Karnataka High Court
The Divisional United India Insurance ... vs Savitri W/O Late Manju Naik, Lamani on 24 January, 2019
Author: A.S Bellunke
Bench: A.S Bellunke
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH R
DATED THIS THE 24th DAY OF JANUARY 2019
BEFORE
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
MFA NO.21440/2012 C/W MFA CROB NO.100158/2015 (MV)
MFA No.21440/2012
BETWEEN:
THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE, UMA MAHESHWARA RAO
BUILDING, STATION ROAD, HOSPETE,
TQ: HOSAPETE, DIST: BALLARI.
REP. BY ITS DIVISIONAL MANAGER
... APPELLANT
(By Sri.: N.R. KUPPELUR, ADV.)
AND :
1. SMT.SAVITRI W/O LATE MANJU NAIK, LAMANI
AGE: 35 YRS, OCC: HOUSE HOLD WORK,
R/LO BASAVANADURGA, NOW RESIDING
AT KUNIKERI THANDA, TQ. & DIST. KOPPAL
2. KUMAR MARIYA NAIK
S/O LATE MANJU NAIK, LAMANI
AGE: 12 YEARS, OCC: STUDENT,
R/O BASAVANADURGA, NOW RESIDING AT
KUNIKERI THANDA, TQ. & DIST: KOPPAL
3. KUMARI DIVYA BHARATI
D/O. LATE MANJU NAIK LAMANHI
AGE : 14 YEARS, OCC : STUDENT
R/O BASAVANADURGA, NOW RESIDING AT
KUNIKERI THANDA, TQ. & DIST: KOPPAL
RESPONDENT NOS. 2 AND 3 ARE MINORS, REP/BY THEIR
NATURAL GUARDIAN RESPONDENT NO.1.
2
4. SMT. SONUBAI W/O SAKRA NAIK, LAMANI
AGE: 62 YRS, OCC: STUDENT,
R/O BASAVANADURGA, NOW RESIDING AT
KUNIKERI THANDA, TQ. & DIST: KOPPAL
5. SRI. SAKRA NAK @ SHANKAR NAIK
S/O HOBA NAIK, LAMANI
AGE: 72 YRS, OCC: STUDENT,
R/O BASAVANADURGA, NOW RESIDING AT
KUNIKERI THANDA, TQ. & DIST: KOPPAL
... RESPONDENTS
(By Sri.: S. S. YALIGAR, ADV. FOR R1, R4 AND R5,
R2 AND R3 ARE MINORS R/BY - R1,
R7 - SERVED)
THIS MFA FILED U/SEC.173(1) OF THE MV ACT, 1988,
AGAINST THE JUDGEMENT AND AWARD DTD:27-12-2011,
PASSED IN MVC NO.482/2010 ON THE FILE OF THE MEMBER
AMACT, PRESIDING OFFICER, FTC-I, KOPPAL, AWARDING
COMPENSATION OF RS.4,10,000/- WITH COSTS AND SIMPLE
INTEREST AT 6% P.A., FROM THE DATE OF THIS PETITION TILL
THE DATE OF REALISATION.
MFA CROB NO.100158/2015 (MV)
BETWEEN :
1. SAVITRI W/O LATE MANJU NAIK, LAMANI
AGE: 35 YRS, OCC: HOUSE HOLD WORK,
R/LO BASAVANADURGA, NOW RESIDING
AT KUNIKERI THANDA, TQ. & DIST. KOPPAL
2. KUMAR MARIYA NAIK
S/O LATE MANJU NAIK, LAMANI
AGE: 15 YEARS, OCC: STUDENT,
R/O BASAVANADURGA, NOW RESIDING AT
KUNIKERI THANDA, TQ. & DIST: KOPPAL
3. KUMARI DIVYA BHARATI
D/O. LATE MANJU NAIK LAMANHI
AGE : 14 YEARS, OCC : STUDENT
R/O BASAVANADURGA, NOW RESIDING AT
KUNIKERI THANDA, TQ. & DIST: KOPPAL
3
4. SMT. SONUBAI W/O SAKRA NAIK, LAMANI
AGE: 65 YRS, OCC: STUDENT,
R/O BASAVANADURGA, NOW RESIDING AT
KUNIKERI THANDA, TQ. & DIST: KOPPAL
5. SRI. SAKRA NAK @ SHANKAR NAIK
S/O HOBA NAIK, LAMANI
AGE: 75 YRS, OCC: STUDENT,
R/O BASAVANADURGA, NOW RESIDING AT
KUNIKERI THANDA, TQ. & DIST: KOPPAL
... CROSS OBJECTORS
(By SRI.: SIDDAPPA SAJJAN, ADV. FOR
SRI.: S. S. YALIGAR, ADV. )
AND :
1. K. MALLIKARJUN S/O. K.PAMPATI,
AGE: 53 YEARS, OCC: DRIVER OF T & T
BEARING NO.KA-35/T-6015-6016,
R/W: WARD NO.17, KAMALAPUR,
TQ: HOSPET, DIST.-BALLARI.
