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IN THE HIGH COURT OF KARNATAKADHARWAD BENCH

DATED THIS THE 5TH DAY OF DECEMBER, 2016

BEFORE

THE HON’BLE MRS. JUSTICE S.SUJATHA

M.F.A NO.21854 OF 2012 c/wM.F.A. Nos.21203/2012, 21204/2012,

22595/2010 [MV]

IN MFA No.21854/2012:

BETWEENSOMAPPA S/O. MALLAPPA @ MADIVALAPPA YAKKUNDI,AGE: 56 YEARS, OCC: AGRICULTURE, NOW NIL,R/O. KORAVINAKOPPA, TQ: BAILHONGAL,DIST: BELGAUM. ... APPELLANT

(By SRI. HANAMANT R. LATUR, ADV.)

AND

1. IMAMSAB S/O. FAKRUSAB BALIKAYIAGE: 61 YEARS, OCC: BUSINESS,R/O. VAKKUND, TQ: BAILHONGAL,DIST: BELGAUM.

2. THE UNITED INDIA INSURANCE CO. LTD.,DIVISIONAL MANAGER, DIVISIONAL OFFICE,MARUTI GALLI, BELGAUM. ... RESPONDENTS

( RESPONDENTNO.1 DISPENSEDBY SRI. N R KUPPELUR ADV. FOR R2)

MFA FILED U/SEC.173(1) OF MV ACT, AGAINST THEJUDGMENT AND AWARD DTD:29-12-2011 PASSED IN MVCNO.609/2010 ON THE FILE OF PRESIDING OFFICER, FASTTRACK COURT-I AND MEMBER, ADDL. MACT, BELGAUM,

R

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PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATIONAND SEEKING ENHANCEMENT OF COMPENSATION.

IN M.F.A. No.21203/2012:

BETWEEN

THE DIVISIONAL MANAGER,UNITED INDIA INSURANCE CO. LTD.,DIVISIONAL OFFICE,MARUTI GALLI, BELGAUM.REP. ITS SENIOR DIVISIONAL MANAGER. ... APPELLANT

(BY SRI. NAGANGOUDA R. KUPPELUR, ADV. )

AND

1. SRI. SOMAPPA S/O MALLAPPA @ MADIWALAPPA YAKKUNDI,AGE: 56 YEARS, OCC: AGRICULTURE,R/O: KORAVINKOPPA TALUK: BAILHONGAL.

2. SRI. IMAMSAB S/O FAKRUSAB BALIKAYI,AGE: 62 YEARS, OCC: BUSINESS,R/O: VAKKUND, TALUK: BAILHONGAL,DIST: BELGAUM.(OWNER OF THE GOODS VEHICLE,NO.KA-24/A-2929). ... RESPONDENTS

(BY SRI. HANUMANT R. LATUR, ADV. FOR R-1 & SRI. MADANMOHAN M KHANNUR FOR R1)

MFA FILED U/SEC.173(1) OF MV ACT, 1988, AGAINST THEJUDGMENT AND AWARD DTD:29-12-2011 PASSED IN MVCNO.609/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACKCOURT-I AND MEMBER, ADDL. MACT, BELGAUM, AWARDING THECOMPENSATION OF RS.65,000/- WITH INTEREST AT THE RATE OF 9%P.A., FROM THE DATE OF PETITION TILL COMPLETE REALISATION.

IN MFA NO. 21204/2012:

BETWEEN

THE DIVISIONAL MANAGER,UNITED INDIA INSURANCE CO. LTD.,DIVISIONAL OFFICE,

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MARUTI GALLI BELGAUM,REP. ITS SENIOR DIVISIONAL MANAGER. ... APPELLANT

(BY SRI. N.R.KUPPELUR, ADV.)

AND

1. SRI. FAKKIRAPPA S/O RAMAPPA MARKUMBI,AGE: 67 YEARS, OCC: AGRICULTURE,R/O: VAKKUNDA, TALUK: BAILHONGAL.

2. SRI. IMAMSAB S/O FAKRUSAB BALIKAYI,AGE: 62 YEARS, OCC: BUSINESS,R/O: VAKKUND, TALUK: BAILHONGAL,DIST: BELGAUM.(OWNER OF THE GOODS VEHICLE KA.24/A-2929) ... RESPONDENTS

(BY SRI. M.M.KHANNUR, ADV. FOR R-2.)

