Parsottambhai Banbhal v. Panchiben alias Ratanben — 1977 DIGILAW 15 (GUJ)

JUDGMENT : D.A. DESAI, J. 1. This appeal is preferred by original respondent Nos. 1, 2 and 4 in claim petition No. 45 of 1972 on the file of the Motor Accidents Claims Tribunal, Surat wherein an award was made in favour of the claimants in the amount of Rs. 25,000/- plus costs and interest at 6% as and by way of compensation for the loss suffered by the claimants on account of the death of Vanmalibhai Mohanbhai who died in an accident that occurred on June 1, 1971 at about 12-00 noon on Bardoli-Surat State Highway. It is alleged that this Vanmalibhai was proceeding from Kadodra to Surat on his motor-cycle bearing No. GJB-7875 and when he was about to reach Laxmi Auto Garage near Octroi Naka of the Surat Municipal Corporation, a tractor was seen coming from the opposite direction. It was being driven by respondent No. 2 who was employed by respondent No. 1 for driving the tractor bearing No. GJL-8252 to which a trailer bearing No. GYC-7251 was attached. It is alleged that the tractor was being driven rashly and negligently in the middle of the road. It swerved suddenly with the result that the trailer body protruded out and knocked down the rider of the motor cycle and the tractor proceeded ahead and was stopped at some distance. Deceased Vanmalibhai was thrown off the motorcycle and he became unconscious. He was removed to the Civil Hospital where he succumbed to the injuries on the evening of the same day around 7.30 p.m. The claimants say that the deceased was 34 years at the time of his death and was in good health and he was doing the business of manufacturing and selling bricks. The claimants after ascertaining that they are entitled to compensation in a large amount, restricted it to Rs. 25,000/-. 2. Respondent No. 1, the owner of the trailer and the tractor, contested the petition as per his written statement, Ex.19 inter-alia contending that respondent No. 2 was driving the tractor at the material time but it was denied that he was doing it in a rash and negligent manner. It was contended that the tractor was insured with original respondent No. 3, and the trailer was insured with original respondent No. 4. He denied that the deceased was doing the business of manufacturing and selling bricks or that his income was Rs. It was contended that the tractor was insured with original respondent No. 3, and the trailer was insured with original respondent No. 4. He denied that the deceased was doing the business of manufacturing and selling bricks or that his income was Rs. 12,000/- per annum and denied any liability to pay any compensation. 3. Original respondent No. 2, the driver of the tractor and the trailer, filed his written statement at Exh.20 in almost identical terms with one filed by original respondent No. 1. 4. Original respondent No. 3, the Hindustan Ideal Insurance Company Limited, filed its written statement at Ex.31 inter-alia contending that the petition is not maintainable against it and adopted various contentions raised by original respondent No. 1. 5. Original respondent no. 4 the Skandia Insurance Company Limited, filed its written statement at Ex.24 inter-alia contending that the trailer was insured with it, but as it is such a vehicle which has no locomotion, it is incapable of being involved in an accident and, therefore, it would not be liable for the compensation claimed by the claimants. 6. On the pleadings of the parties, the Tribunal raised four issues. On the first issue, the Tribunal held that deceased Vanmalibhai died in an accident which arose on account of rash and negligent driving of the tractor bearing No. GJL-8252 belonging to original respondent No. 1 Parsottambhai Kanbhai Patel and at the material time being driven by original respondent no. 2, Gopalbhai alias Bhulabhai Nathubhai. It was further held that the original respondents are liable to pay compensation to which the claimants were entitled. The Tribunal, on the evidence, adjudicated the compensation in the amount of Rs. 25,000/- and awarded the same. 7. Against the aforementioned award the present appeal is preferred by original respondent No. 1, the owner of the tractor and the trailer, original respondent No. 2, the driver of the tractor and original respondent No. 4, the insurance company with which the trailer was insured. The insurance company with which the tractor was insured has not questioned the correctness of the award. 8. Mr. The insurance company with which the tractor was insured has not questioned the correctness of the award. 8. Mr. M.H. Chhatrapati, learned advocate who appeared for the appellants, urged that, when the motor vehicle consists of a tractor and a trailer and both are insured with different insurance companies, that insurance company would be liable to indemnify the insured with whom the tractor was insured because the tractor has locomotion and the trailer has no locomotion and the trailer by itself was unlikely to be involved in a motor accident. Approaching the matter from this angle, it was urged that original respondent No. 4, appellant No. 3 herein, would not be liable to indemnify the insured because only the trailer was insured with it. We are not inclined to examine this contention at all though even if it is decided one way or the other, it makes no differences in the outcome of the appeal. In the written statement Ex.24 filed by original respondent No. 4 the Skandia Insurance Company Limited, a contention was taken that the trailer which was insured with it was not such a vehicle as can be driven independently and, therefore, if the court comes to the conclusion that there was negligence on the part of original respondent No. 2 in driving the tractor, that insurance company alone would be responsible with which the tractor was insured and not the trailer. This contention though taken was not pressed before the Tribunal. No issue has been framed on this point, and this contention does not appear to have been convassed before the Tribunal. In the appeal memo, the contention is that the Tribunal ought to have accepted the contention raised on behalf of original respondent No. 4 that the trailer was not a motor vehicle and hence, opponent No. 4 would not, in any way, be liable to pay the compensation to the claimants. The contention having not been convassed before