K. Mallappa and Others vs Lalithamma and Others

Ram Mohan Reddy, J.—1. Delay of 869 days in filing MFA 5298/14 is condoned subject to denying the appellants interest for the said period in case of success in the appeal.

Sri. Ravish Benni, learned Standing Counsel to take notice for R1 in MFA 5298/14 and is permitted to file vakalath within four weeks. Sri. Hanumanthappa A., learned counsel takes notice for R3 and is permitted to file vakalath within four weeks.

MFA 3796/12 is filed by the owner of the tractor-trailer calling in question the finding fastening liability to pay the compensation and exonerating the insurer from the liability, while MFA 5298/14 is filed by the claimants dissatisfied with the quantum of compensation by judgment and award dated 22/12/2011 in MVC No. 106/11 of the I Addl. Sr. Civil Judge & MACT-V, Davangere, for short ''MACT''.

Facts briefly stated are:-- On 20/11/2010 at about 12.30 a.m., one Huchappa aged 49, a hamali, while proceeding in a tractor-trailer bearing Reg. No. KA-17/1943-44 belonging to the appellant in MFA 3796/12 and driven by one Veeranna - respondent No. 3 in that appeal, insured by respondent No. 5 - United India Insurance Co. Ltd., in a rash and negligent manner caused the accident, as a result of which Huchappa succumbed to grievous injuries. The widow and the son of the deceased filed claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs. 10,00,000/- and alleging that the death was due to rash and negligent driving of the tractor-trailer and as a hamali deceased earned Rs. 9,000/- to 10,000/- p.m.

In that proceeding, the owner of the tractor-trailer was arraigned as respondent No. 2 (appellant in MFA 3796/12), the driver as respondent No. 1 and the insurer as respondent No. 4, while respondent No. 3 one Papaiah also said to be the insured in respect of the tractor-trailer, though served remained absent and was placed ex-parte.

Respondents 1, 2 and 4 filed their written statements denying the claim, advancing a plea that the tractor-trailer was duly insured by issue of a valid and effective policy of insurance in-force, having collected an extra premium of Rs. 25/- to cover the risk of one employee while the driver held a valid and effective driving licence to drive the tractor-trailer, on the date and time of accident.

Respondent No. 4 - insurer denying the relationship between the deceased and the claimants, asserted that the owner having not paid extra premium, did not cover the risk of either passenger or a coolie and in addition, the offending motor vehicle put to use for commercial purpose and not agricultural use, a breach of conditions of policy, and the deceased admittedly was found sitting in the trailer as an unauthorized passenger, was not liable to pay the compensation.

The 2nd respondent - owner advanced a plea that he was an agriculturist and constructing a farm house in his land for agricultural purposes, hence on 20/11/2010 put to use the offending vehicle to carry cement bags to the construction site, an agricultural activity, the deceased was engaged by the 2nd respondent, on that day, as an hamali to load and unload the cement bags.

In the premise of pleadings of parties, MACT framed as many as six issues and one additional issue. The widow was examined as PW-1 and marked 11 documents as Ex. P1 to P11, while the insurance company examined its officer as RW-1 and the owner of the motor vehicle was examined as RW-2 and marked Ex. R1 to R4.

MACT having regard to the material on record and the evidence, both oral and documentary, answered issue No. 1 in the affirmative attributing actionable negligence to the driver of the tractor-trailer; issue No. 2 in the negative holding that the claimants were unable to establish funeral expenses of Rs. 50,000/-; issue No. 3 in the negative that the deceased was earning Rs. 10,000/- p.m. before the accident; issue No. 4 partly in the affirmative discharging the insurer from the liability to pay compensation on the grounds urged in the written statement; issue No. 5 partly in the affirmative determining compensation of Rs. 3,94,000/- with interest at 6% p.a. payable by the 2nd respondent - owner and additional issue No. 1, in the negative, declining to accept the plea of the owner to be discharged from the liability to pay compensation, by judgment and award impugned.