2. SMT. ANGADI NEELAMMA
W/O LATE DEVENDRAPPA
AGE : 53 YEARS, OCC : BUSINESS,
R/O : UPPARAHALLI, TQ : HOSPET,
DIST : BALLARI
3. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE, UMA MAHESHWARA RAO
BUILDING, STATION ROAD, HOSPETE,
TQ: HOSAPETE, DIST: BALLARI.
REP. BY ITS DIVISIONAL MANAGER
4. K. HULAGAPPA, S/O: HANAMANTAPPA,
AGE : 53 YEARS, OCC: DRIVER OF
T & T BEARING NO.KA-35/M-2867 & 2719,
R/O: BASAVAMDADIRGA. TQ: HOSPET,
DIST: BALLARI.
5. SRI. M.SATISH S/O HARINATH BABU
AGE: 55 YEARS, OCC : BUSINESS,
R/O: DAM ROAD, HOSAPETE
DIST :BALLARI,
4
6. SRI. LINGANAGOUDA S/O H.KOTRAGOUDA
CHITRAPALLI, AGE : MAJOR,
TQ : H.B.HALLI, DIST : BALLARI.
... RESPONDENTS
(By Sri : N R KUPPELUR, ADV. FOR R3
R1, R2, R4, R5 & R6 NOTICE IS DISPENSED WITH)
THIS MFA CROB FILED UNDER ORDER 41 RULE 22 OF
CPC, R/W SEC. 173(1) OF MV ACT, AGAINST THE JUDGMENT
AND AWARD DATED: 27.12.2011, PASSED IN MVC NO.482/2010
ON THE FILE OF THE MEMBER ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, AND PRESIDING OFFICER FAST TRACK
COURT-I AT KOPPAL. PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
RESERVED FOR JUDGMENT ON : 15.12.2018
JUDGMENT PRONOUNCED ON : 24.01.2019
THIS APPEAL AND CROSS OBJECTION HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING :
JUDGMENT
MFA No.21440/2012 has been preferred by the United India Insurance Company Limited, Hospet for the liability fastened on it, and MFA Crob No.100158/2015 has been preferred by the claimants for enhancement of the compensation against the judgment and award passed in MVC No.482/2010 on the file of Additional Motor 5 Accidents Claims Tribunal (herein after referred to as Tribunal), Fast Track Court-I, Koppal, dated 27.12.2011.
2. The brief facts of the case for the purpose of the appeal and cross objection are that, on 17.05.2010 one Manju Naik and others were traveling in tractor and trailer bearing registration No.KA.35.M.2867.T.2719 from Kamalapur to Hospet road. The said tractor driven by respondent No.1. When the tractor reached near Ganesh Temple, another tractor and trailer bearing registration No.KA.35.T.6015/6016 came in a high speed, rash and negligent driving of the driver of the said tractor and trailer and thereby dashed to the tractor and trailer in which the deceased Manju Naik was traveling. On account of the said accident, both the tractor and trailer toppled down and said Manju Naik suffered grievous injuries and admitted to the Government hospital for treatment. He was later shifted to VIMS Ballari. Subsequently the injured 6 succumbed to the injuries suffered by him in the accident.
3. The claimants are the legal heirs of the deceased, have filed a claim petition under Section 166 of M.V. Act claiming compensation. It is contended that untimely death of their bread earner, the wife, children and parents of the deceased have suffered irreparable loss. The claimants contended that, they have spent a sum of Rs.30,000/- towards funeral expenses. The deceased was hale and healthy at the time of accident. He was doing agricultural work and milk vending business. He was earning Rs.10,000/- per month. He was the only bread earner of the family. The accident occurred on account of rash and negligent driving of respondent Nos.1 and 4. Respondent Nos.2, 5 and 6 are the owners of the said two vehicles. Respondent Nos.3 and 7 are being Insurer of both the vehicles are jointly and severally liable to pay the compensation to the 7 claimants. The claimants have claimed compensation of Rs.16,10,000/-
4. The Tribunal after registering the case, issued notice to the respondents. Petition against respondent No.5 has been dismissed and remaining respondents have appeared through their counsel and have filed their objections.
