w w w . L a w y e r S e r v i c e s . i n



The Branch Manager, United India Insurance Co. Limited, Rep. The Divisional Manager, Raichur v/s Mallamma & Others


Company & Directors' Information:- UNITED INDIA INSURANCE COMPANY LIMITED [Active] CIN = U93090TN1938GOI000108

Company & Directors' Information:- J B UNITED PRIVATE LIMITED [Active] CIN = U93000MH2014PTC258844

Company & Directors' Information:- J B UNITED PRIVATE LIMITED [Active] CIN = U74999MH2014PTC258844

Company & Directors' Information:- UNITED CORPORATION LIMITED [Liquidated] CIN = U99999TN1942PLC003159

    M.F.A. Nos. 22720, 22718, 22719, 22721 of 2009 (MV)

    Decided On, 19 December 2019

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MR. JUSTICE N.S. SANJAY GOWDA

    For the Appellant: C.V. Angadi, Advocate. For the Respondents: R2, K. Anandkumar, R3, Deepak Manager, Chandrashekhar P. Patil, Santosh B. Mane, Mahantesh C. Kottuprshettar, Advocates.



Judgment Text


(Prayer: This MFA filed u/S 173(1) of M.V.Act, 1988 against the judgment and award dated 23/05/2009 passed in M.V.C.No.291/2008 on the file of the Civil Judge (Sr.Dn.) and MACT at Gangavathi, awarding compensation of Rs.3,78,600/- along with interest @ 8% p.a. from the date of petition till deposit.

This MFA filed u/S 17391) of M.V.Act 1988 against the judgment and award dated 23.05/2009 passed in M.V.C.No.161/2008 on the file of the Civil Judge (Sr.Dn.) and MACT at Gangavathi, awarding compensation of Rs.4,42,200/- along with interest @ 8% p.a. from the date of petition till deposit.

This MFA filed u/S 173(1) of M.V.Act, 1988 against the judgment and award dated 23/05/2009 passed in M.V.C. No.290/2008 on the file of the Civil Judge (Sr.Dn.) and MACT at Gangavathi, awarding compensation of Rs.4,45,200/- along with interest @ 8% p.a. from the date of petition till deposit.

This MFA filed u/S 173(1) of M.V.Act, 1988 against the judgment and award dated 23/05/2009 passed in M.V.C. No.289/2008 on the file of the Civil Judge (Sr.Dn.) and MACT at Gangavati, awarding compensation of Rs.2,25,000/- along with interest @ 8% p.a. from the date of petition till deposit.)

1. These four appeals MFA Nos.22718, 22719, 22720 and 22721 of 2009 are filed by the Insurance Company challenging the compensation awarded in respect of the 4 victims who died in a road accident.

2. The facts briefly stated are as follows:

On 02.03.2008, there was an accident between Tempo Trax (Cruiser) bearing registration No.KA-36/M-3221 and a sugarcane loaded Tractor and Trailer bearing registration No.KA-37/T-67773. It was stated that the Tractor has stopped on the left side of the road and the driver of the Tempo Trax hit the Tractor-Trailer and the said accident has resulted in the death of four inmates and these four appeals relate to claims for compensation arising out of the death of these four inmates.

3. It appears that the claims were also filed in respect of the injured inmates and some of them were dismissed since the compensation awarded was less than Rs.10,000/-.

4. The legal representatives of four deceased sought for varying amounts of compensation.

5. Respondent Nos.1 and 2 i.e. the driver and owner respectively filed common statement of objection. They admitted that the accident had occurred on 02.03.2008 and the accident occurred due to the negligence on the part of the Tractor driver who had stopped his Tractor on the left side of the road. It was stated that since negligence was that of the Tractor, they could not be saddled with the liability and even if they had to be held liable, the 3rd respondent with whom the vehicle had been insured was liable to pay the compensation.

6. The 3rd respondent i.e. the Insurance Company, entered appearance and contested the matter. They basically denied all the petition averments and they also sought to blame the Tractor and Trailer for the cause for the accident. They also took up the plea that there was a breach of policy conditions inasmuch as the 1st respondent driver did not have a valid driving licence and they also put forth the plea that the vehicle was being used for carrying passengers for hire and this required the liability to be fastened on the owner. They also contended that the Jeep was being used in violation of the permit conditions and this also amounted to a breach of the policy conditions and they were therefore entitled to be exonerated.

7. The Tribunal framed three issues in all the claim petitions. Before the Tribunal, the legal representatives of the deceased examined themselves and got exhibited 9 to 30 documents. The respondent i.e. the Insurance Company examined the Senior Assistant Manager and exhibited the insurance policy as their documentary evidence.

8. The Tribunal on consideration of the evidence adduced before it came to the conclusion that an accident had in fact occurred as contended by the claimants and as a result of the said accident, four inmates had been killed. The Tribunal gave a finding that there was no evidence to infer that the Tractor had contributed to the accident and though a charge sheet has been filed against the drivers of the Jeep and the Tractor, by examining the oral evidence and the documentary evidence, it was of the view that the accident had occurred only on account of the rash and negligent driving of the Jeep.

9. As far as compensation was concerned, the Tribunal awarded a sum of Rs.4,42,200/- (to the respondents in MFA No.22718/2009). Rs.2,25,000/- (to the respondents in MFA No.22721/2009), Rs.4,45,200/- (to the respondents in MFA No.22721/2009), Rs.4,45,200/- (to the respondents in MFA No.22719/2009) and Rs.3,78,600/- (to the respondents in MFA No.22720/2009).

