THE ORIENTAL INSURANCE COMPANY LTD., REPRESENTED IN THIS APPEAL v. MRS MALLAMMA

(BY SRI. RAGHAVENDRA E.P., ADVOCATE FOR R1 TO R6 [R2 TO R4 ARE MINORS REP. BY R1] V/O DATED: 1/9/2022, SERVICE OF NOTICE TO R7 IS HELD SUFFICIENT) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.04.2014 PASSED IN MVC NO.7579/2011 ON THE FILE OF THE XI ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING A COMPENSATION OF Rs.11,50,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2024:KHC:52058 MFA No. 6615 of 2014 CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for brevity) by the appellant - insurance company challenging the judgment & award dated 7th April 2014 passed in MVC No.7579/2011 by XI Addl. Judge, MACT, Bangalore, fastening liability on the insurance company for payment of compensation.

2. It is the case of the claimants that the deceased Devendra Eligar was working as concrete application supervisor/Mason and on 14.11.2011 the deceased along with his father-in-law - Sri Venkoba Eligar was on concrete application duty in an under construction building at Beguru-Koppa road and after the work, at about 11.00 p.m., the deceased along with other workers were sleeping inside the compound in front of 'C' Block of the said building. At that time, driver of the lorry bearing No.KA-1-A-2957 had driven the lorry in a rash and negligent manner in the reverse direction and ran over on - 4 - NC: 2024:KHC:52058 MFA No. 6615 of 2014 the deceased, who was sleeping inside the compound and caused his death. Therefore, the legal heirs, who are wife, children and parents of the deceased have filed the claim petition claiming compensation.

3. The Tribunal has awarded compensation of Rs.11,50,000/- along with interest at 6% per annum and fastened liability on the appellant/insurance company.

4. Heard the arguments of learned counsel for the parties and perused the records.

5. Learned counsel for the appellant/insurance company submitted fastening liability on insurance company is not correct for the reason that the insurance policy issued is a contractor's plant and machinery policy, by which the risk of third party is not covered. He further submitted that the accident has not taken place in a 'public place', but in a construction area, which is a private place. Therefore, though the claim petition under Section 166 of the Motor Vehicles Act is maintainable, but insurance company is not liable to pay - 5 - NC: 2024:KHC:52058 MFA No. 6615 of 2014 the compensation. On these two grounds, it is submitted that the insurance company is not liable to pay the compensation, but owner liable to pay compensation. Hence prays for modification of the impugned judgment & award.

6. On the other hand, learned counsel claimants/respondents submitted though insurance policy issued is a contractor's plant and machinery policy, it covers the risk of third party. Further, it is submitted that though the accident taken place within the construction area, it is accessible to public. Hence, the area in which construction was being made is coming within the definition of 'public place' as per Section 2(34) of the M.V. Act. Hence, the trial Court is justified in passing the impugned judgment and award fastening liability on the appellant-insurance company to pay the compensation.

7. In reply, learned counsel for the appellant - insurance company submitted that the accident occurred - 6 - NC: 2024:KHC:52058 MFA No. 6615 of 2014 at 11.00 p.m. in the night inside the compound of SLN Builders construction area and the public are not accessible to that area at that particular point of time and therefore, it cannot be construed as public place. Since the accident occurred in a private place, the insurance company is not liable to pay the compensation.

8. Upon hearing the submissions of learned counsel for both parties and on perusal of the records, the points that would arise for consideration are as follows: i) Whether the appellant - insurance company is liable to be exonerated from payment of compensation on the ground that the accident occurred at 11.00 p.m. in the night in a construction site area, which is a private place and cannot be construed as 'public place' as per Section 2(34) of the Motor Vehicles Act? ii) Whether the appellant - insurance company is liable exonerated payment compensation on the ground that the policy issued does not cover third party risk? - 7 - NC: 2024:KHC:52058 MFA No. 6615 of 2014

9. Admittedly, accident occurred

14.11.2011 at about 11.00 p.m. inside the compound of SLN Builders construction area in front of 'C' Block at Begur-Koppa road. In fact when the deceased was sleeping in the compound, the lorry ran over him and caused his death. Ex.P1/FIR, Ex.P2/complaint, Ex.P3/sketch, Ex.P4/spot mahazar and Ex.P8/charge sheet, prove that the accident occurred inside the compound of SLN Builders construction area at Beguru- Koppa road, Bangalore. It is the submission of learned counsel for the appellant - insurance company that the accident has occurred at about 11.00 p.m. inside the compound of SLN Builders construction area, which is a private place and hence the insurance company is not liable to pay the compensation though the claim petition is maintainable. He places reliance on the judgment of Madras High Court in the case of Mangalam and others - vs- Express Newspapers Limited represented by Managing Director & another reported in AIR 1982 - 8 - NC: 2024:KHC:52058 MFA No. 6615 of 2014 Madras 223. Therefore, the definition of Section 2(34) of the MV Act is to be considered.