5. The first respondent has denied that he is negligent. He further contended that compensation, if any, respondent No.3- Insurance company is liable to pay the amount of compensation. Respondent No.3 has denied that the accident occurred due to rash and negligent driving of driver of the tractor and trailer bearing No.KA.M.2867.T.2719. He further contended that respondent No.2 being the owner of the said vehicle has to produce necessary documents. The respondent No.1-the driver was not having valid driving license at the time of accident. The accident occurred on account of rash and negligent act of 8 respondent No.4. Therefore, owner and driver of the said vehicle are liable to pay the compensation.
6. Respondent No.4 filed his objections and denied the age, income and occupation of the deceased and contended that respondent No.7 has to pay the compensation.
7. Respondent No.6 has adopted the objections of respondent No.4. Respondent No.7 also has denied the age, income and occupation of the deceased. He has denied the amount spent for funeral expenses. Police authority have wrongly filed the charge sheet against respondent No.4. He further contended that respondent No.4 did not have valid driving license. Therefore, he is not liable to pay the compensation. Hence, he prayed to dismiss the petition filed against him.
8. On the basis of above said facts, the Tribunal framed the following issues. 9
1) ¢£ÁAPÀ:17-5-2010gÀAzÀÄ ªÀÄzsÀågÁwæ 00-30 UÀAmÉUÉ PÀªÀįÁ¥ÀÆgÀ ºÉƸÀ¥ÉÃmÉ gÀ¸ÉÛAiÀÄ°è UÀuÉñÀ zÉêÀ¸ÁÜ£ÀzÀ ºÀwÛgÀ PÀªÀįÁ¥ÀÆgÀzÀ°è mÁæöåPÀÖgÀ mÉæîgï ¸ÀASÉå:PÉJ-35/n-6015-6016£ÉÃzÀÝgÀ ZÁ®PÀ£ÁzÀ 1£Éà JzÀÄgÀÄUÁgÀ£ÀÄ ªÀÄvÀÄÛ mÁæöåPÀÖgÀ mÉæîgï ¸ÀASÉå:PÉJ-35/JA-2867-
2719£ÉÃzÀÝgÀ ZÁ®PÀ£ÁzÀ 4£Éà JzÀÄgÀÄUÁgÀgÀ ZÁ®PÀgÀÄ Cwà ªÉÃUÀªÁV ªÀÄvÀÄÛ CeÁUÀgÀÆPÀvɬÄAzÀ £ÀqɹPÉÆAqÀÄ §AzÀÄ rQÌ ºÉÆqɹzÀ ¥ÀjuÁªÀĪÁV F C¥ÀWÁvÀªÁVzÀÄÝ ¸ÀzÀj C¥ÀWÁvÀzÀ°è ªÀÄÈvÀ ªÀÄAdÄ £ÁAiÀÄPÀ wêÀæ ¸ÀégÀÆ¥ÀzÀ UÁAiÀÄUÀ¼À£ÀÄß ºÉÆA¢ aQvÉì ¥ÀqÉAiÀÄÄwÛgÀĪÁUÀ ªÀÄÈvÀ ¥ÀnÖzÁÝgÉ CAvÁ ¹zÀÝ¥Àr¹zÁÝgÉAiÉÄ?
2) CfðzÁgÀgÀÄ ¥ÀjºÁgÀ ºÀtªÀ£ÀÄß ¥ÀqÉAiÀÄ®Ä ¨ÁzsÀågÀÄ EzÁÝgÉAiÉÄÃ?
DVzÀÝ°è JµÀÄÖ ºÀtPÉÌ ªÀÄvÀÄÛ AiÀiÁjAzÀ ¥ÀjºÁgÀ ¥ÀqÉAiÀħºÀÄzÀÄ?
3) AiÀiÁªÀ DzÉñÀ?
9. After holding the trial and on the
material available and the evidence on record, the Tribunal has awarded compensation as under :
Sl. Amount
Particulars
No. in Rs.