10. The Insurance Company is challenging the awarded made by the Tribunal on the following grounds:

a. They were not entitled to incur the liability of the inmates of the Jeep especially when both the Jeep driver and the Tractor driver had been charge sheeted.

b. Liability, if any, in respect of the inmates could be to the extent of Rs.1,00,000/- in view of the additional premium collected.

c. The Jeep driver was guilty of violating the permit conditions inasmuch as he was carrying 14 passengers as against the permissible capacity of 12.

d. The vehicle in question was being used for hire as had been admitted by the inmates that they had paid a fare to travel in the Jeep.

11. In respect of two appeals i.e. in MFA No.22719/2009 and 22720/2009, the legal representatives have filed cross objection seeking for enhancement of compensation on the ground that the amounts awarded were inadequate.

12. I have considered the submissions advanced by the learned counsel for the Insurance Company as well as by the claimants.

13. It is not in dispute that an accident occurred between the Jeep and the Tractor, which has resulted in four deaths. It is the contention of the Insurance Company that the Tractor had stopped on the road and therefore, the driver of the Jeep alone could not be held to be responsible for the accident. The learned counsel strenuously contended that the Tribunal ought to have imposed at least 50% of contributory negligence on the Tractor.

14. The Tribunal on consideration of the oral and documentary evidence has come to the categorical conclusion that the accident had occurred due to the rash and negligent driving of the Jeep driver.

15. The IMV report indicates that the Tractor was hit from behind and the rear of the Tempo was damaged. In view of this fact, it is clear that it is the Jeep driver, who would have to be held to be responsible for the accident. The Jeep driver cannot be expected to hit a slow moving or even a statutory Tractor which is alleged to have stopped on the left side of the road. The totality of the evidence adduced before the Tribunal clearly leads to the inference that negligence was solely due to the driving of the Jeep for the occurrence of the accident and the Tribunal, has therefore, rightly held that the owner of the Jeep and consequently its insurer would be liable to indemnify the liability arising out of the said accident.

16. The learned counsel then contended that the deceased were inmates and their liability could not be fastened on to the Insurance Company and even if it had to be made liable, it can only be to the extent of Rs.1,00,000/- in view of the premium collected towards “PA to unnamed passenger No.11 amount Rs.1,00,000/- per person Rs.550/-“ as indicated in the policy.

17. It is now settled law that in respect of a package policy issued for a private car, the Insurance Company would be liable for the occupants of the said car subject of course to the extent of its permissible carrying capacity of passengers (National Insurance Company Limited V/s Balakirshnan and another, (2013) 1 SCC 731). In view of the ratio laid down by the Hon’ble Apex Court in the above decision, it will have to be held that the Insurance Company would be liable to satisfy the compensation awarded in respect of the death or bodily injury to occupants of a private car.

18. In the instant case admittedly the Jeep was insured under a package policy and the Insurance Company cannot therefore escape its liability.

19. The further contention that the Insurance Company had collected premium towards personal accident to unnamed passenger to the extent of Rs.1,00,000/- and therefore, their liability was to be limited to Rs.1,00,000/- only cannot also be sustained.

20. The additional premium collected by the Insurance Company is for personal accident cover and the said cover cannot be equated to the contractual liability incurred by the Insurance Company towards all the occupants of the car. In my view the premium collected towards personal accident cover to the unnamed passengers is in addition to the coverage that the Insurance Company is expected to cover for the occupants in the vent of an accident. In other words, an Insurance Company collecting additional premium for personal accident cover would be liable not only to the normal compensation payable under the Act but also an additional contractual liability of Rs.1,00,000/-. I am therefore of the view that the arguments advanced by the learned counsel for the Insurance Company regarding the limits of its liability cannot be sustained.

21. The further contention that there was evidence on record which clearly indicated that all the inmates were fare paying passengers and therefore the Insurance Company would be exonerated of its liability as the vehicle was being used for hire cannot also accepted in view of the decision of the Division Bench of this Court rendered in the case of United India Insurance Co.Ltd., Rep.by its DM V/s Kalawathi and others, ILR 2011 KAR 1191 and which has been followed by a co-ordinate bench of this Court in MFA No.20292/2008 and connected matters disposed of on 05.02.2016 in which it is held as follows:

That when the policy issued is a comprehensive policy covering risk of the inmates for a private vehicle, the insurer cannot avoid liability on the ground that the inmate is a paid passenger. In that view of the matter, we hold that the terms in the policy, which discriminates the

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liability of the insurer for the paid inmate and gratuitous inmate is discriminatory and illegal. 22. Thus, even if it is to be held that the inmates of a private vehicle are paid passengers the liability arising out an accident to the inmates would still be saddled on the Insurance Company and as a consequence the contention urged by the Insurance Company in this regard cannot be accepted. 23. The other contention of the insurance Company that the carrying capacity of the Jeep was 12, but there were 14 inmates and therefore there was a breach, cannot also be accepted since in the instant case groups of appeals only four applications are under consideration and if there are claims in excess of 12 then the Insurance Company may be entitled to raise such a claim. Having regard to the fact that only four applications have been filed in the instant case, this contention also cannot be accepted. I, therefore, hold that there is no merit in the appeals filed by the Insurance Company and the same are dismissed. The amount in deposit shall stand transmitted to the Tribunal for disbursement in terms of the award.
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