Karnataka High Court
Kenchappa And Anr. vs V. Jayalakshmamma And Ors. on 28 July, 2003
Equivalent citations: 2005ACJ290
Author: Tirath S. Thakur
Bench: Tirath S. Thakur
JUDGMENT Tirath S. Thakur, J.
1. This appeal and the accompanying cross-objections arise out of the judgment and award of Motor Accidents Claims Tribunal, Kolar whereby M.V.C. No. 303 of 1990 has been allowed in part and a sum of Rs. 1,49,500 with interest at 9 per cent per annum awarded as compensation for the death of late Narayanaswamy in a road accident. While the owner and the driver of the offending vehicle have assailed the correctness of the award, the cross-objections filed by the legal heirs of the deceased seek a suitable enhancement of the amount awarded by the Tribunal.
2. The deceased Narayanaswamy was riding a tractor-trailer driven by the appel- lant No. 2 which met with an accident on 18.10.1989 near Sugatur village in Sidlaghatta taluk of Kolar District. The injuries sustained by the deceased in the accident were fatal culminating in the filing of a claim petition which was registered as M.V.C. No. 303 of 1990 by the Tribunal at Kolar. The case of the claimants in the said claim petition was that the deceased had on the fateful day engaged the tractortrailer belonging to the appellant No. 1 to transport manure to his garden land. After unloading the manure in the garden when the tractor was returning, it met with an accident due to rash and negligent driving by its driver, the appellant No. 2 in the appeal, causing severe head injuries to the deceased who succumbed to the same two days later. A sum of Rs. 4,00,000 was accordingly claimed towards compensation with interest at the rate of 12 per cent per annum.
3. The respondents opposed the claim on several grounds giving rise to eight issues which the Tribunal has in terms of the impugned judgment answered holding that the claimants are entitled to recover a sum of Rs. 1,49,500 with interest at the rate of 9 per cent per annum as noticed earlier. The Tribunal held that the claimants had failed to prove that the deceased had engaged the tractor-trailer in question for the transport of manure as alleged by them. It also held that the deceased had died on account of the rash and negligent driving of the tractor by appellant No. 2 who happens to be the driver and the son of the owner appellant No. 1. The Tribunal further held that since the hiring of the tractor had not been established, there was no violation of the conditions of the permit issued in favour of the owner under the Motor Vehicles Act. All the same the vehicle involved in the accident being a goods vehicle, any accident resulting in the death of a passenger being carried in such a vehicle did not give rise to any liability qua the insurance company with whom the same was insured. The insurance company was accordingly absolved by the Tribunal while awarding compensation against the driver and the owner of the vehicle jointly and severally. The Tribunal also held that the driver of the vehicle was duly licensed to drive the vehicle in question. Aggrieved by the said findings, the owner and the driver of the vehicle as also the claimants have come up in appeal as already indicated earlier.
4. Appearing for the appellants, Mr. Shankar did not assail the finding of the Tribunal as regards the genesis of the accident. He urged that although the owner and the driver of the vehicle had denied that any accident involving the vehicle in question had taken place, the finding recorded by the Claims Tribunal was on the material produced before it justified. He, however, contended that the tractor-trailer did not necessarily constitute a goods vehicle and that the Tribunal was in error in holding that the insurance company was not liable to pay the amount of compensation held payable to the claimants. Relying upon the decision of the Apex Court in Nagashetty v. United India Insurance Co. Ltd., , he urged that the Division Bench decision of this court in Oriental Insurance Co. Ltd. v. Hanumantappa, , was no longer good law insofar as the said decision declared that a tractor-trailer was a goods vehicle. Alternatively, he submitted that insurance company had not discharged the burden that lay upon it in proving that the insured had committed a breach of the conditions of the policy. In support, he placed reliance upon the decision of the Supreme Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, 1987 ACJ 411 (SC).