1 Loss of Income 3,80,000/-
2 Loss of Consortium 10,000/-
3 Loss of Love and 10,000/-
Affection
3 Funeral expenses 10,000/-
Total 4,10,000/-
10. The learned Tribunal held that the
drivers of both the vehicles were rash and negligent 10 and were responsible for the accident. Both the drivers had valid driving license and the policy were in force as on the date of accident. Therefore, the owner and the Insurer were jointly and severally directed to pay the compensation. The negligence was fixed in the ratio of 50:50 on the drivers of both the vehicles.
11. The Tribunal in the absence of documents, the Tribunal had assessed the income of the deceased at Rs.3,000/- per month. The age of the deceased was found to be 35 years at the time of accident. Hence, multiplier of '16' was adopted as per the decision of Hon'ble Supreme court in the case of Sarla Verma and others V/s. Delhi Corporation. After deducting 1/3 r d towards personal expenses of the deceased¸ a sum of Rs.3,80,000/- was awarded as compensation under the head of loss of income.
12. The learned counsel for the appellant- Insurance company in MFA No.21440/2012 has 11 contended that Tribunal has wrongly fastened the liability on the Insurance company. He further contended that immediately after the accident, a criminal case was registered against the driver of the tractor and trailer unit bearing No.KA.35.T.6015/6016. Thereafter, the charge sheet was filed against one Mallikarjun, the first respondent. The charge sheeted driver had valid and effective driving license to drive the tractor and trailer unit. At the time of accident, the driver had not possessed the driving license to drive a Heavy Transport Vehicle. He was not authorized to drive the tractor and trailer unit. Both the vehicles were carrying unauthorised passengers. He further contended that the deceased was an unauthorized passenger and the insurance policy in respect of the TT unit No.KA.35.2867-2719 was miscellaneous Special Type of vehicles policy, which did not extend coverage to the unathorised passengers. Therefore, the Insurance company is not liable to pay any 12 compensation, hence, the judgment and award passed by the Tribunal requires to be set aside.
13. Learned counsel for the Cross objectors in MFA No.100158/2015 have contended that no defense as such raised before the Tribunal alleging that injured persons were traveling as passengers in the tractor and trailer. The driving license of the drivers have been produced before the Tribunal. No such defense has been taken that the driver had the license. The name of the driver rightly mentioned in the mahazar as well as inquest panchanama. The Cross objectors are third party. The liability is correctly fixed on the owner and on the Insurer. The age of the deceased was 36 years at the time of accident. As per post mortem report, he was 36 years old. An amount of Rs.7,000/- per month should have been taken as the income of the deceased. While settling the matter in lok Adalath in the year 2010, the income of the coolie is taken at Rs.5,500/-. The date of accident is also 2010. 13 The minimum wages that were earned by the labourer was at Rs.200/- per day. Therefore, learned counsel for the cross objectors has prayed to allow their cross objection and to dismiss the appeal filed by the Insurance company.
14. Learned counsel for the Insurance company submitted that, earlier the name of driver mentioned in the complaint, had no valid driving license at the time of accident. Therefore, he has been left out and subsequently another person's name was inserted. Therefore, learned counsel has submitted that the Insurance company is not liable to pay the compensation. On the basis of the facts of the case, the points would arise for consideration are :
1. Whether the respondent Nos.2 to 5
prove that the finding of the Tribunal that the fastening the liability on the Insurance Company to pay the compensation is erroneous in law, facts and evidence on record ?
2. Whether the cross objectors prove that they are entitled for 14 enhancement of the compensation? If yes, what is the quantum and from whom they are entitled to recover ?
3. What order or award?
15. Point No.1 in the negative Point No.2 in the affirmative and Point No.3 as per the final order.
16. In this case Insurer tried to avoid his liability on two grounds. The first one is that the driver of the tractor had no valid driving license. Therefore, another person was implicated, who had valid driving license. The next ground is that the deceased was an unauthorized passenger in the tractor and trailer. To substantiate these grounds subsequently, some other persons have been implicated in the case. The insurance company relying on the complaint that was filed at the very first instance i.e., immediately after the accident, as per Ex.P2, contented that the tractor and trailer in which complainant was traveling was bearing No.KA-35/T-6015-6016. The tractor which came 15 from opposite direction along with the trailer was bearing No.KA-35-M-2867, T-2719. The deceased Manju Naik and others were traveling in the said tractor and trailer. For what purpose the other side vehicle was carrying the passengers is not forthcoming from the complaint in question.
