The Branch Manager, United India Insurance Co. Ltd., Raichur and Gangavathi Represented by Its the Divisional Manager, United India Insurance Co

IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA

DATED THIS THE 31 ST DAY OF MAY 2013

BEFORE

THE HON'BLE MR. JUSTICE C.R.KUMARASWAMY

MFA NO.5195/2007 C/W MFA NO.5196/2007, MFA NO.5192/2007, MFA NO.5193/2007, MFA NO.5194/2007 (MV)

MFA NO.5195/2007:

BETWEEN:

The Branch Manager, United India Insurance Co. Ltd., Raichur and Gangavathi Represented by its The Divisional Manager, United India Insurance Co. Ltd., Divisional Office, P.B.No.53, V.V. Sukhani Complex, 1st Floor, Gandhi Chowk, Raichur-584101. ... Appellant

(By Sri Shivanand Patil, Advocate)

AND:

1. Yellamma D/o Basayya Aged 14 years, 1st respondent is minor U/g of her nature father Basayya R/at Arkera Village, 2

Devadurga Taluk, Raichur.

2. Veeresh S/o Mallappa, Major, R/at Maski, Tq. Lingasugur, Dist: Raichur.

3. Bheemaraya S/o Thimmanna, Major, R/at Buddinni village, Devadurga Taluk, Raichur District.

4. Renjuka @ Laxmi Bai W/o Ananda Surupur, Major, R/at Dhotihal Village, Kushtagi Taluk, Raichur District. ... Respondents

(Sri Basavaraj R. Math, and Sri Hanumantha Reddy Sahukar, Advocates for R1 Sri Mallikarjun C Basareddy, Advocate for R3 and R4 Notice to R2 dispensed with vide order dtd.27.2.2013 )

This Miscellaneous First Appeal is filed under Section 173 (1) of MV Act against the judgment and award dated 10.01.2007 passed in MVC No.78/03 on the file of Presiding Officer, Member, MACT, Fast Track Court II, Raichur, awarding a compensation of Rs.28,000/- with interest @ 6% per annum. 3

MFA NO.5196/2007:

BETWEEN:

(By Sri Shivanand Patil, Advocate)

AND:

1. Chandamma W/o Balayya Aged 39 years, R/at arkera Village, Devadurga Taluk, Raichur.

2. Veeresh S/o Mallappa Major, R/at Maski, Tq. Lingasugur, Dist: Raichur.

3. Bheemaraya S/o Thimmanna Major, R/at Buddinni Village, Devadurga Taluk, Raichur District. 4

4. Renjuka @ Laxmi Bai, W/o Ananda Surupur, Major, R/at Dhotihal village, Kushtagi Taluk, Raichur. District. ... Respondents

(Sri Basavaraj R. Math, and Sri Hanumantha Reddy Sahukar, Advocates for R1 Sri Mallikarjun C Basareddy, Advocate for R3 and R4 Appeal against R2 dismissed vide order dtd.5.8.2010 )

This Miscellaneous First Appeal is filed under Section 173 (1) of MV Act against the judgment and award dated 10.01.2007 passed in MVC No.79/03 on the file of Presiding Officer, Member, MACT, Fast Track Court II, Raichur, awarding a compensation of Rs.28,000/- with interest @ 6% per annum.

MFA NO.5192/2007:

BETWEEN:

AND:

1. Mangamma W/o Rangappa Aged 56 years, R/at Arkera Village, Devadurga Taluk, Raichur.

2. Veeresh S/o Mallappa, Major, R/at Maski, Tq. Lingasugur, Dist: Raichur.

3. Bheemaraya S/o Thimmanna, Major, R/at Buddinni village, Devadurga Taluk, Raichur District.

4. Renjuka @ Laxmi Bai W/o Ananda Surupur, Major, R/at Dhotihal Village, Kushtagi Taluk, Raichur District. ... Respondents

(Sri Basavaraj R. Math, and Sri Hanumantha Reddy Sahukar, Advocates for R1 Sri Mallikarjun C Basareddy, Advocate for R3 and R4 Appeal against R2 dismissed vide order dtd.5.8.2010 )

This Miscellaneous First Appeal is filed under Section 173 (1) of MV Act against the judgment and award dated 10.01.2007 passed in MVC No.54/03 on the file of Presiding Officer, Member, MACT, Fast 6

Track Court II, Raichur, awarding a compensation of Rs.1,49,000/- with interest @ 6% per annum from the date of petition till realisation.

