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Judgment
Ram Mohan Reddy, J.—1. Since common questions of law and that of fact arise for decision making MFA No. 8713/2011, 6518/2011, 8714/2011 with consent of learned counsel for the parties, appeals are clubbed together, finally heard and disposed of by this order.
MFA 8713/2011 and 8714/2011 are filed by the owner of the goods vehicle involved in the accident calling in question the finding fastening liability to pay compensation, on the premise, that claimants are not unauthorized passengers in the goods vehicle. MFA 6518/2011 is preferred by the claimant in MVC 648/2008 for higher compensation.
Learned counsel for the owner of the offending motor vehicle submits that the trial Court was not justified in fastening the liability to pay compensation on the owner on the premise that the occupants of the goods vehicle were not covered by the policy of insurance.
Per contra, learned counsel for the respondent insurer of the goods vehicle seeks to sustain the award impugned as being well merited, fully justified and not calling for interference.
Learned counsel for the insurer submits that the two injured claimants in MVC No. 648/2008 & 704/2008 were not employees of insured and their risk was not covered in terms of the policy of the insurance. Both, according to learned counsel, were not employees of A.K. Nagesh Gowda, the owner of the goods transported in the vehicle, and not being his authorized representative, hence, their risk was not covered in the policy of insurance, regard being had to Section 147 (1) (b) (i) of the Motor Vehicles Act, 1988 (for short ''MV Act'')
In the proceeding before the MACT, the insurer of offending lorry is said to have examined K. Gopalakrishna, the Investigating Officer, Engineer and Surveyor as RW2, who on an enquiry, was informed that the goods being timber logs transported in the offending motor vehicle belonged to A.K. Nagesh Gowda, who engaged Ratnakar, since deceased, having succumbed to injuries while traveling in the goods carriage, while, Manju was an employee of said A.K. Nagesh Gowda. There is no dispute that Manju and Ratnakar died in the accident while Ratnakar''s legal representatives filed MVC 729/2008 and reckoning him to be the employee of A.K. Nagesh Gowda, the authorized representative, the insurance company satisfied the award. As regards Manju, having succumbed to grievous injury, in the accident, RW1, the driver of the offending vehicle, stated that the deceased was traveling as a conductor in the lorry.
The injured Mani and Mahendra though claimed to be employees of A.K. Nagesh Gowda engaged as loaders loaded the timber logs, since transported, and were the authorized representatives of the owner of the timber, nevertheless except for their interested testimony there was no other evidence to support or corroborate their claim. R.W. 2 the investigating officer, engaged by the insurer did not support the case of either Mani or Mahendra, and both states on oath, that enquiry revealed that it was Ratnakara and Manju, since deceased, engaged by A.K. Nagesh Gowda, the owner of the goods. It is no doubt true that the owner of the offending motor vehicle, the appellant, did not engage the services of either Mani or Mahendra and therefore, their risk was not covered under the policy of insurance. In the absence of relevant material constituting substantial legal evidence of the fact that Mani and Mahendra were authorised representatives of the owner of the goods in the vehicle, in view of Section 147 (1) (b) (i) of the MV Act, their risk was not covered.
The MACT though noticed the oral testimony of RW. 1 the driver of the offending vehicle belonging to the appellant/owner that Mani and Mahendra were not traveling in the lorry in question and at the spot of the accident while he was driving the vehicle at 10 k.m./hour, some people boarded the lorry by holding the door chain from the back nevertheless a suggestion when put to P.W. 4 Mani claimant in MVC 648/2008, the MACT observed thus:
"Thus on careful consideration of the entire evidence on record in the facts and circumstances of the case, it could be safely stated that injured Mani and injured Mahendra and deceased Manju @ Manjunatha were traveling in the lorry in question as loaders and unloaders engaged by A.K. Nagesh Gowda and deceased K. Rathnakara was transporting the timber logs belonging to A.K. Nagesh Gowda as his authorized representative in the lorry belonging to respondent No. 2 and that the accident in question occurred solely due to the rash and negligent driving of the lorry bearing Reg No. KA 18/9403 by its driver/respondent No. 1."
Learned counsel for the owner/appellant points to this finding to contend that there was enough material to establish that, as a matter of fact, Mani along with Manju were travelling in the offending vehicle as authorized representative of A.K. Nagesh Gowda.
