Karnataka High Court
Gadhilingappa @ Gadhilinga S/O Ulluru ... vs K. Guleppa S/O K Kingappa on 2 January, 2018
-1-
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
MFA CROB No.100001/2016 (MV)
IN
MFA No.102649/2015
c/w
MFA No.102649/2015,
MFA CROB No.100003/2016
IN
MFA No.102651/2015,
MFA CROB No.100002/2016
IN
MFA No.102650/2015,
MFA NO.102651/2015,
MFA NO.102650/2015.
MFA CROB No.100001/2016 (MV)
IN MFA No.102649/2015:
BETWEEN:
1. Gadhilingappa @ Gadhilinga
S/o Ulluru Mallappa @ Yellappa,
Aged about 39 years
Occ: Labour,
R/o. New Yerragudi Village,
Tq & Dist: Ballari.
-2-
2. Bhagyamma
W/o Gadhilingappa @ Gadhilinga,
Aged about 37 years
Occ: Housewife,
R/o. New Yerragudi Village,
Tq & Dist: Ballari.
...Cross Objectors
(By Smt. Sunitha P. Kalasoor, Advocate)
AND:
1. K. Guleppa
S/o K. Lingappa
Aged about 38 years
Occ: Driver of the Tractor
Bearing No.KA-34/T-4232,
R/o. Karchedu Village,
Tq & Dist: Ballari.
2. Hanumesh
S/o Nenikappa
Aged about 43 years
Occ: Owner of the Tractor
Bearing No.KA-34/T-4232,
R/o. Karchedu Village,
Tq & Dist: Ballari.
3. United India Insurance Co. Ltd.,
Opp. Radhika Talkies, Ballari,
Represented by its Divisional Manager,
Ballari.
...Respondents
(By Smt. Preeti Shashank, Advocate for R3;
R1 and R2-Notice dispensed with)
-3-
This MFA CROB in MFA No.102649/2015 is filed
under Section 173(1) of the MV Act, against the
judgment and award dated 19.06.2015, passed in MVC
No.559/2014 on the file of the III Motor Accident Claims
Tribunal, Ballari, partly allowing the claim petition for
compensation and seeking enhancement of
compensation.
IN MFA No.102649/2015:
BETWEEN:
United India Insurance Co. Ltd.,
Opp. Radhika Talkies, Ballari,
Represented by its Divisional Manager,
...Appellant
(By Smt. Preeti Shashank, Advocate)
AND:
1. Sri Gadhilingappa alias Gadhilinga
S/o late Ulluru Mallappa alias Yellappa,
Aged about 39 years
Occ: Labour,
R/o. New Yerragudi Village,
Ballari Taluk and District.
2. Smt. Bhagyamma
w/o Gadhilingappa alias Gadhilinga,
Aged about 37 years
Occ: Housewife,
R/o. New Yerragudi Village,
Ballari Taluk and District.
-4-
3. Sri K. Guleppa S/o K. Lingappa
Aged about 38 years
Driver of the Tractor
Bearing No.KA-34/T-4232,
R/o. Karchedu Village,
Ballari Taluk and District.
4. Sri Hanumesh S/o Nenikappa
Aged about 43 years
Owner of the Tractor
Bearing No.KA-34/T-4232,
R/o. Karchedu Village,
Ballari Taluk and District.
...Respondents
(By Smt. Sunitha P. Kalasoor, Advocate for R1 to R3)
This MFA is filed under Section 173(1) of the MV
Act, 1988, against the judgment and award dated
19.06.2015, passed in MVC No.559/2014, on the file of
the Member, III Motor Accident Claims Tribunal, Ballari,
awarding compensation of Rs.5,55,000/- along with
interest at the rate of 6% P.A. from the date of petition
till the date of deposit.
MFA CROB No.100003/2016
IN MFA No.102651/2015:
BETWEEN:
Sri Mallikarjuna
S/o K. Shanmukappa
Aged about 33 years
Occ: Coolie,
R/o. Korachedu Village,
Tq & Dist: Ballari.