17. As per charge sheet at Ex.P2, the accused No.1 Hulagappa Hanamanthappa K. the driver of the tractor bearing No.KA-35-M-2867 and trailer bearing No.KA-35-T-2719 and accused No.2 Mallikarjun S/o. Pampapathi the driver of the tractor bearing No.KA-35-T-6015 and trailer bearing No.KA-35-T-6016 were prosecuted. The trial Court has rightly assessed the negligence on the part of both the drivers of the tractor and trailer and held that the accident was on account of rash and negligent act of both the drivers. To set aside the said finding, no evidence or material is there on record. Ex.P11 is the attested copy of driving license of driver Hulagappa. Ex.P12 is the attested 16 copy of the driveling license of other driver K. Mallikarjun. The accident occurred on 17.05.2010, the driveling license at Ex.P11 was valid up to 19.03.2011 and the other driving license is valid up to 22.09.2011. There is no allegation in the charge sheet that the drivers of both the vehicles had no valid driving license as on the date of accident.
18. The Insurance company has examined its witness RW1 and 2. According to the evidence of RW1, the deceased Manju Naik was not a labourer in tractor and trailer bearing registration No.KA-35- M-2867/T-2719. But, he was said to have been unauthorized passenger. As per the complaint, the Ex.P2 it is the other vehicle had caused the accident occurred. So far as the deceased is concerned, he was traveling in the above said vehicle. He claims, he said to have been a labourer in the said vehicle. RW1 admitted that the policy which was issued is by their company. But contended that the insured has intentionally and 17 deliberately allowed to carry passengers in it, against the seating capacity permitted in the R.C. It is against to the terms and conditions of the insurance policy. Ex.R4 has not been rebutted or traversed in the evidence.
19. RW2 has spoken about police records. He has deposed that unauthorized passengers were traveling in the tractor and tailor bearing No.KA- 35/T-6015-6016. It is not stated that the deceased Manju Naik who is traveling as unauthorized passenger in the other tractor and trailer. It is also admitted that the deceased was traveling in the vehicle belonging to respondent Nos.4 and 6. The registration and extracts certificates are also on record. The Insurance company is failed to prove that the drivers of both the vehicles had no driving license as on the date of accident.
20. The question that comes whether the deceased Manju Naik was unauthorized passenger in the tractor and trailer bearing registration 18 No.KA-35/M-2867/T-2719. As per Police records pertaining to tractor and trailer bearing No.KA-35- M-2867 trailer is covered by policy. The copy is produced at Ex.R1. The premium for tractor as well as trailer is paid for loading on OD premium and compulsory personal accident covers to owner-cum- driver and one employee as covered under the policy. Further the purpose of trailer is also shown to be for non agriculture purpose. And it also covers one employee.
21. Rule 100 of Karnataka Motor Vehicles Rules, 1989 provides as under :
(1) Subject to the provisions of this rule, no person shall be carried in a goods vehicle;
Provided that the owner or the hirer or a bona f ide employee of the owner or the hirer of the vehicle carried free of charge or a police officer in uniform traveling on duty may be carried in a goods vehicle, the total number of persons so carried,-
(i) in light transport goods vehicle having registered laden weight less than 990 kgs, not more than one;
19
(ii) in any other light transport goods vehicle not more than three; and
(iii) in any goods vehicle not more than seven:
Provided that the provision of sub- clauses (ii) and (iii) of the above proviso shall not be applicable to the vehicles plying on inter-State routes or the vehicles carrying goods from one city to another city."
22. On perusal of the above said provision of law, it is clear that the owner or the hirer or even bonafide employee of the owner or the hirer of the vehicle can carry persons not more than one in light transport goods vehicle and not more than three in any other light transport goods vehicle. I have already referred the policy that was issued by the Insurance company in respect of the vehicle, in which the deceased Manju Naik was traveling. It was used for non agricultural purpose as transport vehicle. It is the specific case of the claimant that the deceased was an agricultural labourer had gone to Seetaram Tanda to bring paddy gross. That was 20 a sandy day. Therefore, he cannot said to be unauthorized passenger.
