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2011 DIGILAW 2200 (RAJ)

Nyali Devi v. Hardev

2011-10-13

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been filed against the award of the Motor Accident Claims Tribunal, Kekri, Ajmer dated 21.9.2000 by which, claim petition filed by the claimant-appellants has been dismissed. The claim petition has been dismissed on the ground that claimants failed to prove negligence on the part of the tractor driver and that accident had taken place with trolley, which was attached to the tractor and not with the tractor itself and that trolley was not insured with the insurance company whereas, the tractor was insured. Learned counsel for the appellants has cited the judgment of this Court in Sajid Mian vs. Ganga & Ors. : 1990 ACJ 54 and has argued that this Court has held that even though the trolley was not separately registered and insured, but the tractor itself was registered therefore it is sufficient to indemnify the owner of the tractor. It was argued that, that was a case in which the trolley was not registered whereas, in the present case, tractor and trolley both were registered and mere fact that both were registered, cannot be a reason to hold that both should be separately insured. Learned counsel for the appellants referred to the statement of PW3 Smt. Lali and argued that this witness has categorically stated that the accident took place because of the tractor, which was being driven by respondent No.2. She was travelling in the tractor with 2-3 other ladies. Deceased was riding a Vicky and tractor hit him as a result of which, he died. She cried and required the driver to stop the tractor however, it fled away from that place. It was argued that deceased was a teacher in the government school. According to the salary certificate Exh.10, salary of the deceased at the relevant time was Rs.3,000/- per month and his age was 25 years and therefore multiplier of 18 should have been applied. 2. Learned counsel for the respondent insurance company has opposed the appeal and submitted that wife of the deceased Smt.Nyali Devi PW2 has stated that accident took place because of the trolley and not because of the tractor. Claim petition was rightly rejected indemnifying the owner of the tractor because no negligence on the part of the tractor driver could be proved. Claim petition was rightly rejected indemnifying the owner of the tractor because no negligence on the part of the tractor driver could be proved. Learned counsel argued that while driving the vehicle, the driver has to concentrate on the road and if somebody collided with the trolley behind the tractor, the driver of the tractor himself was not responsible for such an accident. Even otherwise, PW3 Smt.Lali has stated that the accident took place when the deceased was trying to over take the tractor. Learned counsel submitted that facts of Sajid Mian supra cannot be applied in this case because in that case, trolley was not registered. In the present case, not only the tractor was registered but also the trolley and therefore both of them should be separately insured. Therefore, for the accident, which took place with the trolley, cannot make the respondent insurance company liable to indemnify the owner. It is therefore prayed that the appeal be dismissed. 3. Having heard learned counsel for the parties and perused the impugned award, I am not persuaded to agree with the learned counsel for the respondent insurance company that the insurance company could not be held responsible for indemnifying the owner to make payment of compensation to the claimants because it had insured only the tractor. 4. This Court in Sajid Mian supra has held that trolley can only move with the help of the tractor and the tractor was insured. If the victim had died on account of the fact that the trolley over turned, insurance company must be held responsible for indemnifying the owner of the tractor for the death of a third party. In the present case tractor and trolley both were registered though tractor was insured but the trolley was not insured. Statement of PW3 Smt.Lali clearly proved that the accident took place because the deceased got hit from the tractor but the wife of the deceased PW2 Smt.Nyali Devi states that he died because he was hit by trolley of the tractor. 5. PW3 Smt.Lali has also stated that the accident took place because of overtaking from tractor. This statement is very specific. No other evidence has been proved to suggest involvement of the tractor. In her statement, she has stated that deceased was riding Vicky (moped) and that he was trying to overtake and in that process, accident took place. 5. PW3 Smt.Lali has also stated that the accident took place because of overtaking from tractor. This statement is very specific. No other evidence has been proved to suggest involvement of the tractor. In her statement, she has stated that deceased was riding Vicky (moped) and that he was trying to overtake and in that process, accident took place. Therefore, deceased should be held responsible for the partial accident and not fully responsible for the accident and the tractor driver was not responsible for the accident. It was therefore a case of composite negligence in the proportion of 50:50. 6. Having held so, I find that in the present case, Exh.10 salary certificate of the petitioner proved that salary of the deceased at the time of accident was Rs.3175/- per month and at that time, his age was 25 years and as per Schedule-II of the Motor Vehicles Act, 1988, multiplier of 18 must be applied but at the same time considering the fact that deceased was a government servant, there would have been definite chances of increase in the future prospect thereby increasing the increments, future promotions etc. This is the view taken by the Supreme Court in Sarla Verma & Others vs. Delhi Transport Corporation & Another : (2009) 6 SCC 121 = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC). Since deceased was 25 years of age, 50% must be added for his future prospect. After 1/4th deductions being the dependency of four or more as per the judgment of Sarla Verma supra, the monthly income of the deceased is assessed as Rs.2381/-. Calculating thus : 2381x12x18 = 5,14,296 + 2,57,148 (50%), the amount comes to Rs.7,71,444/-. That apart, Rs.10,000/- is awarded under the head of love and affection to the wife and children and Rs.5,000/- towards consortium & funeral expenses. Thus, a total sum of Rs.7,86,444/- is computed under all the heads. The insurance company respondent No.3 is held liable to make payment of compensation half of the amount of Rs.7,86,444/-, which comes to Rs.3,93,222/- together with interest @7.5% from the date of filing of the claim petition, to the claimant-appellants. With the above directions, the appeal is allowed in part.