1 IN THE HIGH COURT OF KARNATAKA, GULBARGA BENCH DATED THIS THE 10 TH DAY OF JUNE, 2014 BEFORE THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY MISCELLANEOUS FIRST APPEAL NO.12587/2007 (MV) C/w MISCELLANEOUS FIRST APPEAL NO.13450/2006 BETWEEN: 1. Laxmibai W/o Yallappa Bilagi Age: 38 years, Occupation: House hold R/o Balabatii Taluka: Muddebihal District: Bijapur. 2. Hanamanth S/o Yallappa Bilagi Age: 24 years, Occupation: Student, R/o Balabatii Taluka: Muddebihal District: Bijapur. 3. Srishail S/o Yallappa Bilagi Age: 21 years, Occupation: Student, R/o Balabatii Taluka: Muddebihal District: Bijapur. 4. Bouramma D/o Yallappa Bilagi Age: 19 years, Occupation: Student, R
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DATED THIS THE 10 TH BEFORE THE HONOURABLE MR.JUSTICE ...judgmenthck.kar.nic.in/judgmentsdsp/bitstream/... · the tractor was carrying fertilizer and it was intended to be unloaded
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IN THE HIGH COURT OF KARNATAKA,
GULBARGA BENCH
DATED THIS THE 10TH
DAY OF JUNE, 2014
BEFORE
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
MISCELLANEOUS FIRST APPEAL NO.12587/2007 (MV)
C/w MISCELLANEOUS FIRST APPEAL NO.13450/2006
BETWEEN:
1. Laxmibai W/o Yallappa Bilagi
Age: 38 years, Occupation: House hold
R/o Balabatii
Taluka: Muddebihal
District: Bijapur.
2. Hanamanth S/o Yallappa Bilagi
Age: 24 years, Occupation: Student,
R/o Balabatii
Taluka: Muddebihal
District: Bijapur.
3. Srishail S/o Yallappa Bilagi
Age: 21 years, Occupation: Student,
R/o Balabatii
Taluka: Muddebihal
District: Bijapur.
4. Bouramma D/o Yallappa Bilagi
Age: 19 years, Occupation: Student,
R
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R/o Balabatii
Taluka: Muddebihal
District: Bijapur.
… APPELLANTS
(Shri H.R. Malipatil and J.S. Shetty, Advocates)
AND:
1. Shantappa P. Kamat
Age: Major
R/o Itagi, Now residing at
Muddebihal behind the Syndicate Bank,
Reshma Building Muddebihal
Naragund Taluk
Naragund, District: Gadag.
2. Branch Manager
National Insurance Company Limited
Porwal Building,
Siddeshwar Cross Road,
Bijapur.
… RESPONDENTS
(Smt. Preeti Patil, Advocate for respondent-2
Smt. Saroj S. Patil and Shri G.B.Yadav,
Advocate for respondent-2 (v/k not filed)
This Miscellaneous First Appeal is filed under Section
173 (1) of Motor Vehicles Act, 1988 against the Judgement and
Award dated 01.08.2006 passed in MVC No. 54/2004 on the
file of the Motor Accident Claims Tribunal, Muddebihal, partly
allowing the claim petition and seeking further enhancement of
compensation.
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MFA 13450/06
BETWEEN:
The National Insurance Company Limited
Divisional Office,
Porwal Building, Siddeswara Cross Road,
Bijapur, represented by Bangalore Regional Office,
By its authorised officer,
Shubharam Complex, II Floor,
No.144, Mahatma Gandhi Road,
Bangalore – 560 001.
… APPELLANT
(Smt. Preeti Patil, Smt. Saroja S. Patil and
Shri C.S. Kalburgi, Advocates)
AND:
1. Laxmibai W/o Yallappa Bilagi
Age: 37 years, Occupation: House hold work,
2. Hanamant S/o Yallappa Bilagi
Age: 23 years, Occupation: Student,
3. Srishail S/o Yallappa Bilagi
Age: 20years, Occupation: Student,
4. Bouramma D/o Yallappa Bilagi
Age: 18 years,
All are R/o Balabatti
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Taluka: Muddebihal-586 212
Bijapur District.
