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Judgment
G. Narendra, J.—1. Heard learned counsel for the appellants and learned counsel for the respondents.
The appellant is the insurer in M.F.A. No. 21022/2008. In the connected appeals M.F.A. No. 20555/2009 and M.F.A. No. 20556/2009 the appeals are directed by the estranged husband of deceased-Parvatavva. One appeal is preferred against dismissal of his claim petition in M.V.C. No. 307/2000 and the second appeal is directed against the Judgment and Award by the Tribunal, awarding entire compensation in favour of the minor daughter and not apportioning any amount of compensation in his favour. As all the appeals arise out of the same accident and common facts is being involved, they are taken up together for disposal by this common judgment.
The parties are referred to as they are arrayed before the Tribunal for the sake of convenience.
The claimants in M.V.C. No. 161/2002 are the minor daughter, aged about 6 years and her maternal grandfather i.e., the father of the deceased. The claimants in M.V.C. No. 307/2000 are the estranged husband and the minor daughter of the deceased, who is 1st claimant in M.V.C. No. 161/2002.
The facts in brief are that deceased Smt. Parvatavva was travelling in the offending vehicle being a TATA Sumo insured with the Oriental Insurance Company Ltd., who is the appellant before this Court in M.F.A. No. 21022/2008. On the fateful day of 16.08.2000, The deceased was travelling from Dharwad to Durgadkeri, which is the place of her residence. It is contended that as the offending vehicle reached Mummigatti village, the vehicle turned turtle and fell into the road side ditch. It is alleged that the accident occurred on account of rash and negligent driving by the driver of the offending vehicle. As a result of the accident, the said Parvatavva suffered grievous injuries and died on the spot; whereas the inmates of the vehicle had sustained grievous injuries and were shifted to the Primary Health Centre. Post-mortem was conducted. Thereafter, the body was handed over to her father, who is the 2nd claimant in M.V.C. No. 161/2002. The 2nd claimant performed the last rites and presented the claim petition; wherein it was contended that his daughter i.e., deceased Parvatavva was working as a coolie in TELCO Factory, Belur Industrial Estate, Belur Taluk, Dharwad and she was earning about Rs. 3,000-00 per month and maintaining her daughter and the 2nd claimant. It was also asserted that the 1st claimant in M.V.C. No. 307/2000 neither cared for his wife i.e., deceased Parvatavva nor was residing with her and that he is residing in a different village at Bailahongal taluk and is married to another lady. That himself and the minor daughter of the deceased were wholly dependent on the earnings of the deceased. It is alleged that the accident occurred on account of rash and negligent driving of the offending vehicle and that the owner and the insurer are jointly and severally liable to compensate the claimants on account of death of the sole earning member of the family. It is also stated that the minor daughter had been abandoned by her father and was continued in the care and custody of the maternal grandfather after the death of the mother and that the estranged husband was merely trying to knock off the compensation amount.
The husband and minor daughter of deceased Parvatavva have preferred a claim petition in M.V.C. No. 307/2000. It is averred that she was travelling from Dharwad to Kotur and that during the journey she suffered injuries as the vehicle got involved in the accident and as a result of which, his wife who suffered grievous injuries succumbed to the same and Garag Police have registered a criminal case against the driver of the offending vehicle in Crime No. 105/2000 for the offences punishable under Sections 279, 338 and 304(A) IPC and prayed for an Award of compensation of Rs. 5,20,000-00 along with interest at 18% p.a.
The insurer entered appearance and denied the claim statement. It also asserted that the deceased was travelling as a fare paying passenger, on account of which they should be absolved of any liability to compensate for the loss of earning out of the death of said Parvatavva.
On the pleadings, the Tribunal formulated the following issues:
"1) Whether the petitioners prove that on 16.08.2000 Smt. Paravva was going from Dharwad to Kotur to go to her village Durgadkeri in Tata Sumo bearing Reg. No. KA-20/N-2662 and the driver of the said Tata Sumo drove it in rash and negligent manner on P.B. Road near Mummigatti and while overtaking a vehicle which was proceeding in front of his vehicle towards Belgaum, at that time he dashed it to one autorickshaw which was coming opposite to him and then made to fell in the right side of the ditch and on account of it she sustained grievous injuries and then succumbed to the injuries at the spot?
2) Whether the petitioners further prove that the deceased Paravva was a tailor and she was earning Rs. 2,000-00 p.m.?
3) Whether the petitioners are entitled to compensation? If so, what amount and from whom?
4) What order or award?"
The Tribunal has taken up the claim of the estranged husband. After examining the evidence adduced and other material available before it, the Tribunal was pleased to hold that the 1st claimant in M.V.C. No. 307/2000 has indeed got married for the second time and that he was residing separately away from the deceased and the 1st claimant in M.V.C. No. 161/2002. The Tribunal was also pleased to conclude that the estranged husband was not even aware of the correct fact regarding the accident and was pleased to reject his claim.