MFA FILED U/SEC.173(1) OF MV ACT, 1988, AGAINSTTHE JUDGMENT AND AWARD DTD:29-12-2011 PASSED IN MVCNO.776/2010 ON THE FILE OF THE PRESIDING OFFICER, FASTTRACK COURT-I AND MEMBER, ADDL. MACT, BELGAUM,AWARDING THE COMPENSATION OF RS.5,000/- WITHINTEREST AT THE RATE OF 9% P.A., FROM THE DATE OFPETITION TILL COMPLETE REALISATION.

IN MFA NO.22595/2010:

BETWEEN

UNITED INDIA INSURANCE CO. LTD.BELGAUM DO. THROUGH ITS DIVISIONALOFFICE, SEETA SMRITI, P B NO. 156MARUTHI GALLI, BELGAUMREP: BY ITS SR. DIVISIONAL MANAGERS.M. DHARMANANDA RAO. ... APPELLANT

(BY SRI. N. R. KUPPELUR, ADV.)

AND

1. SRI. SHIVAPPA S/O MADIWALAPPA YANAGIAGE: ABOUT 41 YEARS, OCC: BUSINESS

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FOOD & GRAIN MERCHANT,R/O KORVIKOPPA BAILHONGAL

2. MR. IMAMSAB FAKRUSAB BALIKAI,MAJOR, OCC: BUSINESSR/O VAKKUND TQ: BAILAHONGAL(OWNER OF GOODS TEMPO KA-24/A-2929). ... RESPONDENTS

(BY SRI. SRINAND A. PACHHAPURE FOR R1)

MFA FILED U/SEC.173(1) OF MV ACT, 1988, AGAISNTTHE JUDGMENT AND AWARD DTD:08-03-2010 PASSED INMVC.NO.1614/2008 ON THE FILE OF THE MEMBER, MACT,BAILHONGAL, AWARDING THE COMPENSATION OF RS.80,500/-WITH INTEREST AT THE RATE OF 6% P.A., SHALL DEPOST THECOMPENSATION AMOUNT WITHIN THREE MONTHS FROM THEDATE OF THE ORDER.

THESE APPEALS COMING ON FOR ADMISSION, THIS DAYTHE COURT, DELIVERED THE FOLLOWING:

JUDGMENT

The Insurer is challenging the Judgment and

Order passed by the Motor Accident Claims Tribunal,

Belgaum [‘Tribunal’, for short] in MVC Nos. 609/2010,

776/2010 and 1614/2008 whereas the claimant has

filed appeal against the Judgment and Order in MVC

No.609/2010.

2. Since all these matters arise out of the same

accident, the same are heard together and disposed of

by this common Judgment.

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3. Briefly stated the facts are:

That the claimants instituted petition before the

Tribunal seeking compensation for the injuries

sustained by them in the road traffic accident which

occurred on 3.5.2008 while travelling in a goods vehicle

bearing registration No.KA-24/A-2929 [offending

vehicle] along with their goods. It was contended that

the accident caused due to the negligence of the driver

of the offending vehicle. The Insurer contested the

claim. The Tribunal, after appreciating the evidence on

record, awarded compensation fastening the liability on

the Insurer of the offending vehicle. Being aggrieved,

the Insurance Company is in appeal challenging the

liability as well as the quantum in the three cases

referred to above whereas the claimant is seeking

enhancement of compensation as the quantum of

compensation awarded being inadequate in MVC

No.609/2010.

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4. The learned Counsel appearing for the Insurer

would refer to Section 147 of the Motor Vehicles

Act,1988 [‘Act’ for short] which runs thus:

“147. Requirements of policies and

limits of liability-(1) In order to comply with

the requirements of this Chapter, a policy of

insurance must be a policy which-

(a) xxxx xxxx xxxx

(b) insures the person or classes of

persons specified in the policy to the extent

specified in sub-section(2)-

(i) against any liability which may be

incurred by him in respect of the death of or

bodily injury to any person, including any

person, including owner of the goods or his

authorised representative carried in the

vehicle or damage to any property of a third

party caused by or arising out of the use of

the vehicle in a public place.”

