United India Insurance Co. Ltd. vs Smt. Narasamma and Rathnamma

Ravi Malimath

Aggrieved by the Judgment & award dated 27-02-2007 passed in MVC.No.38/2000 by the Civil Judge (Senior Division) and Additional MACT, Chinthamani, the Insurance Company has filed the present appeal questioning the liability hoisted on them to satisfy the award. The case made cut by the claimant is that on 18-9-1999 when the deceased Gangulappa along with others were returning to the village after immersing Lord Ganesha Idol, a tractor trailer bearing No.KA-40-T-501 and KA-40T-502 driven by its driver in a rash and negligent manner dashed against the deceased while he was walking on the mud Road. As a result the deceased sustained injuries and while taking him to the hospital he succumbed to his injuries. Accordingly, a claim petition was filed seeking compensation by the wife and the minor daughter. The Tribunal by the impugned Judgment & award granted compensation of Rs.3,76,000/-along with 6% interest per annum. Respondent No.2 namely, the appellant was directed to pay the compensation. Aggrieved by the same the insurance Company has filed the present appeal.

Sri A.N.Krishna Swamy, the learned counsel appearing for the appellant contends that the appellant-Insurance Company have been wrongly saddled with the liability to settle the claim. By placing reliance on the complaint lodged before the jurisdictional police on 18-9-1999 that the accident occurred when the deceased and others were travelling in the tractor and due to the jump of the tractor, the deceased was thrown out of the trailer and he succumbed to his injuries. The claim petition has been filed 8 months thereafter. The first claimant namely, the wife of the deceased has stated that when the deceased was walking on the mud road a tractor trailer came and hit him. He further placed reliance on the Judgment of acquittal passed by the trial Court in CC No.163/2000 before the Court of Principal Civil Judge (Junior Division) & JMFC, Sidlaghatta, dated 28-9-2002 wherein the driver of the tractor was found not guilty of the offences alleged against him u/s 279 and 304A of the IPC. He was consequently acquitted of the said offences. Reliance is also placed on the postmortem report which forms part of the charge sheet wherein the Doctor has noted the history of the injury, i.e., as a result of a fail from a moving vehicle because of the accident. He further contends that the Tribunal committed an error in foisting the liability on the insurer in as much as it is a well settled law that a passenger cannot be allowed to travel in a trailer. That the policy does not cover the passenger in the trailer and the Insurance Company be absolved of its liability to settle the claim.

On the other hand, P.L.Nanjunda Swamy, the learned counsel appearing for Respondent No.1, Sri K.N.M.Prasad, the learned counsel appearing for Respondent No.3, defends the impugned Judgment & award. They contend that the Tribunal has rightly considered the material on record and has foisted the liability on the Insurance Company. It is further contended that even so far as the quantum of compensation is concerned, the same is meager and enhancement is called for. The appeal was dismissed as abated against Respondent No.2 by the order dated 22-9-2011. However, the legal representatives of Respondent No.2 is the mother respondent No.1.

Respondent No.4 has been served and unrepresented. Heard counsels and examined the records.

Immediately after the accident took place, the first document that comes into play is the complaint. The complaint is lodged by one Chikkappaiah on 18-9-1999. In the said complaint he has stated that all the villagers had been for immersing Lord Ganesha Idol, on 17-9-1999 and were returning at about 1.30 a.m. in the night. It is stated that Gangulappa son of Narasappa was travelling with others in the trailer. When the tractor trailer was proceeding, due to jump of the tractor the deceased Gangulappa fell off from the tractor trailer on to the ground and sustained severe injuries.

However, in the claim petition which has been filed on 26-5-2000, the wife of the deceased has stated that when her husband namely, Gangulappa along with others were returning to the village, the tractor and trailer driven in a rash and negligent manner, dashed against the deceased while he was walking on the mud road. That the deceased died on the way to the hospital. That the accident was due to the rash and negligent driving of the driver of the tractor trailer.

