Kedilaya, Sri. V. Padmanabha Kedilaya, Sri. Nataraju T. for Sri. V.N. Madhava Reddy.
Headnote:
Motor Vehicles Act, 1988 - Section 166 – Claim for compensation - Injuries - Whether Tribunal has erred in not coming to conclusion that deceased was gratuitous passenger and has erroneously fastened liability on Insurance Company Whether cross objection is not maintainable as contended by Insurance Company since same is not filed within one month from date receipt of notice – Held, Regarding point is concerned main contention of Insurer is that deceased travelled as gratuitous passenger – Hence Tribunal ought to have considered material on record - It has failed to appreciate both oral and documentary evidence proper perspective - It ought not to have fastened liability on Insurance Company - Counsel has relied upon judgment of this Court in case of National Insurance and Another - On factual aspect of case which is referred in judgment is aptly applicable to case on hand since it is discussed that owner of goods vehicle was returning to his place in same truck after unloading goods - It is held that vehicle was met with an accident resulting in death of owner of goods vehicle - Insurance Company is not liable on ground that there were no goods carried by him at time of accident - Expression owner of goods presupposes that person will have to travel with goods in order to come within expression owner of goods found that deceased was travelling as passenger - Counsel has also relied upon other judgments which he has referred to in appeal memorandum and contends that there were no goods in vehicle when accident took place and hence liability cannot be fastened on Insurance Company - On other hand counsel for claimants relied upon an unreported judgment passed in brought to my notice factual aspect at Par of said case that after selling tomatoes at with load of empty tomato boxes near cross they were returning in said vehicle - This Court in said judgment at Para observed that in FIR charge sheet ma is clearly mentioned that deceased was travelling in offending tempo along with empty boxes of tomatoes after selling tomatoes in sandy but it is not clear that how many persons including deceased were travelling in tempo and that question does not arise in this case because deceased was only person who dies in said accident and that being so insurer is liable to pay compensation awarded by Tribunal and considering same Tribunal has also rightly fastened liability against insurer of vehicle counsel for Insurance Company also contends that deceased was travelling in goods vehicle sitting by side of driver Whether Tribunal has erred in not coming to conclusion that deceased was gratuitous passenger and has erroneously fastened liability on Insurance Company – Order according
JUDGMENT :
H.P. SANDESH, J.
1. MFA No. 5572/2011 is filed by the Insurance Company challenging the judgment and award passed in MVC No. 51/2009 dated 15.11.2010 on the file of VI Additional District Judge and MACT, Mysore, questioning the liability fastening on the Insurance Company. MFA Crob. No. 25/2017 is filed by the claimants.
2. The brief facts of the case are that the claimants have filed the claim petition before the Tribunal under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs. 65,75,000/- for the death of one Thimmegowda. It is contended that on 02.04.2008 at about 12.00 noon at ring road junction on Mysore Bangalore road, Mysore, when deceased Thimmegowda was returning with goods in vehicle bearing registration No. KA-11-8311, the driver of the said goods auto rickshaw drove the same in a rash and negligent manner and did not stop the same in a signal and went and dashed against the car bearing registration No. KA-03-N-8853 which was coming from KRS ring road. Due to the impact, the said Thimmegowda, who was sitting in front sustained injuries to head and other parts of the body and he was taken to K.R. hospital, Mysore. But, he expired on the way to hospital. The first claimant is the wife, second and third claimants are the sons and the fourth claimant is the daughter of the deceased Thimmegowda. It is their contention that he was an agriculturist and vegetable vendor and thereby, he was earning Rs. 300/- per day from vegetable vending. He was earning Rs. 50,000/- per annum from agriculture.
3. The Insurance Company has filed written statement contending in para-2 that on the date of the accident, the petitioner was travelling in the goods auto as a gratuitous passenger and seating capacity of the alleged vehicle is 1+1. As per the statement of one H.K. Ravi, on the date of the alleged accident along with the driver, three persons were travelled in the said vehicle as gratuitous passengers. Hence, the Insurance Company is not liable to pay the compensation.
4. In order to substantiate their claim, the claimants have examined the first claimant as PW-1 and got marked the documents as Exs.P1 to P8. On the other hand, the respondents examined one witness as RW-1 and marked the document-Insurance policy as Ex.R1.
5. The Tribunal after considering both oral and documentary evidence of the respective parties has allowed the petition in part granting compensation of Rs. 3,26,000/- with interest @ 6% p.a. The Tribunal has fastened the liability on respondent No. 2-Insurance Company.
6. Being aggrieved by the judgment and award of the Tribunal, the Insurance Company has preferred MFA No. 5572/2011 contending that the very judgment and award of the Tribunal fastening the liability on the Insurance Company is erroneous. The Tribunal failed to take note of the fact that the deceased has travelled as a gratuitous passenger as contended in the written statement and further that the vehicle insured with the Insurance Company is a goods auto rickshaw and the permit capacity of passengers in the auto rickshaw is 1+1 including the driver. Admittedly, there were 4-5 persons in the auto rickshaw and all of them cannot be said to be travelling along with the goods. Hence, the liability fastened on the Insurance Company has to be set aside.
In support of his contention, the learned counsel appearing for the Insurance Company has relied upon the judgment reported in the case of National Insurance Co. Ltd. vs. Aishabi and Another, 2008 ACJ 1718. The learned counsel in the appeal memorandum has also contended that the Tribunal has allowed the petition against the principles of law laid down by the Hon’ble Supreme Court in the cases of New India Assurance Co. Ltd. vs. Vedavathi, 2007 ACJ 1043, National Insurance Co. Ltd. vs. Cholletti Bharathamma, 2008 ACJ 268, National Insurance Co. Ltd. vs. Prema Devi, 2008 ACJ 1149 and National Insurance Co. Ltd. vs. Kausalya Devi, 2008 ACJ 2144. He contends that the Tribunal ought not