The learned Counsel would contend that in terms of

Section 147[1] of the Act, only one owner of the goods or

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his authorized representative carried in the vehicle is

entitled for the compensation. The word ‘owner’ cannot

be read as ‘owners’ of the goods. In other words, the

learned Counsel submits that the intention of the

legislature in amending section 147[1] of the Act by Act

No.54/1994 with effect from 14.11.1994 is in much as

the sole owner of the goods travelling in a goods vehicle

to be covered under the statutory policy. No multiple

number of owners carrying with their goods travelling in

the goods vehicle are entitled for compensation as per

the statutory policy issued under Section 147[1] of the

Act.

5. Secondly, the learned Counsel placing reliance on

the Judgment of the Hon’ble Apex Court in the case of

‘NATIONAL INSURANCE CO., LTD., v. CHOLLETI

BHARATAMMA’ reported in 2008 [1] SCC 423 would

contend that seven persons were travelling in the

offending vehicle at the time of the accident out of which

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three persons claimed compensation. The permitted

seating capacity of the offending vehicle was only three

including the driver and the cleaner and only one non

fare paying passenger as owner of goods was entitled to

travel in a cabin and the claimants travelled in the

offending vehicle beyond the seating capacity contrary

to the provisions of the Act and Rules. Thus, the

Tribunal grossly erred in fastening the liability on the

Insurer sans the appreciation of this vital aspect.

6. Thirdly, it was contended that the quantum of

compensation awarded by the Tribunal is

disproportionate to the nature and gravity of the

injuries sustained by the claimants and the same

requires to be reduced considering the material evidence

on record.

7. Per contra, learned Counsel for the claimant in

MVC No.609/2010 would contend that the Tribunal

failed to appreciate the nature of injuries sustained by

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the claimant. The quantum of compensation awarded is

in utter disregard to the evidence placed by the

claimant. The learned Counsel seeks for enhancement

of compensation as the compensation awarded by the

Tribunal being not the just compensation in terms of

the legal principles laid down by the Hon’ble Apex Court

in catena of judgments.

8. As regards the liability, the learned Counsel would

submit that the Insurer has not let in any evidence to

rebut the evidence of the claimant in much as the

claimant travelling in a goods vehicle as the owner of

the goods. The Tribunal rightly appreciated the

evidence to arrive at a conclusion that the claimant was

owner of the goods travelling in the goods vehicle,

entitled to compensation under Section 147[1] of the

Act.

9. Heard the learned Counsel for the parties and

perused the material on record.

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10. As regards the arguments advanced by the learned

counsel for the Insurer in much as the phrase “owner of

the goods or his authorised representative”, suggests

singular owner or authorised representative is not

acceptable. At this juncture, it would be beneficial to

refer to Section 13 of the General Clauses Act, 1897,

wherein it provides that in all Central Acts and

Regulations, unless there is anything repugnant in the

subject or context, i) xxxx ii) words in the singular shall

include the plural and vice versa.

11. In terms of Section 13 of the General Clauses Act,

1897, referred to above, it can be held that the owner or

his authorised representative shall include the owners

or his authorised representatives. It cannot be read in a

restrictive sense. Section 147 of the Act is quite

comprehensive in scope and meaning. It has to be given

wider, effective and practical meaning so that the object

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of the legislature enabling the owners of the goods to be

covered under the statutory policy cannot be defeated.

12. It is axiomatic to refer to the judgment of this

Court in the case of NATIONAL INSURANCE COMPANY

LTD., VS. ALIPER AND ANOTHER reported in ILR

2006 KARNATAKA 947) wherein it is categorically held

thus:

5. The Rule 100 of Karnataka Motor Vehicles

Rules permits certain categories of persons to

travel in the goods vehicle. In case of lighter

goods vehicle, the permitted capacity of

passengers is 2+1 including driver. In the case

of heavy goods vehicle, the permitted capacity

is 5+1 including the driver. Therefore, as per

the tariff regulation if there is a contract to

cover the risk of owner of goods travelling in

the vehicle under the category of non-fare paid

passenger as per IMT 13/14, the insurer will

be liable to pay the compensation.

