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Bandaiah and Laxmanna Vs. Ningappa and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany;Civil
CourtKarnataka High Court
Decided On
Case NumberM.F.A. Nos. 394 to 396 of 1981
Judge
Reported inII(1985)ACC254; [1986]60CompCas756(Kar); ILR1985KAR1702; 1985(2)KarLJ125
ActsCompulsory Insurance Act
AppellantBandaiah and Laxmanna;shivagangamma
RespondentNingappa and ors.;danappa and anr.
Appellant AdvocateShivaraj Patil, Adv.
Respondent AdvocateB.V. Acharya, Adv. for respondent No. 3 and ;Suresh S. Joshi, Adv. for respondent No. 2
DispositionAppeal dismissed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]sections 112 &110 & central motor vehicles rules, 1989, rule 118 : [cyriac joseph, c.j. & a.n. venugopala gowda, jj] fixing of speed governors in transport vehicles -extension of time for fitting speed governors sought by operators of vehicles - held, alleged non-availability of speed governors is without any factual basis. financial burden for fitting speed governors cannot be a valid ground to indefinitely postpone enforcement of a statutory provision incorporated with object of protecting lives of passengers and public. private interest of operators should yield to public interest in ensuring public safety. there must be an end to extensions of time to fit speed governors. .....policy covers such liability ?8. this court had occasion to consider the liability of the driver, owner and insurer. in the case of oriental fire and general insurance co. ltd. v. b. parvathamma [1984] acj 680 ; [1984] ilr 2 kar 492 ; [1985] 1 acc 11; [1986] 60 comp cas 341 (kar), this court has held that the driver would be liable as he permitted the passenger. the driver and the owner would be bound by the vicarious liability because the driver allowed the passenger in the course of his employment. this court has also held, reviewing the case-law on the point, that the insurance company would not be liable under the compulsory insurance act policy as it is not covered by the clauses in the policy ; ' that the owner warned the driver not to take the passengers in the truck is.....
Judgment:

G.N. Sabhahit, J.

1. These appeals arise out of the judgment and awards dated 'August 28, 1980, made by the member, Motor Accidents Claim Tribunal, Gulbarga, in M.V.C. Nos. 43, 45 and 50 of 1979 on his file dismissing the petition of the claimants.

2. The relevant facts briefly stated are : on March 25, 1979, at about 4 p.m. a lorry bearing registration No. MEZ 4457, on Yadgir-Shorapur road near Dodda Halla bridge, in which petitioner was travelling, turned turtle. As a result of that, two claimants in M.V.C. Nos. 43 and 50 of 1979 received injuries whereas one Hoyalappa died and his heirs instituted M.V.C. No. 45 of 1979 claiming compensation.

3. In all these cases, respondents denied their liability. Alternatively they contended that the claim made was excessive. The Tribunal appreciating the evidence on record held that the accident was the result of rash and negligent driving of the lorry in question. However, it came to the conclusion that the driver was not authorised by the owner to take any passenger in the lorry and that way neither the driver nor the owner nor the insurer was liable to pay the compensation. In that view, he dismissed the claims. Aggrieved by the said judgment and awards, the claimants have instituted the above appeals before this court.

4. M.F.A. No. 394 of 1981 relates to the judgment and award in M.V.C. No. 43 of 1979 ; M.F.A. No. 395 of 1981 relates to the judgment and award in M.V.C. No. 45 of 1979 and M.F.A. No. 396 of 1981 relates to the judgment and award in M.V.C. No. 50 of 1979. The learned counsel appearing for the appellants in these cases submitted that the learned member of the Tribunal was not justified in coming to the conclusion that neither the owner nor the driver was liable to pay the compensation on the facts of the cases. He further submitted that even the insurer should be made liable. As against that, the learned counsel appearing for the respondents argued supporting the judgment and awards of the Tribunal. Alternatively, he submitted that if at all there is liability, it should be saddled on the insurance company.

5. The points, therefore, that arise for our consideration in these appeals are:

'(1) Whether the Tribunal was not justified in holding that neither the driver nor the owner nor the insurance company was liable to pay thecompensation If not, what is the compensation to which the claimants in each case are entitled to and from whom ?

