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2003 DIGILAW 1046 (KAR)

Bhimavva v. Shankar

2003-12-11

S.Abdul Nazeer, T.S.Thakur

body2003
JUDGMENT 1. These appeals arise out of a common Order passed by addl. District judge and M. A. C. T., Gulbarga, whereby M. V. C. Nos. 348, 349 and 350 of 1989 have been allowed in part and an amount of Rs. 25,000 each awarded as compensation for the death of Hanuman Tharaya, Narasamma and a minor child named Sri Manth in a road accident. The claimants have appealed to this court for a suitable enhancement of the said amount and for holding the insurance company liable to make payment of the amount payable to them. 2. The deceased Hanumantharaya, his wife Narasamma and their two minor children, named, Adeappa and Sri Manth were on 11.7.1989 travelling in a tractor-trailer owned by Pampanagouda and insured with the respondent No. 3 insurance company. When the tractor which was carrying stones for construction of a hay shed of the owner reached near Dyamnal village, it met with an accident and turned turtle resulting in the death of the aforementioned three persons and injuries to Adeappa and another passenger, named, Shivappa travelling in the same. M. V. C. Nos. 348 and 349 of 1989 were in the due course filed by the mother of the deceased Hanumantharaya and his two minor children Basavaraj and Adeappa for payment of compensation. M. V. C. No. 350 of 1989 was filed by the brothers of deceased minor Sri Manth for payment of compensation. The common case of the claimants in the three claim petitions was that the accident in question had occurred on account of the rash and negligent driving of the tractor-trailer by Shankar its driver. Their further case was that the deceased Hanumantharaya and Narasamma were working as employees of Pampanagouda with the result that the liability to pay compensation coube fastened on the insurance company concerned in terms of the provisions of Section 147 of the motor vehicles act and the policy of insurance issued by it. The claim petitions were opposed by the insurance company and the owner of the tractor-trailer involved in the accident, giving rise to three issues in each case. In support of the claim, the claimants examined one of them, namely, Bhimavva as PW 1 apart from Shivappa, one of the other injured employee who was also travelling with the deceased at the time of the accident. In support of the claim, the claimants examined one of them, namely, Bhimavva as PW 1 apart from Shivappa, one of the other injured employee who was also travelling with the deceased at the time of the accident. The respondent insurance company did not, however, examine any witness nor did the owner or the driver of the offending vehicle step into the witness-box. 3. On appreciation of the evidence assembled before it, the tribunal answered the issue No. 1 framed in each case in the affirmative and held that the accident in question had occurred on account of the rash and negligent driving of the tractor trailer by its driver. Answering issue No. 2 in the negative, the tribunal held that the claimants have not been able to establish that the deceased Hanumantharaya and Narasamma were employed by Pampanagouda, the owner of the tractor-trailer. The tribunal on the contrary found that the tractor in question had been engaged on the fateful day by one Tirupati in order to carry some stones for his use and that the deceased were riding the tractor-trailer as gratuitous passengers. The claim petitions were on those findings allowed in part but only to the extent of holding that claimants were entitled to a sum of Rs. 25,000 in each one of the claim petitions with interest at the rate of 6 per cent per annum recoverable from the owner and the driver of the tractor in question. The present appeals call in question the correctness of the said order as already noticed earlier. 4. Appearing for the appellants Mr. B. Kareddy strenuously argued that the finding recorded by the tribunal as regards the employment of the deceased Hanumantharaya and Narasamma with the owner of the tractor was contrary to the weight of evidence on the record. He urged that the statement of PW 1 Bhimavva and PW 2 Shivappa who was one of the injured in the accident sufficiently established that the deceased couple was working as employees of Pampanagouda, the owner of the tractor-trailer. He urged that claims tribunal had fallen in a palpable error in holding that the first information report allegedly lodged by Tirupati established that the tractor-trailer had been engaged by him from Pampanagouda for Rs. 250 to carry stones from Bandampalli to his village along with Motilal, son of Papanna and Shivappa, son of Shankerappa. He urged that claims tribunal had fallen in a palpable error in holding that the first information report allegedly lodged by Tirupati established that the tractor-trailer had been engaged by him from Pampanagouda for Rs. 250 to carry stones from Bandampalli to his village along with Motilal, son of Papanna and Shivappa, son of Shankerappa. It was contended that since neither Tirupati, the alleged