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Madras High Court · body

2000 DIGILAW 403 (MAD)

A. Sampath v. Pachaippan and 2 others

2000-04-07

P.SATHASIVAM

body2000
Judgment : 1. Aggrieved by the Award of the Motor Accident Claims ,Tribunal, Tiruvannamalai in M.A.C.T.O.P. No. 703 of 1994, the owner of the vehicle in question has filed the above appeal. In respect of death of one Annadurai in a road accident that took place on 6. 94, the mother and the wife of the deceased prayed for a compensation of Rs.2,00,000. The court below, after holding that the accident was caused due to the negligence of the driver of the tractor in question, passed an award for Rs.2,00,000 with interest at 9 per cent per annum from the date of petition. .Questioning the said award, exonerating the insurance company from its liability, the owner of the tractor has filed the above appeal. 2. Heard the learned counsel for the appellant as well as respondents. 3. Learned counsel appearing for the appellant, after taking me through the order of the Tribunal R.C.book. and insurance policy, namely, Exs. A-4 and A-5, would contend that in view of valid insurance policy covering both the tractor and the trailer and third parties, the insurance company is liable to indemnify the loss; accordingly the Tribunal ought to have passed an award against the insurance company also. In any event, according to her, the amount determined by the insurance company is highly excessive. On the other hand, the learned counsel appearing for the third respondent-insurance company would contend that the deceased being a passenger travelling in a trailer, in the absence of additional premium, the Tribunal is justified in exonerating the Insurance company from its liability. He also contended that in the light of Exs. B-1 to B-3 and the oral evidence of their Officer as R.W.I, the insurance company need not pay any compensation. Learned counsel appearing for the claimants-respondents 1 and 2 herein, would state that they are entitled compensation both from the owner and the insurer and the amount fixed by the Tribunal is quite reasonable. 4. I have carefully considered the rival submissions. 5. It is seen from the records that on 6. 94 at about 9-30 A.M.. while the deceased Annadurai was travelling in a trailer bearing Registration No.TN. 25/8263 attached with a tractor bearing Registration No. TN.25/8262 to carry Sand for agricultural operation, due to rash and negligent driving of the driver of the tractor, the trailer capsized, due to which the deceased Annadurai died on the spot. 94 at about 9-30 A.M.. while the deceased Annadurai was travelling in a trailer bearing Registration No.TN. 25/8263 attached with a tractor bearing Registration No. TN.25/8262 to carry Sand for agricultural operation, due to rash and negligent driving of the driver of the tractor, the trailer capsized, due to which the deceased Annadurai died on the spot. There is no dispute that the tractor and trailer were duly registered and necessary permits obtained. It is the case of the appellant, owner of the vehicle that he had taken insurance policy for both the tractor and the trailer. The tractor is intended for agricultural purpose. At the time of the accident, the tractor was being used for carrying Sand for agricultural operations and it is also admitted by the appellant that on his direction the deceased Annadurai was travelling in the trailer in order to load and unload sand for his agricultural purpose and while doing so, due to the negligence of the driver, the deceased sustained fatal injuries. Registration Certificate of the tractor had been marked as Ex.A-4 and insurance policy had been marked as Ex.A-5. On the side of the insurance company, one Gobi Sankar was examined as R.W.1 and policies of the tractor and trailer were marked as Exs. B-1 to B-3, R.W.1 by pointing out the various conditions mentioned in the policy, has stated that even though the owner had taken policy for the trailer, in the absence of any additional premium for taking coolies, the insurance company is not liable to pay any amount. 