MFA NO.5193/2007:

BETWEEN:

(By Sri Shivanand Patil, Advocate)

AND:

1. Balamma W/o Bassayya Aged 34 years, R/at Arkera Village, Devadurga Taluk, Raichur.

2. Veeresh S/o Mallappa, Major, R/at Maski, Tq. Lingasugur, Dist: Raichur. 7

3. Bheemaraya S/o Thimmanna, Major, R/at Buddinni village, Devadurga Taluk, Raichur District.

4. Renjuka @ Laxmi Bai W/o Ananda Surupur, Major, R/at Dhotihal Village, Kushtagi Taluk, Raichur District. ... Respondents

(Sri Basavaraj R. Math, and Sri Hanumantha Reddy Sahukar, Advocates for R1 Sri Mallikarjun C Basareddy, Advocate for R3 and R4 Appeal against R2 dismissed vide order dtd.5.8.2010 )

This Miscellaneous First Appeal is filed under Section 173 (1) of MV Act against the judgment and award dated 10.01.2007 passed in MVC No.77/03 on the file of Presiding Officer, Member, MACT, Fast Track Court II, Raichur, awarding a compensation of Rs.25,000/- with interest @ 6% per annum from the date of petition till realisation.

MFA NO.5194/2007:

BETWEEN:

The Branch Manager, United India Insurance Co. Ltd., 8

Raichur and Gangavathi Represented by its The Divisional Manager, United India Insurance Co. Ltd., Divisional Office, P.B.No.53, V.V. Sukhani Complex, 1st Floor, Gandhi Chowk, Raichur-584101.

... Appellant

(By Sri Shivanand Patil, Advocate)

AND:

1. Shanthamma W/o Basavaraj Aged 29 years, R/at Arkera Village, Devadurga Taluk, Raichur.

2. Veeresh S/o Mallappa, Major, R/at Maski, Tq. Lingasugur, Dist: Raichur.

3. Bheemaraya S/o Thimmanna, Major, R/at Buddinni village, Devadurga Taluk, Raichur District.

4. Renjuka @ Laxmi Bai W/o Ananda Surupur, Major, R/at Dhotihal Village, 9

Kushtagi Taluk, Raichur District. ... Respondents

(Sri Basavaraj R. Math, and Sri Hanumantha Reddy Sahukar, Advocates for R1 Sri Mallikarjun C Basareddy, Advocate for R3 and R4 Appeal against R2 dismissed vide order dtd.5.8.2010 )

These appeals coming on for admission, this day the court delivered the following:

COMMON JUDGMENT

Miscellaneous First Appeal No.5195/2007 is filed under Section 173 (1) of MV Act against the judgment and award dated 10.01.2007 passed in MVC No.78/03 on the file of the Presiding Officer, Member, MACT, Fast

Track Court II, Raichur, awarding a compensation of

Rs.28,000/- with interest @ 6% per annum. 10

2. Miscellaneous First Appeal No.5196/2007 is filed under Section 173 (1) of MV Act against the judgment and award dated 10.01.2007 passed in MVC No.79/03 on the file of the Presiding Officer, Member, MACT, Fast

Track Court II, Raichur, awarding a compensation of

Rs.28,000/- with interest @ 6% per annum.

3. Miscellaneous First Appeal No.5192/2007 is filed under Section 173 (1) of MV Act against the judgment and award dated 10.01.2007 passed in MVC No.54/03 on the file of the Presiding Officer, Member, MACT, Fast

Track Court II, Raichur, awarding a compensation of

Rs.1,49,000/- with interest @ 6% per annum from the date of petition till realisation.

4. Miscellaneous First Appeal No.5193/2007 is filed under Section 173 (1) of MV Act against the judgment and award dated 10.01.2007 passed in MVC No.76/03 on the file of the Presiding Officer, Member, MACT, Fast

Track Court II, Raichur, awarding a compensation of 11

Rs.30,000/- with interest @ 6% per annum from the date of petition till realisation.

5. Miscellaneous First Appeal No.5194/2007 is filed under Section 173 (1) of MV Act against the judgment and award dated 10.01.2007 passed in MVC No.77/03 on the file of the Presiding Officer, Member, MACT, Fast

Track Court II, Raichur, awarding a compensation of

Rs.25,000/- with interest @ 6% per annum from the date of petition till realisation.

