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2019 Supreme(Kar) 1799
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
K. Natarajan, J.
United India Insurance Co. Ltd. – Appellant
Versus
Smt.Sattewwa W/o Mallappa Belliveri and ors. – Respondents
Miscellaneous First Appeal No.20792 of 2013 (MV)
Decided On : 26-09-2019
Advocate Appeared:
For the Appellant :Sri. Ravindra R. Mane, Advocate
For the Respondent:Sri. Sanjay S. Katageri, Advocate
Headnote:
Motor Vehicles Act, 1988 - Section 166 and 95(1) - Workmen’s Compensation Act, 1923 - Workmen - Accident - Claiming Compensation - Whether petitioners prove that Shri. Yallappa Mallappa Belliveri was traveling in truck on Katakol Chandaragi road within limits of Kesarakoppa village - Whether petitioners prove that driver of the offending truck was driving offending truck in rash and negligent manner and caused alleged accident at alleged time and place of accident - Whether petitioners prove that Sri. Yallappa Mallappa Belliveri dies in alleged accident - Whether respondent No.2 proves estopped alleged in its written statement - Whether petition is time barred – Held, Keeping in view principles laid down by Coordinate Bench as well as Division Bench of this Court, coming to facts of case on hand, though deceased Yellappa along with other passengers had traveled in truck as a gratuitous passenger, but fact remains that deceased got down for attending nature call and before entering into vehicle, he was knocked down and sustained injuries and died - Therefore, deceased was literally outside vehicle and not in vehicle – Court hold that deceased cannot be considered as a gratuitous passenger in a goods vehicle in order to absolve liability of Insurer - On other hand, deceased being a third party to contract and Insurance Policy also covered third party risk, Insurance Company is liable to pay compensation - Tribunal has rightly fastened liability on Insurance Company and hence findings of Tribunal do not call for any interference - Hence, answer point No.(i) in favour of claimants and as against Insurance Company - As regards quantum of compensation, counsel for Insurer contended that accident in question had occurred in year 1991 - Tribunal has considered income of deceased, who was working as a coolie, as Rs.60/- per day and as deceased was a bachelor deducted 50% towards personal expenses and by adding 30% towards future prospects, awarded compensation of Rs.2,52,720/- by applying multiplier of 18 - Further Tribunal awarded Rs.5,000/-towards loss of estate and Rs.5,000/- towards funeral expenses, totally awarded compensation of Rs.2,62,720/- to claimants - Therefore, award passed by Tribunal need not be interfered on quantum of compensation, as it is only a meager amount for 19 years old person - Therefore, appeal filed by Insurer is devoid of merit and deserves to be dismissed - appeal dismissed.
JUDGMENT :
The appellant-Insurance Company filed this appeal assailing the judgment and award passed by the Addl. Senior Civil Judge and Addl. MACT, Gokak (hereinafter referred to as ‘the Tribunal’, for short) in MVC No.2217/2009 dated 16.11.2012.
2. Heard the arguments of learned counsel for both the parties.
3. The ranks of the parties before the Tribunal is retained for brevity.
4. The claimants filed a petition under Section 166 of the Motor Vehicles Act, claiming compensation of Rs.8,00,000/-, inter alia contending that on 07.06.1991, son of the claimants, namely Yellappa Mallappa Belliveri, was traveling in a truck bearing registration No.MEI 4042 from Godachi towards Kamaldinni village, claiming to be a cleaner in the said truck and when the vehicle was moving near Kesarakoppa village at about 3.00 pm, the said Yellappa Mallappa Belliveri got down from the truck to answer nature call. When he attempted to board the truck, the driver of the truck all of a sudden moved the vehicle without any caution in a rash and negligent manner, due to which he fell down and sustained injuries. He succumbed to the injuries while shifting to the hospital.
Previously, the claimants filed the petition under Workmen’s Compensation Act before the Labour Officer and Commissioner for Workmen’s Compensation (hereinafter referred to as the ‘the Commissioner’, for short), claiming that deceased was a cleaner of the said vehicle. The Commissioner passed the award dated 05.06.2004 by awarding the compensation of Rs.99,008/- to the claimants in WCA.SR.36/2002 with interest at 12% p.a. Assailing the award passed by the Commissioner, the Insurer preferred an appeal in MFA No.5921/2004, which came to be allowed and the award passed by the Commissioner has been set aside on the ground that the deceased was not a cleaner, but he was a passenger of the lorry, however, liberty was granted to the claimants to approach appropriate forum for seeking any relief under any other law, vide judgment dated 24.08.2007.
Subsequently, the claimant filed the petition under Section 166 of the Motor Vehicles Act, claiming compensation. The respondent No.1-owner of the vehicle died during the pendency of the petition and his LRs were brought on record and the LRs of the respondent-owner admitted the previous proceedings and the judgment arrived by this Court in Misc. Appeal and denied the averments made in the claim petition as false. He has also taken a contention that the deceased was not a cleaner of the truck. However, the vehicle was duly insured with the 2nd respondent – Insurance Company and the liability, if any, shall be fastened on the Insurer. Hence he prayed for dismissing the claim petition.
2nd respondent-Insurer filed the statement of objection by denying the averments made in the claim petition as false and contended that this Court already declared that the deceased was not the cleaner of the truck and even if he is presumed to be a passenger in the lorry, he is an unauthorized passenger and the petition filed after 19 years which is barred by limitation and the petition is not maintainable. However, the Insurer also taken a contention that the driver of the lorry did not have a valid and effective driving licence at the time of accident and there is violation of the conditions of Insurance Policy by the insured. Therefore they are not liable to pay the compensation. Hence he prayed for dismissing the claim petition.
Based upon the rival pleadings, the Tribunal framed the following issues:
(i). Whether the petitioners prove that Shri. Yallappa Mallappa Belliveri was traveling in truck bearing No.MEI 4042 on 7.6.1991 at 3.00 pm on Katakol Chandaragi road within the limits of Kesarakoppa village?
(ii). Whether the petitioners prove that the driver of the offending truck was driving the offending truck in rash and negligent manner and caused the alleged accident at the alleged time and place of accident?
(iii). Whether the petitioners prove that Sri. Yallappa Mallappa
