SMT. HAZIRA MANSUR v. JAYAPPA

Judgment

1. JAYAPPA S/O. CHOUDAPPA SINCE DEAD, REPRESENTED BY HIS LEGAL REPRESENTATIVES: RAMYA D Location: HIGH COURT OF KARNATAKA 1(A) SMT. GANGAVVA W/O. LATE JAYAPPA AGED ABOUT 46 YEARS OCCUPATION: HOUSE WIFE 1(B) GOVINDA S/O. LATE JAYAPPA AGED ABOUT 24 YEARS OCCUPATION: COOLIE BOTH ARE RESIDING AT KANNEKOPPA HOLEHONNUR, BHADRAVATHI TALUK SHIVAMOGGA DISTRICT. - 2 - NC: 2024:KHC:43772 MFA No. 2859 of 2012 C/W MFA No. 2860 of 2012 MFA No. 11387 of 2012

2. MANIKANTA @ MANI @ A. R. SUBBANNA S/O. APPAIAH AGED ABOUT 27 YEARS DRIVER OF LORRY RESIDENT OF AYNUR VILLAGE SHIMOGA TALUK.

3. THE NEW INDIA ASSURANCE CO. LTD. 2ND FLOOR, A-1-ZUBEDA BUILDING 3RD CROSS, NEHARU ROAD SHIMOGA TOWN. …RESPONDENTS [BY SRI E. I. SANMATHI, ADVOCATE, FOR R-3, & R-1(A), R-1(B) AND R-2 ARE SERVED AND UNREPRESENTED] * * *

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED 31.12.2011 PASSED IN M.V.C. NO.161 OF 2007 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL M.A.C.T-14, BHADRAVATHI, AWARDING A COMPENSATION OF RS.40,000/- WITH INTEREST @ 6% PER ANNUM FROM THE DATE OF THE CLAIM PETITION TILL ITS DEPOSIT. IN M.F.A. NO.2860/2012: BETWEEN: SMT. HAZIRA MANSUR W/O. M. D. ZAFFAR AHAMAD AGED 42 YEARS HOUSE WIFE RESIDENT OF I CROSS BEHIND YAMINI TRADERS, GARDEN AREA SHIMOGA REPRESENTED BY M. D. ZAFFAR AHAMAD. (BY SRI M. R. HIREMATHAD, ADVOCATE) ...APPELLANT - 3 - NC: 2024:KHC:43772 MFA No. 2859 of 2012 C/W MFA No. 2860 of 2012 MFA No. 11387 of 2012 AND:

1. GUTHYAPPA S/O. DHARMAPPA AGED ABOUT 25 YEARS HAMALI, LORRY LOADER RESIDENT OF A. K. COLONY HOLEHONNUR BHADRAVATHI TALUK - 577 301.

2. MANIKANTA @ MANI @ A. R. SUBBANNA S/O. APPAIAH AGED ABOUT 27 YEARS DRIVER OF LORRY RESIDENT OF AYANUR VILLAGE SHIMOGA TALUK - 577 201.

3. THE NEW INDIA ASSURANCE CO. LTD. 2ND FLOOR, A-1-ZUBEDA BUILDING 3RD CROSS NEHARU ROAD SHIMOGA TOWN - 577 201. ...RESPONDENTS (BY SRI E. I. SANMATHI, ADVOCATE, FOR R-3, & R-1 AND R-2 ARE SERVED AND UNREPRESENTED) * * * THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED 31.12.2011 PASSED IN M.V.C. NO.166 OF 2007 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL M.A.C.T-14, BHADRAVATHI, AWARDING A COMPENSATION OF RS.15,000/- WITH INTEREST @ 6% PER ANNUM FROM THE DATE OF THE CLAIM PETITION TILL ITS DEPOSIT. IN M.F.A. NO.11387/2012: BETWEEN: SMT. HAZAR MASUR W/O. M. D. ZAFFAR AHAMAD - 4 - NC: 2024:KHC:43772 MFA No. 2859 of 2012 C/W MFA No. 2860 of 2012 MFA No. 11387 of 2012 HOUSE WIFE RESIDENT OF I CROSS, BEHIND YAMINI TRADERS GARDEN AREA, SHIMOGA REPRESENTED BY HER G.P.A. HOLDER M. D. ZAFFAR AHAMAD. (BY SRI M. R. HIREMATHAD, ADVOCATE) ...APPELLANT AND:

1. NARAYANAPPA S/O. HOLEYAPPA AGED ABOUT 36 YEARS LOADER AND UN-LOADER HOLEHONNUR PRESENTLY RESIDING AT DEVAPURADAHATTY CHITRADURGA - 577 501.

2. THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO. LTD. DIVISIONAL OFFICE A. M. ARCADE ROAD DAVANAGERE. ...RESPONDENTS (BY SRI E. I. SANMATHI, ADVOCATE, FOR R-2, & R-1 IS SERVED AND UNREPRESENTED) * * * THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED 22.9.2012 PASSED IN M.V.C. NO.464 OF 2007 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL M.A.C.T-VI, CHITRADURGA, AWARDING A COMPENSATION OF RS.3,12,000/- WITH INTEREST @ 6% PER ANNUM FROM THE DATE OF PETITION TILL ITS DEPOSIT. THESE MISCELLANEOUS FIRST APPEALS ARE COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 5 - NC: 2024:KHC:43772 MFA No. 2859 of 2012 C/W MFA No. 2860 of 2012 MFA No. 11387 of 2012 CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT M.F.A. Nos.2859 of 2010 and 2860 of 2012 are filed under Section 173(1) of the Motor Vehicles Act, 1988 (for short, ‘Act’) being aggrieved by the judgment and award dated 31-12-2011 passed by the Additional Senior Civil Judge and Additional Motor Accidents Claims Tribunal-XIV, Bhadravathi, in M.V.C. Nos.161 of 2007 and 166 of 2007.

2. M.F.A. No.11387 of 2012 is filed under Section 173(1) of the Act being aggrieved by the judgment and award dated 22-9-2012 passed by the II Additional Senior Civil Judge and Additional Motor Accidents Claims Tribunal- VI, Chitradurga, in M.V.C. No.464 of 2007.

3. These three appeals are filed by the owner, Smt. Hazira Mansur, of the offending lorry, bearing Registration No.KA-14/A-0994, being aggrieved by the aforesaid judgments and award passed by the Tribunals, exonerating the Insurance Company and fixing the liability on the owner of the offending vehicle. - 6 - NC: 2024:KHC:43772 MFA No. 2859 of 2012 C/W MFA No. 2860 of 2012 MFA No. 11387 of 2012

4. The brief facts of the case are that, on 27-12-2006 at about 5:40 p.m., while Sri Balya Naika and his wife, Gangibai were proceeding towards their house in a bullock cart on NH13 between Yadehalli and Kaimara, the Driver of the lorry, bearing Registration No.KA-14/A-0994, drove the lorry in a rash and negligent manner and hit to the hind portion of the bullock cart. Due to which, the persons who were in the bullock cart suffered injuries and the bullock cart was damaged including the oxen. The claimants namely Jayappa (M.V.C. No.161 of 2007), Guthyappa (M.V.C. No.166 of 2007) and Narayanappa (M.V.C. No.464 2007) were travelling loaders/unloaders on the loaded offending vehicle lorry have also sustained injuries. Therefore, these claimants have filed the claim petitions claiming compensation for having suffered injuries and the Tribunal has awarded compensation Rs.40,000/-, Rs.15,000/- Rs.3,12,000/- respectively along with the interest at the rate of 6% per annum from the date of claim petition till its deposit. - 7 - NC: 2024:KHC:43772 MFA No. 2859 of 2012 C/W MFA No. 2860 of 2012 MFA No. 11387 of 2012

5. The Tribunals, after hearing the parties and perusing the material on records, assigned the reasons that since the claimants were travelling in the offending lorry as passengers on the loaded goods (maize crop), there is violation of conditions of the Insurance Policy. Hence, exonerated the Insurance Company and fixed the liability on the appellant-owner of the offending vehicle.

6. Being aggrieved by the judgments and award fastening the liability on the appellant-owner of the offending vehicle, the present appeals are filed.

7. Learned counsel appearing for the appellant-owner and the learned counsel appearing for the respondent- Insurance Company are absent.

8. These appeals are of the year 2012. There is no representation. Since they are pending for more than thirteen years, they are taken up for final disposal after considering the evidence and material on record. - 8 - NC: 2024:KHC:43772 MFA No. 2859 of 2012 C/W MFA No. 2860 of 2012 MFA No. 11387 of 2012

9. The point that arises for consideration in these appeals is as follows: Whether, under the facts and circumstances involved in the case, the loaders/unloaders, who are claiming employees of the owner of the offending vehicle and travelled on top of the load of the offending vehicle, or in the body of the lorry, can claim compensation from the Insurance Company by taking benefit of Section 147 of the Motor Vehicles Act, 1988?

