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The Oriental Insurance Company Limited, Bengaluru v/s Vishwanatha & Another


Company & Directors' Information:- THE ORIENTAL INSURANCE COMPANY LIMITED [Active] CIN = U66010DL1947GOI007158

Company & Directors' Information:- THE ORIENTAL COMPANY LIMITED [Active] CIN = U67120WB1935PLC094079

Company & Directors' Information:- ORIENTAL COMPANY LIMITED [Not available for efiling] CIN = U70101RJ1935ULL000047

Company & Directors' Information:- ORIENTAL INDIA LTD [Strike Off] CIN = U51226WB1983PLC036505

Company & Directors' Information:- ORIENTAL CORPN PVT LTD [Active] CIN = U51909GJ1937PTC000133

Company & Directors' Information:- I.N. INSURANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U67200DL1994PTC062554

Company & Directors' Information:- INSURANCE OF INDIA LTD [Strike Off] CIN = U67200WB1936PLC008634

Company & Directors' Information:- ORIENTAL CORPORATION LIMITED [Not available for efiling] CIN = U99999MH1937PTC002741

    M.F.A. No. 4618 of 2010 (MV)

    Decided On, 15 September 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE H.P. SANDESH

    For the Appellant: B.S. Umesh, Advocate. (Physical Hearing). For the Respondents: R1, H.C. Kavitha, Advocate. (Physical Hearing).