6. In order to appreciate the rival contentions, first I shall refer to the definition of tractor and trailer. Section 2(44) and (46) of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") reads thus:- "Section 2(44) "tractor" means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller; Section 2(46) "trailer" means any vehicle, other than a semi-trailer and side car, drawn or intended to be drawn by a motor vehicle." In Ex.A-4, xerox copy of the registration cerificate of the trailer, it is described as "LMV Trailer" and its unloaden weight is 6000 kgms. Ex.A-5 is the insurance Policy which shows that the owner had paid a sum of Rs.1,340 towards premium for basic liability, driver, TPPD, additional premium etc. Ex.A-5 is the insurance Policy which shows that the owner had paid a sum of Rs.1,340 towards premium for basic liability, driver, TPPD, additional premium etc. In the policy, there is an endorsement "Use for agricultural and Foresty purpose. The policy does not cover, .(a) Use for organised racing racemaking reliability trial or speed testing. (b)Use for the carriage of passengers for hires or reward. .(c) Use whilst drawing a greater number of trailers in all than is permitted by law." Even the records produced by the insurance company, namely, Ex.B.1, shows that the owner had taken additional premium for trailer. He has paid a premium of Rs 441 for trailer. Ex.B-2 has been marked through R.W.2 appellant herein. It is seen from Ex.B- 2 that the Oriental Insurance Company, 2nd respondent herein, has certified that the tractor and trailer are fully covered by a policy. The said endorsement is hereby extracted:- "CH:6/94 - Selvi Trailer 1994 It is hereby declared and agreed that the above vehicle has been attached to the tractor No. EN: KH 2897 CH: KH 2897, covered under the withinmentioned Policy. In consequent whereof, an addi, premium of Rs.441/- has been collected from the insured vide our receipt No. 873053/26-5-94. All other terms, conditions, exceptions and limitations of the Policy remain unaltered. sd/-xxx Asst., Branch Manager. Entered in our books on 26-05-94.- It is clear from Exs. A-4, A-5, B-1 to B-3 as well as from the evidence of R.W.l and R.W.2, the tractor and the trailer in question were duly insured with the third respondent herein. It is also useful to refer the various amounts paid for tractor and trailer. "Schedule of Premium -Tractor Own Damage Basic Rs.150.00 Liability Basic Driver TPPD Rs.120.00 15.00 75.00 210.00 Add OD premium 1200.00 Total Rs.1200.00 Less 5% SD Total 1410.00 70.50 1340.00" “Schedule of Premium—Trailer (Ex.B-3) Own50% Damage ofIEV Basic Rs.20 425 .00 .00 Liability Basic TPPDAdd OD premium Rs.30.00 75.00105.00 445.00 Rs.445 .00 Service Tax 550.00 27.50 523.00 Prorate Premium for 308 days .... 441.00." All these, particulars find place in Ex.B-2 as detailed above and marked through R,W.2-appellant herein. Even though an Officer of the insurance company was examined as R.W.I, he has not explained the details of various amounts referred to above. 441.00." All these, particulars find place in Ex.B-2 as detailed above and marked through R,W.2-appellant herein. Even though an Officer of the insurance company was examined as R.W.I, he has not explained the details of various amounts referred to above. However, in his evidence, he has deposed that the policy does not cover the deceased who travelled in the trailer as a coolie at the relevant time. I have already stated that it is not in dispute that the tractor and trailer are intended only for agricultural purposes and that at the relevant time, the owner had used the tractor and trailer to carry Sand for his agricultural operation. P.W.2, Kanniappan, who travelled along with the deceased in the trailer as a coolie, has deposed that on the direction of the owner of the vehicle, they worked under the appellant herein and their services were utilised for loading and unloading of sand and stone. Near Mangalam Peria Eri, due to the negligence of the driver of the tractor, the trailer capsized and he along with the others jumped down from the trailer and escaped from the accident, but the deceased Annadurai sustained fatal injuries. In the cross-examination, at the instance of the insurance company, P,W.2 has stated that:- Even the Officer of the insurance company who was examined as R.W.l, has stated that as per policy condition, no passenger was allowed to travel in the trailer. Though it is stated that the owner had not paid separate amount for coolies. in cross-examination he admitted that He also admitted that, In Ex,B-2 on the back side of the policy, under the caption -section II -Liability to third parties, it has been printed as, "Section II- LIABILITY TO THIRD PARTIES. I. Subject to the limits of liability, as laid down in the Schedule hereto the company will indemnity the insured against all sums including claimants cost and expenses which the insured shall become legally liable to pay in respect of .(i) death or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the Motor Vehicle. .