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MFA No. 1661 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 30 DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 1661 OF 2015 (MV-D)
BETWEEN:
SMT. SHAKUNTHALA
W/O LATE CHETHURAM
AGED ABOUT 48 YEARS
R/AT NO.KALPANAHALLI VILLAGE
BHADRAVATHI TALUK
SHIMOGA DISTRICT - 577 201 … APPELLANT
(BY SRI.M.V.MAHESHWARAPPA, ADV.)
AND:
1 . SMT BHAGYAMMA
W/O LATE DHANAPPA
AGED ABOUT 32 YEARS
HOUSE WIFE, R/AT ITTIGEHALLI
VILLAGE, BHADRAVATHI TALUK
SHIMOGA DIST-577 201
2 . AFROZ
S/O MOHAMMED DASTAGIR SAB
Digitally signed by
HARIKRISHNA V AGED ABOUT 37 YEARS
DRIVER OF TRACTOR AND TRAILOR
Location: HIGH COURT OF
KARNATAKA
R/AT KUDLIGERE VILLAGE
BHADRAVATHI TALUK
SHIMOGA DISTRICT-577 201
3 . THE BRANCH MANAGER
THE UNITED INDIA INSURANCE CO LTD.
P.B. NO.123,CHANNAGIRI ROAD
OLD TOWN,BHADRAVATHI
SHIMOGA DIST-577 201 … RESPONDENTS
(BY SRI.M.K.VENKATARAMANA, ADV. FOR R1;
SRI.RAVISH BENNI, ADV. FOR R3;
R2 SERVED)
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MFA No. 1661 of 2015
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 25.06.2014
PASSED IN MVC NO.35/2012 ON THE FILE OF THE FAST
TRACK COURT, ADDITIONAL MACT-5, BHADRAVATHI,
AWARDING A COMPENSATION OF RS.6,12,000/- WITH
INTEREST AT 6% P.A., FROM THE DATE OF PETITION TILL
THE DATE OF PAYMENT.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 18.03.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the owner of the tractor-trailer
has challenged the judgment and award dated
25.06.2014 in M.V.C.No.35/2012 passed by the Fast
Track Court and Addl M.A.C.T.-V, Bhadravathi ('the
Tribunal' for short).
2. Appellant was respondent No.2, respondent
No.1 was the petitioner, respondents No.2 and 3
were respondents No.1 and 3 before the Tribunal For
the sake of convenience, the parties shall be referred
to as per their status before the Tribunal.
3. Brief facts of the case are, the husband of
petitioner by name Danappa (the deceased) was
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MFA No. 1661 of 2015
working as a Loader in a tractor-trailer bearing
Reg.No.KA-14/TA-0029-30 under respondent No.2,
met with an accident while travelling in the said
tractor-trailer on Anaveri-Ittigehalli Road of
Bhadravathi Taluk near the house of one Anaveri
Guddadamallappa. On 07.02.2010 at about 7:30 pm,
due to the impact, the labours who were sitting on
the tractor-trailer fell down and the deceased was
ran over by the wheel of the tractor. The deceased
was brought to the Mc. Gann Hospital, Shivamogga
in a 108 Ambulance, where he was declared brought
dead. Claiming that the petitioner was earning
Rs.5,000/- per month as a loader in the tractor, the
petitioner approached the Tribunal for grant of
compensation of Rs.5,55,000/-. Claim was opposed
by the respondents. Respondents No.1 and 2 have
contended that the accident has occurred solely due
to the negligence and carelessness on the part of the
deceased himself. The Insurance Company has
contended that respondent No.2 being the owner has
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MFA No. 1661 of 2015
not obtained the permit for carrying passengers, nor
paid any additional premium covering the risk of
passengers travelleing in the tractor-trailer; the risk
of the passengers or coolies of the tractor-trailer
were not covered under the policy and the Insurance
Company has no liability to indemnify the owner.
The Tribunal after taking the evidence and on
hearing both the parties, by impugned judgment,
awarded the compensation of Rs.6,12,000/- with 6%
interest per annum and directed the owner of the
tractor-trailer to pay the compensation while
dismissing the claim against the driver and the
Insurance Company. Aggrieved by the same, the
owner of the tractor-trailer has filed this appeal on
various grounds.
