1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE28H DAY OF FEBRUARY2020BEFORE THE HONBLE MR.JUSTICE N.S.SANJAY GOWDA M.F.A.No.3600/2017BETWEEN :
SMT. NARASAMMA, W/O LATE GOVINDAPPA, AGED ABOUT57YEARS, 1.
2. MR. THIMMAIAH G, 3. MR. VENKATESH S/O LATE GOVINDAPPA, AGED ABOUT24YEARS, S/O LATE GOVINDAPPA, AGED ABOUT33YEARS, APPELLANTS ALL ARE R/AT KADUTHIPURU VILLAGE, BAKTHARAHALLI POST, DODDBELAVANGALA HOBLI, DODDABALLAPUR TALUK, BANGALORE RURAL DISTRICT. PIN561203. (BY SRI. A.S. GIRISH, ADVOCATE) AND:
1. M/s MAGMA HDI GEN. INS. CO. LTD., NO.36, H.M.ASTRID, 2ND FLOOR, J.C.ROAD, MINERVA CIRCLE, BANGALORE-02, (INSURER OF LORRY BEARING No.KA-53-135) BY ITS MANAGER. 2 AGED ABOUT42YEARS, R/AT No.35, BETTAHALLI VILLAGE, MANDIGERE POST, GOLDEN PALM ROAD, NELAMANGALA TALUK, BANGALORE-562 123. (OWNER OF LORRY BEARING NO.KA-53-135) 2. MR. SURESH B.C., S/O CHANARAYAPPA, (BY SRI. H.N. KESHAVA PRASHANTH, ADVOCATE FOR R-1, R-2 SERVED) RESPONDENTS THE AND AGAINST THIS APPEAL IS FILED UNDER SECTION1731) OF MV ACT AWARD DATED:04.01.2017 PASSED IN MVC NO.60/2014 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MEMBER, MACT, DODDABALLAPURA, BENGALURU RURAL DISTRICT, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. JUDGMENT THIS APPEAL, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT1 Being dissatisfied with the award of compensation of Rs.5,52,000/- for the death of one Govindappa and challenging the exoneration of liability of the Insurance Company, the claimants are in appeal.
2. It was contended before the Tribunal that Govindappa was traveling as a coolie on 05.02.2014 in a lorry bearing 3 registration No.KA-53-1035 towards Rayarapalya for loading of wooden poles and at about 9.45 a.m., when the driver of the lorry took a turn at a high speed, Govindappa fell down from the truck and as a result of which, he sustained grievous injuries and ultimately, succumbed to the injuries. It was stated that deceased was aged 55 years and was working as a coolie in the lorry when he suffered the unfortunate accident. It was stated that the lorry belonged to respondent No.2 therein and he was paying the deceased Rs.10,000/- per month and sought for compensation for the death Govindappa.
3. The said claim petition was resisted by the Insurance Company. As usual, it denied all the averments. It also put forth the plea that Govindappa was standing in the carriage of the lorry and was not proceeding as a coolie. It was contended that he was gratuitous passenger traveling in the rear of the lorry and when the lorry took a sudden turn, Govindappa, who was standing in the extreme rear of the lorry, fell down. It was contended that the policy issued by it 4 did not cover the risk of it and therefore, it was not liable to indemnify the 2nd respondent - owner.
4. The 2nd respondent owner did not appear, despite service of notice. Hence, he was placed exparte.
5. The Tribunal, on consideration of evidence adduced before it, came to the conclusion that Govindappa was traveling in the lorry and he was thrown from the lorry when the lorry turned abruptly and his death occurred due to the injuries sustained in the accident. The Tribunal also recorded a finding that deceased was a gratuitous passenger and the Insurance Company was, therefore, not liable to saddle with compensation.