(2) What order

6. The Tribunal has come to the conclusion that the accident was the result of rash and negligent driving of the lorry in question. Since it is a case of res ipsa loquitur, it is obvious that the accident was the result of rash and negligent driving of the lorry. That is not the point agitated before us.

7. We have to consider whether the driver of the lorry is liable to pay the compensation when he takes fare-paying passengers in a lorry and if the driver is liable to pay the compensation, whether it can be held that the owner is also liable vicariously and then we have to consider whether the insurance policy covers such liability ?

8. This court had occasion to consider the liability of the driver, owner and insurer. In the case of Oriental Fire and General Insurance Co. Ltd. v. B. Parvathamma [1984] ACJ 680 ; [1984] ILR 2 Kar 492 ; [1985] 1 ACC 11; [1986] 60 Comp Cas 341 (Kar), this court has held that the driver would be liable as he permitted the passenger. The driver and the owner would be bound by the vicarious liability because the driver allowed the passenger in the course of his employment. This court has also held, reviewing the case-law on the point, that the insurance company would not be liable under the Compulsory Insurance Act policy as it is not covered by the clauses in the policy ; ' that the owner warned the driver not to take the passengers in the truck is no excuse so long the driver acts in the course of his employment '. It is obvious that the truck was in the custody of the driver in the course of his employment and he had the implied authority to take passengers also. Hence, both the driver and the owner would be bound to pay compensation for the reasons discussed in the aforesaid decision in detail.

9. The next question that arises for our consideration is the quantum of compensation to which the claimants are entitled. In M.V.C. No. 45 of 1979, the passenger died; he was aged about 40 years ; he was a cooli ; the Tribunal has suggested total compensation of Rs. 16,056 ; it has taken the earning of the deceased at Rs. 6 per day. If we take half of it towards his personal expenses, he could spare Rs. 3 to the family and the monthly loss of dependency would be Rs. 90, and the annual loss of dependency Rs. 1,080 multiplying it by 10 we get the total loss of dependency at Rs. 10,800; to this has to be added Rs. 5,000 towards the loss to the estate of the deceased he has left behind; Rs. 4,000 towards loss of consortium and Rs. 1,000 towards his incidental expenses. Together, therefore, the compensation to be awarded comes to Rs. 20,800 instead ofRs. 16,056 as suggested by the Tribunal. From out of this amount, Rs. 5,000 shall be awarded to each of the two minor sons along with interest at 6% per annum from the date of the petition till payment. Remaining amount shall be paid to the two widows in equal proportion along with costs before the Tribunal. The compensation awarded to the minors shall be deposited before the Tribunal by the owner and the driver and the Tribunal in turn shall deposit the same in a nationalised bank in the names of minors till they attain the age of majority with their mother, the petitioner in M.V.C. No. 45 of 1979, as guardian. The mother would be at liberty to withdraw the interest accruing on the said deposit and spend the same for the welfare of the minors.

10. M.F.A. No. 395 of 1981 is accordingly allowed partly. No costs of this appeal.

11. We will next advert to M.F.A. No. 394 of 1981 which arises from the judgment and award made in M.V.C. No. 43 of 1979. In this case, one Bandaiah suffered three fractures including a fracture of the left femur. The doctor who was examined opined that he could not give any opinion whether the fractures would lead to any disability. Thus, there is no clinching evidence on the aspect whether the claimants suffered any disability. In that view, the Tribunal has suggested compensation of Rs. 10,500 inclusive of special damages. We accept it and hold that the claimant should be awarded Rs. 10,500 as compensation along with interest at 6% per annum from the date of petition till payment as also costs before the Tribunal, by the owner and the driver of the vehicle in question.

12. The appeal is accordingly partly allowed. No costs of this appeal.

13. Lastly, we refer to M.F.A. No. 396 of 1981 which arises out of the judgment and award made in M.V.C. 50 of 1979. This is a case of minor injuries suffered by the claimant. The Tribunal, analysing the evidence of the doctor, has suggested that compensation of Rs. 3,000 should be awarded. We accept it. We accordingly direct the owner and the driver of the vehicle in question to pay the same to the claimant in M.V.C. No. 50 of 1979 along with interest at 6% per annum from the date of petition till payment as also the costs of the claimant before the Tribunal. No costs of this appeal. The appeal is accordingly allowed in part.

14. Appeal against the insurance company is dismissed. No costs.


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