6. The common case of the claimants in all these cases are as under:

That on 01.06.2002 at about 6.00 PM on

Shivanagi-Arakeri road, these claimants were returning in a tractor-trailer bearing Reg.No.SCZ-357-T-2570 after attending their coolie work, respondent No.1 being driver of the tractor-trailer drove the same in a rash and negligent manner and caused accident, as a result of which, these claimants sustained injuries. 12

7. In all these cases respondent No.2 filed his written statement denying the petition averments. Respondent

No.3 – United India Insurance Company Limited filed objection statement denying the accident and also contending that the claimants being passengers in the tractor-trailer, they are not entitled for compensation.

8. The finding of the Claims Tribunal at para-21 reads as under:

“21. So far as the liability of the insurance company is concerned, it is admitted that the tractor and trailer were insured with the insurance company. But it is contended that the tractor and trailer were insured under agricultural package (farmers’ package policy) scheme and that the owners of the tractor and trailer violated the terms and conditions of the insurance policy by allowing the driver of the tractor and trailer to carry passengers. According to the insurance company, all the passengers were unauthorized passengers in the tractor and trailer. But the petitioners have contended that they were travelling in 13

the tractor and trailer as agricultural coolies. Their contention is supported by RW-1 the owner of the tractor, who admitted in his evidence that the petitioners were agricultural coolies. Even though the insurance company got examined its Administrative Officer as RW-2, he has admitted that he has no personal knowledge as to what purpose the tractor was used at the time of accident. Therefore, the evidence of the petitioners and RW-1 remained unchallenged. No rebuttal evidence is adduced by the insurance company. It is needless to say that carrying agricultural coolies for agricultural work cannot be termed as violation of policy conditions. Hence, I do not find any merit in the contention raised by the insurance company.”

9. Feeling aggrieved by the same, the Insurance

Company preferred these Miscellaneous First Appeals, challenging mainly on the liability. The learned counsel for the appellant submitted as under: 14

The vehicle in question is a tractor-trailer. The tractor-trailer is insured by means of a farmers’ package policy. This vehicle should be used only for insurer’s agricultural needs. In the instant case, the vehicle is used for commercial purpose.

10. The learned counsel for respondent No.1 supports the impugned judgment and award. In support of his contention, he relies on the decision reported in ILR

2011 KAR 4139 in the case of National Insurance

Company Limited Vs. Maruthi and others . The learned counsel for respondent No.1 draws the attention of this

Court to paras-31, 37 and 40 of the said decision, which read as follows:

“31. By reading Sections 147 and 149, it is clear that the Legislative intent was that the insurer has to compulsorily cover all the risks arising out of and use of motor vehicle and the liability of the insurer is co-extensive with that of insured. However, this is subject to the limitations envisaged under Section 147 15

(1) (b). It is also clear that the coolies who are employees carried in a goods vehicle are to be compulsorily covered under Section 147(1)(b).

37. The wordings of the fully worded policy makes it clear that the vehicle in question is a goods vehicle. Therefore, the respondents were justified in saying appellant cannot plead other than what is stated in the policy. If the general exception in the policy were to exclude the liability of the insurer to cover the coolies employed for loading and unloading then the argument of the appellants was justified. Though the fully worded policy refers to the terms of contract between the parties, IMT 7, 21, 24, 36 and 48, on perusal of the same except IMT 36 none of the other IMTs. are relevant. As a matter of fact IMT 7 and 48 do not find a place in the fully worded policy. IMT 21 refers to exclusion of riots, strikes and terrorism coverage. IMT 24 refers to replacement of parts. When the very policy is referred to as a special package policy, unless the insured was fully made known the exact terms of contract by including them in 16

the terms of policy, it is nothing but with- holding necessary and important information from the insured. Depending upon the user of the vehicle whether for agricultural purpose or for commercial purpose, the liability of the insurer would be decided. When the intention of the Legislation was to cover compulsorily all the risk arising out of the use of the motor vehicle and that the liability of the insurer is co-extensive with that of the insured subject to Section 147 (1) (b), coolies or employees are compulsorily covered. Therefore, the argument that Rule 100 (6) r/w Rule 226 of the Karnataka Motor Vehicles Rules is relevant is rejected and the same will not authorise or permit the insurer to avoid the liability.