first informant and hirer of the tractor nor Pampanagouda, the owner of the vehicle had stepped into the witness box to support the version given in the first information report regarding the accident, the tribunal was not justified in placing reliance upon the contents of the first information report and disbelieving the sworn testimony of the two witnesses examined on behalf of claimants. He further argued that the tribunal had committed a serious error in holding that the claimants were entitled only to a sum of Rs. 25,000 on no fault basis and no more. On behalf of respondent insurance company, it was strenuously argued by Mr. B. C. Seetharama Rao that the finding recorded by the tribunal on issue No. 2 framed in each claim petition was legally sound and, therefore, unexceptionable. He urged that the complaint lodged with the police gave the first version regarding the genesis of the accident which version clearly belied the story set up by the claimants to the effect that the deceased couple were employees of Pampanagouda. According to him, the first informant Tirupati had in the complaint admitted that the tractor had been hired by him from Pampanagouda for a sum of Rs. 250 to carry stones and the deceased couple and their minor child were travelling in the tractor along with two others, namely, Motilal and Shivappa at the time of the accident. Alternatively, he submitted that the liability of the insurance company was in any case limited to the extent of the liability that arose qua the owner of the vehicle as the policy issued by the company was an act policy and did not provide a cover wider than what was absolutely necessary under Section 147 of the act. He urged that the liability of the insurance company could in the event of the finding on issue No. 2 being reversed limited to the extent of liability under the workmen's compensation act. 5. He urged that the liability of the insurance company could in the event of the finding on issue No. 2 being reversed limited to the extent of liability under the workmen's compensation act. 5. The insurance company or the owner of the offending vehicle have not filed any appeal or cross-objections to assail the correctness of the finding recorded by the tribunal insofar as the genesis of the accident is concerned. The finding on issue No. 1 can therefore be said to have attained finality especially when neither Mr. Rao nor Mr. Patil, counsel appearing for the insured owner of the vehicle made any attempt to assail the correctness of the same. The only question that was argued at considerable length was whether the evidence on record established the case of the appellants that the deceased couple, namely, Hanumantharaya and Narasamma were employees of Pampanagouda, the owner of the tractor. The claims tribunal has as pointed out by the counsel for the parties placed implicit reliance upon the first information report allegedly lodged by Tirupati in which the first informant is alleged to have stated that he had engaged the tractor from Pampanagouda for Rs. 250 for carrying stones from Bandampalli village. The said version as it appears carried conviction with the tribunal and has been made a basis for holding that the deceased were not working as employees of the insured owner of the vehicle. The order passed by the tribunal does not, however, make any reference to the version given by PW 1, mother of the deceased Hanumantharaya or PW 2, Shivappa whose presence in the tractor at the time of the accident is not disputed. The tribunal it appears was impressed by the argument that the first information report about the incident ought to be treated as the most authentic version about the incident no matter the report was not proved by examining the first informant in the court. We, however, find it difficult to subscribe to that line of reasoning. The tribunal it appears was impressed by the argument that the first information report about the incident ought to be treated as the most authentic version about the incident no matter the report was not proved by examining the first informant in the court. We, however, find it difficult to subscribe to that line of reasoning. Apart from the fact that Bhimavva one of the claimants and Shivappa one of the injured who was admittedly present on the tractor at the time of the accident and was injured in the process have stated that the deceased couple were working as employees of the insured, we do not see any legal basis for the tribunal to rely upon a copy of the first information report allegedly lodged about the incident. It is fairly well settled that the first information report is not substantive evidence by itself and at best can be made use of for purposes of corroborating or contradicting the person who has lodged the same. The least which the respondent insurance company or the owner of the tractor should therefore have done was to summon and examine the first informant, namely, Tirupati to substantiate the contrary version sought to be projected by him in the complaint lodged with the police. No explanation, however, is forthcoming from respondents