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Judgment
K. Govindarajulu
All these four appeals are preferred challenging the order passed by the Civil Judge (Sr.Dn.) & MACT. Khanapur, in the batch of MVC''s decided by a common judgment dated 25.11.2005. Facts placed by the claimants in the six MVC cases before the learned trial judge are as follows:-
On 05.07.2002, deceased Vasant. Chandrappa, Balappa, Suresh, Muttappa and Sattegouda were returning from Dharwad Market Yard to their native place Hidkal in the Tempo Bearing registration No. KA-22/4368, then a goods Truck bearing Registration No. RJ-19/IF-0883 has dashed against the Tempo in which the deceased were travelling. So, it resulted in accident. The claimants had lost their earning members in the family. So, seek for compensation.
The appellant herein was Respondent No. 4 [The Oriental Insurance Company Ltd.] in the claim application. He is the insurer of the goods Tempo, whereas the Respondent No. 2 [the New India Assurance Company Ltd.] is the insurer of the Truck. These two insurance companies have filed objections denying the accident pleaded, called upon the claimants to prove the accident. In all the six cases that were pending consideration before the learned Member of the Tribunal, common evidence is recorded. PWs-1 to 5 are examined, Ex.P-1 to. 15 are marked. The policy of the goods Tempo is marked as Ex.R-1. Learned Member of the Tribunal while appreciating the material facts placed before the Court has come to the conclusion that the accident is on account of the negligent driving by the driver of the truck and also the Tempo and quantified contributory negligence of the truck at 75% and that of the tempo at 25%, in view of the findings on the negligence as a case of contributory negligence, directed the appellant herein also [M/s. Oriental Insurance Company Ltd.] to pay the compensation. M/s. New India Assurance Company Ltd. is said to have paid the compensation directed by the Tribunal to the extent of 75%. The appellant, who is disputing its liability to pay 25% of compensation apportioned by the learned Member of the Tribunal, is in appeal in these cases.
Learned advocate Sri G.N.Raichur, for the appellant submitted the following points for the consideration by the Court:
The tempo is a goods Tempo, Tempo cannot, be used for travel by the public. So, the travelling by the deceased in the said tempo is unauthorised, as it is a goods tempo. The IMT Nos. 37, 40 would support the contention of a goods vehicle carrying the passengers is prohibited. No documents are produced to probabilise/prove that the vehicles is hired for the purpose of transportation of chillies to the market, much less, the chillies were in the tempo when the accident has occurred. So, it is not a case of the owner or authorised agent moving in the vehicle along with the goods so as to cover the said event by the insurance company. Further, contend that the person so moving cannot be categorized as person moving under NFPP. This Court in MFA No. 11694/2005 has decided the said subject in favour of the insurance company. He also submits that a reading of the averments made in the claim application would show that the claimants have contended that it is the driver of the lorry that was negligent. So, fastening of liability on the insurer of the tempo is not proper. So, pray for absolving the insurance company from paying compensation.
The orders of this Court in MFA No. 11694/2005 would reflect a case of death of Ninganagouda Naganagouda Patil who was travelling in the truck along with wooden doors for his contract work. The Division Bench of this Court has found that the goods vehicle carrying the wooden doors was not supported with any documents. So, disbelieved the case of the claimants that the deceased was travelling with the goods. So absolved the insurance company.
Learned Advocate for the claimants contend that in the facts of the case, the claimants case of death of the person travelling in the tempo is in dispute. The tempo being hired for transportation of chillies, agricultural produce from the field to the market, on the return journey, there being an accident is the case of the claimants. So, the facts placed before the Court come within the ambit of vehicle being hired for the purpose of transportation of goods. The distinction urged by the learned Advocate for the insurance company that when the accident occurred, the goods were not there is a reading of half of the facts and eschewing of the remaining facts. The same is not permissible. Thereby support the findings of the learned Member of the Tribunal in regard to the direction issued by him to the appellant to deposit 25% of the compensation.
Material submissions probabilise the case of the claimants is that they are the legal representatives of (he deceased. It is not disputed further case of the claimants is that the deceased have engaged the tempo on hire for carrying the agricultural produce/chilly to the APMC. It is also not dispute. Further case of the claimants is that while returning, the tempo met with a road traffic accident on account of the rash and negligent driving of the truck by its driver. This is also not in dispute. But, the contention of the learned counsel. Sri G.N.Raichur, is that at the said hour of accident, position of the persons moving in the goods tempo would be that of an unauthorised passengers. This submission could have been accepted but for the reason that the subject urged is a question of fact and no evidence is adduced on behalf of the appellant before the Tribunal. Secondly, the case of the claimants is that all the deceased have engaged the goods tempo for transportation of the goods, unloaded the goods at APMC and that they were returning. The vehicle is hired for a trip. In this situation, as rightly pointed out by the learned Advocate for the claimants that the trip cannot be cut down into a half. More so, when it is a usual practice for the vehicle of a particular place to go to another place and return to the very same place after the trip. So, the submissions of the learned Advocate Sri G.N.Raichur that the deceased were unauthorised passengers in a goods tempo is rejected. The orders of this Court in MFA No. 11694/2005 are not attracted to the facts of this Case.
The subject can be analysed from yet another angle also. As the learned Advocate Sri G.N.Raichur contend that in the pleadings, there is no allegation against the driver of the Goods Tempo. So, the insurance company cannot be asked to pay compensation. If that is the defence of the insurance company, the insurance company ought to have filed an application to dispense their participation in the proceedings. Having not done so, having participated in the proceedings and having been a party in determining the contributory negligence at 750%-25%, now the appellant cannot contend that the pleading is silent in regard to the negligence of the driver of the Tempo. So, this ground urged also is rejected.
Out of the six MVC''s, the appellant has preferred appeals only in four cases. If the appellant/insurance company has paid the compensation in regard to other two claimants, the same principle is applicable to the remaining four cases also.
The Court having found the participation by the appellant/insurance company in the Court below while recording the evidence, having suffered a decree, which proves the driver of the tempo also being negligent, it cannot be permitted to absolve the liability fastened on the appellant/insurance company in consonance with the provisions u/s 147 of the Motor Vehicles Act. So, the submissions addressed by the learned advocate Sri. G.N. Raichur, are rejected. In the result, the appeals are dismissed. The amount in deposit be transmitted to the Tribunal for payment.