...Cross Objector
(By Smt. Sunitha P. Kalasoor, Advocate)
-5-
AND:
1. K. Guleppa
S/o K. Lingappa
Aged about 38 years
Occ: Driver of the Tractor
Bearing No.KA-34/T-4232,
R/o. Karchedu Village,
Tq & Dist: Ballari.
2. Hanumesh
S/o Nenikappa
Aged about 43 years
Occ: Owner of the Tractor
Bearing No.KA-34/T-4232,
R/o. Karchedu Village,
Tq & Dist: Ballari.
3. United India Insurance Co. Ltd.,
Opp. Radhika Talkies, Ballari,
Represented by its Divisional Manager,
...Respondents
(By Smt. Preeti Shashank, Advocate for R3;
R1 and R2-Notice dispensed with)
This MFA CROB in MFA No.102651/2015 is filed
under order 41 Rule 22 of CPC r/w Section 173(1) of the
MV Act, against the judgment and award dated
19.06.2015, passed in MVC No.561/2014 on the file of
the III Motor Accident Claims Tribunal, Ballari, partly
allowing the claim petition for compensation and
seeking enhancement of compensation.
-6-
MFA CROB No.100002/2016
IN MFA No.102650/2015:
BETWEEN:
Sri Ulteppa
S/o Ramappa
Aged about 34 years
Occ: Coolie,
R/o. Korachedu Village,
Tq & Dist: Ballari.
...Cross Objector
(By Smt. Sunitha P. Kalasoor, Advocate)
AND:
1. K. Guleppa
S/o K. Lingappa
Aged about 38 years
Occ: Driver of the Tractor
Bearing No.KA-34/T-4232,
R/o. Karchedu Village,
Tq & Dist: Ballari.
2. Hanumesh S/o Nenikappa
Aged about 43 years
Occ: Owner of the Tractor
Bearing No.KA-34/T-4232,
R/o. Karchedu Village,
Tq & Dist: Ballari.
3. United India Insurance Co. Ltd.,
Opp. Radhika Talkies,
Ballari,
-7-
Represented by its Divisional Manager,
Ballari.
...Respondents
(By Smt. Preeti Shashank, Advocate for R3;
R1 and R2-Notice dispensed with)
This MFA CROB in MFA No.102650/2015 is filed
under Order 41 Rule 22 of CPC r/w Section 173(1) of
the MV Act, against the judgment and award dated
19.06.2015, passed in MVC No.560/2014 on the file of
the III Motor Accident Claims Tribunal, Ballari, partly
allowing the claim petition for compensation and
seeking enhancement of compensation.
IN MFA No.102651/2015:
BETWEEN:
United India Insurance Co. Ltd.,
Opp. Radhika Talkies, Ballari,
Represented by its Divisional Manager,
...Appellant
(By Smt. Preeti Shashank, Advocate)
AND:
1. Sri K. Mallikarjuna
S/o K. Shanmukappa
Aged about 33 years
Occ: Coolie,
R/o Karachedu Village,
Ballari Taluk and District.
2. Sri K. Guleppa
S/o K. Lingappa
Aged about 38 years
-8-
Driver of the Tractor
Bearing No.KA-34/T-4232,
R/o. Karchedu Village,
Ballari Taluk and District.
3. Sri Hanumesh
S/o Nenikappa
Aged about 43 years
Owner of the Tractor
Bearing No.KA-34/T-4232,
R/o. Karchedu Village,
Ballari Taluk and District.
...Respondents
(By Smt. Sunitha P. Kalasoor, Advocate for R1 to R3)
This MFA is filed under Section 173(1) of the MV
Act, 1988, against the judgment and award dated
19.06.2015, passed in MVC No.561/2014 on the file of
the Member, III Motor Accident Claims Tribunal, Ballari,
awarding compensation of Rs.2,30,800/- along with
interest at the rate of 6% P.A. from the date of petition
till the date of deposit.