5. Having given our'anxious consideration to the submissions made by Mr. S.P. Shankar, we find no merit in either of them. The Division Bench of this court in Hanumantappa's case, , has after an exhaustive examination of the provisions of the Act held that a tractor-trailer is a goods vehicle within the meaning of the Motor Vehicles Act. The reasoning in support of that conclusion is available in the following para from that decision:
"Firstly, a tractor is a motor vehicle as defined in Section 2(18). Secondly, tractor is a motor vehicle which itself is not constructed to carry any load, but is meant to be used for the purpose of propulsion of a trailer. Thirdly, the trailer is defined as a vehicle other than a sidecar drawn or intended to be drawn by a motor vehicle...There can be no doubt that a trailer is constructed for the purpose of carriage of the goods and when it is pulled by a tractor, both together constitute a transport vehicle, i.e., a goods vehicle...Tractor-trailer squarely falls within the definition of the words 'goods vehicle'."
6. The above view is not displaced or overruled by the pronouncement of the Supreme Court in Nagashetty's case, , relied upon by Mr. Shankar. That was a case where the driver of a tractor held a licence to drive a tractor which was valid on the date of the accident resulting in the death of one Chand Pasha. The contention urged before the Supreme Court was that since the tractor had a trailer attached to it and since the trailer was carrying stones at the time of the accident, the licence held by the driver ceased to be effective as the tractor had on account of the attachment of the trailer become a transport vehicle for which the driver did not hold a valid licence. The Apex Court repelled the contention in the following words:
"...The question is whether merely because a trailer was attached to the tractor and the tractor was used for carrying goods, the licence to drive a tractor becomes ineffective. If the argument of Mr. S.C. Sharda is to be accepted then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make the tractor or motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid driving licence to drive a tractor or a motor vehicle he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words, a person having a valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle."
7. In that view, therefore, it will not be correct to assume that the decision of the Supreme Court in Nagashetty's case, , overrules sub silentio the Division Bench decision of this court in Hanumantappa's case, . The first contention urged by Mr. S.P. Shankar accordingly fails and is hereby rejected.
8. The only other question that requires to be considered is whether a passenger carried in a goods vehicle was on the date of the accident covered for purposes of fastening the liability on the insurance company. Even that question is no longer res integra in the light of two recent decisions of the Supreme Court in New India Assurance Co. Ltd. v. Asha Rani, and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, . In Asha Rani's case, their Lordships after referring to the provisions of the Act including the amendment to the same as introduced in 1994 declared the legal position as under:
"...Keeping in view the provisions of 1988 Act, it can be said that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in the goods vehicle, the insurers would not be liable therefor... An owner of a passenger carrying vehicle must pay premium for covering the risks of the passengers. If a liability other than the limited liability as provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid. But if the ratio of this court's decision in New India Assurance Co. Ltd. v. Satpal Singh, , is taken to its logical conclusion, although for such passengers, the owner of a goods carriage need not take out an insurance policy, they would be deemed to have been covered under the policy wherefor even no premium is required to be paid."
9. To the same effect is the recent decision of the Supreme Court in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, , where the court reiterated the legal position as under:
"The difference in the language of 'goods vehicle' as appearing in the old Act and 'goods carriage' in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit the goods vehicle from carrying any passenger. This is clear from the expression 'in addition to passengers' as contained in definition of 'goods vehicle' in the old Act. The position becomes further clear because the expression used is 'goods carriage' is solely for the 'carriage of goods'. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of 'public service vehicle'. The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in the goods vehicle would be limited to liability under the Workmen's Compensation Act, 1923 (in short 'WC Act'). There is no reference to any passenger in 'goods carriage'.
(10) The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor."