4. Heard the arguments of
Sri. M.V. Maheshwarappa, learned counsel for the
owner, Sri. M.K. Venkataramana learned counsel for
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MFA No. 1661 of 2015
the petitioner and Sri. Ravish Benni, learned counsel
for the Insurance Company.
5. It is the contention of learned counsel for the
owner of the tractor-trailer that the deceased was
the loader of the tractor, the tractor was used for
construction of the canal work which is a part of
agriculture; Ex.R1 is a package policy, which covers
the loader of the tractor and Insurance Company is
liable to indemnify his liability. To buttress his
argument, he has relied upon the judgments of this
Court in:
i) National Insurance Company
Limited -Vs.- Sri Maruthi and
1
Others ,
ii) The Divisional Manager, United
India Insurance Co. Ltd., Ballari -
2
Vs.- Smt. Savitri and Others ,
iii) Sri. Ajjegowda -Vs.- Smt. Latha and
3
Others .
1
ILR 2011 KAR 4139
2
ILR 2019 KAR 1743
3
M.F.A.No.4842/2016, decided on 08.09.2021
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MFA No. 1661 of 2015
6. It is the contention of learned counsel for the
petitioner that the deceased was working as a
Loader in the tractor-trailer; he has met with an
accident on account of actionable negligence on the
part of respondent No.1; basically, respondents No.1
and 2 are jointly liable to pay the compensation; as
the owner of the tractor-trailer obtained the package
policy, it covers the risk of death of the deceased
and therefore, all the respondents have to pay the
compensation.
7. Per contra, learned counsel for the Insurance
Company has contended that the tractor was used
for commercial purpose; the policy of insurance did
not cover the risk of the deceased under Section 147
of the Motor Vehicles Act, 1988; though the policy is
a package policy, no premium was collected to cover
the risk of the loader or labour of the tractor-trailer;
when there was no premium paid, policy was not
covering the risk of the labours and the tractor was
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MFA No. 1661 of 2015
used for commercial purposes, the Insurance
Company has no legal liability to indemnify the
owner. In support of his argument, he has relied the
decision in Nagaraj -Vs.- Ninge Gowda and
4
Another .
8. I have given my anxious consideration to the
arguments addressed on both sides and also perused
the records.
9. The material on record points out that the
tractor-trailer bearing Reg.No.KA-14/TA-0029-30
belonging to respondent No.2 on 07.02.2010 at
07:30 pm, was driven by respondent No.1. The said
tractor-trailer met with an accident while carrying
the sand as well as labourers in the tractor-trailer.
Due to the impact, the husband of the petitioner fell
down from the tractor-trailer was ran over by the
wheel of the tractor, causing him the injuries. The
deceased when brought to Mc. Gann Hospital,
4
M.F.A.No.6440/2012 (WC), decided on 17.07.2023
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MFA No. 1661 of 2015
Shivamogga for treatment, he was declared brought
dead. The petitioner being the wife of the deceased,
being a dependant, entitled to claim compensation.
10. As regarding the accident is concerned, the
petitioner has relied upon the prosecution papers
such as the F.I.R., complaint, spot mahazar, inquest
mahazar, I.M.V. report, P.M. report, claim notice,
election I.D. card and ration card as per Exs.P1 to
P9. The prosecution papers stand in support of the
claim made by the petitioner for while the deceased
was travelling in the tractor-trailer along with co-
coolies, there was an accident, due to which the
deceased fell down from the tractor, wheel of the
tractor has ran over on his head, resulting his death.
The driver of the tractor has been prosecuted by the
Holehonnur Police in Crime No.43/2010. Inquest
report as well as post-mortem report points out that
the cause of death was due to shock as a result of
injuries sustained by the deceased. The injury
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MFA No. 1661 of 2015
mentioned in the post-mortem report as well as
inquest mahazar is the head injury. Hence, the
accident, cause of the accident and actionable
negligence on the part of respondent No.1 has been
explained.
11. On the basis of petitioner being the
dependent, the Tribunal considered the income of
rd
the deceased at Rs.4,000/-, effected 1/3 deduction
towards personal expenses, awarded loss of
dependency at Rs.5,76,000/-. Towards loss of
estate, loss of love and affection and loss of
consortium, Rs.10,000/- each and funeral expenses
at Rs.6,000/-, in all, Rs.6,12,000/- was awarded.