6. The Tribunal came to the conclusion that the claimants had failed to prove that Govindappa had been employed by the 2nd respondent for loading the wooden poles in the lorry and it also came to the conclusion that had Govindappa been inside the cabin of the lorry, he would not have thrown away from the cabin as the cabin was covered with doors. The Tribunal proceeded to record a finding that Govindappa was 5 gratuitous passenger in the lorry and since the lorry cannot carry any passengers by virtue of Rule 100 of the Karnataka Motor Vehicles Rules, 1989 (for short, the Rules), the Insurance Company would not be liable to pay compensation. In order to support its reasoning, the Tribunal placed reliance on the decisions of the Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED Vs. CHOLLETI BHARATAMMA AND OTHERS - AIR2008SC484and THOKCHOM ONGBI SANGETA & ANOTHER2008ACJ6 7. The Tribunal, as regards compensation, determined the monthly income of the deceased at Rs.6,000/- and proceeded to award the following compensation:
1. Loss of dependency 2 Loss of love and affection 3 Funeral expenses 4 Transportation charges TOTAL528,000/- 10,000/- 8,000/- 6,000/- 5,52,000/
Learned counsel for the claimants submitted that there was clear evidence on record that deceased was in fact traveling in the lorry as a coolie and he was in fact sitting in the left side of the front cabin. He stated that eye witness 6 examined by the claimant, i.e., Ravikumar (P.W.2) categorically asserted this fact and nothing was elicited in the cross-examination to disbelieve his evidence.
9. Learned counsel also contended that liability of the Insurance Company would still lie in view of the fact that the vehicle in question was covered under commercial vehicle class package policy under which the Insurance Company had collected separate premium under Employees Compensation Act for the driver/cleaner/employee in a sum of Rs.50/-. He further contended that since there was clear evidence that deceased was an employee, engaged for loading and unloading, the Insurance Company could not have been exonerated of its liability.
10. On the contrary, learned counsel for the Insurance Company contended that the sums awarded by the Tribunal were just and proper and exoneration of liability on the Insurance Company could not be found fault with. He also contended that the finding of the Tribunal that deceased was a gratuitous passenger was based on cogent evidence and should not be upset by this Court.
11. 7 I have considered the respective contentions of learned counsel for the parties and perused the materials on record.
12. The claim put forth in the petition was that deceased was traveling as a coolie in the lorry and he fell down from the lorry when the lorry took a sudden turn.
13. The respondent Insurance Company took up the contention that deceased was traveling in the rear of the lorry and they could not, therefore, be saddled with the liability.
14. By implication, the contention was that had the deceased traveled within the cabin of the lorry, there could be the possibility of Insurance Company being saddled with the liability, if it was proved that deceased was traveling as an employee.
15. It is not in dispute that the lorry was a commercial vehicle and a package policy was issued by the respondent Insurance Company, under which, apart from basic own damage covered and basic third party cover, personal accident cover to the owner/driver and the legal liability 8 arising under Employees Compensation Act for the driver/cleaner/employee was also covered.
16. The contention of the learned counsel for the Insurance Company that since the vehicle in question was a goods vehicle, no person could have been carried in the said vehicle and if any such person was carried, their liability would not arise, is incorrect. Even according to the package policy, carrying capacity of persons in the vehicle including the driver was stated to be 3.