IN MFA No.102650/2015:
BETWEEN:
United India Insurance Co. Ltd.,
Opp. Radhika Talkies, Ballari,
Represented by its Divisional Manager,
...Appellant
(By Smt. Preeti Shashank, Advocate)
-9-
AND:
1. Sri Ulteppa
S/o Ramappa
Aged about 33 years
Occ: Coolie,
R/o Karachedu Village,
Ballari Taluk and District.
2. Sri K. Guleppa
S/o K. Lingappa
Aged about 38 years
Driver of the Tractor
Bearing No.KA-34/T-4232,
R/o. Karchedu Village,
Ballari Taluk and District.
3. Sri Hanumesh
S/o Nenikappa
Aged about 43 years
Owner of the Tractor
Bearing No.KA-34/T-4232,
R/o. Karchedu Village,
Ballari Taluk and District.
...Respondents
(By Smt. Sunitha P. Kalasoor, Advocate for R1 to R3)
This MFA is filed under Section 173(1) of the MV
Act, 1988, against the judgment and award dated
19.06.2015, passed in MVC No.560/2014 on the file of
the Member, III Motor Accident Claims Tribunal, Ballari,
awarding compensation of Rs.2,30,800/- along with
interest at the rate of 6% P.A. from the date of petition
till the date of deposit.
- 10 -
These MFA CROBs and MFAs having been heard,
reserved for judgment on 14.12.2017 and coming on for
pronouncement of judgment this day, the Court
delivered the following:-
JUDGMENT
MFA.Nos.102649/2015, 102651/2015 and 102650/2015 are filed by the Insurance Company challenging the judgment and award dated 19.6.2015, passed by the III Additional MACT, Ballari in MVC.Nos.559/2014, 560/14, 561/2014, whereunder claim petitions filed by the parents of the deceased and the injured came to be allowed in part granting compensation of Rs.5,50,000/- in MVC.No.559/2014, Rs.2,30,800/- each in MVC.Nos.560/2014 and 561/2014 by fastening the liability jointly and severally on the owner and the insurer and directing the insurer to indemnify the compensation.
MFA.Crob.No.100001/2016 in MFA.No.102649/2015 is filed by the parents of the deceased and
- 11 -
MFA.Crob.No.100003/2016 in MFA.No.102651/2015 and MFA.Crob.No.100002/2016 in MFA. No.102650/2015 are filed by the injured claimants seeking enhancement of the compensation awarded by the Tribunal.
2. Brief facts of the case are that on 12.7.2013 at about 4.30 p.m., Vasanthkumar along with two coolies were sitting on a tractor bearing Regn.No.KA-34/T-4232 and were levelling the agricultural land of one Kumbar Lingappa. The said tractor was driven by its driver in a high speed, rash and negligent manner and when he turned the vehicle, it turned turtle and met with an accident, as a result of which, Vasanthkumar and two others fell down and sustained grievous injuries. Because of severe injuries, Vasanthkumar died on the spot and other injured were taken to the hospital. A criminal case was also registered against the driver. For having lost the bread earner, the parents of the
- 12 -
deceased Vasanthkumar and the injured have filed the claim petitions under Section 166 of the Motor Vehicles Act (hereinafter referred to as the 'Act' for short).
3. In pursuance of notice, respondent Nos.1 to 3 before the Tribunal (driver, owner and the Insurance Company) appeared and filed their objections denying the contents of the claim petitions. Respondent No.2- owner contended that the vehicle in question has been insured with respondent No.3-Insurance Company; driver was holding a valid and effective license and as such respondent No.3-Insurance Company is liable to pay the compensation. Respondent No.3-Insurance Company also filed its written statement denying the contents of the claim petitions contending that the driver was not holding a valid and effective driving license to drive the vehicle as on the date of the accident; the liability of the Insurance Company is
- 13 -
subject to terms and conditions of the policy. On these grounds they prayed for dismissal of the claim petitions.