Learned counsel for the appellant-owner/insured submits that the finding fastening liability to pay compensation and exonerating the insurance company from paying the compensation is contrary to the material on record, hence perverse. According to the learned counsel, deceased Huchappa, a hamali, on the fateful day, was engaged by the appellant to load cement bags into the tractor-trailer and unload them at the site of construction of a farm house in his agricultural lands to be made use for agricultural purpose. Learned counsel hastens to add that the policy of insurance Ex. R1 discloses receipt of Rs. 25/- towards risk of "employee one" in addition to Rs. 100/- towards the risk of the "owner-driver", hence the MACT was not justified in declining to fasten the liability on the insurer to pay the compensation.

Learned counsel for the claimants-appellants in MFA 5298/14 submits that the compensation towards loss of dependency is on the lower side since during the year 2010 deceased would have earned much more than Rs. 3,500/- p.m. In addition it is submitted that Rs. 5,000/- towards loss of consortium for the widow and Rs. 5,000/- towards funeral expenses, is frugal and not in consonance with the reported opinions of the Apex Court.

Learned counsel for the insurer submits that PW-1, widow, in her testimony stated that the deceased under the employment of one Rudramuni, owner of a godown, was traveling in the tractor-trailer along with three others to load and unload cement bags at the site of construction of a farm house of his brother and on the return journey, in the middle of the night, the accident occurred and Huchappa succumbed to grievous injuries. According to the learned counsel, the testimony of PW-1 read with Ex. P11, establishes no relationship of employer and employee as between the owner-insured and the deceased so as to indemnify the risk of the insured in respect of claims putforth by the legal representatives of deceased Huchappa. It is next contended that Ex. R1 - policy of insurance though records receipt of Rs. 25/- as against risk of an employee, the same should be understood as an employee employed as a driver, since Rs. 100/- collected as premium is towards the "owner-cum-driver". In addition, learned counsel submits that RW-1, the officer of the Insurance company testified to the fact that premium of Rs. 25/- collected is to cover the risk of an employee engaged as a driver of the tractor-trailer and not any other employee. Learned counsel submits that the finding exonerating the insurer from the liability to pay compensation as well as the quantum of compensation are well merited, fully justified, not calling for interference.

Having heard the learned counsel for the parties, perused the pleadings, the evidence, both oral and documentary, and examined the judgment and award impugned, following two questions arise for decision making:

"(1) Whether in the facts, circumstances and evidence on record, MACT was justified in fastening the liability on the owner-insured to pay the compensation and exonerating the insurer from doing so?

(2) Whether in the facts, circumstances and evidence on record, MACT was justified in awarding Rs. 3,64,000/- towards loss of dependency; Rs. 5,000/- towards loss of consortium; and Rs. 5,000/- towards funeral expenses?"

There is no dispute that Huchappa, aged 49 was a hamali, while there is not a the of evidence to establish the fact that he was on the permanent rolls as an employee, of Rudramuni on a specified regular monthly salary, much less Rs. 9,000/- to Rs. 10,000/- p.m. It is also not in dispute that the tractor-trailer in question was covered by "Liability Only Policy" when in use for agricultural purposes. It is also not in dispute that the policy covers the risk of "owner-driver" as well as "employee one" since premium of Rs. 100/- and Rs. 25/- is received, respectively. Yet another fact not in dispute is that, on the fateful day, bags of cement were transported from the cement godown to the house where construction activity was taking place and on the return journey the accident occurred and Huchappa succumbed to grievous injuries.

Ex. P11 is said to be the statement of Rudramuni K.M., the son of the owner of the tractor-trailer before a police officer, reduced into writing, informing that the deceased was his employee, a loader and unloader of cement bags from the godown to the building to be constructed for and on behalf of his brother at Doddagatta. This Rudramuni is not examined nor the Police officer who recorded the statement, to prove its contents. The Investigating Officer who examined the statement Ex. P11 in the criminal investigation, is also not examined. Yet again, Ex. P11 is not put to RW-2, the owner-insured in his cross-examination. In the circumstances, no credence can be attached to the statement Ex. P11. The said document not being credible evidence, the MACT was not justified in placing reliance on it to draw inferential findings.