5. Shantappa P. Kamat
Age: Major,
Occupation: Business and Agriculture
R/o Itagi,
Now Residing at Muddebihal,
Behind the Syndicate Bank,
Reshmi Building, Muddebihal.
… RESPONDENTS
(Shri S.S. Shetty, Advocate for respondent-1 to 5)
This Miscellaneous First Appeal is filed under Section
173 (1) of Motor Vehicles Act, 1988 against the Judgement and
Award dated 01.08.2006 passed in MVC No. 54/2004 on the
file of the Civil Judge (Senior Division), Member, Motor
Accident Claims Tribunal, Muddebihal, awarding a
compensation of Rs.2,74,600/- with interest at 6% p.a. from the
date of petition till date of realisation.
These appeals coming on for Hearing this day, the Court
delivered the following:
JUDGMENT
Heard the learned Counsel for the appellants and the
learned Counsel for the respondents.
2. The present appeals are filed in respect of the same
judgment and award. The appeal in MFA 12587/2007 is filed
by the claimants seeking enhancement of compensation that is
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awarded and the connected appeal in MFA 13450/2006 is filed
questioning the liability fastened on the Insurance Company in
respect of payment of compensation.
3. The brief facts are as follows:-
The claimants are the widow and children of deceased
Yallappa Bilagi, who was said to be travelling in a tractor and
trailer bearing No.KA-28/T-37 and 38 from Balabatti to his
field and the trailer was loaded with fertilizer. When the tractor
had reached Hullur cross, it is claimed that on account of the
tractor being driven in a rash and negligent manner, Yallappa
Bilagi was thrown out of the trailer and he was run over by
the trailer and his head was crushed. He died on the spot. It is
in this background that a claim for compensation was lodged by
his widow and children, claiming that he was working as a
coolie and he was earning about Rs.8000/- per month and the
accident was caused on account of the rash and negligent
driving of the tractor, which belonged to respondent no.1 in the
present appeal and the tractor was duly insured with the second
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respondent – Insurance Company. The claim petition was
contested and the following issues were framed on the basis of
the pleadings.
“1. Whether the petitioners prove that, husband
of petitioner No.1 by name Yallappa Hanamant Bilagi
has died on 5-7-2002 due to dashing of tractor and its
trailer bearing Reg.No.KA-28/T-37 and 38 near Hullur
Cross, wherein Yallappa was travelling in the said
tractor and trailer from Hullur to Balabatti loading
fertilizer in the trailer of tractor for his lands and that
driver of the said tractor drove it in a rash and negligent
manner so as to endanger human life at the date, time
and place of accident?
2) Whether petitioners prove that Yallappa
Hanamant Bilagi was aged 45 years and was earning
Rs.8,000/- per month by doing agriculture and coolie?
3) Whether petitioners proves that, petitioner are
entitled to compensation? If so, how much ? and from
whom?”
The Tribunal, on consideration of the material evidence
that was produced and the rival contentions, has proceeded to
hold that as on the date of the accident, the deceased was
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travelling in a tractor trailer and apart from this, it is shown that
the tractor was carrying fertilizer and it was intended to be
unloaded on the field of the deceased and hence, the presence of
the deceased in the trailer was sought to be explained and
further that the tractor and trailer was being used for an
agricultural purpose at the time of the accident and the vehicle
was duly insured at the time of the accident and there was no
mechanical defect, as per the Motor Vehicle Inspector’s
Report, to the tractor at the time of the accident. Therefore, it
was held that the accident has apparently occurred only on
account of the rash and negligent driving act of the driver. In
the above circumstances, the Tribunal has allowed the claim
and has awarded a compensation of Rs.2,49,600/- towards loss
of future income, on the basis that the deceased was aged about
45 years and was working as a coolie and though it was claimed
that he was earning Rs.8,000/- per month, the Tribunal has
chosen to adopt Rs.2,400/- per month as the notional income,
and has applied the multiplier of ‘13’ and deducted one-third
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of the income, while also awarding compensation under other
conventional heads amounting to Rs.25,000/-, thus amounting
to a total compensation of Rs.2,74,600/-. It is that which is
sought to be questioned by the claimants as well as the insurer.