23. The learned counsel for the appellant- Insurer also relied upon the decision rendered by the learned Single Judge of this Court in MFA No.23584/2014 at para No.2 of the judgment is held as under :
"2. T he substan tial question of la w raised in this appeal is as to whe ther the Co mmiss ioner was justif ied in f asten ing liab ility on the appellan t-in surance co mp any with regard to risk of coolie, as he was not covered by p aying ad ditional pre miu m by the o wner of trac tor-tr ailer. T he af oresaid question of law h as been ans wered by Div ision Bench judgment of th is Court in the case of National Insurance Company Limited vs. Sri. Maruthi and Others reported in ILR 2011 KAR 4139 ag ainst the appellan t/ insurer."
24. The learned counsel also relied upon the judgment of learned Single Judge of this Court in 21 the case of United India Insurance Co. Ltd., V/s. Sri. Mayappa and others in MFA NO.20648/2012 (WC) and in the case of The Divisional Manager, V/s. Vaddar Anjini S/o Hanumantappa and another in MFA No.24552/2013(WC) and also in the case of United India Insurance Co.Ltd., Simla V/s. Tilak Singh reported in LAWS(SC)-2006-4-40 Therefore, I find that the Insurance company cannot escape from its liability on any of the grounds that are urged before this Court. Moreover, the claimants are claiming compensation from the joint tort-feasor i.e., the owner of both the vehicles and the Insurer of both the vehicles. Therefore, whether he is an unauthorized or not would not in any way affect the right of the claimants to recover the compensation from any one of the joint tort-feaser. Even assuming for the sake of arguments that the tractor in which the deceased was traveling as passenger he is not barred to recover the entire compensation from any one of the owners of the 22 vehicles involved in the accident, even from the owner of other tractor and trailer. Therefore, the Insurance company cannot avoid its liability.
25. It is also held in the case of National Insurance Company Limtied Vs. Sri. Maruthi and Others reported in ILR 2011 KAR 4139 as under :
"WORKMEN'S COMPENSATION ACT, 1923 - SECTION 30(1) - Accident during the course of employment -Claimants claimed to be the coolies traveling in Tractor-Trailer, sustained injuries due to accident- Claim Petition -Finding of the Workmen's Compensation Commissioner is that the insurer is liable to indemnify the owner as the Tractor-Trailer was a goods vehicle meant for carrying agricultural operations and the claimants being coolies under the owner having met with an accident, sustained injuries, insurer is liable to compensate the injured - Award - Appealed against by the Insurer-Definition of "Tractor" & "Trailer" - "Motor Vehicle" - "Goods"
& "Goods Carriage" - Discussed - HELD, 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 23
- 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 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 traveling 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. - FURTHER HELD, 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 24 Rule 226 of the Karnataka Motor Vehicles Rules is relevant is rejected and the same will not authorize or permit the insurer to avoid the liability. - 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 insure. However, this is subject to the limitations envisaged under Section 147(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). - (1) MOTOR VEHICLES ACT, 1988 - SECTIONS 147, 149 - LEGISLATIVE INTENT UNDER - (2) MOTOR VEHICLES ACT, 1988 - SECTION 2(44) - DIFINITION OF TRACTOR - SECTION 2(46) - DEFINITION OF TRAILER - SECTION 2(28) - MOTOR VEHICLE - SECTIONSO 2(13) & 2(14) - "GOODS" & "GOODS CARRIAGE" - SECTION 6 - POLICIES - LIABILITY ONLY POLICY - PACKAGE POLICY -
DISCUSSED."
26. Further, it is also held in the case of The Divisional Manager, United India Assurance Co.Ltd., Vs. Neelaiah and Others which is also 25 applicable to the present case in hand with all force in the said judgment, it is held as under:
"T ractor -tr ailer is a goods c arr iage. - Under the M.V. Act, by Section 2(14) and (47), the def in itio n of trac tor-tr ailer would def initely ind icate , when the trailer drawn or in tended to be drawn by a motor vehicle, it beco me s a goods veh icle.
FURTHER HELD,
(a) T he co mb inatio n of trac tor-tr ailer is held to be noth ing short of goods carriage, by vir tue of Section 147(1)(b) of f ully worded policy read with Section 147 of the Act, the risk of coolies tr aveling in a tr ac tor-tr ailer is covered. T he claiman ts were neither gratu itous p assengers nor passengers who were tr aveling in the tr ac tor-tr ailer f or the purpose o ther th an agricul tur al operations. - T he risk of cool ies tr aveling in tr ac tor-tr ailer as e mployees of the o wner of the vehicle is insured under the Insurance policy as per Section 147(1)(b) of the Ac t. -In surance policy issued by the appellan t-insurer covers both tr ac tor as well as trailer.