Judgment Text

(Prayer: This M.F.A is filed Under Section 173(1) of MV Act against the judgment and award dated 05.01.2010 passed in MVC.No.464/2007 on the file of Additional District Judge and MACT, Chikmagalur, awarding a compensation of Rs.7,08,700/- with interest at 6% P.A. from the date of petition till realization.)1. This appeal is filed by the appellant-Insurance Company challenging the judgment and award dated 05.01.2010 passed in M.V.C.No.464/2007 on the file of Additional District Judge and Motor Accident Claims Tribunal at Chikmagalur ('the Tribunal' for short).2. The parties are referred to as per their original ranking before the Tribunal in order to avoid the confusion and for the convenience of the Court.3. The factual matrix of the case is that, on 01.10.2006 at about 6:30 p.m, while the petitioner was traveling in a Lorry bearing registration No.KA-29/2687, as a cleaner on Mallenahalli-Chikmagalur road in Hospet village, the driver of the said lorry drove the same in a rash and negligent manner, dashed against KEB Electric Pole and caused the accident, resulting in grievous head injuries to the petitioner. He was shifted to MG hospital, Chikmagalur and thereafter he took further treatment in NIMHANS, Bengaluru. As a result of the injuries sustained by him, he became disabled. He was a student-cum-cleaner and earning Rs.150/- per day and spent a huge amount for medical treatment.4. In pursuance of the claim petition, notices were issued to respondent Nos.1 and 2. Respondent Nos.1 and 2 appeared through their Counsel. Respondent No.1 in the written statement admitted the accident but denied the rash and negligent act on the part of driver of the lorry. He also admitted that the petitioner was traveling in the lorry as a Cleaner. Respondent No.2-Insurance Company in the written statement denied the averments made in the claim petition and further contended that the Insurance coverage to the offending is vehicle, but liability is denied by contending that the petitioner was an unauthorized passenger in the goods vehicle.5. The claimant in order to substantiate his claim, he examined his natural guardian father as P.W.1, and also examined the Doctor as P.W.2 and got marked the documents as Exs.P1 to P13. Respondent No.2-Insurance Company had examined its Branch Manager as RW.1 and got marked the documents as Exs.R1 to R4.6. The Tribunal, after considering both oral and documentary evidence and on appreciation of the material available on record, allowed the claim petition in part granting the compensation of Rs.7,08,700/- with 6% interest per annum from the date of petition till its realization. The Tribunal also directed that, respondent Nos.1 and 2 are jointly and severally liable to pay the compensation with interest. In the present appeal, the Insurance Company contended that the Tribunal failed to notice that the policy contained 3 IMT endorsements as noted in the schedule to the policy i.e., IMT.20, 21 and 23. There was absolutely no endorsement relating to IMT. 37 and IMT. 37.A. By terms and conditions of the policy which was in preprinted form contained various IMT endorsements. But the relevant IMT endorsement, which applies to the policy in question, is mentioned in the policy itself. It is significant to note that no premium was paid to cover the risk of the passenger traveling in the goods vehicle. Hence, the Tribunal has committed an error in fastening the liability on the Insurance Company.7. Learned counsel appearing for the appellant- Insurance Company in his arguments reiterating the grounds urged in the appeal memo and mainly contended that the Tribunal has referred IMT clause 37 and 37.A, the same is not mentioned in the policy and if policy contains IMT clause 37 and 37.A, then only the Insurance Company is liable and not otherwise and also would submit that no premium was paid in favour of the passengers, who traveled in the goods vehicle and hence, the very approach of the Tribunal is erroneous.8. The learned Counsel for the appellant-Insurance Company in support of his contention, he has relied upon the following judgments:(i) in the case of New India Assurance Co. Ltd. v. Vedwati & Ors reported in 2007 AIR SCW 1505. The Apex Court in this Judgment held that, under new Act does not include passengers unlike old Act. Hence, the Insurer not liable to pay compensation in case of injury or death of gratuitous passenger.(ii) in the case of National Insurance Co. Ltd. v. Cholleti Bharatamma and others reported in (2008) 1 Supreme Court Cases 423, the Apex Court in this Judgment in paragraph Nos.8 to 11 held that, passengers travelling in goods carriage whether gratuitous or otherwise, reiterated, are not covered. Further it is held that the Act does not contemplate that a goods carriage shall carry a large number of passengers with a small percentage of goods as the insurance policy considerably covers the death or injuries either of the owner of the goods or his authorized representative. The provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger traveling in a goods vehicle, and the insurers would not be liable therefor. The words "injury to any person" in Section 147(1)(b) would only mean a third party and not a passenger traveling in a goods carriage whether gratuitous or otherwise.(iii) in the case of National Insurance Company Limited v. Prema Devi and Others reported in (2008) 5 Supreme Court Cases 403, the Apex Court in this Judgment held that, Liability of insurer to pay compensation in cases of death or injury to gratuitous passenger traveling in goods carriage. Further, it is held that, it is open to the claimant to recover the amount awarded from the owners of the offending vehicles.(iv) in the case of National Insurance Company Limited v. Kaushalaya Devi and Others reported in (2008) 8 Supreme Court Cases 246, the Apex Court held that non-coverage of gratuitous passengers in goods carriage and the deceased traveling as gratuitous passenger in goods carriage, the insurer is not liable and owner alone was liable to pay the compensation.(v) in the case of Gopal & Others v. Shivasharanappa & Others reported in CDJ 2011 Kar HC 155, the Division Bench of this Court held that the Insurer is not liable to pay compensation under Section IMT 37 B - that apart, the petitioners have not proved that they are authorized passengers traveling in a goods vehicle - in fact, it is impossible to appreciate that all 22 persons as owner of goods could travel in the lorry - it could be one or two person can charter a vehicle, but not 22 persons carrying their personal luggage can be considered as charterers traveling in the vehicle along with the goods - claim against the insurer is rejected and ordered to pay the compensation against the owner.9. Per contra, learned counsel for respondent No.1/claimant in her arguments, she vehemently contended that the driver of the goods vehicle allowed the claimant to travel in the vehicle and he is a gratuitous passenger. Hence, the Insurance Company is liable to pay the compensation and recover the same from the owner.10. The learned counsel for respondent No.1/claimant in support of her contention relied upon the following two Judgments:(i) in the case of Manuara Khatun and others v. Rajesh Kumar Singh and others with Mamoni Saikia Mohanty and others v. Rajesh Kumar Singh and others reported in (2017) 4 Supreme Court Cases 796, Learned counsel referring to this Judgment would submit that the claimant is a gratuitous passenger and the claimant was allowed to travel in the goods vehicle by its driver and the Apex Court in this Judgment held that, to pay the compensation, recover the same from the owner.(ii) in the case of Fahim Ahmad and others v. United India Insurance Company Limited and others reported in (2014) 14 Supreme Court Cases 148, learned counsel referring to this Judgment also would submit that in this Judgment also, the Apex Court directed the Insurance Company to pay the compensation and recover the same from the owner.11. Having heard the arguments of learned counsel for the appellant-Insurance Company and learned counsel for respondent No.1/claimant and on perusal of the material available on record, the points that arise for consideration of this Court are:(i) Whether the Tribunal has committed an error in directing the Insurance Company to pay the compensation referring IMT.37 and 37.A and it requires an interference of this Court?(ii) What order?Point No.(i):12. Having heard the respective counsel and also the material available on record, there is no dispute with regard to the fact that the claimant had traveled in the Lorry. The contention of the claimant before the Tribunal is that he was working as a cleaner and he was also pursuing his education and only during holidays he was working as cleaner. The said contention was turned down by the Tribunal in coming to the conclusion that the claimant is aged about 16 years and he cannot work as a cleaner. No doubt, the owner in the written statement has stated that he was working as a cleaner, but, no material was placed before the Tribunal to show that he was working as a cleaner. The evidence of the Insurance Company is also clear that the policy covers the risk of driver, cleaner and owner of the vehicle and no premium was paid in respect to covering the risk of passengers.13. He also would like to refer to the document at Ex.R1- Insurance Policy. On perusal of Ex.R1, it is specific with regard to the conditions to use only for carriage of goods within the meaning of the Motor Vehicles Act. The Policy does not cover: 1) Use for organized racing, pace-making, reliability trial or speed testing. (2) Use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanically propelled vehicle. (3) Use for carrying passengers in the vehicles; except employees (other than the driver) not exceeding the number permitted in the registration document and coming under the purview of Workmen's Compensation Act, 1923.14. On perusal of Ex.R1-policy, it does not contain any IMT clause of 37 and 37.A. However, the Tribunal has relied upon IMT 37 and 37.A. to fasten the liability on the Insurance Company.15. Respondent No.2-Insurance Company has also produced the document Ex.R1(a)-Standard Form for Commercial Vehicles Package Policy and when the policy does not contain the IMT clause 37 and 37 A, the Tribunal ought not to have relied upon the same and fasten the liability on the Insurance Company and no premium was paid and also there is a bar under the policy usage of the vehicle for carrying the passengers.16. Learned counsel appearing for the appellant- Insurance Company relied upon the Judgments referred supra and in the said judgments, particularly, in Vedwati's case (supra), the Apex Court held that the Insurer is not liable to pay compensation in case of injury or death of gratuitous passenger and further observed that the definition of goods carriage under new Act does not include passengers unlike old Act.17. In the Judgment of Apex Court in Cholleti Bharatamma's case (supra), it is held that, the words "injury to any person" in Section 147(1)(b) would only mean a third party and not a passenger traveling in a goods carriage whether gratuitous or otherwise.18. The Apex Court in the Judgment reported in Prema Devi's case (supra), has held that, it is open to the claimant to recover the amount awarded from the owners of the offending vehicles and Insurance Company is not liable to pay any compensation in case of death or injury to gratuitous passenger traveling in goods carriage.19. The very contention of the learned counsel for the claimant is that the Insurance Company has to pay and recover the compensation amount relying upon the Judgment reported in Manuara Khatun's case (supra), and on perusal of the facts and circumstances of the case, no doubt, the Apex Court held that the victims travelling as "gratuitous passengers", the Insurance Company has to pay and recover the compensation amount. However, taking into the facts of the case, the deceased person traveled in a Tata Sumo and the same was met with an accident and died on the spot and the said vehicle is a private vehicle and not the goods carriage vehicle. The law is very clear that the passengers cannot be carried in a goods vehicle and also the policy-Ex.R1 is clear that, it does not permit the use of vehicle to carry the passengers. Hence, the judgment of the Apex Court is not applicable to the case on hand since the facts and circumstances are different and in the present case, the claimant was carried in a goods vehicle, which is not permitted.20. The learned counsel for the claimant also relied upon the Judgment reported in Fahim's case (supra), it is held that the vehicle which came in high speed hit the deceased from behind. As a result, he became seriously injured and died on the spot. The facts and circumstances of the case on hand is different that in the goods carriage vehicle, the claimant was carried and not a third party and the complaint which has been marked as Ex.P1 is also clear that not only this claimant and other 14 persons traveled in the Lorry and the Lorry was taken to Pooja and they were returning, at that time, the accident had taken place.21. The main contention of the learned Counsel for the claimant is that the claimant is a gratuitous passenger. Hence, the Insurance Company is liable to pay and recover the amount. The said contention cannot be accepted and the principles laid down in the judgments rendered by the Apex Court referred supra by the Insurance Company are aptly applicable to the case on hand. It is specific that the Act does not contemplate that the goods carriage was carrying a large number of passengers with a small percentage of goods as the Insurance policy considerably covers the death or injuries either by the owner of the goods or his authorized representative. It is also observed that the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger traveling in a goods vehicle, and the insurers would not be liable therefor.22. Having considered the

