Sowmya G.S. vs Syed Najamuddin

Mrs. S. Sujatha, J. - This appeal is directed against the judgment and order passed by the Motor Accident Claims Tribunal, Srirangapatna (the

''Tribunal'', for short), in MVC No. 404 of 2010.

Briefly stated the facts are that the claimants are widow, minor child and father of the deceased Shivakumaraswamy. The claimants instituted the

claim petition contending that the deceased had engaged a maxi-cab goods vehicle bearing No. KA-41/2886 on 22-3-2010 for transporting

vegetables to the market and while travelling, he met with a road traffic accident due to the negligence of the driver of the offending vehicle.

Accordingly the claimants sought for compensation for the death of the deceased Shivakumaraswamy. The insurer entered appearance and

resisted the claim. The Tribunal after appreciating the evidence on record, awarded total compensation of Rs. 4,38,000/- with interest at 6% p.a.

exonerating the insurer from the liability and fastened the liability on respondent 1, the registered owner of the offending vehicle. Being aggrieved,

the claimants/appellants are before this Court.

Sri M.Y. Sreenivasan, learned Counsel appearing for the appellant assailing the impugned judgment and award would contend that the Tribunal

grossly erred in absolving the insurer and fastened the liability on the owner to satisfy the award. It is submitted that the deceased was travelling in

the offending vehicle along with the goods i.e. vegetables. The deceased was travelling as the owner of the goods and not as a gratuitous passenger

as held by the Tribunal. Learned Counsel placing reliance on Section 147(1) of the Motor Vehicles Act, 1988 contends that subsequent to

amendment of Section 147(1) by Act 54 of 1994 with effect from 14-11-1994, the Insurance Policy issued by the insurer covers against any

liability which may be incurred in respect of death of/or bodily injury to any person, including the owner of goods or his authorised representative

carried in the vehicle. Thus, the deceased travelling in the offending vehicle, as the owner of the goods, is covered under the policy issued by the

insurer and the Insurance Company is liable to indemnify the owner of the offending vehicle. Learned Counsel further contends that Rule 100(1) of

the Karnataka Motor Vehicles Rules, 1989 (''KMV Rules'', for short) contemplates the number of persons to be carried in a goods vehicle.

Admittedly, the offending vehicle being a DCM cantor not falling under clauses (1) and (2) of the proviso appended to Rule 100(1) of the KMV

Rules, seven persons were permitted to travel in a goods vehicle in question. The deceased was travelling with the goods along with other seven

persons who were travelling along with their goods, which is the permitted seating capacity as per Rule 100(1) of KMV Rules. The Tribunal

overlooking this statutory provision exonerated the insurer on the ground that there was breach of terms and conditions of the policy, which is

totally unsustainable. Accordingly, he seeks to saddle the liability on the insurer to satisfy the award.

Per contra, Sri Keshava Prashanth, learned Counsel appearing for the respondent supporting the impugned judgment and award contends that

the Tribunal was justified in dismissing the claim petition against the insurer and in foisting the liability on the owner since the breach of terms and

conditions of the policy were apparent on the face of the record. Inviting the attention of this Court to Ex. P. 1-FIR, it is submitted that the

deceased was travelling with other persons sitting on the vegetable load in the carriage and not in the cabin. Rule 100 of the KMV Rules permits

the owner or the authorised representative to travel in the goods vehicle provided they travel in the cabin and not in the carriage. It is further

contended that Rule 100(4)(b)(i) of the KMV Rules provides that no persons shall be carried in any goods vehicle, in such a manner that: (1) such

person when carried on goods is otherwise in danger of falling from the vehicle; and (2) any part of his body, when he is in a sitting position is at a

height exceeding three metres from the surface upon which the vehicle rests. The deceased travelling in the goods vehicle sitting on the vegetable

load is nothing but in danger of falling from the vehicle which squarely attracts the provisions of Rule 100(4)(b)(i). In such an eventuality, the

Tribunal was justified in fastening the liability on the owner.

Heard the learned Counsel for the parties and perused the material on record.

It is evident that as per the FIR and complaint, the deceased was travelling in the carriage of the goods vehicle. The specific recital in the

complaint reads thus:

The specific recital in the complaint are reads as hereunder:

VERNACULAR MATTER

It is manifestly clear from the complaint that the complainant Bharatesh, deceased Shivakumaraswamy, Byresh and a person of Tubinakere

Village were travelling in the carriage of goods tempo, sitting on the vegetable loads and other persons viz., Ningegowda, Yashwanth,

Kempegowda were travelling inside the cabin. The person travelling as the owner of the goods in goods carriage cannot be generalised as a

gratuitous passenger to disentitle the claimants from the benefits of the Insurance Policy. The contention of the insurer as regards the owner of the

goods travelling in a carriage tantamounts to breach of terms and conditions of the Insurance Policy, is also not worthy of acceptance since there is

no such prohibition in Rule 100 of the KMV Rules mandating the owner of the goods to travel only in the cabin of the goods vehicle. However, the

only point that requires to be considered is whether the deceased travelling in the goods vehicle sitting on the vegetable loads contravened the

provisions of Rule 100(4)(b)(i) of the KMV Rules. It is pertinent to note from the records, more particularly Ex. P. 1, as extracted above, the

deceased was travelling in the offending vehicle sitting on the vegetable load. It is obvious that a person sitting on the vegetable load and travelling

has to face the risk of dangerous situation, if any, arises for whatever reasons. The accident in question occurred due to the negligence driving of

the driver of the offending vehicle which made the deceased to fall from the vehicle, as a result of which the deceased succumbed to the fatal

injuries sustained in the accident. Violation of Rule 100(4)(b)(i) is established by the documentary evidence placed on record by the claimants

themselves.

Given the circumstances, the Tribunal absolving the insurer and fastening the liability on the owner cannot be found fault with.

For the reasons aforesaid, the appeal filed by the claimants do not merit any consideration. The appeal stands dismissed as devoid of merits.