6. In the rural lifestyle of India, with very poor

inadequate transport infrastructure, the

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agriculturists often jointly engage a goods

vehicle for transportation of their agricultural

produce. In such a situation, the

owners/representatives of the goods are

eligible to travel along with their goods.

However, the number of such

owners/representatives should not exceed

permitted seating capacity as stated in Rule

100 of Karnataka Motor Vehicles Rules. In that

view, the contention that the entire lorry

should have been exclusively hired by only

one person and only in respect of such owner

of goods, the insurer incurs liability under

Section 147 is an untenable argument.”

13. Further, it is apt to refer to Rule 100 of the

Karnataka Motor Vehicle Rules. The same is extracted

herein for ready reference:

“100. Carriage of Persons In Goods Vehicle –

1) Subject to the previous of this rule, no

person shall be carried in goods vehicle:

Provided that the owner or the hirer or a

bonafide employee of the owner or the hirer of

the vehicle carried free of charge or a police

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officer in uniform travelling on duty may be

carried in a goods vehicle, the total number of

persons so carried-

i) in the light transport goods vehicle

having registered laden weight less than 990

Kgs. not more than one:

ii) in any other light transport goods not

more than three; and

iii) in any goods vehicle not more than

seven:

Provided that the provisions of sub-clause (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.”

14. The Hon’ble Apex Court in the case of ‘B.V.

NAGARAJU vs. M/S. ORIENTAL INSURANCE CO.

LTD.DIVISIONAL OFFICE, HASSAN’ reported in 1996

[4] SCC 647 has held thus:

“It is plain from the terms of the

Insurance Policy that the insured vehicle was

entitled to carry six workmen, excluding the

driver. If those six workmen when travelling

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in the vehicle, are assumed not to have

increased any risk from the point of view of

the Insurance Company on occurring of an

accident, how could those added persons

be said to have contributed to the causing of it

is the poser, keeping apart the load it was not

carrying. Here it is nobody's case that the

driver of the insured vehicle was responsible

for the accident. In fact, it was not disputed

that the oncoming vehicle had collided head-

on against the insured vehicle, which resulted

in the damage. Merely by lifting a persons or

two, or even three, by the driver or the

cleaner of the vehicle, without the knowledge

of owner, cannot be said to be such a

fundamental breach that the owner

should, in all events, be denied

indemnification. The misuse of the vehicle

was somewhat irregular though, but not so

fundamental in nature so as to put an end to

the contract, unless some factors existed

which, by themselves, had gone to contribute

to the causing of the accident.”

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15. Further, in the case of ‘NATIONAL INSURANCE

COMPANY LIMITED vs. SWARAN SINGH AND

OTHERS’ reported in [2004] 3 SCC 297, the Hon’ble

Apex Court has held as under:-

“49. Such a breach on the part of the

insured must be established by the insurer to

show that not only the insured used or

caused or permitted to be used the vehicle in

breach of the Act but also that the damage he

suffered flowed from the breach.”

16. In the case of ‘LAKHMI CHAND vs. RELIANCE

GENERAL INSURANCE’ reported in (2016) 3 SCC 107,

the Hon’ble Apex Court has held thus:

“It becomes very clear from a perusal of

the above mentioned case law of this Court

that the insurance company, in order to avoid

liability must not only establish the defence

claimed in the proceeding concerned, but also

establish breach on the part of the

owner/insured of the vehicle for which the

burden of proof would rest with the insurance

company. In the instant case, the respondent-

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Company has not produced any evidence on

record to prove that the accident occurred on

account of the overloading of passengers in

the goods carrying vehicle. Further, as has

been held in the case of B.V. Nagaraju (supra)

that for the insurer to avoid his liability, the

breach of the policy must be so fundamental

in nature that it brings the contract to an end.