On a perusal of these two documents it can be made out that there is inconsistency. The complaint is the first document that is lodged immediately after the accident namely, on 18-9-1999. In the complaint it is narrated that the deceased was sitting in the trailer and fell off because of the rash and negligent driving of the driver of the trailer. Eight months thereafter a claim is lodged by the wife of the deceased. Admittedly, she has not seen the incident She was not present when the accident took place. She does not state as to how and in what manner she came to know of the accident. She is not an eye witness to the accident. It pre-supposes that she would have based her knowledge on the information that she received. That is not what she has stated in the claim Petition. She substantially narrates that the deceased was walking on the mud Road. I''am unable to accede to the same. The claim of the claimant is that the accident occurred not due to the fact that the deceased was an inmate of the trailer but was walking on the mud road. There are serious inconsistencies which have not been satisfactorily explained. Further it is also to be noted that it is the specific case that almost about 50 villagers were returning after the immersion of Ganesha Idol. Under these circumstances, it was the deceased alone that was injured and succumbed to his injuries. No other person has suffered any injuries. Under these circumstances, I''am of the considered view that the claim put forward by the claimant with regard to the manner in which the accident occurred is highly suspicious and cannot be accepted.

When the deceased was shifted to the hospital he died en route. The postmortem was conducted. Various injuries were noticed in the column pertaining to the history of the accident. It has been narrated that he was brought to the hospital by PC 631, Moula Sab of Dibburhalli, Police Station, Sidlaghatta Taluk, Kolar and the history was noted as the "fall from moving vehicle because of the accident" This document also would belittle the case of the claimant that he was walking on the Road and met with an accident. The Tribunal while considering the issue of liability held by taking note of the fact that by virtue of the Judgment of the Criminal court, the accused, namely, the driver of the tractor was acquitted of the charges of rashness and negligence charged against him. However, by placing reliance on the judgment in the case of N.K.V. Bros. (P) Ltd. Vs. M. Karumai Ammal and Others, has held that if the driver of the offending vehicle is acquitted in the criminal case, it will not effect the claim petition. Consequently the Tribunal held that even though R.W.3 has been acquitted in the criminal case it does not mean that the accident has not occurred due to his fault and therefore it held that the injured has failed to prove that respondent No.2 willfully violated the terms of the policy and is not liable to pay or reimburse the first respondent. There is no nexus between the Judgment relied upon and the finding of the Tribunal. The principle enunciated in the aforesaid Judgment is that the acquittal of the driver in a criminal case will not affect the claim petition before the Tribunal. However, on a reading of the Judgment it is clear that what the Tribunal holds is that respondent No.1 insured has failed to prove the violation of the terms of the policy. The finding recorded by the Tribunal as a result of relying on the aforesaid Judgment is wholly out of place and cannot be considered. Consequently, the Tribunal proceeded to hold that because of the fault of the driver of the tractor the accident occurred. There is no reasoning whatsoever as to why and under what circumstance the Tribunal holds negligence on the part of the driver, Even after considering the acquittal in the criminal case even though the same would not affect the claim petition, the Tribunal is expected to give reasons as to how and in what manner it holds the Insurance Company liable. On the other hand, by relying on the Judgment which has no nexus with the case, it has exceeded itself in merely stating that the negligence of the driver has been established. Under these circumstances, the finding of the Tribunal is unsustainable and liable to be set aside. It is well settled law that so far as the tractor trailer is concerned, except the agricultural coolie no other person stand covered under the policy issued to the tractor and trailer. The material on record clearly establishes that the deceased was travelling in the trailer and not a coolie engaged in agricultural work. Under these circumstances there being a violation of the terms of the policy the injured is not liable to settle the award.

For the aforesaid reasons, the Judgment & award dated 27-2-2007 passed in MVC No.38/2010 by the learned Civil Judge (Senior Division) and Additional MACT, Chinthamani, is set aside in so far as it relates to directing the appellant-Insurance Company herein to pay the compensation to the claimant. The insures is absolved of his liability to settle the award. Consequently, the liability is foisted on respondent No. 3 to settle compensation awarded. The appeal is accordingly allowed.

The amount in-deposit made by the appellant before this Court is directed to be refunded to them.