17. Rule 100 of the Rules provides for carriage of persons in goods vehicle. It reads as follows:
100. Carriage of persons in goods vehicle.-(1) Subject to the provisions of this rule, no person shall be carried in a 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 traveling on duty may be carried in a goods vehicle, the total number of persons so carried,- 9 (i) in light transport goods vehicle having registered laden weight less than 990 kgs. not more than one; in any other light transport goods vehicle not more than three; and in any goods vehicle not more than seven: (ii) (iii) 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. (2) Notwithstanding anything contained in sub-rule (i), but subject to the provisions of sub-rules (4) and (5), a Regional Transport Authority may, by an order writing permit that a larger number of persons may be carried in the vehicle, on condition that no goods at all are carried, free of charge in connection with the work for which the vehicle is used, and that such other conditions as may be specified by the Regional Transport Authority are observed, and where the vehicle is required to be covered by a permit, the conditions of the permit. (3) Notwithstanding anything contained in sub- rules (1) and (2), but subject to the provisions of sub- rules (4) and (5),- 10 (a) for the purpose of celebrations in connection with the Republic Day or Independence Day or any other public congregation, the Regional Transport Officer; (b) for the purpose of enabling of co-operative society or class of co-operative societies owning or hiring a goods vehicle to carry its members under its authority in such goods vehicle when used for the purpose of carrying goods of the society in the ordinary course of its business, the Secretary of the Regional Transport Authority; (c) where it considers expedient in public interest in respect of vehicles owned or hired by it, and in respect of other vehicles on such inescapable grounds of urgent nature to be specified in the order, the State Government may, by general or special order, permit goods vehicle to be used for the carriage of persons for the purposes aforesaid, and subject to such conditions, as may be specified in the order. (4) No persons shall be carried in any goods vehicle,- 11 (a) unless an area of not less than 0.40 square metre of the floor of the vehicle is kept open for each person; and (b) in such manner- (i) (ii) that such person when carried on goods is otherwise in danger of falling from the vehicles; that any part of his body, when he is in a sitting position is at a height exceeding three metres from the surface upon which the vehicle rests. (5) The provisions of this rule shall not apply to motor vehicles registered under Section 60. (6) No person other than an attendant or attendants required by Rule 226 shall be carried on a trailer which is a goods vehicles.
18. As could be seen from Rule 100 of the Rules, as a general rule, no person is allowed to be carried in a goods vehicle. However, a proviso has been appended to the said rule, which states that the owner or the hirer or a bonafide employee of the owner or the hirer of the vehicle could be 12 carried free of charge in the goods vehicle and the total number of persons so carried would be not more than one (in light transport goods vehicle having registered laden weight less than 990 kgs.), not more than three (in any other light transport goods vehicle) and not more than seven (in any goods vehicle). It is, therefore, clear that in respect of goods vehicle also, by virtue of the proviso, a bonafide employee of the owner or the hirer of the vehicle can be carried free of charge, so long as number of people do not exceed the limits specified in Sub-clause (i) to (iii) of sub-rule (1) of Rule 100.
19. The manner in which the persons can be carried in goods vehicle is however not indicated in sub-rule (1). However, sub-rule (2) starts with a non-obstante clause which states that notwithstanding what is stated in sub-rule (1), the Regional Transport Authority may by an order in writing, permit larger number of persons to be carried in the vehicle, of course, on condition that no goods at all be carried in connection with the work for which the vehicle is used. Sub-rule (2), therefore, indicates that if no goods are being carried, the number of persons in excess of one specified in 13 Sub-rule (1) can be carried subject to special permission from the Regional Transport Officer.
20. Sub-rule (3) further goes on to say that for the purpose of celebrations in connection with the Republic Day or Independence Day or any other public congregation, the Regional Transport Officer, may, by general or special order, permit goods vehicle to be used for carriage of persons for the purposes mentioned in sub-clause (a) to (c) of sub-rule (3).
21. Sub-rule (4) thereafter specifies the limitations in respect of carriage of persons. It states that no person shall be carried in any goods vehicle, unless an area of not less than 0.40 square metre of the floor of the vehicle is kept open for each person and there is no danger of falling down from the vehicle.
22. A complete reading of Rule 100 of the Rules indicates that notwithstanding the general dictum of not allowing carriage of persons in a goods vehicle, the law does permit a number of people to be carried in a goods vehicle. Sub-rules 14 (2) to (4) indicate that the persons so carried can actually be carried in the goods vehicle. A goods vehicle by its very definition does not have permit of carrying passengers. This would obviously mean that the persons to be carried would be in the area where the goods are to be stored. In other words, the Rule itself provides for carriage of passengers in the area reserved for carrying goods, under special conditions, depending on the weight of the vehicle and as a matter of right, the owner or the hirer or the bonafide employee of the owner or the hirer can travel in a goods vehicle. It, therefore, follows that if an employee of the owner of the vehicle is being carried in a goods vehicle, it cannot be illegal and such a person cannot be construed as a gratuitous passenger.