(ii) damage to property caused by the use (including the .loading and/or unloading) of the Motor Vehicle.- R.W.1 has not denied the availability of the said clause in the policy of insurance. R.W.2, owner of the tractor even in his chief examination, has stated that. .(ii) damage to property caused by the use (including the .loading and/or unloading) of the Motor Vehicle.- R.W.1 has not denied the availability of the said clause in the policy of insurance. R.W.2, owner of the tractor even in his chief examination, has stated that. In cross-examination, he has stated that, In cross-examination at the instance of the claimants, he has deposed that the driver was having valid licence to drive the tractor and the trailer. To the suggestion made by the insurance company, R.W.2 has deposed that, 7. All the above mentioned particulars; would clearly show that the deceased Annadurai was engaged by the owner of the tractor and trailer as a coolie and he died when the vehicle was in use for agricultural purpose. I have already stated that R.W.I has admitted that the owner had paid Rs.l,340 as premium for tractor and Rs.441 for trailer. I have also extracted the details of payments in the earlier part of my order. Taking note of all the above aspects, namely, the tractor and trailer were engaged only for agricultural purpose on 6. 94, in view of payment of separate premium for tractor and trailer covering the driver and the other third parties of both the tractor and trailer, even though there is no specific reference covering the liability for the death or injury to the coolies and in the absence of any specific exclusion, I am of the view that the insurer has to pay the compensation to the claimants for the death of Annadurai. It is not the case of the insurance company or any one that the trailer can be used for agricultural purpose without the assistance of certain workmen. When the vehicle is intended for agricultural operations, undoubtedly without the assistance of certain workman, no work can be done. I have already stated that the owner had taken policy-for both tractor and trailer and paid substantial amount towards premium. In such a circumstance, I am unable to accept the contrary view taken by the Tribunal exonerating the insurance company from its liability, and in the light of the valid policy for the tractor and the trailer, and of the fact that the deceased met with the accident in the course of agricultural operation, I am of the view that both the owner and his insurer are liable to pay the compensation. 8. 8. Coming to the other aspect, namely, quantum of compensation, the widow and the mother of the deceased prayed for a sum of Rs.2 lakhs as compensation. The widow was examined as P.W.1. According to her, her husband was aged about 25 years at the time of the accident. She further deposed that he used to earn Rs.100 per day and both herself and her mother-in-law are depending on the income of the deceased, in the absence of any documentary evidence, the court below has rightly come to the conclusion that the deceased would earn Rs.30 per day . and Rs.900 per month. Considering the age of the deceased as 25, it had calculated the amount for a period of 45 years and after deducting 1?3rd towards his personal expense, arrived a figure of Rs.3,24,000. Since the claimants had prayed for a compensation of Rs.2 lakhs only, the Tribunal awarded the said amount of Rs.2 lakhs to the claimants. I am not in agreement with method adopted by the Tribunal in ascertaining the quantum. Considering the fact that the deceased was aged about 25 years at the time of the accident and the claimants are widow and mother, the correct multiplier as per Schedule II of the Motor Vehicles Act is 17. By applying the same and after awarding some reasonable consortium to the first claimant, namely, widow of the deceased, who was aged about 20 years at the time of the accident and loss of love and affection to the mother, I am of the view that the award of Rs.2,00,000 cannot be said to be either excessive or unreasonable. AS stated earlier, though the method adopted by the Tribunal is not acceptable, the amount of Rs.2,00,000 is quite reasonable. z 9. Under these circumstances, an award of Rs.2,00,000 (Rupees Two Lakhs only) is passed against the owner and the insurer (respondents 1 and 2 before the Tribunal) and in view of the insurance policy, the insurance company is liable to satisfy the award. Except the said modification, in other respects, the award of the Tribunal is confirmed, Net result, the appeal is allowed to the extent mentioned above. No costs.