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material available on record and also the principles laid down in the judgments referred supra, the authoritative pronouncement are made that the persons who traveled in the goods vehicle whether gratuitous or otherwise are not entitled to claim compensation from the Insurer. I have already pointed out that under Ex.R1 there are limitations for the use of vehicle. There is a specific bar under clause (3) of the policy that passengers cannot be carried in the vehicle. When such being the case, the contention of the learned counsel for the claimant cannot be accepted. The Tribunal has committed an error in referring IMT 37 and 37 A, which has not been mentioned in the policy and if the premium has been paid then the same would have been mentioned in the policy and in the absence of any such mention in the policy, the Tribunal has committed an error in fastening the liability on the Insurance Company, which requires an interference of this Court. Hence, I answer the point No.1 as 'affirmative'.23. In view of the discussions made above, I pass the following:ORDER(i) The appeal is allowed.(ii) The impugned judgment and award of the Tribunal dated 05.01.2010 passed in M.V.C.No.464/2007 is modified exonerating the liability of the Insurance Company and the liability is fastened on the owner.(iii) The second respondent/owner is directed to pay the compensation within eight weeks from today.(iv) The amount, if any in deposit shall be refunded to the appellant-Insurance Company, forthwith.(v) The Registry is directed to send the records to the concerned Tribunal, forthwith.
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