10. Section 2(34) of the MV Act, stipulates as follows: “2(34) “public place” means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage;” As per this, “public place” means a road, street, way or other place whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which the passengers are picked up or set down by a stage carriage. This definition is wide enough to cover not only public places but also provide places to which the public have right to access or is thoroughfare or not.

11. Considering the place in the present case, though it is a construction area of SLN Builders adjacent to Beguru-koppa road, it is accessible to public, workmen, - 9 - NC: 2024:KHC:52058 MFA No. 6615 of 2014 supervisors and vehicles that are used for the construction of building. Therefore, though the construction area is private property, it is accessible to all public where it is made accessible to workmen, supervisors, managers, engineers, loaders and unloaders of the construction materials and transportation of lorries inside construction area for the purpose of construction of building is amounting to accessible to public. Here these type of persons who are involved in the construction activities are part of public, the site in which the accident occurred is not fully occupied for private purpose of the construction site. It is still at the stage of construction and these workers above stated are accessible to the site for constructing the building therefore, it is accessible to the public. Under these circumstances, the accident occurred. Therefore, the said construction area is to be construed as a public place as per Section 2(34) of the MV Act. The accident occurred 11:00 p.m. Just because the accident has occurred night at 11:00 p.m. that does not seem to be not accessible to the public irrespective of time where it is - 10 - NC: 2024:KHC:52058 MFA No. 6615 of 2014 accessible to public as above discussed. The accident caused is to be construed as in a public place. Accessibility to the place is not depending upon the time unless it is specifically prohibited. Even though such prohibition is made making not accessible to the public that does not lose the characteristic of a public accessible place. Here in the present case, till the time the construction is completed and it is occupied by the private persons exclusively for their own use the site is to be construed as a place accessible to public therefore in this regard, it is held that the accident was caused in public place within the definition as per Section 2(34) of the MV Act. Therefore, the claim petition is maintainable. Accordingly, I answer point No.1 in the Negative. In these factual circumstances, the judgment of Madras High Court relied on by the counsel for the appellant is not applicable in the present case as it is distinguished one. The factual matrix involved in Madras High Court in Mangalam and others - vs- Express Newspapers Limited, represented by Managing Director & another reported in AIR 1982 - 11 - NC: 2024:KHC:52058 MFA No. 6615 of 2014 Madras 223 is that the accident occurred within the premises of the Express Newspapers and it was completely under the control of management of Express Newspaper and public are not allowed. But in the present case, the site is still under construction and is open to public, which means part of public who are workmen, supervisors, engineers etc., were involved in the construction activities therefore, it is amounting to accessible to public till the construction is completed and handing over in all respects to the owners of the said site the site is to be construed as accessible to public. Therefore, this makes difference in the present case and in the case of Madras High Court in Mangalam and others -vs- Express Newspapers Limited represented by Managing Director & another reported in AIR 1982 Madras 223 is distinguished one. Hence, the above decision is not helpful in the present case in favour of insurance company.

12. It is another submission made by the counsel for the appellant that the insurance policy is purely contractual policy namely contractor’s plant and machinery - 12 - NC: 2024:KHC:52058 MFA No. 6615 of 2014 policy therefore premium is not collected to cover the risk of third-party right. Hence, the insurance company is not liable to pay compensation. Ex.R2 is the certificate of insurance policy produced by the insurance company during the trial before the Tribunal. In the said Ex.R2/certificate of insurance policy at column No.4 of policy particulars there are seven elements to covering the risk under the policy; under column (vii) of scope of cover, the risk is also covered for third-party liability. Therefore, under this Ex.R2/certificate of insurance policy, the insurance coverage is made to third parties also as it is specifically stated under the scope of cover. Here, the deceased is a third party when he was sleeping in the compound, the lorry ran over on him and he died on the spot. The deceased was third-party and as per Ex.R2/certificate of insurance policy, the risk of the deceased is also covered. Accordingly, I answer point No.2 in the Negative.

13. Therefore, by answering above point Nos.1 and 2 there is no merit involved in the appeal so as to modify - 13 - NC: 2024:KHC:52058 MFA No. 6615 of 2014 the liability fastened on the appellant/insurance company and the Tribunal is correct in its judgment and award. Hence, the appeal is liable to be dismissed.

14. Accordingly, I proceed to pass the following: ORDER i. The Miscellaneous First Appeal is dismissed. ii. The judgment and award dated 07.04.2014 passed in MVC No.7579/2011 by XI Addl. Judge, MACT, Bangalore hereby confirmed. iii. No order as to costs. iv. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay. SD/- (HANCHATE SANJEEVKUMAR) JUDGE GSS: Para Nos.1 to 9 SRA: Para Nos.10 to end