Since the petitioner has not filed the appeal seeking
enhancement, this appeal is only confined to the
aspect of liability.
12. Respondents No.1 and 2 being the driver
and owner are liable to pay the compensation. The
Insurance Company though disowned its liability, it
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MFA No. 1661 of 2015
has produced policy of insurance as per Ex.R1. On
perusal of contents of Ex.R1, the policy is in force at
the time of accident. But, the policy is named as
‘Miscellaneous and Special Type of Vehicles Package
Policy’. The schedule of premium points out the
third-party liability, premium for trailer, compulsory
PA to owner-driver, WC to employee 1. For 1
employee, the policy takes the premium of Rs.25/-.
Under these circumstances, whether the Insurance
Company is liable to indemnify the owner has to be
considered.
13. Ex.R1 points out that the policy was issued
subjected to I.M.T. endorsements: 7, 21, 48, 36, 24
and 40. These entries refer:
“IMT.7. Vehicles subject to Hypothecation
Agreement
IMT.21. SPECIAL EXCLUSIONS AND
COMPULSORY DEDUCTIBLE (Applicable to all
Commercial Vehicles excluding taxis and
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MFA No. 1661 of 2015
motorized two wheelers carrying passengers
for hire or reward.)
IMT.24. ELECTRICAL / ELECTRONIC
FITTINGS (Items fitted in the vehicle but not
included in the manufacturers listed selling
price of the vehicle – Package Policy only)
IMT.36. Indemnity to Hirer – Package Policy
– Negligence of the insured or Hirer.
IMT.40. Legal Liability to paid driver and/or
cleaner employed in connection with the
operation of Motor vehicle. (For buses, taxis
and motorized three/four wheelers under
commercial vehicles tariff)
IMT.48. Agricultural and Forestry Vehicles
And Other Miscellaneous vehicles with
Trailers attached – Extended Cover.”
14. Now, in the light of the details of the policy
referred supra, let us examine the position of law.
Maruthi
In ’s case (supra), while dealing with the
matter under Section 30 of the Workmen’s
Compensation Act, 1923, the Division Bench of this
Court at paras No.31, 37 and 40, laid down as
follows:
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MFA No. 1661 of 2015
“31. By reading Sections 147 and 149, it is
clear that the Legislative intent was that the
insurer has to compulsorily cover all the risks
arising out of and use of motor vehicle and the
liability of the insurer is co-extensive with that
of insured. However, this is subject to the
limitations envisaged under Section 147(1)(b).
It is also clear that the coolies who are
employees carried in a goods vehicle are to be
compulsorily covered under Section 147(1)(b).
…………
37. The wordings of the fully worded policy
makes it clear that the vehicle in question is a
goods vehicle. Therefore, the respondents were
justified in saying appellant cannot plead other
than what is stated in the policy. If the general
exception in the policy were to exclude the
liability of the insurer to cover the coolies
employed for loading and unloading then the
argument of the appellants was justified.
Though the fully worded policy refers to the
terms of contract between the parties, IMT 7,
21, 24, 36 and 48, on perusal of the same
except IMT 36 none of the other IMTs. are
relevant. As a matter of fact IMT 7 & 48 do not
find a place in the fully worded policy. IMT 21
refers to exclusion of riots, strikes and
terrorism coverage. IMT 24 refers to
replacement of parts. When the very policy is
referred to as a special package policy, unless
the insured was fully made known the exact
terms of contract by including them in the
terms of policy, it is nothing but with-holding
necessary and important information from the
insured. Depending upon the user of the
vehicle whether for agricultural purpose or for
commercial purpose, the liability of the insurer
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MFA No. 1661 of 2015
would be decided. When the intention of the
Legislation was to cover compulsorily all the
risk arising out of the use of the motor vehicle
and that the liability of the insurer is co-
extensive with that of the insured subject to
Section 147 (1)(b), coolies or employees are
compulsorily covered. Therefore, the argument
that Rule 100(6) r/w Rule 226 of the Karnataka
Motor Vehicles Rules is relevant is rejected and
the same will not authorise or permit the
insurer to avoid the liability.