10. In the present case, admitted facts are that the Driver of the lorry, bearing Registration No.KA-14/A-0994, drove the lorry with high speed, in a rash and negligent manner and dashed against the bullock cart and the lorry toppled down. The claimants were travelling as loaders/unloaders on top of the load of the loaded lorry, but not inside the cabin. Ex.P1 is the F.I.R. The claimants have proved that the complainant has given complaint before the Police stating that they were 7 to 8 loaders on the lorry, who were travelling on top of the load of the offending vehicle. There is no evidence that the claimants - 9 - NC: 2024:KHC:43772 MFA No. 2859 of 2012 C/W MFA No. 2860 of 2012 MFA No. 11387 of 2012 were travelling inside the cabin of the lorry. Claimants, namely Jayappa and Guthyappa are examined as PWs.3 and 4 respectively in M.V.C. Nos.161 of 2007 and 166 of 2007 and Narayanappa is examined as PW1 in M.V.C. No.464 of 2007. All these claimants in their evidence have categorically deposed that they were travelling in the lorry by sitting on top of the load as loaders/unloaders of the owner of the offending vehicle. Hence, their claim is that they being employees as loaders/unloaders travelled in the lorry are entitled to benefit of coverage of risk as per Ex.R1-Insurance Policy by taking benefit of section 147 of the Act.

11. The occurrence of the road traffic accident, the claimants travelling on top of the load of the offending vehicle and claimants suffered injuries in the accident are not disputed.

12. The question to be considered, as formed above, is that if the loader-cum-unloader are permitted to travel on top of the load of the offending vehicle, whether the - 10 - NC: 2024:KHC:43772 MFA No. 2859 of 2012 C/W MFA No. 2860 of 2012 MFA No. 11387 of 2012 owner of the offending is entitled to get indemnification by the Insurance Company on the basis Ex.R1-Insurance Policy, in which, premium for two employees is collected.

13. The mandatory requirements of Insurance Policy have been provided in Section 147 of the Act, which is extracted as under: “147. Requirement of policies and limits of liability.- (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which— (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)— (i) liability which may be against any incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: - 11 - NC: 2024:KHC:43772 MFA No. 2859 of 2012 C/W MFA No. 2860 of 2012 MFA No. 11387 of 2012 Provided that a policy shall not be required— (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee— (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability.” On plain reading of sub-section (1) of Section 147 of the Act, it is clear that in order to comply with the requirements of the provisions of Section 147 of the Act, a policy of insurance must be issued by an authorised insurer, as defined in clause (a) of sub-section (1) of Section 147 of the Act. Clause (b) of sub-section (1) of Section 147 of the Act specifies the person or classes of persons who are required to be insured to the extent - 12 - NC: 2024:KHC:43772 MFA No. 2859 of 2012 C/W MFA No. 2860 of 2012 MFA No. 11387 of 2012 specified in sub-section (2) of Section 147 of the Act. In view of clause (b) of sub-section (1) of Section 147 of the Act, a policy of insurance must cover (i) the liability incurred by the insured in respect of the death of or bodily injury to any person, (ii) the liability which may be incurred by the insured in respect of death of or bodily injury to the owner of the goods or his authorised representative carried in the vehicle and (iii) the liability in respect of death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. The proviso to sub-section (1) of Section 147 of the Act lays down that the policy shall not be required to cover the liability in respect of a death, arising out of and in the course of employment, of the employee of the insured and in respect of bodily injury sustained by such an employee arising out of and in the course of employment. However, clause (i) of the proviso further clarifies that a liability arising under the Workmen’s Compensation Act, 1923 (for - 13 - NC: 2024:KHC:43772 MFA No. 2859 of 2012 C/W MFA No. 2860 of 2012 MFA No. 11387 of 2012 short, ‘W.C. Act’) is required to be covered by the policy in respect of death or bodily injury to any such employees namely, (a) an employee engaged in driving the vehicle or (b) in case of a public service vehicle, a conductor of the vehicle or a person employed to examine the tickets on the vehicle and (c) if it is a goods carriage, being carried in the vehicle.