40. The combination of tractor-trailer is nothing short of a goods carriage. Therefore, when once it is held as goods carriage vehicle, by virtue of Section-II-1(1) of fully worded policy and also provisions of Section 147, the claim of the claimants on hand is covered. The claimants in the present case 17

have rightly approached the Workmen’s Commissioner and the Commissioner was justified in holding that the injured claimants were coolies under the owner viz., the insured. In the present case, they were carrying stones for constructing a ridge in the land belonging to the insured so as to store the water. This is nothing but part and parcel of agricultural operations. The Claimants were neither gratuitous passengers nor persons who were travelling in the tractor- trailer for the purpose other than agricultural operations. Looking to the avocation of the claimants, the computation of the compensation by the Commissioner is just and proper. Viewed from any angle, we do not find any good ground to interfere with the awards of the Commissioner. Therefore the claimants in the present case were rightly held as covered under Ex.R-2 policy.”

11. RW-2 is the Administrative Officer of the United

India Insurance Company Limited. He has deposed that he was working as an Administrative Officer with the 18

United India Insurance Company Limited, Raichur

Branch for past 20 years. He knows the facts of the case. The tractor-trailer involved in this case was insured with their Company and the insurance was effective and in force on the date of accident. The policy is agricultural (Farmers’ Package Policy) meant for agricultural purpose. He has also stated that the insurance does not cover the coolies. During his cross- examination he has stated that he has no personal knowledge as to for what purpose the tractor was being used on the date and time of accident.

12. The word ‘package’ means a deal in which separate items are presented together as a unit. In the instant case the word ‘farm’ indicates live stock, growing or rearing of some particular type of fruit, animal, or fish, to cultivate land, to rear animals or fish on a farm, to do agricultural work as a way of life. All these activities cover under the heading ‘farm’. In the instant 19

case the policy issued is a farmers’ package policy. In other words, several items were covered under this package policy of the farmer. The word ‘farm’ has got very wide meaning which covers different activities.

Farmer is the person who owns or manages a farm. In the instant case, the claimants have stated that they had gone to the coolie work of canal at Shivanagi village.

After finishing their work they were returning to their village in a tractor-trailer belonging to respondent Nos.2 and 3.

13. In the chief examination of Bheemaraya he states that he is the owner of tractor-trailer bearing

Reg.No.SCZ-357. That on 01.06.2002 his tractor met with an accident, due to the ditch on the road. During his examination, he clearly admits that on the date of the accident, Mangamma, Hanumanthi, Basamma,

Balamma, Yellamma, Shantamma were coolies. They were returning in the tractor-trailer after attending the 20

coolie work. The claimants have stated in their entire evidence that they went to attend coolie work in the canal.

14. The word ‘canal’ means an artificial waterway constructed for navigation or irrigation. Since the coolies went for the purpose of making a waterway to the agricultural land, it can be inferred that the persons who traveled in the tractor-trailer were involved in the agricultural activities.

15. Therefore, the coolies who were travelling in the tractor-trailer after attending their coolie work, making a water way to the irrigated land for irrigation purpose can be said that they were agricultural coolies. Taking into consideration the principles laid down in the judgment referred supra, wherein the division bench of this Court has held that the coolies in a tractor and trailer are to be covered by the Insurance company and they perform the activity of agriculture and also 21

following the principles of the decision of co-ordinate bench of this Court reported in AIR 2009 (NOC) 872

(KAR.) in the case of National Insurance Company Ltd. v.

Smt. Renuka & Ors. Motor Vehicles Act (59 of 1988), S.

147 (5) – Liability of insurer to compensate – coolie in a tractor-trailer died due to accident – Insurer contending that policy covers risk of only ‘one employee’ who is driver – Also coolie not permitted to be carried in vehicle

– Held, employee may be a coolie and not necessarily driver – Insurer bound to discharge liability covered by policy – Cannot avoid same saying risk of driver could not have been covered, I am of the opinion that the judgment and award passed by the Claims Tribunal does not suffer from any infirmity and it is sound and proper.

16. In view of the above discussion, I pass the following: 22

O R D E R

Miscellaneous First Appeal Nos.5195/2007,

5196/2007, 5192/2007, 5193/2007 and 5194/2007 are dismissed .

Amount in deposit shall be transferred to the concerned Claims Tribunal.

Sd/- JUDGE swk