(b) T here is no io ta of evidence led by the appellan t- insurer to contend th at the claim has to be limited to the entitle men t of compensation under the Work men's Co mp ensation Act, 1923. -
T he whole f ocus of the insurer was to establish th at the claiman t was tr aveling in the trac tor-tr ailer as a passenger, bu t insurance pol icy of off ending tr ac tor-tr ailer do not cover the risk of the passengers. - No plea 26 was taken by th e appell ant - insurer th at in case the claiman t is held to be entitled to co mpensation, beyond the extent of liab ility under the W.C. Act, the same was not payable as no extr a pre miu m was paid by the insured/o wner under the policy of insurance. - This plea was not contended even in the evidence led by the appellan t- insurer. T hus, this ple a was never put to test or addressed by the T ribunal. Hence, the ground no w urged by the insurance co mp any straigh t a way at the appellate s tage cannot be g iven eff ect to and is not f it to be sustained."
From the above said settled law, the deceased traveling in the tractor as coolie, who had gone to bring paddy gross would be entitled for compensation for the tort committed by the driver and owner of the vehicle. The insurer cannot avoid his liability in such cases.
27. Therefore, Insurance Company of both the vehicles is liable to pay the enhanced compensation, as per the quantum of the negligent fixed by the Tribunal. The Insurance company has not lead any rebuttal evidence as such to prove that 27 any one of the vehicle driver was negligent in the accident. Hence, it is the Insurance Company to satisfy the award. Accordingly, point No.1 answered in the negative.
28. Now coming to the point for enhancement of compensation, the claimants had contended that the deceased was an agricultural labourer and he was also doing milk vending business. Therefore, he was earning Rs.10,000/- to Rs.15,000/- per month in all. The accident is of the year 2010. The deceased was the person having capacity to generate the income. In the absence of documentary evidence, reasonable income for the deceased can be assessed having regard to the facts and circumstances of the case. However, the Tribunal has assessed the income of the deceased at Rs.3,000/- per month. I find it is quite lower side having regard to the number of dependants to the deceased. He could have earned less than Rs.4,500/- per month. Future prospects can be 28 added to the said income, as laid down in the case of National Insurance Company Limited Vs. Pranay Sethi and others reported in AIR 2017 SC 5157. Therefore, 40% of the income is to be added as future prospects. The gross income of the deceased would be Rs.4,500+40% = 1,800/- per month. The net income would be Rs.6,300/- per month. After deducting personal expenses at 1/3 r d and applying multiplier of '16' the loss of future income would be:
6,300-1/3=4200x12x16 = 8,06,400/-
As regards other conventional heads like transportation of dead body, funeral expenses, etc., could be quantified at Rs.15,000/- each. The claimant No.1 is entitled for consortium of Rs.40,000/-, the children and parents are also entitled for loss of love and affection at Rs.20,000/-
each. Therefore, the compensation enhanced to the claimants is as below :29
1 Loss of dependency 8,06,400/-
2 Loss of consortium to claimant No.1 40,000/- 3 Loss of Love and affection in respect of 40,000/- claimant No.2 and 3 at Rs.20000/-each 4 Loss of Love and affection in respect of 40,000/- parents, each Rs.20,000/-
5 Transportation of dead body 15,000/- 6 Funeral expenses 15,000/-
TOTAL 9,56,400/-
29. Thus, the total compensation is
Rs.9,56,400/-. After deducting compensation of
Rs.4,10,000/- awarded by the Tribunal, the
enhanced compensation would be Rs.5,46,400/-
Accordingly, point No.2 is answered in the
affirmative holding that the claimants are entitled to enhanced compensation along with future interest @ 6% per annum from the Insurance company from the date of the claim petition till realization. The apportionment and deposit ordered by the Tribunal shall hold good for enhanced compensation. The appeal filed by the cross-
objectors in MFA No.100158/2015 is allowed in 30 part and the appeal filed by the Insurance company in MFA No.21440/2012 is hereby dismissed.
The Insurance company is directed to deposit the enhanced compensation along with the proportionate interest within a period of six weeks from the date of receipt of certified copy of the judgment.
The amount in deposit made before this Court, shall be transmitted to the Tribunal forthwith.
Parties to bear their respective costs.
Sd/-
JUDGE MNS/