14. Thus, a statutory insurance policy issued under Section 147 of the Act is not required to cover the liability in respect of the death of an employee arising out of and in the course of his employment of the insured or liability in respect of bodily injuries sustained by such an employee arising out of and in the course of his employment as such coverage is naturally mandatory. However, the exception is that the liability in respect of the death of or bodily injury to the employees mentioned in sub-clauses (a) to (c) of clause (i) of the proviso to Section 147 of the Act, arising under the W.C. Act is required to be covered by a statutory policy. Thus, in other words, a policy of - 14 - NC: 2024:KHC:43772 MFA No. 2859 of 2012 C/W MFA No. 2860 of 2012 MFA No. 11387 of 2012 insurance is not required to covered the liability arising of death of an employee or bodily injury to an employee unless it is a liability under the W.C. Act in respect of the employees mentioned in sub-clauses (a) to (c) of clause (i) of the proviso to sub-section (1) of Section 147 of the Act.

15. Sub-Section (1) of Section 147 of the Act specifically mandates and includes certain categories of persons sitting in the vehicle which is involved in the accident whose liability is required to be covered. Therefore, it emerges that unless sub-section (1) of Section 147 of the Act specifically mentions that the liability of a person or a class of persons is required to be covered under a policy of insurance, the same is not required to be mandatorily covered. Sub-clause (i) of clause (b) of sub-section (1) of Section 147 of the Act clearly lays down that the policy must cover the liability of death of or bodily injury to any person including owner of the goods or his authorised representative carried in the - 15 - NC: 2024:KHC:43772 MFA No. 2859 of 2012 C/W MFA No. 2860 of 2012 MFA No. 11387 of 2012 vehicle. Obviously, it refers to liability in respect of the owner of the goods or his authorised representative when they are carried in a goods carriage, as defined in sub- section (14) of Section 2 of the Act.

16. ‘Goods carriage’ is defined in sub-section (14) of Section 2 of the Act, which reads thus: “(14) Goods carriage means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods.” Considering the aforesaid definitions, it is very clear that unless a motor vehicle is constructed or adapted for use solely for the carriage of goods, it will not become a goods carriage. A vehicle which is not so constructed or adapted when used for carriage of goods also becomes a goods carriage.

17. Travelling of any passengers is not allowed in the goods carriage vehicles, except employees who are required under Section 147 of the Act. But here, the - 16 - NC: 2024:KHC:43772 MFA No. 2859 of 2012 C/W MFA No. 2860 of 2012 MFA No. 11387 of 2012 claimants have travelled on top of the goods after loading the lorry, but not sitting inside the cabin. The appellant- owner has treated the claimants as goods and allowed the claimants to travel on top of the load of the offending vehicle. Therefore, the owner is not entitled indemnification on the ground that the claimants are employees and their risk is compulsorily covered under the insurance policy though they have travelled on top of the goods.

18. Since the claimants are economically backward people, they cannot be treated as animals, so as to carry them as goods on top of the goods on the lorry after loading goods. If allows employees/workmen on top of the load, after fully loading the lorry, then the owner is not entitled for benefit of indemnification by the insurer by virtue of insurance policy. The employees, who travelled inside the cabin in the goods carriage vehicle, are covered under Section 147 of the Act as per insurance policy according to number of - 17 - NC: 2024:KHC:43772 MFA No. 2859 of 2012 C/W MFA No. 2860 of 2012 MFA No. 11387 of 2012 persons permitted as per Karnataka Motor Vehicles Rules,

1989. If any workmen or employees, who travels not inside the cabin, but on top of the load or in the body of the lorry, it shows that the owner is treating such employees/workmen as animals which cannot be permitted, as it amounts to violation of human rights. Hence, owner will not get indemnification covering risk of such employees. From the above discussion, the Insurance Company is not liable to indemnify the owner and the owner shall alone pay the compensation to the claimants, where the claimants travelled on top of the load after loading the lorry and on the body of the lorry and not inside the cabin of the lorry. Therefore, for the aforesaid reasons, the point raised in these appeals is answered in the negative. The impugned judgments and award passed by the Tribunals putting a burden on the appellant-owner of the offending vehicle is correct and justified and hence, the appeals are liable to be dismissed.

19. Accordingly, the appeals are dismissed. - 18 - NC: 2024:KHC:43772 MFA No. 2859 of 2012 C/W MFA No. 2860 of 2012 MFA No. 11387 of 2012 In view of the dismissal of the appeals, pending interlocutory applications, if any, shall also stand dismissed. SD/- (HANCHATE SANJEEVKUMAR) JUDGE KVK List No.: 1 Sl No.: 14