4. Addressing the contention on behalf of the insurer, the
learned Counsel for the appellant – insurer in MFA 13450/2006
would firstly point out that the policy of insurance that was
issued was a Farmers Package Insurance Policy. In the said
insurance policy, the coverage of the tractor, is only on behalf
of the owner and that it shall be used only for the purpose of
agriculture by the owner. The question of hiring out the
tractor to third-parties or permitting workmen to be carried on a
tractor was impermissible. It is evident from the record that
there was a report lodged with the jurisdictional Police of the
accident and the complainant was none other than the son of
the deceased and who was also said to be travelling on the
trailer at the time of the accident, he has categorically stated
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that the vehicle had been taken on lease by his father to carry
fertilizer to his field. This would clearly indicate that it was
not being used for his own purpose by the insured, but had
been let on hire. Further, the tractor is treated as a non-
transport vehicle and there is no provision for carrying any
person on the trailer. It was to be used only for agricultural
purposes. Hence, the question of carrying passengers or
persons on the trailer did not arise. Further it is pointed out
that the deceased was not an agricultural labourer and was not
employed by the insured nor was allowed to travel on the
tractor trailer as a passenger or the owner of goods,
accompanying the goods. The tractor trailer is not a goods
carriage vehicle and it was to be used for the purpose of
agricultural operations. There is no seating capacity which
would on the face of it indicate that the trailer could not carry
any passengers in the cargo compartment nor could it be said
that the deceased was a third-party, on whose death, a claim
could be raised by his legal representatives for compensation.
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The Tribunal merely having proceeded on the basis that the
tractor was being used for agricultural operations at the time of
the accident and that it was covered under an insurance policy
by itself , would not be sufficient to attract the liability of the
insurance company unless it was being used for agricultural
operations of the insured.
The learned Counsel would also point out that the
Tribunal, in its judgment, has not indicated as to how and
under which provision of the contract, the insurance company
has become liable to pay compensation. In the absence of any
such liability to be found either in the policy or under the
provisions of the Motor Vehicles Act,1988 (Hereinafter referred
to as the ‘MV Act’, for brevity), the fastening of liability on
the insurance company is untenable and unjust. The learned
Counsel has also produced the Guidelines issued when the
Scheme of a Farmers Package Insurance policy was first
introduced and with reference to the same, it is pointed out that
the package included coverage in respect of the farmer’s tractor
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and had covered only the risk of third-parties and unless it was
shown that the deceased was a third-party, the question of
covering the risk did not arise.
The learned Counsel has placed reliance on the decisions
in the case of National Insurance Company Limited vs.
No. Name Occupation Date of birth Age Existing Nominee Sum
Disability Name Insured
(Rs.)
1 KAMAT AGRI NA 1,00,000
For and on behalf of
National Insurance Company Limited
Sd/-
Authorised Signatory.
xx
National Insurance Company Limited
Regd. & Head Office: 3, Middleton Street, Post Box. No.9229,
Kolkata-700071
NATIONAL INSURANCE COMPANY LTD., BIJAPUR BD
S.S.CROSS ROAD, BIJAPUR-586101
CERTIFICATE IN RESPECT OF COMPLIANCE OF
SECTION 64 VB OF INSURANCE ACT 1938
Re: Policy No:602601/47/03/6300192
Insured : SRI SHANTAPPA P. KAMAT
------------------------------------------------------------------------a) Date of commencement of risk: 19/07/2003
Policy Number : 602601/47/03/6300192
Date:18/07/2003
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b) Actual premium payable under the policy/renewal/cover note:
--------------------------------------------------------------------------------------Policy number Endorsement. Amount of Receipt Number Receipt Date Endt Start Date No. Premium
---------------------------------------------------------------------------------------B.G.No Collection number Collection Date Amount paid Collection particulars