…………
40. The combination of tractor-trailer is
nothing short of a goods carriage. Therefore,
when once it is held as goods carriage vehicle,
by virtue of Section-II-1(1) of fully worded
policy and also provisions of Section 147, the
claim of the claimants on hand is covered. The
claimants in the present case have rightly
approached the Workmen's Commissioner and
the Commissioner was justified in holding that
the injured claimants were coolies under the
owner viz., the insured. In the present case,
they were carrying stones for constructing a
ridge in the land belonging to the insured so as
to store the water. This is nothing but part and
parcel of agricultural operations. The Claimants
were neither gratuitous passengers nor
persons who were travelling in the tractor-
trailer for the purpose other than agricultural
operations. Looking to the avocation of the
claimants, the computation of the
compensation by the Commissioner is just and
proper. Viewed from any angle, we do not find
any good ground to interfere with the awards
of the Commissioner. Therefore the claimants
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MFA No. 1661 of 2015
in the present case were rightly held as
covered under Ex.R-2 policy.”
15. While dealing with a tractor-trailer which
was used for agricultural operations and the inmates
were not gratuitous passengers or they were
travelling for the purpose other than the agricultural
operations, the Co-ordinate Bench of this Court in
Savitri’s case (supra) at para No.26, held referring
to the deceased was travelling in a tractor as a coolie
and for the act of driver, the owner of the vehicle is
liable and the Insurance Company cannot avoid its
liability.
16. In Ajjegowda’s case (supra), while dealing
with the inmates of the tractor-trailer who are
alleged to be the gratuitous passengers referring to
the policy is a Miscellaneous and Special Type of
Vehicles – Package Policy, this Court has not
accepted that the injured was not the gratuitous
passenger, he was a collie, the Insurance Company
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MFA No. 1661 of 2015
is liable to pay the compensation. At paras No.32
and 33, it has held as follows:
“32. In the case on hand also, it has to be
noted that the very pleadings of the claimants
that on the date of the accident, the deceased
Malleshagowda was proceeding in the tractor-
trailer as loader and unloader for loading
sugarcane, which has been grown in the land
of the insured and the insured, who appeared
before the Court also did not object the same.
He admitted that he was working as loader and
unloader in the tractor from the last six months
and the vehicle is also used for agricultural
purpose not for any other purposes violating
the conditions of the policy. The policy is a
Miscellaneous and Special Type of Vehicles
Package Policy. When such being the case, the
vehicle is combination of tractor-trailer is
nothing short of a goods carriage. Once it is
held as goods carriage vehicle, by virtue of
Section-II-1(1) of fully worded policy and also
provisions of Section 147, the claim of the
claimants on hand is covered. The claimants in
the present case have rightly approached the
Workmen's Commissioner i.e., subsequent to
amendment, Employees' Workmen
Commissioner and the Commissioner held that
the deceased was a coolie under the insured.
In the present case also, the deceased was
travelling in the tractor-trailer in order to load
the sugarcane in the land belonging to the
insured, the same is nothing but a part and
parcel of agricultural operations.
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MFA No. 1661 of 2015
33. The contention of the Insurance Company
is that the deceased was a gratuitous
passenger cannot be accepted. The deceased
was travelling for the purpose of agricultural
operations not for any other purpose Having
considered the avocation of the deceased as a
loader and unloader and in view of the
principles laid down in the judgment of this
Court referred supra, I am of the opinion that
the Commissioner has committed an error in
fastening the liability on the owner instead of
the Insurance Company. Hence, it requires an
interference of this Court. Hence, I answer
issue No.(ii) as 'affirmative'.”
17. In Nagaraj’s case (supra), the Co-ordinate
Bench of this Court while discussing that the policy
of insurance is taken for the agricultural purpose,
whereas the owner giving a statement that the
tractor was given to one K.S. Raju on hire basis for
carrying out the P.W.D. works, under such
circumstances, it was held that there is a violation of
conditions of the policy and liability has to be
fastened against the owner of the tractor-trailer. At
para No.7, it has held as follows:
“7. Admittedly, insurance policy issued is for
agriculture purpose but the owner himself had
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MFA No. 1661 of 2015
stated while giving statement before the police
that he has given his Tractor- Trailer to one
contractor K.S.Raju on hire basis for carrying
'out PWD works. The said contractor K.S.Raju
had stated in the complaint before the police
that he has taken the Tractor- Trailer on hire
basis from the respondent No.1 for carrying
out PWD work. Therefore, these evidence
produced before the learned Commissioner
proves that the contractor had used the
Tractor-Trailer for PWD work, which amounts
to violation of condition of policy. Therefore,
learned Commissioner is correct in holding that
there is violation of condition of policy and
accordingly, fastened liability on the owner of
the Tractor- Trailer. Hence, this finding of
learned Commissioner is correct which needs
no interference by this Court.”