On perusal of the evidence, oral and documentary, there is nothing to suggest or corroborate the claim of Mani and Mahendra to have travelled in the vehicle as authorized representatives of A.K. Nagesh Gowda. Having regard to the facts and circumstances and evidence on record, there is a mistake in the above observation. It is seen in the cross-examination of Mani P.W. 4, wherein it is suggested that he was not inside the cabin, but was outside, which suggestion was denied, coupled, with the testimony of the driver of the offending vehicle examined as R.W. 1 by the appellant stating that neither Mani, Mahendra nor Manju were inside the vehicle and they were holding on the door chain from the back of the vehicle, it cannot, but be said that there was no evidence worthwhile to establish that Mani and Mahendra as well as Manju were in-fact loaders and un-loaders engaged by A.K. Nagesh Gowda. Appellant cannot be permitted to approbate and reprobate having taken a positive stand in the trial cannot now be permitted to withdraw from such a stand and advance a contention that claimants in MVC 648/2008 by name Mani and Mahendra in MVC No. 704/2008 were inside the cabin and were authorized representatives of A.K. Nagesh Gowda. As rightly pointed out by learned counsel for the Insurance Company, K. Ratanakar who was employed by A.K. Nagesh Gowda as stated in the evidence of R.W. 2 the investigating officer and not others.
The aforesaid observation of the MACT is while answering issue No. 1, i.e. attributing actionable negligence on RW1. the driver of the offending lorry and not over the issue of fastening liability to pay compensation.
At paragraph 55 of the Judgment impugned, the MACT having noticed the reported opinion in United India Insurance Company Limited v. Krishnappa and Another , 2007 (4) KCCR 2713, and National Insurance company Limited v. Shri Shankar Baburao Gavade and Others , 2007(4) KCCR 2282, that carrying of passengers in a goods carriage meant for carrying goods, the claim by such passengers who are gratuitous passengers have no statutory indemnity as regards owner of the motor vehicle, made reference to the evidence of RW. 1 and concluded that no liability can be fastened on the insurer to indemnify the insured owner of the lorry and compensate the injured. No exception can be taken to the reasons, findings and conclusion arrived at by the MACT on the issue of fastening liability on the owner of the offending vehicle to pay compensation.
MFA 8713/2011 and MFA 8714/2011 must necessarily fail and are dismissed. The amount in deposit is directed to be transmitted to the MACT forthwith.
MFA No. 6518/2011
Claimants in MVC 648/2008 having filed the appeal for higher compensation learned counsel submits that in the accident that occurred the appellant suffered injuries to the lumbar region and compression fracture of L2 vertebrae and was treated at MG Hospital, Chikmagalur as inpatient from 21.3.2008 to 24.3.2008; thereafter he took follow up treatment at District Hospital; that he was treated by Dr. N.C. Alwa and Dr. A.C. Niyath and spent more than 15,000/- towards medical expenses. MACT having awarded Rs. 25,000/- towards pain and suffering, it is stated, is on the lower side, reckoning Rs. 4,000/- per month as minimum wage of unskilled labour, it is submitted that MACT awarded Rs. 8,000/- towards loss of income for two months during treatment period, although he was advised bed rest for six months. Dr. Chandrakath examined as PW5 spoke to the disability certificate Ex. P21 and opined that the appellant suffered 20% disability, hence MACT was not justified in awarding Rs. 25,000/- towards disability. So also it is submitted that Rs. 20,000/- towards loss of enjoyment, happiness and amenities in life and conveyance is on the lower side; Rs. 5,000/- towards food and extra nourishment, conveyance and attendant charges is also on the lower side.
There can be no more dispute that Ex. P17 wound certificate disclosed tenderness over L2 vertebrae and compressed fracture for which conservative treatment was extended in the hospital between 21.3.2008 and the date of discharge 24.3.2008, award of Rs. 25,000/- towards pain and suffering is just and proper. MACT was fully justified in reckoning Rs. 4000/- per month as minimum wage of an unskilled labourer during the year 2008, but however, was not just in awarding Rs. 8,000/- towards loss of income during laid up/treatment period, in the light of evidence of P.W. 5 that appellant was required to be under bed rest for six months. Reckoning the same, appellant is entitled to Rs. 16,000/- in addition to Rs. 8,000/- awarded by the MACT. P.W. 5 doctor who is said to have treated the appellant for fracture of L2 Vertebrae states that he examined the appellant and clinically found that he suffered from 20% disability as certified in Ex. P21. MACT declined to accept the oral testimony of PW5 as in admissible in view of non-compliance with the notification issued by Ministry of Social Justice specifying the standard guidelines while Ex. P21 was issued on a white paper with seal and signature of P.W. 5. In the absence of material to establish clinical and radiological findings relied upon by P.W. 5 for issue the certificate and standard guidelines when not complied with, MACT declined to accept the plea of the appellant that he suffered 20% whole body disability in lieu of compensation under head of loss of future income. The MACT awarded Rs. 25,000/- towards disability, which in the facts and circumstances, is just and proper and does not call for interference. The award of Rs. 10,000/- towards loss of amenities of life in the facts and circumstances is just and proper.
In the absence of evidence to establish that the claimant had to take extra nourishment and conveyance and attendant charges, award of Rs. 5,000/- by the MACT is fair, reasonable and just.
In the result, this appeal is allowed in part. The impugned judgment and award is modified entitling the appellant injured to Rs. 16,000/- with interest at 6% p.a. in addition to what is awarded by the MACT and in all other respects remains unaltered.