Siddappa and Others vs Rasulsab T. Chapparband and Others

G. Narendra, J.—Heard the learned counsel for the appellant and respondents.

The MFA No. 30523/2009 has taken up for consideration. The said appeal is preferred by the claimant for enhancement. In the appeal the insurer has contended against the fastening of the liability on the insurance company as he disputed the liability of the insurer to compensate the claimant, as the claimant was a passenger in a goods vehicle and hence is not entitled for any compensation. The terms of policy does not envisage compensation to a passenger in a goods vehicle. He would also rely on the provisions of Section 147 of M.V. Act, which clearly excludes the liability of the insurer in respect of a passenger in a goods vehicle.

It is the contention of the appellant insurer that the claimant is a gratuitous passenger and hence the insurer is absolved of the liability to pay the compensation to such gratuitous passenger in the light of the provisions of Section 147(b)(i) of M.V. Act and in the light of the law laid down by the Hon''ble Apex Court and by this Court.

The Hon''ble Apex Court in the case of National Insurance Co. Ltd. Vs. Kaushalaya Devi and Others, , wherein the Apex Court interpreting provisions of Motor Vehicle Act and after referring to the case National Insurance Co. Ltd. Vs. Laxmi Narain Dhut held that a gratuitous passenger is not entitled to be compensated and the pronouncement of the Apex Court in New India Assurance Co. Ltd., Vs. Asha Rani and Others, reliance was placed to demonstrate that the insurer is not liable to compensate a gratuitous passenger travelling in a goods or transport vehicle. Further the Hon''ble Apex Court has in the case of National Insurance Co. Ltd. Vs. Baljit Kaur and Others, , held that "any person" in the provisions of Section 147(1)(b) of M.V. Act, does not include gratuitous passenger.

Hence, the only point that requires for consideration at the hands of this Court is;

"Whether the claimant is a gratuitous passenger or not"?

The appeal in MFA No. 30523/2009 is preferred by the claimant being dissatisfied with the quantum awarded as compensation and the appellant would submit that the quantum is not just and fair and it requires to be reconsidered.

Both the appeals arise out of the same judgment and award and involve same facts and circumstances and hence both are taken up for final hearing and disposed off by this common order.

The facts of the case.

The claimant is said to have engaged the auto rickshaw bearing registration No. KA-28/9078 on 02.06.2005 to travel to Bagalkot for the purpose of purchasing provision and vegetables for the marriage celebration of his relatives. It is further alleged that on the way to Bagalkot, the driver of the goods auto rickshaw drove the vehicle in a manner endangering human life as a result of which the driver lost control of the vehicle and it turned turtle in the process of avoiding a bullock which tried to cross the road and resulted in the accident and due to the accident the claimant alleges to have suffered grievous injury on his body and he was taken to Government Hospital at Nidagundi, where he was given first aid and referred to the District Hospital for higher treatment. After initial treatment at the District Government Hospital, Bijapur, he was shifted to a private hospital for treatment and that as on the date of the filing of the claim petition he had spent a sum of Rs. 1,00,000/- and that further amount are required for his further and future treatment and that due to the injury suffered he has became permanently disabled and is unable to eke out is livelihood. It is also contended that prior to the accident he was hale, healthy and earning Rs. 5,000/- per month from his avocation and that the members of his family were wholly depending on his earning for sustenance. In view of the accident he has lost his earnings.

The tribunal has framed three issues which are follows;

Whether the petitioner proves that on 02.06.2005 at about 2.00 p.m. on Muddebihal Nidagundi road near JKP Left Bank Canal while petitioner by name Siddappa was travelling in Auto-Rickshaw bearing Reg. No. KA. 28/9078 which was driven by driver of respondent No. 1 in great speed and in rash and negligent manner so as to endanger human life and has lost his control over said vehicle and same was turtle on the side of the road when a bullock tried to cross the road and caused the accident, to the impact petitioner has sustained grievous injuries all over his body?

Whether the petitioner proves, he is entitled for the compensation from the respondents?

What order or award?

It is contended that the tribunal has not addressed itself to the objections raised by the insurer in paragraph No. 4 of written statement, wherein it has been specifically contended that the petitioner was illegally travelling in the offending vehicle which is meant only for carrying goods. Be that as it may, this Court addresses the said objection, which is the main ground of appeal before this Court.