for their failure to examine Tirupati. Even Pampanagouda who appears to have participated in the proceedings before the tribunal without filing any objections to the claim petition did not step into the witness-box to subscribe to the theory of the tractor having been lent by him to Tirupati on the date of the accident. Super added to all this is the fact that Shivappa who was even according to the first information report present on the tractor at the time of the accident clearly stated that he and the deceased couple were all working as employees of Pampanagouda. In the totality of these circumstances, therefore, we find it difficult to affirm the finding recorded by the tribunal. The available material in our opinion can lead to only one conclusion and that is that the deceased couple was working as employees of Pampanagouda, the owner of the offending vehicle. The finding of the claims tribunal on issue No. 2 therefore shall stand reversed. 6. It was then contended by Mr. The available material in our opinion can lead to only one conclusion and that is that the deceased couple was working as employees of Pampanagouda, the owner of the offending vehicle. The finding of the claims tribunal on issue No. 2 therefore shall stand reversed. 6. It was then contended by Mr. B. C. Seetharama Rao that a tractor-trailer could not be said to be a goods carriage so as to make the insurance company liable on the basis of the policy which it has issued. In support, he placed reliance upon the decision of the Supreme Court in Nagashetty v. United India Insurance Co. Ltd., 2001 ACJ 1441 (SC). He urged that the division bench decision of this court in Oriental Insurance Co. Ltd. V. Hanumantappa, 1992 ACJ 1083 (Karnataka), was in the light of the subsequent pronouncements of the supreme court in Nagashetty's case no longer Good law. A Similar argument was advanced before a division bench of this court in Kenchappa vs. V. Jayalakshmamma, 2005 ACJ 290 (Karnataka). This court held that Nagashetty's case was an authority for the limited question whether a licence issued for driving a tractor could become ineffective the moment the tractor is attached to a trailer. Answering that question in the negative the apex court has held: ". . . the question is whether merely because a trailer was attached to the tractor and the tractor was used for carrying goods, the licence to drive a tractor becomes ineffective. If the argument of Mr. S. C. Sharda is to be accepted then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make that tractor or motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make that tractor or motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid driving licence to drive a tractor or a motor vehicle he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words, a person having a valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle." the above observations cannot be said to have affected correctness of the division bench decision delivered in Hanumantappa's case, 1992 ACJ 1083 (Karnataka). In Hanumantappa's case, the question as to whether a tractor is a goods carriage was closely examined and answered in the affirmative in the following words: "firstly, a tractor is a motor vehicle as defined in Section 2 (18). Secondly, tractor is a motor vehicle which itself is not constructed to carry any load, but is meant to be used for the purpose of propulsion of a trailer. Thirdly, the trailer is defined as a vehicle other than a sidecar drawn or intended to be drawn by a motor vehicle. . . there can be no doubt that a trailer is constructed for the purpose of carriage of the goods and when it is pulled by a tractor, both together constitute a transport vehicle, i.e., a goods vehicle. . . tractor-trailer squarely falls within the definition of the words 'goods vehicle'." In the light of the view already taken by this court in Kenchappa's case, 2005 ACJ 290 (Karnataka), we have no difficulty in rejecting the contention of Mr. B. C. Seetharama Rao that the decision of this court in Hanumantappa's case stands overruled by the supreme court in Nagashetty's case sub silentio. In our view a tractor-trailer is a goods carriage and the policy of insurance issued by the respondent insurance company would cover the liability of the insured qua its employees under the workmen's compensation act. 7. B. C. Seetharama Rao that the decision of this court in Hanumantappa's case stands overruled by the supreme court in Nagashetty's case sub silentio. In our view a tractor-trailer is a goods carriage and the policy of insurance issued by the respondent insurance company would cover the liability of the insured qua its employees under the workmen's compensation act. 7. Insofar as the extent of liability of the insurance company qua the employees of the insured owner of the vehicle are concerned, the matter stands concluded by a five-judge bench judgment of this court in the present appeals. [see 2003 ACJ 1829 (Karnataka)]. The larger bench overruling a full bench decision in Noorulla v. P. K. Prabhakar, 1999 ACJ 1419 (Karnataka), has held that in the absence of a larger cover obtained by the insured, the liability of the insurance company on the basis of an act policy would remain limited to the extent of liability that arises against the insured owner of the vehicle qua his employees under the workmen's compensation act. There is in the light of the said authoritative pronouncements, no occasion for this court to re-examine the said issue. The liability of the insurance company would consequently remain limited to the extent of the liability that arises against the employer qua his employees. Before, however, examining the extent of liability which arises under workmen's compensation act qua the employer the amount of compensation payable to the claimants under the motor vehicles act May have to be determined. 