4. On the basis of the above pleadings, the Tribunal after framing necessary issues, has passed the impugned judgment and award. Assailing the same, the Insurance Company, parents of the deceased Vasanthkumar and the injured are before this Court.
5. Smt. Preethi Shashank, learned counsel appearing for the appellant-Insurance Company has vehemently argued by contending that the deceased and the injured persons were travelling in the tractor and at that time, the alleged accident has taken place. Travelling in the tractor is not permitted or any other person is not permitted to sit other than the driver since the tractor allows only the driver to drive as it has a single seat. Therefore, the persons other than the driver were prohibited from travelling in the said tractor, in view of Regulation 28 of the Rules of Road Regulations,
- 14 -
1989. She contended that in any event, the tractor being a vehicle with one seat nobody else apart from the driver thereof could travel in the tractor. In that light, any other person who travels would be an unauthorized person or gratuitous passenger in the insured vehicle. Therefore, the liability of the insurer does not arise at all. She further contended that the injured have suffered injuries due to the ploughing trailor attached to the tractor and such ploughing trailor is not a part and parcel of the tractor and as such the policy does not cover the liability of those persons who have been engaged in an instrument which is used as a ploughing instrument to the said tractor. She further contended that the tractor alone is insured and when the driver alone is covered in respect of the engine of the tractor with one seating capacity, it does not cover the risk of the employee sitting on the mudguard. She also contended that no extra premium is collected except the driver. Under such circumstances, the insurer is not
- 15 -
liable to pay any compensation. In order to substantiate her contention she relied upon decisions in the case of Oriental Insurance Co.Ltd., Bangalore Vs. Smt.Shoba & others, reported in 2012(1) AIR Kar R 77; in the case of Susheelabai & others Vs. Basavaraj & another, reported in (2009) 17 SCC 663; in the case of Branch Manager, National Insurance Co. Ltd., Vs. Ramalingegowda & another, reported in ILR 2011 KAR 1840. She further contended that the Insurance Company is not under a statutory obligation to cover all kinds of employees of the insured as the statute does not show command even though under Section 147(1) of the Act, statutory liability is on the insurer. In this context, she relied upon a decision of the Apex Court in the case of Sanjeev Kumar Samrat Vs. National Insurance Co.Ltd. & others, reported in AIR 2013 SC 1125. She further contended that if there is difference of verdict in the Division Bench or in Single Bench, the
- 16 -
best procedure is to refer the matter to a Larger Bench instead of taking a different view. She further contended a co-ordinate Bench of same strength cannot take a contrary view than the view taken by another co- ordinate Bench. In that light, she relied upon the decision in the case of National Insurance Company Limited Vs. Pranay Sethi & Others, reported in AIR 2017 SC 5157. In the light of the above arguments, she further contended that any other persons other than the driver, if they travel in the tractor without there being any attached trailor, then the insurer cannot be made liable. This aspect has not been properly considered and appreciated by the Tribunal and it has erroneously passed the impugned judgment and award. On these grounds, she prayed for allowing the appeal filed by the Insurance Company by setting aside the impugned judgment and award by fastening the liability on respondent No.2-owner and exonerating the insurer from the liability.
- 17 -
6. Per contra, Smt.Sunitha Kalasoor, learned counsel appearing for the claimants has vehemently argued by contending that the deceased and injured were employed by the insured and they were working as coolies. When they were working as coolies as per Sections 147 and 149 of the Act, the insurer is statutorily liable to pay the compensation, that too when the alleged accident has taken place during the course of employment. She further contended that the ploughing trailor attached to the tractor is considered to be a part and parcel of the tractor and it is inbuilt attachment of the tractor for the purpose of agricultural use. When the tractor is insured and the attached instrument on which the employee works is going to cover the risk, the insurer is liable to pay the compensation. She further contended that there is no negligence attributed to the deceased or injured. In the absence of such material, the insurer is not having any
- 18 -
right to deny its liability. She further contended that the Act is a beneficial legislation. Liberal view has to be taken to provide adequate compensation to the victims. She further contended that the compensation awarded by the Tribunal is on the lower side and the same requires to be enhanced. She further contended that the compensation awarded under conventional heads is also on the lower side. On these grounds, she prayed for dismissal of the appeals filed by the insurer and allowing the cross-objections filed by the claimants by enhancing the compensation as prayed for.