the Tribunal, cannot be permitted to be raised here. 9. Mr. Chhatrapati, however, urged that it is a pure contention of law and, therefore, the court should examine it. We were just inclined to accede to Mr. Chhatrapati's request. The contention having not been convassed before the Tribunal, cannot be permitted to be raised here. 9. Mr. Chhatrapati, however, urged that it is a pure contention of law and, therefore, the court should examine it. We were just inclined to accede to Mr. Chhatrapati's request. But we requested him to point out from the terms of the policy of insurance in respect of the trailer as to what position it adopted with regard to the driving of the trailer and whether there was a particular condition in respect of driving of the trailer. It was clearly stated that the policy of insurance in respect of the trailer is not on record. We are, therefore, asked to examine this contention without pointing out a specific contract of insurance or terms thereof. Mr. Chhatrapati, however, drew our attention to the decision of the High Court of Australia in National and General Insurance Co. Ltd. vs. State Government Insurance Office, 1973 ACJ 299. In that case, a passenger in a car was injured in a collision between a car and a prime-mover which was pulling a trailer. In the claim for compensation, both the insurance companies one of the prime-mover and one of the trailer were impleaded. The owner of the articulated vehicle consisting of the prime-mover and a detachable trailer had become the defendant in the action by election. The insurance companies invited the court to decide whether the company with which the trailer was insured would be liable to contribute to the compensation awarded to the injured. The High Court of Australia answered it in favour of the insurance company with which the trailer was insured. In reaching his conclusion, a reference was first made to the definition of the expression "motor vehicle" in the Motor Vehicle Insurance Acts, of the State of Queensland. A reference was also made to the finding of fact that the injury was caused by operation of the prime-mover and it was not caused by the use of the trailer. It is on this finding of fact that the claim for contribution by the insurance company of the trailer was negatived. A reference was also made to the finding of fact that the injury was caused by operation of the prime-mover and it was not caused by the use of the trailer. It is on this finding of fact that the claim for contribution by the insurance company of the trailer was negatived. The Motor Vehicles Act, 1939, comprehend different types of motor vehicles such as goods vehicle section 2 (8), heavy motor vehicle section 2 (9), light motor vehicle section 2 (13), medium motor vehicle section 2 (14), motor cab section 2 (15) and motor car section 2 (16). The expression "motor vehicle" is defined in section 2 (18) to mean any "mechanically propelled vehicle adopted for use upon roads whether the power of propulsion is transmitted from an external or internal source and includes a chasis to which a body has not been attached and a trailer but does not include a vehicle running upon fixed rails or vehicle of a special type adapted for use only in a factory or in any other enclosed premises." It becomes crystal clear that the expression "motor vehicle" includes a trailer. Chapter VIII of the Motor Vehicles Act provides for insurance of a motor vehicle against third party risks. Section 94 imposes an obligation to take insurance against third party risks. It prohibits use of a motor vehicle in a public place unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of the chapter. As the trailer is included in the expression "motor vehicle" it was required to be insured. 10. As the law imposes an obligation for taking out insurance against third party risks in respect of a motor vehicle, it became necessary to take insurance in respect of the tractor and trailer. The peculiar argument that Mr. Chhatrapati has developed arises from the fact that the owner of the tractor and the trailer being the same person, yet he chose to take insurance in respect of the tractor from one insurance company and in respect of the trailer from the other insurance company. If this contention was put forward before the Tribunal, a very interesting question would have been argued about the inter-se liability of both the insurance companies or one against the other. If this contention was put forward before the Tribunal, a very interesting question would have been argued about the inter-se liability of both the insurance companies or one against the other. But we are called upon to examine this question on the fats placed before us. The liability to compensation arises from the use of the motor vehicle. The contract of insurance is a contract of indemnity. When in this case, both the tractor with the attached trailer were moving along the road, both the vehicles were used in a public place. The accident occurred in a public place. The trailer at that time was attached to the tractor, as would be presently pointed out while examining the contention of Mr. Chhatrapati on the question of negligence. It would be worth-while to keep in mind the finding of the Claims Tribunal that it was the trailer which knocked down the deceased. If the trailer was possibly not attached, the gruesome accident would as well have been avoided. This would become clear when we examine the next contention. Suffice it to say here that the liability to compensation of the insured has arisen by the use of both of the tractor and the trailer and both the insurance companies in the facts and circumstances of this case would be liable to satisfy the claim of the claimants. What is being examined is the contention of Mr. Chhatrapati that the trailer being not a prime-mover, not having locomotion, the insurance company of the trailer would not be liable as the accident occurred when the trailer was being pulled by the tractor and the driver of the tractor was shown to be negligent. It is a very interesting argument for this reason that, if Mr. Chhatrapati is wholly right, then the trailer need not be insured at all. A trailer can never be driven by itself. It has no locomotion. It can be attached to a tractor. It can be attached to something which can pull it. The driver would always be on that part of the vehicle which provides motion to the trailer. Therefore, the trailer by itself cannot be used in a public place and by its use, no accident can occur and if some accident occurs, it would not be on account of the fault of the driver because the trailer would have no driver of its own. Therefore, the trailer by itself cannot be used in a public place and by its use, no accident can occur and if some accident occurs, it would not be on account of the fault of the driver because the trailer would have no driver of its own. We fail to follow and where to go. Therefore, it is not possible to accept the contention of Mr. Chhatrapati and it must be negatived. 