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Judgment
K. Govindarajulu
The respondent no. 2 in MVC. No. 144/2003 on the file of the Fast Track Court.-II/MACT -IX Bagalkot is the appellant. The case of the claimant is that on 7.12.2002 at about 10 a.m., she was travelling in the three Wheeler tom tom bearing registration No. KA29/4393 from Gorajanal to Amingad. While so driver has driven the tamtam negligently and it resulted in accident. For the pain, suffering and agony seek for compensation.
The defence of the Insurance Company is that the tamtam is a goods vehicle. So, it cannot be used as a passenger vehicle. As it is used as a passenger vehicle, there is breach of the condition, it will ensure to the benefit of (he Insurance Company u/s 149 of the Motor Vehicles Act. So, it is not liable to pay the compensation.
The learned Advocate for the Insurance Company contend that the evidence of R.W.1 would probablize that the vehicle is registered as a goods vehicle. So, there is no question of use of the vehicle for transportation of the passengers. The movement of the claimant as a passenger, a direction to the Insurance Company to deposit the compensation is not in accordance with law, places reliance on the ruling of this Court in United India Insurane Company Ltd. Vs. Salauddin Abdulkhadar Maniyar and Afzalkhan Bismillakhan Dodamani, seek for absolving the Company.
On the other hand, the learned Advocate for the claimant relies on the ruling referred to by the learned trial Judge, contend that the vehicle tomtom is used for the purposes of carrying men also, the evidence of R.W. 1 is that of an interested witness. The policy is, issued, the principles in the ruling reported in 2006 KCCR (2) 378 is attracted, as the persons are covered under the non-fare paid passengers, the evidence of R.W. 1 will not help the Insurance Company. So, pray for dismissal of the appeal.
The submissions probablize the accident is admitted. Actionable negligence is not disputed. The liability of the Insurance Company to pay the compensation is challenged. Hence, the Court has to first decide the subject of liability of the Insurance Company. Ex. P.5 is a cover note relied by the claimant. Ex.R. 1 marked through the officer of the Insurance Company is a policy. A sum of Rs. 75/- is collected by the Insurance Company to cover the TPPD in addition to the basic liability and also to cover the driver and the workman. The policy is described as policy ''B'' comprehensive, goods carrying commercial vehicle, three wheeler motorized autorickshaw. R.W. 1 contends as the vehicle is a vehicle which cannot be used for the carrying of the passengers, vehicle being a goods vehicle, the Insurance Company is not liable to pay the compensation. The answer given by R.W. 1 reads as follows;
If the vehicle owner has paid the Insurance premium then only, the Insurance Company is liable to pay the compensation to the person who carried the goods in the vehicle.
The witness R.W. 1 does not spell out in regard to which coverage this TPPD R-s.75/- is collected. In view of the collection of Rs. 75/-, the learned Presiding Officer of the Fast Track Court places reliance on Rule 100 of the Karnataka Motor Vehicle Rules, refers to the mandate therein in regard to the goods vehicles and the number of persons who can move in the vehicle as 2 + 1 in the case of light goods vehicle, in the case of heavy goods vehicle 5+1. Also places reliance on the principle in the IMT 13 and 14 in regard to the NFPs. To rebut this principle available under Rule 100. no substantial evidence is placed by the Insurance Company. Even a sentence is not found in the evidence of R W. 1 as to why Rule 100, IMT 13 and 14 are not attracted in this case. The principle relied by the learned Advocate for the Insurance Company in UNITED INDIA INSURANCE COMPANY LIMITED Vs. SALAUDDIN ABDULKHADAR MANIYAR AND ANOTHER is in regard to use of goods vehicle for the transportation of the passengers, it is not attracted. Further, the other contention taken by the Insurance Company is that the driver did not have valid DL. No such issue in regard to the validity of the DL. is framed, the said submission has to be rejected. In regard to the quantum of compensation, a sum of Rs. 78,000/- is awarded under the head medical expenses, a sum of Rs. 25,000/ is awarded under the head pain and suffering. So. 2/3 of the amount is awarded towards pain and suffering and medicines, in view of the Doctor''s evidence disclosing disability of 30% on account of fracture of the left fore arm compensation awarded totally in a sum of Rs. 1,48,000/- by the MACT is justified and it is a just compensation. It cannot be interfered by the Court in view of the facts narrated supra. So, there is no merit in the appeal. Appeal is dismissed. The amount in deposit be transferred to the Tribunal for payment.