7. Having heard the learned advocates appearing for the parties and on perusal of the impugned judgment and award, let me discuss the contentions raised by the learned counsel appearing for the parties. It is the contention of the learned counsel appearing for the insurer that the deceased Vasanthkumar was working as a coolie along with Ulteppa and
- 19 -
K.Mallikarjuna and at that time, a tractor bearing Regn.No. KA-34-T-4232 met with an accident and Vasanthkumar died on the spot and remaining two persons suffered injuries, the insurer is not liable to pay the compensation. It is not in dispute that at the time of accident, deceased Vasanthkumar was sitting on the mudguard of the tractor and he died on the spot. It is also the contention of the learned counsel for the insurer that the policy is in respect of engine of the tractor which has got only one seating capacity which is provided for driving the tractor. In other words, when the seating capacity of the tractor engine is only one and if a policy is taken in respect of the tractor engine, the liability is with regard to the driver and no other person is going to be covered. In that context, she relied upon the decision in the case of Oriental Insurance Co. Ltd., Bangalore Vs. Smt.Shoba & others (cited supra), wherein at paragraphs-10 and 11, it has been observed as under:-
- 20 -
"10. We have perused the policy issued by the appellant. The appellant-Company has collected a sum of Rs.25/- under the head, legal liability towards the employee/driver. Admittedly, it is a Tractor. The policy is in respect of an engine of a Tractor which has got only one seating capacity which is provided for driving the Tractor. In other words, when seating capacity of the Tractor engine is only one and the liability is in respect of the driver, we are of the opinion driver was not justified in fixing the liability on the Insurance Company.
11. In the circumstances, we are of the view that the appeal has to be allowed by holding that the policy issued by the appellant does not cover the risk of an employee who was sitting on the engine of the Tractor and risk covers only the driver."
8. Learned counsel for the claimants further contended that the tractor being one seated vehicle
- 21 -
nobody else apart from driver could travel in the tractor and as such the insurer is not liable and the policy is not covered in respect of such persons. In that context, she relied upon the decision in the case Susheelabai & others Vs. Basavaraj & another (cited supra), wherein at paragraph-6 it has been observed as under:-
"6. Apart from the fact that the concurrent finding of fact has been arrived at by the Tribunal as also the High Court, another circumstance which must be taken note of by us is that at a later date, the tractor was transferred in the name of appellant No.1 - the wife of the deceased. Furthermore, in any event, the tractor being a vehicle with one seat, nobody else apart from the driver thereof could travel in the tractor. This aspect of the matter has been considered recently by this Court in Dhanraj Vs. New India Assurance Co.Ltd. and Anr., 2004(8)SCC 553."
- 22 -
9. The learned counsel for the claimants also relied upon a decision in the case of Manager, National Insurance Co. Ltd. Vs. Imamsab and others, in MFA.No.7837/2007 (WC) decided on 17.7.2013 by contending that relationship between the deceased and the owner of the tractor is that of a employer and employee and accident is in the course of employment. Hence, the insurer is liable to pay the compensation when the policy is a comprehensive policy and also the same is statutorily covered under Section 147 of the Act. She further contended that in the absence of evidence to show the negligence on the part of the deceased in travelling on the mudguard which is cause for the accident, it is not possible to hold that by such travelling he is disentitled from claiming the compensation.