10. In the light of the above pronouncements and the fact that the accident had taken place in October, 1989, i.e., even before the 1994 Amendment under which owner accompanying his goods in a goods vehicle is covered for purposes of insurance, the Tribunal was justified in holding that the insurance company was not liable. The argument that the insurance company had not discharged its burden to prove the breach of the conditions of the policy is in the light of the above pronouncements to be noticed only to be rejected especially because the facts necessary for purposes of determining liability of the insurance company are admitted. It is admitted that the accident in question had taken place on account of the use of tractor-trailer which as noticed earlier is a goods vehicle. It is also not the case of the claimants or for that matter the owner of the tractor-trailer that deceased was travelling in the same as an employee under him. The case of the claimants on the contrary was that the deceased had hired the tractor-trailer from the owner for purposes of transporting the manure to his garden. In the light of these admitted facts the insurance company was not liable to make any payment towards compensation. The question of failure to discharge the burden that lay upon the insurance company thus does not arise.
11. That brings us to cross-objections filed by the claimants. The deceased wasq around 28 years old on the date of the accident. The claim petition has been filed by his widow and a minor daughter apart from his mother. The Tribunal was therefore justified in choosing a multiplier by reference to the age of the deceased. The Division Bench decisions of this court in Gulam Khader v. United India Insurance Co. Ltd., and V.S. Gowdar v. Oriental Insurance Co. Ltd., , would permit a multiple of 16 to be used while calculating the loss of dependency. We, however, find that the Tribunal has taken the monthly income of the deceased at Rs. 1,000 only and deducted '/3rd out of the same towards his personal expenses while computing the loss of dependency. There is evidence on record to suggest that the deceased owned a sizeable extent of land out of which 4 acres was wet land. According to the claimants, the deceased was apart from agricultural activities, also doing milk vending business. The exact income which the deceased was deriving from these activities has not been clearly and firmly established. The fact, however, remains that the deceased was a young man with sizeable agricultural holding and could therefore be said to have a reasonable income from all his agricultural pursuits. The Tribunal has taken the income at Rs. 12,000 per annum on the basis of the material produced before it. In our view, the said income can be taken at Rs. 15,000 per annum not only because of the nature of the evidence on record but also the fact that Parliament has itself recognised the notional income of non-earning victims of a road accident to be around Rs. 15,000 per annum. Deducting '/3rd of the said amount towards his personal expenses, the contribution of the deceased towards his family would remain at Rs. 10,000 per annum which could then be capitalised by applying a multiple of 16 to take the loss of dependency to Rs. 1,60,000. The Tribunal has also awarded a sum of Rs. 5,000 for loss to the estate and another Rs. 5,000 for funeral expenses. We do not consider it necessary to enhance the said amounts any further. We, however, find that the amount of Rs. 5,000 only awarded by the Tribunal towards loss of consortium is on the lower side. We accordingly enhance the compensation awarded by the Tribunal under that head from Rs. 5,000 to Rs. 10,000. To sum up, the claimants would be entitled to the following amounts of compensation:
(i) towards loss of dependency Rs. 1,60,000
(ii) towards loss of consortium Rs. 10,000
(iii) towards loss to estate Rs. 5,000
(iv) towards funeral expenses Rs. 5,000
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Total Rs. 1,80,000
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12. The above amount shall earn interest at the rate of 9 per cent per annum from the date of the claim petition till payment.
13. We further direct that out of the amount awarded by us which shall be recoverable jointly and severally from the owner and the driver of the offending vehicle, a sum of Rs. 1,00,000 shall be deposited in the name of minor daughter of the deceased in a term deposit for a period of 10 years or till she attains majority. The interest accruing on the said deposit may, however, be released in favour of the mother of the minor every six months to be used by her for the education and maintenance of the minor. Out of the balance amount, a sum of Rs. 50,000 shall be deposited in the name of the widow of the deceased in a scheduled bank for a similar term. The interest accruing on that deposit can also be claimed by her every 6 months. The balance amount shall be released by the Tribunal in favour of the widow since the mother of the deceased respondent No. 3 in this appeal has already passed away during the pendency of this appeal leaving behind the remaining respondents as her only legal heirs.
14. In the result, while M.F.A. No. 2520 of 1997 shall stand dismissed, the cross-objections filed by the claimants shall stand allowed in part and to the extent indicated above. No costs