18. As held in Nagaraj’s case (supra), if the
vehicle was hired for P.W.D. work, it amounts to
violation of conditions of the policy and the owner
has to pay the compensation. If the tractor-trailer is
used for agricultural purpose, the Insurance
Company is liable to pay the compensation. In view
of this, let us consider whether the policy of
insurance under Ex.R1 covers the risk of the
husband of the petitioner or not.
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MFA No. 1661 of 2015
19. On perusal of the material on record,
particularly the complaint filed under Ex.R3, the
statement of witnesses which is marked at Exs.R3 to
R12 and the deposition of one Thippesha before the
learned J.M.F.C., Bhadravathi in C.C.No.703/2011
marked at Ex.R13 points out that the deceased was
travelling in the tractor-trailer at the time of
accident. The vehicle was hired to one Ravi,
respondent No.1 was the driver of the tractor-trailer,
respondent No.2 was the owner of the tractor-trailer.
Ex.R8 is the statement of respondent No.2 before
the Police clearly speaks out that on 07.02.2010, the
tractor-trailer was taken by respondent No.1 to
supply sand for canal repair work. Now, it is clear
that the tractor-trailer was hired for supply of sand
for canal repair work.
20. Whether the hire of the tractor-trailer
covers the risk of the claim needs reading of the IMT
conditions attached to the policy. In particular,
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MFA No. 1661 of 2015
IMT.36 deals with the hire. It is necessary to read
IMT.36 in full:
“IMT.36. Indemnity to Hirer – Package
Policy – Negligence of the insured or Hirer.
It is hereby declared and agreed that the
company will indemnify any hirer of the vehicle
insured against loss, damage and liability as
defined in this Policy arising in connection with
the vehicle insured by reason of the negligence
of the within named insured or of any employee
of such insured while the vehicle insured is let
on hire”
Now, irrespective of the fact that the tractor-trailer
was hired or not, the terms of the policy clearly
points out that payment of additional premium of
Rs.25/- to cover the risk of 1 employee. Under
IMT.36, the Insurance Company agreed to indemnify
the hirer also. Under such circumstances, the policy
of insurance covers the risk of 1 employee arising
out of the accident in question.
21. The Tribunal while dealing with the liability
aspect, admitted that respondents No.1 and 2 are
the driver and the owner of the tractor-trailer, Ex.R1
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MFA No. 1661 of 2015
is the policy, tractor-trailer was hired for supply of
sand for canal repair work, but it has recorded that
the risk of the deceased was not covered under the
policy as the Insurance Company has not collected
any additional premium. Contrary, the recitals of
Ex.R1 referred supra points out that the Insurance
Company has collected additional premium of
Rs.25/- to cover the risk of 1 employee and IMT.36
clearly speaks that the Insurance Company will
indemnify the loss, damage and liability as defined
under the policy even to the hirer. Under such
circumstances, the finding recorded by the Tribunal
that the risk of the deceased is not covered under
the policy is erroneous. The Insurance Company
when undertakes to indemnify the hirer, it has
liability to indemnify the owner and it cannot raise a
defence which is contrary to the terms of the policy.
Hence, the appeal merits consideration. In the
result, the following:
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MFA No. 1661 of 2015
ORDER
i) Appeal is allowed-in-part;
ii) Order of dismissal of claim petition
against respondents No.1 and 3 is set
aside;
iii) Respondents No.1 and 2 are jointly
and severally liable to pay the
compensation. Respondent No.3/
Insurance Company is directed to
indemnify the insured;
iv) Accordingly, the Insurance Company
is directed to deposit the
compensation within 8 weeks from
the date of receipt of certified copy of
the judgment;
vi) Amount in deposit, if any, shall be
transmitted to the Tribunal along with
records forthwith.
SD/-
JUDGE
PA
CT:HS
List No.: 1 Sl No.: 3