23. Since the rule itself permits carriage of persons in the vehicle, it is not material whether the person travels within the cabin or outside the cabin. So long as number of people traveling in the goods vehicle is specified under Rule 100 of the rules, the goods vehicle is permitted to carry passengers. 15 24. Viewed from this legal background, it has to be now seen whether the deceased was traveling in the goods vehicle as an employee of the owner of the vehicle.
25. The owner of the vehicle was placed exparte. A co- employee was examined as P.W.2. He sated that along with two other coolies including deceased, he was traveling in the lorry as coolies/loaders and they have been working as such for past two years. He stated that they were going from their village towards Rayarapalya for loading wooden poles. It is thus clear that there was clear evidence of co-employee as to the deceased being traveling as an employee i.e., as a coolie and he fell down from the lorry actually when he was sitting in the left side of the front cabin.
26. The assertion of P.W.2, the co-employee that they were traveling in the lorry as coolies/loaders was not really assailed by the Insurance Company during the course of cross- examination. In my view, since the assertion of the claimants in the claim petition and the evidence of co- employee went without any denial from the owner of the lorry and the assertion of the co-employee was not really assailed 16 during the course of cross-examination, it will have to be held that deceased was in fact an employee in the goods vehicle.
27. As stated above, since the goods carriage vehicle does permit carriage of passengers, so long as they were employees and further more since in the instant case the Insurance Company has taken extra premium to cover the legal liability under the Employees Compensation Act for driver/cleaner/employees, the Insurance Company would be liable to cover all employees carried in the goods carriage vehicle, subject to the condition that maximum number of persons carried in the goods carriage does not exceed the number specified in Rule 100 of the Rules.
28. In the instant case, it is nobodys case that the goods vehicle was carrying passengers in excess of the limits specified in Rule 100 of the Rules. Therefore, it follows that the Insurance Company would be liable to satisfy the award in respect of deceased who was an employee/coolie traveling in the goods vehicle. 17 29. Learned counsel for the Insurance Company contended that in view of the decision of the Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED Vs. CHOLLETI BHARATAMMA AND OTHERS - AIR2008SC484 which was followed by this Court in MFA.No.40/2010 disposed of on 08.06.2012, the Insurance Company would not be liable. In the said case, the Apex Court has dealt with a case in relation to an which accident which had occurred in Andhra Pradesh and in those cases, there was no rule similar to Rule 100 of the Karnataka Motor Vehicles Rules in operation. The Apex Court interpreting Section 147 of the Motor Vehicles Act rendered a decision that the owner of the goods means only the person who travels in the vehicle.
30. Since in the State of Karnataka, Rule 100 of the Rules provides for carriage of passengers even in goods vehicle, the Insurance Company would have to cover the liability in respect of those persons who were permitted to be carried in the goods vehicle. Since there is no absolute bar in Karnataka for carriage of passengers in a goods vehicle, I hold that the Insurance Company would be liable to satisfy the liability in this case. 18 31. As far as compensation is concerned, the Tribunal has determined the monthly income of the deceased at Rs.6,000/- per month since there was no credible evidence to establish the actual income of the deceased. In my view, in such a situation, the notional income of Rs.8,500/- as determined by the Karnataka Legal Services Authority for the motor vehicle accident victims of the year 2014 would have to be adopted. Since it is a case of death, the future prospects of 10% would be required to be added to the monthly income, which makes the monthly income of deceased to Rs.9,350/-. Out of which, 1/3rd is required to be deducted towards his personal expenses, which in turn makes his monthly income to Rs.6,234/-. Having regard to the age of the deceased i.e., 55 years, the multiplier of 11 is required to be adopted. Thus, the claimants would be entitled to loss of dependency at Rs.8,22,888/- (6234 X12X11.
32. The 1st claimant being the widow, she alone would be entitled for loss of consortium in a sum of Rs.44,000/- and a 19 further sum of Rs.33,000/- is also awarded under conventional heads.
33. In the result, the appeal is allowed in part. The claimants are held entitled to compensation of Rs.8,99,888/-. The enhanced compensation shall carry interest at 6 % p.a.
34. The Insurance Company is directed to deposit the amount within six weeks from the date of receipt of a certified copy of this judgment. PKS Sd/- JUDGE