The Tribunal has also found that the estranged husband was not even aware of what is the nature of avocation and place of employment of the deceased and on these count was pleased to reject the claim of the petitioner in M.V.C. No. 307/2000.
The estranged husband-1st claimant in M.V.C. No. 307/2000 has been examined as P.W.1. The father of the deceased, who was the 2nd claimant in M.V.C. No. 161/2002 has been examined as P.W.2 and one Peerappa Rajappa Dehsar, has been examined as P.W.3. The respondents got examined one V.S. Gudasalamani. On behalf of the claimants, 7 documents came to be marked as Exs.P1 to 7 and the insurer got marked 2 documents as Exs.R1 and 2, being the insurance policy and R.C. Book.
Learned counsel for the appellant/insurer would vehemently contend that the Award is bad in law as it has demonstrated that the deceased was a fare passenger and the vehicle being insured and authorized for use as private vehicle and it was illegal and contrary to the terms of the contract entered into between the insured and the insurer. It is further submitted that on account of breach of terms of the contract, the insurer was absolved of any liability.
On a perusal of the material and records before the Court it is seen that the insurer has elicited an admission from P.W.1 i.e., the estranged husband of the deceased. But it has also been conclusively demonstrated that P.W.1 was unaware of the true facts of the case and that he was motivated and made a claim only with intent to knock away the compensation amount that could be awarded by the Tribunal. It is forthcoming in his cross-examination that he has been living away from the deceased and had in fact entered into marriage for the second time and was living separately along with his second wife. In this background, the trial Court has rightly disbelieved the admission made by P.W.1 i.e., estranged husband of the deceased for its consideration and that it has been pleased to be hold that the insurer is liable to satisfy the Award if any.
Learned counsel for the appellant in M.F.A. No. 20556/2009 vehemently contend that the Tribunal has erred in rejecting the claim petition and also the Judgment and Decree awarding the entire compensation amount in favour of the minor girl without apportioning any sum in favour of the husband of the deceased is erroneous and is liable to be set aside. These contentions on behalf of the estranged husband are liable to be rejected at the threshold as no material is placed to controvert that he had separated from the deceased and in fact he was living separately and remarried for the second time and it is also not demonstrated that he is either dependent on the deceased or on the income of the deceased.
Learned counsel for the claimant i.e., the minor daughter would fully support the Award. He would also rely upon the Judgment of this Court rendered by the Division Bench in M.F.A. No. 5748/2002(MV); wherein the Hon''ble Court was pleased to hold that in the event of the offending vehicle being covered by a comprehensive policy and if the vehicle is carrying a fare passenger or a gratuitous passenger it would make no difference from the point of view of the nature of the policy involved and that a comprehensive policy covers the risk of the inmates of a private vehicle and the insured cannot be made liable on the ground that the said passenger is a fare paying passenger and accordingly was pleased to reject the appeal filed by the insurer.
Apart from the above, this Court is of the considered opinion that the admission of P.W.1 has to be eschewed as has been rightly done by the Tribunal, for the sole reason that he did not possess knowledge about the accident and no such admission has been elicited in the cross-examination of P.W.2 or P.W.3, who were well versed with the facts of the case. It is also relevant to note that the 1st respondent had abandoned his deceased wife and his minor daughter, who is the claimant in the connected claim petition. The trial Court has rightly ignored the admission on account of lack of knowledge about the accident or about the life and activity of the deceased. In view of the above findings, this Court does not find any good ground which warrants interference with the impugned Judgment and Award. Accordingly, the appeal filed on behalf of the insurer in M.F.A. No. 21022/2008 is rejected. The appeals in M.F.A. No. 20555/2009 and M.F.A. No. 20556/2009 by the estranged husband are also dismissed as no material is placed before this Court to controvert the findings of the Tribunal.
Learned counsel for the appellants preferred an application in M.F.A. No. 20555/2009 and M.F.A. No. 20556/2009 under Order 32 Rule 12(2) of CPC for discharge of the minor guardian i.e., the 1st appellant, who was appointed as the guardian of the minor-2nd appellant by the Tribunal. Perused the affidavit and the averments therein. It is averred by the 2nd appellant that she is aged about 20 years and that she is doing household work and residing in Durgadakeri, Dharwad and that she has attained the age of majority. In support of the submission, learned counsel for the appellants submits that appellant No. 2 has attained 22 years presently and is seeking for his discharge as minor guardian. Being satisfied with the case made out, I.A. No. 1/2015 filed for discharge of minor guardian is allowed and the guardianship is discharged in both the cases.
The amount in deposit is directed to be transmitted to the Tribunal. The registry is directed to transmit the records to the Tribunal forthwith. The disbursal of the amount shall be in accordance with the award of the Tribunal. Balance amount if any payable by the insurer shall be deposited before the Tribunal within six weeks from today.
The appeals are accordingly dismissed. In the facts and circumstances of the case, the parties shall bear their own costs.