17. In the case of NATIONAL INSURANCE CO., LTD.,

VS. ANJANASHYAM AND OTHERS reported in 2007

AIR SCW 5237, the Hon’ble Apex Court has held thus:

“16. Then arises the question, how to

determine the compensation payable or how

to quantify the compensation since there is no

means of ascertaining who out of the

overloaded passengers constitute the

passengers covered by the insurance policy

as permitted to be carried by the permit itself.

As this Court has indicated, the purpose of

the Act is to bring benefit to the third parties

who are either injured or dead in an accident.

It serves a social purpose. Keeping that in

mind, we think that the practical and proper

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course would be to hold that the insurance

company, in such a case, would be bound to

cover the higher of the various awards and

will be compelled to deposit the higher of the

amounts of compensation awarded to the

extent of the number of passengers covered

by the insurance policy.”

18. Admittedly, the offending vehicle in question was a

light transport goods vehicle having registered laden

weight more than 990 kgs. In terms of Rule 100 of

Karnataka Motor Vehicle Rules, it is settled legal

position that the Insurer is liable to indemnify the

owner in much as three persons carried in the goods

vehicle along with their goods other than the driver.

The claim in the present case is with respect to three

persons. The liability of the Insurer being confined to

three persons, the Insurer cannot be afforded to eschew

from the liability.

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19. The learned counsel for the appellant placed much

emphasis on the judgment of Cholleti Bharatamma’s

case supra, to contend that the claimants were

travelling in the goods vehicle as gratuitous passengers,

the owner of the goods travelling along with the goods to

be restricted to only one person. The Hon’ble Apex

Court has laid down the dictum in the context of

Andhra Pradesh Motor Vehicle Rules. Rule 277 (3) and

Rule 252 of the Andhra Pradesh Motor Vehicle Rules

being not in parimateria with Rule 100 of the Karnataka

Motor Vehicle Rules, the said judgment is

distinguishable and not applicable to the facts and

circumstances of the present case. As aforesaid, Rule

100 of the Karnataka Motor Vehicle Rules, being framed

in accordance with Section 65 of the Act, the case of the

Insurer has to be examined in accordance with Section

147 (1) of the Act read with Rule 100 of the Karnataka

Motor Vehicle Rules. Applying the principles of law laid

down by this Court in Alipeer’s case cited supra, the

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Insurer is liable to indemnify the owner of the goods

vehicle since it is an indisputable fact that the

claimants were travelling in the offending vehicle along

with their goods i.e., with wheat bags, channa (pulse)

bags. It was the specific contention of the claimants

that they were carrying the goods to sell the same in

Dharwad market. It is significant to note that no

evidence is let in by the Insurance Company to rebut

the evidence of the claimants. Insurance Company has

not stepped into the witness box to substantiate that

the claimants were travelling in the goods vehicle as

gratuitous passengers. On the other hand, the copy of

the complaint marked at Ex.P.1 and all the police

records clearly establishes the claimants transporting

their goods namely, wheat and pulse in the offending

vehicle at the time of the accident. Further, it is

pertinent to note that the Insurer has not even made an

attempt to make available the copy of the Insurance

Policy to establish the breach of terms and conditions of

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the policy. The Insurance Company has become more

wiser in the appellate stage to contend that the Tribunal

erred in not appreciating the material evidence on

record. As could be seen, the Tribunal profusely

analysed the material evidence to arrive at a conclusion

that the claimants were travelling as owners of the

goods in the offending vehicle. As such the Insurer

cannot be exonerated from the liability in view of the

amendment to Section 147 (1) of the Act with effect from

14.11.1994. Thus, the argument advanced at the

hands of the learned counsel for the Insurer on this

point fails.

20. As regards the quantum of compensation, the

Tribunal has appreciated the evidence in extenso and

the compensation awarded is just and equitable in the

facts and circumstance of the case. No good ground is

made out by the parties to warrant interference with the

well reasoned judgment and order.

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For the reasons aforesaid, appeals being sans

merit, stands dismissed.

Amount in deposit shall be transferred to the

jurisdictional Tribunal for disbursement.

Sd/-

JUDGE

AN/jm/-