10. On going through the above citations which have been quoted by the learned counsel appearing for
- 23 -
the parties, two Division Benches of this Court have taken a contrary view. The case in Oriental Insurance Co.Ltd. Bangalore Vs. Smt.Shoba & others (cited supra) has been decided on 25.5.2011 and case in Manager, National Insurance Co.Ltd., Vs. Imamsab has been decided on 17.7.2013. Though the earlier judgment has been referred by the subsequent Division Bench, it has been observed that the said judgment has no application to the facts of the case and took a different view. But the Division Bench has taken a decision by holding that the Insurance Company has collected an amount of Rs.25/- towards the legal liability of the employee/driver. Admittedly, it is a tractor. The policy is in respect of an engine of tractor which has got only one seating capacity which is provided only to drive the tractor. The liability is in respect of driver. hence the Tribunal is not justified in fixing the liability on the Insurance Company.
- 24 -
11. The Hon'ble Supreme Court in Susheelabai's Case, (cited supra) has observed that the tractor being a vehicle with only one seat, nobody else apart from the driver could travel in the tractor and keeping in view the said aspect the appeal was dismissed by holding that the insurer is not liable. By relying upon the decision in the case of Manager, National Insurance Co.Ltd., Vs. Imamsab (mentioned supra) co-ordinate Benches of this Court in the case of United India Insurance Co.Ltd., Vs. Basavarajaiah Swamy, in MFA.No.30081/2008 c/w. MFA.No.30080/2008, decided on 16.12.2015 and in the case of Smt.Shailabai Vasant Magadum & others Vs. Peermohammad Ahmedsab Mahasuri in MFA.No.21326/2008 c/w. MFA.No.20362/2008, decided on 16.11.2016 and in the case of United India Insurance Company Ltd., Vs. Smt.Anasawwa & others in MFA.No.20386/2009 C/w.
MFA.No.20385/2009, decided on 21.4.2017, have
- 25 -
upheld the ratio laid down in the case of Manager, National Insurance Co. Ltd., Vs. Imamsab (mentioned supra). But, other co-ordinate Benches of this Court in the case of United Insurance Co. Ltd., Vs. Channawwa in MFA.No.7468/2002 decided on 5.7.2005, in case of United India Insurance Co. Ltd., Vs. Sri Arun & another, in MFA.No.1397/2004 decided on 16.1.2006 and in the case of Branch Manager, National Insurance Co. Ltd., Vs. Ramalingegowda & another (cited supra), have taken the decision by holding that said issue being no more res integra and held that the insurer is not liable to pay the compensation as the seating capacity of the tractor engine is only one and the liability is in respect of the driver and as such fixing the liability on the Insurance Company is not justified.
12. On going through the aforesaid decisions, it makes it very clear that two Division Benches of this
- 26 -
Court on the similar question of law and facts have given contrary views so also the co-ordinate Benches of this Court have given divergent views. Hence, at this juncture, I feel it just and proper to refer the case in National Insurance Co. Ltd., Vs. Pranay Sethi & others (cited supra), wherein at paragraph-61 it has been observed that it is advisable to refer the matter to a Larger Bench as it was taking a different view than what has been stated in Sarala Verma's Case (AIR 2009 SC 3104), a judgment of co-ordinate Bench. It is further observed that it is because a co-ordinate Bench of the same strength cannot take a contrary view than what has been held by another co-ordinate Bench.
13. When already the Hon'ble Apex Court has held that the tractor being a vehicle with one seating capacity, nobody apart from the driver thereof could travel in the tractor and the said fact has also been approved in the case of Dhanraj Vs. New India
- 27 -
Assurance Co.Ltd. & another, reported in 2004(8) SCC 553, then under such circumstances, I feel that in order to maintain the uniformity of law laid down by the Courts that when a person travels on the mudguard of the tractor, it does not cover the risk of such person, that too, when Regulation 28 of the Rules of the Road Regulations, 1989 is prohibiting carrying passengers more than the number of persons provided. For the purpose of brevity, I quote Regulation 28 of the Rules of Road Regulations, 1989, which reads as under:-
"28.Driving of tractors and goods vehicles:- A driver when driving a tractor shall not carry or allow any person to be carried on tractor. A driver of goods carriage shall not carry in the driver's cabin more number of persons than that is mentioned in the Registration Certificate and shall not carry passengers for hire or reward."