11. The next contention of Mr. Chhatrapati is that the Tribunal was wholly in error in recording a finding that the accident occurred on account of the rash and negligent driving of the tractor bearing No. GJL-8252 by original respondent No. 2 and that according to Mr. Chhatrapati, this was an unavoidable and inescapable accident or at any rate, on an over-all picture of the evidence, the deceased was responsible for the accident. The view is slightly gaining ground that the fault concept in cases for compensation arising out of death or injuries caused on account of use of a motor vehicle in a public place is not at all necessary or relevant. Such view is gaining ground but, assuming that the fault concepts still holds the field and unless the Tribunal holds that the driver of the vehicle, was negligent and his negligence was the primary cause of the death or injury, compensation cannot be awarded, we may examine briefly the facts in this case. Deceased Vanmalibhai was aged 34. He was riding a motor cycle bearing no. GZB-7875. He was going from Kadodra to Surat, that is, he was coming from east to west. The tractor was proceeding from Surat towards Bardoli that is, from west to east. The Tribunal finds that, after the accident, the motor cycle was found lying near the southern edge of the road. The width of the tar road was 20' with a ktttcha strip of road on either side of 5' width. The total width of the road including strips of road was 30'. Two vehicles were coming from the opposite directions. In the tractor there is no front wind screen. The accident occurred at 12 noon. The date of the accident is June 1, 1971. On these facts, it can be said with confidence that visiability was perfect and first class. The total width of the road including strips of road was 30'. Two vehicles were coming from the opposite directions. In the tractor there is no front wind screen. The accident occurred at 12 noon. The date of the accident is June 1, 1971. On these facts, it can be said with confidence that visiability was perfect and first class. The driver of the tractor, if he was careful and efficient, must have seen the motor-cyclist coming from the opposite direction from a long distance. No one says that there was any curve or bend on the road. Now, what Mr. Chhatrapati says is that we should bear in mind that the tractor is a vehicle incapable of being driven at excessive speed. He is right though we do not know what maximum speed a tractor can achieve. But certainly, it cannot be driven very fast. The evidence shows that the trailer attached to the tractor was empty. An argument was afforded that if the tractor with an attached trailer which is empty is driven fast, the trailer would bump and jump. That may be so. The question really is not always to be decided in relation to speed. The question has to be decided in the context of the situation, place, time and the manner and the circumstances in which the accident occurred. Here, is a State Highway 30' in width providing for 20' tar road. The road appears to be straight in lay out at the place of occurrence. If the tractor driver was moving with moderate speed, keeping a watch out on the road and in front, he must have presumably seen this motor-cyclist coming from the opposite direction from a long distance. The evidence on the part of the claimants is that the tractor was being driven in the middle of the road. Driver Bhulabhai Ex.69 denies that fact. There is evidence to show from the panchnama of the scene of the accident that the tractor stopped after moving a distance of 31' from the spot of collision. There is evidence to show that the right corner of the trailer dashed with the rider of the motor cycle. Visualise the two vehicles coming from the opposite direction and the attached trailer does not move immediately in the same line as the prime-mover. That exactly happened in this case. There is evidence to show that the right corner of the trailer dashed with the rider of the motor cycle. Visualise the two vehicles coming from the opposite direction and the attached trailer does not move immediately in the same line as the prime-mover. That exactly happened in this case. After seeing the rider of the motor-cycle from near, the driver of the tractor suddenly swerved to his left projecting the right side of the trailer which knocked down the motorcyclist. The accident is thus clearly attributable to the carelessness on the part of the driver of the tractor. The Tribunal, on an analysis of all the evidence in the case, has recorded a finding that the accident was the outcome of the rash and negligent driving of the tractor by original respondent No. 2. 12. Incidentally, we may point out relating to the first point of Mr. Chhatrapati that it was the right corner of the trailer that knocked down the deceased. If there was no trailer, possibly, the tractor would have moved away and there would not have been an accident. Therefore, the first contention has also to be rejected in the facts and circumstances of this case, because the trailer is directly involved in the accident and the driver of the tractor is ipso facto driver of the trailer. No other approach is possible. 13. Some faint attempt was made to contend something about the income of the deceased. There is good and voluminous evidence and we need not re-appreciate the same. On the finding recorded by the Tribunal, the award of Rs. 25,000/- leans in favour of conservatism. But the Tribunal was itself helpless because the claimants had restricted their claim to Rs. 25,000/-. 14. These are all the contentions in this appeal and as we find no substance in them. The appeal tails and is dismissed with costs.