Sri Shivanand Patil, counsel would draw the attention of this Court to the law laid down by the Apex Court in the case of National Insurance Co. Ltd. Vs. Kaushalaya Devi and Others, , the Apex Court in the facts and circumstances of the case had come to the conclusion that it was demonstrated that the deceased was not travelling as a owner of the goods and that he was travelling in the goods vehicle on different purpose of collecting empty boxes which was not the purpose for which the said goods vehicle was taken on hire and hence the Hon''ble Apex Court held that no liability could be fastened on the insurer as the claimant was not travelling as the owner or the representative of the owner of any goods, the transport of which was the purpose for which the vehicle was hired. There can be no quarrel to the finding of the Hon''ble Apex Court and the law laid down therein. On careful examination of the judgment, it does not reveal any prohibition by the Hon''ble Apex Court for any owner of the goods or representative of the owner of the goods to travel in the vehicle. That apart, the provisions of Section 147(b)(i) of M.V. Act, clearly enables the owner of the goods or the representative of the owner of the goods to travel in the vehicle and the liability of compensating such person lies with the insurer. In view of the unambiguous provision of law there cannot be any dispute with regard to the proposition that a gratuitous passenger is not entitled to any compensation and in respect of a gratuitous passenger no liability can be fastened on the insurer.

In the case on hand, it is the allegation of the claimant that he had hired the vehicle for the purpose of going to Bagalkot for purchasing provisions and vegetables required for celebrating his relatives marriage and that en route to Bagalkot the vehicle met with an accident and turned turtle resulting in grievous injuries to him and that he became permanently disabled.

The case for decision in a nutshell is that,

"Whether the vehicle which is hired for the purpose of transporting goods by the proposed owner of goods can be stated to be engaged in the process of actually transporting the goods and thus fasten the liability on the insurer"?

This is some what akin to principle of notional employment theory. The vehicle has been hired for the specific purpose of transporting the goods by the claimant or representative of the owner of the goods as he has claimed that he is proceeding to Bagalkot for purchasing the provisions and vegetables for celebrating the marriage of his relative. Admittedly, he cannot be classified as the owner of the goods and at the most he can be described as representative of the owner of the goods. In similar circumstances the division bench of this Court in the case of National Insurance Company Limited Vs. Sarojamma and Others, , has held a person in the vehicle en route to collect the goods and who meets with an accident, then the proposed owner of the goods or his representative cannot be described as a gratuitous passenger, and it has held that the person in the vehicle is either the owner of the goods or the representative of the owner of the goods and is entitled to be compensated by the insurer.

This issue has also been viewed and answered in by the Hon''ble Apex Court in the case of United India Insurance Co. Ltd. Vs. Suresh K.K. and Another, , at paragraph No. 3, the Apex Court has formulated the issue as follows;

"3. The core question which arises for consideration in this appeal is as to whether a person who has hide a goods carriage vehicle would come within the purview of sub-Section (1) of Section 147 of the Motor Vehicle Act, 1988, although no goods as such were carried in the vehicle".

It has concluded that a person is travelling in the vehicle as a owner of the goods and it is concluded after referring to the provision of Section 147(b)(i) of M.V. Act, that if the claimant has been travelling in the vehicle as the owner or representative of the owner of the goods, he would be covered by the policy of the insurance.

In the present case,

"Whether the claimant has demonstrated that he had hired vehicle for the purpose of travelling to the market at Bagalkot for purchasing the provisions and vegetables required for his relatives marriage?

Further, it is also to be seen whether the appellant insurer has demonstrated that the claimant is an illegal passenger or gratuitous passenger in the offending vehicle?"

It is averred in the claim petition that the vehicle was engaged by the claimant for the purpose of bringing kirana articles and vegetables from Bagalkot for celebrating the marriage of his relative and apart from the above averment no further details are forthcoming in the pleadings.

On perusal of the written statement preferred by the second respondent insurer, it is averred that "the petitioner crooked up this false story to get unlawful gain of compensation from this respondent. The offending vehicle is only meant for carrying goods but the petitioner and other inmates were illegally travelling in the said offending vehicle. Hence, this respondent is not responsible to pay any compensation as claimed by the petitioner" and no other particulars are furnished. Thus, both the parties, that is, the claimant and insurer, apart from making terse averments, have not placed any details in the respective claim petition and written statement. Though there is a specific plea by the claimant that he was travelling to Bagalkot for procuring provisions and vegetables, the insurer has merely denied it and has not thought it fit to elaborate about other persons in the vehicle. Written arguments are submitted on behalf of the insurer. The present contention is not raised by the insurer before the tribunal.