14. Under the aforesaid facts and circumstances and the decisions referred to above, the insurer cannot
- 28 -
be made liable. I am of the considered opinion that the passengers cannot travel in the tractor as per the policy conditions and the regulations.
15. It is the contention of the learned counsel appearing for the claimants that the deceased and injured have not been attributed to negligence and the accident in question has taken place during the course of employment and as such the insurer is liable to pay the compensation. Admittedly, the accident occurred when the deceased was sitting on the mudguard and others have sustained injuries who were on the ploughing instrument attached to the tractor. When the tractor is provided with only one seating capacity and it does not allow any other employee even though the insured gives instructions to proceed on such vehicle, during the course of employment, which itself amounts to nothing but the deceased and the injured were sitting on the mudguard and the ploughing machine
- 29 -
negligently. When no seat has been provided to sit on the said instrument or the tractor and if they travel, it amounts to negligence. In that context, the insurer cannot be made liable. The ploughing instrument which has been attached to the tractor for the purpose of operation of agricultural work is an independent machine and it cannot be considered as an extension of the tractor and the injuries suffered by the claimants while working on the ploughing machine, cannot be considered as injuries due to the use of the tractor. In that light also, the injuries suffered by the injured cannot be held as injures suffered during the course of employment and the said instrument cannot be said to be the part of the tractor to cover the risk of the insured.
16. In the light of my above discussion, there is no liability on the insurer to indemnify the compensation to the insured. Co-ordinate Bench of this Court in the
- 30 -
case of Oriental Insurance Co. Ltd. Vs. Jayamma & others in MFA.No.2567/2009, decided on 26.11.2013 and in the case of National Insurance Co. Ltd. Vs. Bramaranbike & others, decided on 8.7.2005 has also held that the insurer is not able to pay any compensation if a person travels on the mudguard.
17. The learned counsel for the claimants contended that the accident has taken place in the course of employment and the provisions of the Act especially Section 147 of the Act makes the insurer statutorily liable to pay the compensation. But, when the tractor was alone without there being any trailor and the ploughing machine attached to the tractor is not considered to be a trailor attached to the tractor, then under such circumstances, even under Section 147 of the Act the insurer statutorily cannot be made liable.
- 31 -
18. As per Section 147 of the Act, insurer is required to cover the risk of certain categories of employees covered under the Section. But, insurer is not under statutory obligation to cover all kinds of employees of the insured. This proposition of law has been laid down in the case of Sanjeev Kumar Samrat Vs. National Insurance Co.Ltd. & others, (cited supra). At paragraph-20, it has been observed as under:-
"20. It is the settled principle of law that the liability of an insurer for payment of compensation either could be statutory or contractual. On a reading of the proviso to Sub-Section (1) of Section 147 of the Act, it is demonstrable that the insurer is required to cover the risk of certain categories of employees of the insured stated therein.
The insurance company is not under statutory obligation to cover all kinds of employees of the insurer as the statute does not show command. That apart, the liability of the insurer in respect of the said covered
- 32 -
category of employees is limited to the extent of the liability that arises under the 1923 Act. There is also a stipulation in Section 147 that the owner of the vehicle is free to secure a policy of insurance providing wider coverage. In that event, needless to say, the liability would travel beyond the requirement of Section 147 of the Act, regard being had to its contractual nature. But, a pregnant one, the amount of premium would be different."
19. On observation of the above precedent it makes clear that it covers risk of certain categories of employees statutorily covered therein not unauthorized or gratuitous passengers when the tractor has been provided with one seating capacity that of the driver alone no other person is covered. In that light, the contention of the learned counsel for the claimants that as per the instructions of the insured they were carrying the agricultural work and they are employees, does not
- 33 -
stand to reason. They cannot become employees when they were not allowed under the law.
