ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed under Section-173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘MV Act’ for brevity) by the appellant - Insurance Company, challenging the judgment and award dated 09.04.2012, passed in MVC No.1983/2010, on the file of Fast Track Court-III and Additional M.A.C.T, Belgaum (hereinafter referred to as ‘the Tribunal’ for brevity), questioning the liability fastened on it to pay compensation to the claimants.

2. It is the case of claimant that on 11.02.2007 the deceased Kumar was waiting for his father i.e., respondent No.3 herein near Shivabasav Nagar Kalyan Mantap Cross, Belgaum and the respondent No.3, who was driver on the tractor and trailer No.KA-22/6219 and 6220, was coming towards circle to go to Gangwadi. When respondent No.3, the driver on the said tractor and trailer was about to stop the vehicle near Kalyan Mantap, the vehicle moved further from Kalyan Mantap, meanwhile the deceased Kumar was about to get into the said tractor and at that time, deceased Kumar came in contact with left wheel of the said tractor and jumped into ground. Consequently, wheel of tractor ran over on the deceased Kumar, due to which, the deceased Kumar died on the spot. Therefore, the claim petition is filed under Section 163-A of the M.V Act for seeking compensation. The Tribunal has allowed the petition in part and granted compensation of Rs.2,50,000/- along with interest at the rate of 8% per annum from the date of petition till its realization by fastening liability on the Insurance Company.

3. The Insurance Company has preferred the appeal on the ground that the deceased Kumar was traveling in the tractor and trailer as a gratuitous passenger by sitting on the mudguard of the tractor engine. Therefore, in view of the full bench decision of this Court in the case of GADHILINGAPPA @ GADHILINGA And Another VS K. GULEPPA S/O K LINGAPPA AND OTHERS, [ILR 2021 KAR 3377], the Insurance Company is not liable to indemnify the owner of the vehicle and therefore prays to exonerate the Insurance Company.

4. Heard arguments from both the sides and perused records.

5. Though the claimant has taken a different stand in the claim petition as stated above, but registers a complaint with FIR and charge sheet (Ex.R5) being laid, it is proved that the deceased Kumar, a minor, aged 13 years old was travelling on the tractor engine by sitting on the mudguard. It is the complaint given at earliest point of time that the deceased Kumar was travelling by sitting on the mudguard of the tractor engine, who is son of respondent No.3, who was driving the tractor. Therefore, it is proved that the deceased was gratuitous passenger, being a minor, son of the respondent No.3, has travelled by sitting on the mudguard of the tractor. The issue is purely covered by the full bench decision of this Court in the case of GADHILINGAPPA @ GADHILINGA referred supra. Therefore, the Insurance Company is not liable to indemnify the owner of the vehicle and thus is liable to be exonerated from paying the compensation.

6. However, in similar facts and circumstances of the case where the deceased was travelling in the tractor by sitting on mudguard of the tractor as a gratuitous passenger, then the Hon’ble Supreme Court in the cases of V. RENGANATHAN AND ANOTHER VS. BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED AND ANOTHER, [2023 ACJ 623] (V. RENGANATHAN CASE) and ORIENTAL INSURANCE COMPANY LIMITED VS. DULARI DEVI AND OTHERS, [2023 ACJ 1243] (DULARI DEVI CASE), the Hon’ble Supreme Court was pleased to pass an order of pay and recovery.

7. In the case of V. RENGANATHAN referred supra, the Hon’ble Apex Court has observed as under:

“5. We find no fault with the finding of the High Court that the insurance company could not be held liable for the payment of compensation in view of the judgment of 3-Judge Bench of this court in the case of New India Assurance Co.Ltd. v. Asha Rani, 2003