The Manager vs Chandappa

A.V. Chandrashekara, J.—Insurance Company has challenged the judgment and award in MVC No. 1166/2009, which was pending on MACT No. VI at Bijapur. On the basis of the claim petition filed by Chandappa, who is the 1st respondent herein, the tribunal has awarded a compensation of Rs. 1,05,600/- with interest at 6% per annum from the date of petition till realization.

The fact that the 1st respondent - Chandappa was injured in a motor vehicle accident that took place at about 5.00 p.m. on 16.04.2007, while he was travelling in a auto rickshaw bearing No. KA-28/A-5435, near Nebagiri Nala is not in dispute. What is seriously disputed by the Insurance Company is about its liability to pay the compensation.

It is argued that 18 persons were travelling in a goods auto rickshaw and therefore, company is not liable to indemnify the claimant, who was injured in the said accident. It is argued that the tribunal has simply accepted the case of the claimant and has not at all considered the defence taken up by the Insurance Company.

Perused the records and heard learned counsel for the parties.

The case of the claimant-Chandappa as put forth before the MACT is that he was travelling in a auto rickshaw bearing No. KA-28/A-5435 from Muddebihal to Devoor, along with his goods and met with an accident near canal. Therefore, the claimant chose to file a criminal case in Crime No. 65/2007. According to him, the accident occurred due the negligence caused by the driver of auto rickshaw.

The fact that the vehicle in question had been validly insured and it was in force as on the date of the accident is not in dispute. The injured has produced several documents and they have been marked as Exs. P1 to P8. Ex. P6 is the copy of the charge sheet and Ex. P2 is the copy of the complaint filed by one Parasappa, who was also an inmate at the relevant point of time. Ex. P2 - complaint filed by Parasappa S/o. Changappa of Devoor village, discloses that he was travelling in a auto rickshaw along with 17 persons and the auto got turtled because of the negligence of the driver. As a result of which, he fell down and sustained severe injuries.

Ex. P1 is FIR registered by the police on the basis of Ex. P2-complaint, Ex. P4-MVI report and would certificate at Ex. P5, for offences punishable under Sections 279, 337 and 338 of IPC, Section 187 read with Section 134 of MV Act and Section 16(A) of MV Rules.

What is argued before this Court by the learned counsel appearing for the insurer is that, when Exs. P1, P2 and P6 have been taken for consideration to give a finding on the occurrence of the accident, the other contents of the same should also to be taken into consideration while deciding the liability of the Insurance Company. There is a force in the said submission. As held by the Apex Court in the case of National Insurance Co. Ltd. Vs. Rattani and Others, , that the FIR and charge sheet which are the part of the claim petition will have to be looked into, not only with regard to the occurrence of the accident but also in respect of number of persons travelling in the auto rickshaw. Para No. 7 of the judgment is relevant as follows:

"We are not oblivious of the fact that ordinarily an allegation made in the first information report would not be admissible in evidence per se but as the allegation made in the first information report had been made a part of the claim petition, there is no doubt whatsoever that Tribunal and consequently the appellate Courts would be entitled to look into the same."

The FIR lodged by one Parasappa, who was travelling in the said auto rickshaw definitely discloses that along with him 17 persons were travelling and they were all injured in the accident because of the negligence of the driver. What is argued before this Court by the learned counsel appearing for the claimant is that Chandappa was travelling in auto rickshaw along with his goods i.e., the bag carrying about 50 kg of rice. The Panchanama marked at Ex. P3 does not disclose anything about the same. It only discloses about the damages caused to the vehicle and the position of the vehicle. When the police inspected the scene of occurrence. They have recorded the statement of the claimant in regard to the carrying of the goods and there is no corroboration in material particulars.

The tribunal has relied upon the decision of this Court reported in United India Insurane Company Ltd. Vs. Salauddin Abdulkhadar Maniyar and Afzalkhan Bismillakhan Dodamani, , to contend that a passenger carrying goods in vehicle is to be indemnified, if he is a gratuitous passenger.

The tribunal has not taken all the relevant aspects of matter. It has relied on Exs. P1, P2 and P6 to hold that the claimant was travelling in the said auto rickshaw and he was injured in the said accident. But it has not taken into consideration that the auto rickshaw was carrying about 18 persons. The defence of the Insurance Company has not been considered in right perspective when it has taken a specific stand about its liability to indemnify the claimant. The tribunal was excepted to frame a specific issues to that effect.

Admittedly, the Insurance Company's coverage was only for the driver of auto rickshaw. The said Insurance Policy does not cover the risk of any person other than the driver as per Ex. R1. The copy of the Insurance Policy which is marked as Ex. R1 does not disclose anything about the coverage of any person other than the driver. Ex. R1 only discloses that only one person was covered under the policy and that is of the driver only. The tribunal has not framed any specific issue in this regard.

Accordingly, the judgment and award of the tribunal will have to be set aside. The matter needs to be remitted for consideration of the matter afresh in the light of the judgment of the Hon'ble Apex Court in the case of National Insurance Company Ltd., v. Rattani and Others and the contents of Exs. P1, P2 and P6.

ORDER

The appeal is allowed. The judgment and award of the tribunal are set aside and the matter is remitted to the tribunal to consider the matter afresh after framing appropriate issues and giving opportunities to both the parties.

The parties shall appear before the tribunal on 12.01.2015, without fail. The matter shall be disposed of within the period of three months from 12.01.2015.