20. In so far as the contention which has been taken up by the learned counsel for the claimants that the compensation awarded by the Tribunal is on the lower side is concerned, as could be seen from the judgment of the Tribunal in MVC.559/2014, it was contended that the deceased was doing coolie work and was earning Rs.300/- per day. But in the absence of any material, Tribunal by taking notional income of Rs.5,000/- per month, after deducting 50% towards personal expenses as the deceased was a bachelor, has awarded an amount of Rs.4,80,000/- towards loss of dependency and Rs.70,000/- under the conventional heads. In the normal course, the method adopted by the Tribunal would be justified. However, even in the absence of documentary evidence with regard to the income of the deceased, an overall assessment keeping
- 34 -
in view the avocation and the period of accident will have to be considered. In the instant case, the accident is of the year 2013 and during the said period in respect of daily wage earner, the notional income of Rs.7,000/- per month is the yardstick to be adopted even in Lok Adalat settlements. If that were to be taken into consideration, after deducting 50% towards personal expenses as the deceased was a bachelor, by taking the age of the youngest parent of the deceased and by applying proper multiplier of '16', the claimants are entitled to an amount of Rs.6,72,000/- towards loss of dependency.
21. In so far as the compensation awarded under the conventional heads is concerned, it appears to be just and proper and the same is kept intact. In that light, the claimants are entitled to Rs.7,42,000/- inclusive of the compensation awarded by the Tribunal. In other words, the claimants in MVC.No.559/2014
- 35 -
(cross-objectors in MFA.Crob.100001/2016 in MFA.No.102649/2015) are entitled to an additional compensation of Rs.1,92,000/- with interest at the rate of 6% per annum.
22. In so far as claimants in MVC.Nos.560/2014 and 561/2014 (cross-objectors in MFA.Crob.100003/2016 in MFA.No.102651/2015 and MFA.Crob.100002/2016 in MFA.No.102650/2015) are concerned, as could be seen from Exs.P8 and P13, the wound certificates, the claimants have suffered injury over the forehead left side elbow, right leg, chest and left foot. The doctors who were examined as PWs.4 and 5 have assessed the disability to the extent of 25%. The Tribunal by taking the notional income at Rs.5,000/- per month by taking disability at 18%, has awarded compensation of Rs.2,30,800/- to each claimant. In the absence of fractures and any other material to show how the disability has been assessed and without
- 36 -
referring to any ALMICO book of assessment of disability, the disability assessed to the extent of 20% and 25% respectively appears to be on the higher side. Even the Tribunal ought to have taken 1/3rd of the disability while awarding compensation towards loss of future income. In that light, if the compensation awarded by the Tribunal is reassessed by taking 1/3rd of disability, then the compensation awarded appears to be on the higher side and it is not required to be enhanced. Hence, the same is confirmed.
23. Though I have arrived at a conclusion that the liability fixed on the insurer is not justified under the facts and circumstances and by referring to the decisions quoted by the learned counsel for the parties, there appears to be conflict in the decisions of this Court in respect of the following issues:-
i) Whether a person traveling on a
mudguard of a tractor can be
- 37 -
construed as an authorized
passenger or an unauthorized
passenger and liability of such person is covered or not?
ii) Whether the persons who are working either on the ploughing or crushing machines attached to the tractor can be construed as employees so as to cover their risk statutorily under Section 147 of MV Act though there is only one seating capacity in the tractor apart from the driver?
iii) Whether the crushing machine or ploughing machine or any other instrument attached to the tractor can be considered to be an attachment to the tractor so as to cover the risk of the insured in respect of employees and the policy taken in respect of the tractor alone?
iv) What is the effect of Section 147 of MV Act to cover the statutory risk under the said situation?
- 38 -
24. In that light, I feel that, let the matter be placed before the Hon'ble Acting Chief Justice by the Registry to constitute a Larger Bench in order to resolve the conflicts in the views expressed by different Benches of this Court.
Sd/-
JUDGE *ck/-