8. It is fairly well settled that multiplier method is by far the safest method for determination and award of compensation in motor vehicle cases. The method involves the determination of a multiplicand and the capitalisation of the amount by applying a suitable multiplier. The deceased Hanumantharaya was according to the version of the claimants earning Rs. 30 per day or Rs. 900 per month. If one-third of the said amount is deducted towards his personal expenses, his contribution to the family would remain at Rs. 600 per month or Rs. 7,200 per annum. The deceased was it appears around 28 years old at the time of the accident. The claim in the instant case, however, is made on behalf of his mother who is around 60 years old. 600 per month or Rs. 7,200 per annum. The deceased was it appears around 28 years old at the time of the accident. The claim in the instant case, however, is made on behalf of his mother who is around 60 years old. In cases where the dependants are older than the victims of the road accident, the choice of the multiple depends upon the age of the dependants. The interesting feature in the present case, however, is that apart from the mother of the deceased Hanumantharaya, his two minor children aged about 4 and 7 years at the time of the accident are also claimants for payment of compensation. The highest multiplier which May be applied in the matter of capitalisation, loss of dependency in terms of the decision of a division bench in Gulam Khader v. United India insurance co. Ltd., 2001 ACJ 163 (Karnataka), is 18. If we choose the multiplier by reference to the age of the deceased, it May go up to 16 whereas the multiplier by reference to the age of the mother of the deceased would be limited to 10. The middle course in our opinion would meet the ends of justice. Since the minors as also the mother were admittedly dependent upon the deceased, it would be reasonable to hold that the said dependence would have continued on an average for a period of 14 years or so. If the amount of annual contribution of the deceased is capitalised by applying a multiplier of 14, the amount of compensation payable to the claimants would work out to Rs. 1,00,800. To that amount can be added a sum of Rs. 5,000 for loss to estate and a further sum of Rs. 3,000 towards funeral expenses taking the total amount of compensation payable to the claimants to Rs. 1,08,800. Insofar as the deceased Narasamma is concerned, her income on the date of the accident is said to be Rs. 20 per day or Rs. 600 per month. Deducting one-third of the said amount towards her own expenses, her contribution to the family would be limited to Rs. 400 per month or Rs. 4,800 per annum. Applying a multiple of 14 on the analogy of what has been observed earlier, the amount of compensation payable to the claimants would work out to Rs. 67,200 to which we are inclined to add a sum of Rs. 400 per month or Rs. 4,800 per annum. Applying a multiple of 14 on the analogy of what has been observed earlier, the amount of compensation payable to the claimants would work out to Rs. 67,200 to which we are inclined to add a sum of Rs. 5,000 towards loss to estate and Rs. 3,000 towards funeral expenses taking the total amount of compensation to Rs. 75,200. 9. That brings us to the question of fixing the liability of the insurance company by reference to the provisions of the workmen's compensation act. The accident in question has as observed earlier taken place in July, 1989. Section 4 of the workmen's compensation act as it then stood envisaged payment of compensation by multiplying an amount equal to 40 per cent of the monthly wages of the deceased with relevant factor in terms of the schedule. In case of deceased Hanumantharaya 40 per cent of total income of Rs. 900 per month comes to Rs. 360 while the relevant factor keeping in view the age of deceased who was about 28 years old at the time of the accident is 211. 79. The liability of the insurance company would therefore work out to Rs. 360 x 211. 79 = Rs. 76,244.40. 