It is necessary to look at the evidence detailed by the respective parties. The claimant has examined himself and one Dr. A.A. Magi, and he has got marked 12 exhibits. The respondent insurer has got marked the insurance policy as Ex. R1 and got examined one witness on his behalf.

The claimant in his affidavit of evidence has reiterated his claim that he was travelling to Bagalkot for the purpose of transporting the provisions and vegetables for his relative marriage. There is no admission elicited in the cross-examination of the claimant regarding his assertion of travelling in the goods vehicle for the purpose of transporting the provisions and vegetables, as asserted, both in his claim petition and in the examination in chief. The respondent in his evidence before the tribunal has not disputed the said fact. In fact in the cross-examination to a suggestion that an auto rickshaw was hired for the purpose of transporting the provisions and vegetables the witness has answered that he does not know, though it is not in the nature of an admission, it is also not a denial. The witness has elaborated on the impact of the injury and earning capacity of the claimant. That being the case, it is required to assess as to what has moved to the aid of the tribunal to arrive at the finding that the claimant did indeed travel to Bagalkot for the purpose of transporting the provisions and vegetables.

It is seen that the tribunal apart from relying upon the evidence of the claimant, it has relied upon the Ex. P1/FIR, Charge sheet and spot panchanama i.e. Ex. P2 is relied upon Ex. P1. Ex. P2 is the complaint wherein, it is specifically stated that he had engaged an auto rickshaw for proceeding to Bagalkot for purchasing the provisions and vegetables for the relative''s marriage which was to be performed on the next day. The police also recorded the same and prosecution is also initiated on the same grounds. Though this material has been marked as exhibits and are part of the record, the insurer has not elicited anything contrary to the assertion and all the assertions of the claimant has not been controverted and hence the tribunal has rightly concluded that the offending vehicle was engaged by the claimant for the purpose of transporting the goods from Bagalkot to native place and the goods vehicle was hired from the native place and the accident occurred while they were en route to Bagalkot to pickup the goods. Hence, the finding that the auto rickshaw was engaged to transport the goods is correct and is substantiated.

Now the other part of the issue whether the claimant can be construed to be owner of the goods or representative of the owner of the goods that were proposed to be transported from Bagalkot to the native place. Admittedly, again the same material must be relied upon to demonstrate the case of the claimant. He has stated in unequivocal terms that he had engaged the vehicle for the purpose of transporting the provisions and vegetables which were required to celebrate his relative''s marriage and hence it has to be presumed that he had been deputed to transport the same. It is natural in our society that in weddings families, especially in the rural segment, rely more on relatives while performing or celebrating any event. So the conduct and claim appears to be natural.

The reasoning set out is not implausible and it being the normal conduct in the society, especially in the rural segment, and the appellant insurer having failed to place any material to controvert or contradict the same. It must be presumed that the claimant was travelling as a representative of the owner of the goods to be transported from the market in Bagalkot. In that view of the matter, this Court holds that the claimant/respondent has traveled as representative of the owner of the goods to be transported in the offending vehicle and hence the tribunal was right in fastening the liability and the finding.

The other issue to be considered is whether the compensation awarded is just and fair. The claimant has preferred this appeal praying for enhancement of award amount. The grievance of the claimant is not founded on any concrete material nor has the claimant let in any cogent evidence, the consideration of which would have compelled the tribunal to take another view regarding the income of the claimant. The accident is of the year 2005, the tribunal has assessed the notional income at Rs. 3,000/- per month. The doctor who was examined on behalf of the claimant has opined that the permanent disability is about 40-45%. The tribunal after examining Ex. P3 the wound certificate, has concluded that it would be appropriate to fix the disability at 30%. It has also taken note of the fact that the claimant has taken treatment only for 15 days. It has also reasoned that the disability stated by the doctor is without reference to the catalogue prescribed by the medical manual and also that though he claimed to be doctor who treated the claimant, he has not produced any material to demonstrate the same and hence the tribunal was of the opinion that the percentage of disability is exaggerated. Perusal of the material on record back the reasoning accorded by the tribunal. In that view of the matter, this Court is of the opinion that no ground is made out for enhancement of the award and in the opinion of this Court the compensation is just and fair. In view of the above, the appeal preferred by the claimant is dismissed.

There shall be no order as to costs.

The parties to bear their own costs.

The amount in deposit in MFA No. 30495/2009 is transferred to the account of the tribunal.