It is no doubt true that PW-1 stated that the deceased was employed by Rudramuni, the son of the owner-insured, but was unable to establish the relationship of employer-employee as between Rudramuni and the deceased since that person is neither examined nor there is documentary evidence to corroborate the said relationship. The fact that cement bags were being transported in the tractor-trailer and the deceased Huchappa was employed as a loader cum unloader, is seriously not disputed. If that is so, having eschewed the testimony of PW-1 over the employer-employee relationship, who engaged the services of Huchappa? The evidence of RW-2, owner-insured, that he had engaged the services of Huchappa to transport the cement bags to the place of construction of a farm house which was to be put to use for agricultural activity, is not discredited in cross-examination, since, the insurer in the cross-examination of RW-2 did not even suggest that his son had, in fact, made a statement to the contrary in Ex. P11 before a Police Officer. That evidence of RW-2 stood unimpeached and if that is so, there was no reason to discard and eschew the testimony of RW-2, owner-insured, by the MACT. In the facts and circumstances it cannot but be said that the deceased Huchappa was under the employment of the owner-insured, on the fateful day, as a hamali to load and unload the cement bags for construction of a farm house to be put to use for agricultural purposes.

The policy of insurance Ex. R1 is a "Miscellaneous And Special Type of Vehicles - Liability Only Policy" which records the receipt of Rs. 100/- as premium to cover the risk of the "owner-driver" and Rs. 25/- as "WC to Employee 1". RW-1, officer of the insurer testified that the premium of Rs. 100/- received was to cover the risk of the owner if he is the driver and Rs. 25/- if a driver is employed. It is a matter of fact that RW-1 was neither the author of Ex. R1 nor was present when the contract was signed between the insurer and the insured.

In the light of the contents of Ex. R1, it cannot but be said that the words "owner-driver" by no stretch of imagination can relate to the owner while he is a driver of the tractor-trailer. The word "driver" must necessarily mean risk of a driver if the owner is covered. In other words, the coverage by collecting premium of Rs. 100/- was both for the owner as well as a driver and not necessarily when the owner himself is the driver. The use of the phrase "WC to Employee 1" undoubtedly means cover of risk of an employee and not necessarily a driver. The word "employee" should be assigned a meaning that it is any person who is employed by the insured, such as a cleaner, a hamali or of that sort. The evidence of RW-1 to establish the defence of the insurance company is not sound and reliable, hence deserves to be eschewed. In other words, the cover of indemnity against any claims made by an employee of the owner-insured is available to the owner-insured in terms of the policy of insurance. In the circumstances, the MACT fell in error in declining to fasten the liability on the insurance company to pay the compensation.

There is force in the submission of the learned counsel for the claimants-appellants that the deceased, aged 49, during the year 2010 could have earned atleast Rs. 4,000/- p.m. since as recognized in the Lok Adalath and so reckoning, deducting 1/3rd towards personal expenses, the monthly loss of income is Rs. 2,666/- and to the annual loss if multiplier ''13'' is applied, the loss of dependency is Rs. 4,15,896/- as against Rs. 3,64,000/- awarded by the MACT. The MACT awarded Rs. 5,000/- towards loss of consortium which is on the lower side and hence deserves to be enhanced by Rs. 90,000/-. So also the award of Rs. 5,000/- towards funeral expenses being on the lower side, appellants are entitled to Rs. 25,000/- under the said head.

In the circumstances, the appellants in MFA 5298/14 are entitled to Rs. 5,59,896/- with interest at 6% p.a. as against Rs. 3,94,000/- awarded by the MACT.

In the result, MFA 3796/12 of the insured is allowed-in-part. The finding of the MACT fastening liability on the insured to pay the compensation is set aside and the liability is fastened on the insurer -respondent No. 5.

MFA 5298/14 is allowed-in-part. The claimants/appellants are entitled to Rs. 5,59,896/- with interest at 6% p.a. as against Rs. 3,94,000/- awarded by the MACT. The judgment and award impugned is modified in the aforesaid terms and in all other respects, remains unaltered.

The amount in deposit in MFA 3796/12 is directed to be refunded to the appellant - insured/owner.