10. Insofar as the deceased Narasamma is concerned, the multiplicand representing 40 per cent of her monthly income of Rs. 600 would come to Rs. 240 and the factor relevant to her age which was at the time of the accident around 22 years would be 221.37. The total amount of liability of the insured qua the deceased Narasamma would therefore come to Rs. 240 x 221.37 = Rs. 53,128.80. It follows that out of a sum of Rs. 1,08,800 payable on account of death of the deceased Hanumantharaya, the insurance company's liability would be confined to Rs. 76,244.40 only. For the death of Narasamma, such liability would, however, be Rs. 53,128.80 only. The balance amount of Rs. 32,556 payable on account of death of Hanumantharaya and Rs. 22,072 payable on account of death of Narasamma making a total of Rs. 54,628 would then be recoverable from the driver and the owner of the offending vehicle jointly and severally. That brings us to the next question as to whether any further amount beyond Rs. 32,556 payable on account of death of Hanumantharaya and Rs. 22,072 payable on account of death of Narasamma making a total of Rs. 54,628 would then be recoverable from the driver and the owner of the offending vehicle jointly and severally. That brings us to the next question as to whether any further amount beyond Rs. 25,000 is payable to the appellants on account of the death of the minor child Sri Manth who died in the accident. The deceased Sri Manth was on the date of the accident aged around one year old. The accident in question has taken place around fifteen years back. In the case of adolescent in the age group of 9 to 19, the apex court as also this court has by numerous decisions held that the compensation payable could be up to Rs. 1,50,000. The deceased in the instant case was, however, an infant less than two years old. Award of compensation in such cases therefore has to be only on notional basis having regard to the extent of dependency of the claimants on the deceased and other relevant factors. 11. Since the parents of the deceased minor child were also victims of the accident and the minor was just about two years old, i. e., younger in the age even to the surviving two children of the deceased couple, we do not consider it to be a fit case where we should enhance the amount of compensation awarded by the tribunal. The appeal filed by claimants for enhancement of compensation in the case of death of the minor child has, therefore, to fail. 12. In the result, M. F. A. No. 2124 of 1993 is allowed in part and to the extent that the appellant shall be entitled to a total sum of Rs. 1,08,800 out of which a sum of Rs, 76,244. 40 shall be paid by the insurance company, while the balance of Rs. 32,556 shall be recoverable from the estate of the deceased owner of the tractor. M. F. A. No. 4340 of 1997 is also allowed in part to the extent that the appellant shall be entitled to a total sum of Rs. 75,200 out of which a sum of Rs. 53,128.80 shall be recoverable from the respondent insurance company, while a sum of Rs. M. F. A. No. 4340 of 1997 is also allowed in part to the extent that the appellant shall be entitled to a total sum of Rs. 75,200 out of which a sum of Rs. 53,128.80 shall be recoverable from the respondent insurance company, while a sum of Rs. 22,072 recoverable from the estate of the deceased owner of the tractor in the hands of his legal representatives. The amount awarded against the insurance company and the owner of the offending vehicle in both the cases shall earn interest at the rate of 6 per cent per annum from the date of claim petition till the date of deposit. M. F. A. No. 3808 of 1997 arising out of death of the minor child of the deceased couple shall stand dismissed. M. F. A. No. 3586 of 1997 and C. R. P. No. 3797 of 1994 filed by the owner of the offending vehicle involved in the accident shall also stand dismissed. A sum of Rs. 30,000 or so was deposited by the owner of the vehicle in these appeals, in the C. R. P. and in M. F. A. No. 1370 of 1994 (disposed of on 1.8.1995). That amount is said to be lying in deposit in this court. The office shall verify the correct position and transfer the entire amount in deposit in these cases and in the disposed of matter filed by the owner of the vehicle to the motor accidents claims tribunal for disbursement. Upon deposit by the insurance company of the amount of compensation awarded against it in both the cases, the claims tribunal shall release in favour of the claimants in equal proportion, i.e., Rs. 15,000 each, a total sum of Rs. 45,000 and invest the balance in equal proportion in the name of the three claimants. Insofar as the mother of the deceased Hanumantharaya is concerned, the deposit shall be for a period of 3 years with liberty to recover interest on the same every six months. In case of the minor children, the deposit shall be for a period of three years initially, which May be renewed in case any one of them has not attained majority for a similar period. Interest accrued on deposit made in these cases May also be allowed to be withdrawn by the claimant concerned every six months. The parties are left to bear their own costs. Interest accrued on deposit made in these cases May also be allowed to be withdrawn by the claimant concerned every six months. The parties are left to bear their own costs. The deposit by the insurance company shall be made within two months from today. Orders accordingly.