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2011 DIGILAW 778 (KAR)

Suvarna v. Murtujsab

2011-08-03

B.MANOHAR, V.G.SABHAHIT

body2011
JUDGMENT V.G. Sabhahit , J.—This appeal is filed by the claimants in M.V.C. No. 25 of 2005 on the file of the Member, M.A.C.T. II, Bagalkot, being aggrieved by the judgment and award dated 17.11.2006, seeking for enhancement of compensation awarded by the Tribunal and also being aggrieved by the finding that the insurance company is not liable to pay the compensation and compensation awarded shall be paid by the owner, respondent No. 1. The material facts leading up to this appeal are as follows: The claimants are the wife and children of Rajendra Huddar who was working as a teacher in Navachetana High School, Amingad, Bagalkot District. On 3.4.2004, Rajendra along with his friend Dyamanna L. Madar, who was a pillion rider, was returning to Amingad after the completion of work on motor cycle bearing registration No. KA 29-L 4351 and while so were proceeding slowly on the extreme left side of the road on Bagalkot-Hungund PWD Road, a tractor-trailer bearing No. KA 29-T 6595-6596 came from the opposite direction in a high speed driven in a rash and negligent manner and dashed against the motor cycle due to which Rajendra fell down and sustained grievous injuries to his head and all over his body. While he was being shifted to District Hospital, he succumbed to the injuries and died. A petition was filed alleging that the claimants were depending upon the income of the deceased and he was aged 50 years at the time of the accident and he was earning Rs.9,686 per month as a teacher and he was also receiving annual commission of Rs.1,75,233, as he was a L.I.C. agent and wherefore a petition was filed under sections 163-A and 166 of the Motor Vehicles Act seeking compensation of Rs.35,00,000 together with interest and costs from the respondents, owner and the insurer of the tractor and trailer. 2. The claim petition was resisted by respondents averring that Rajendra died due to his own negligence and there was no negligence on the part of the driver of the tractor and trailer as contended by the owner, respondent No. 1 and the insurance company, respondent No. 2, contended that the driver of the tractor was not holding a valid driving licence and the second trailer was not insured and, therefore, it is not liable to pay compensation. 3. 3. The Tribunal held an inquiry and framed the following issues: (1) Whether the petitioners proved that Rajendra s/o Basavaraj Huddar died in the motor vehicle accident that occurred on 3.4.2004 at about 2315 hours on the Bagalkot-Kamatgi PWD Road, due to actionable negligence of the driver of the tractor-trailer unit bearing No. KA 29-T 6595-6596? (2) Whether the respondent No. 2 proves that the driver of the vehicle in question had no valid and effective driving licence as on the date of the accident? (3) Whether the petitioners are entitled for compensation? If so, for how much? (4) What order or award? 4. On behalf of the claimants, petitioner No. 1-wife of the deceased was examined as PW 1 and she also examined two witnesses as PWs 2 and 3 and got marked documents Exhs. P1 to P11 including the salary certificate, Exh. P8. On behalf of the insurer. Senior Assistant was examined as RW 1 and the insurance policy was got marked as Exh. R1. The Tribunal, by judgment and award dated 17.11.2006, answered the above said issues as follows: (1) Issue No. 1: in the affirmative (2) Issue No. 2: in the affirmative (3) Issue No. 3: partly in affirmative and as per final order (4) Issue No. 4: as per the final order and held that since the driver of the tractor was not holding a valid driving licence, insurance company is not liable to pay the compensation as the second trailer was not insured with respondent No. 2 and accordingly passed an award awarding compensation of Rs.8,70.368 with interest at 6 per cent per annum from the date of petition till realization. 5. Being aggrieved by the said judgment and award, claimants have preferred this appeal contending that the Tribunal was not justified in holding that respondent No. 2 is not liable to pay compensation as the driver of the tractor was not holding a valid and effective driving licence at the time of the accident and the accident occurred due to rash and negligent driving by the driver of the tractor and not the trailer and, therefore, the fact that the second trailer was not insured, is irrelevant in absolving the liability of the insurance company when admittedly, the tractor had been insured with respondent No. 2. It is also submitted that having regard to the age of the deceased as 50 years, appropriate multiplier is 13 and not 11 in view of the decision of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, AIR 2009 SC 3104 . Since the deceased was working as a teacher in aided school, 30 per cent of his income ought to have been added having regard to the age of the deceased and the compensation awarded towards funeral expenses and transportation of dead body is on the lower side. 6. Learned counsel for the appellants reiterated the averments made in the appeal memorandum and the counsel for the respondent submitted that the second trailer was not insured with the respondent No. 2 on the date of the accident and the driver was not holding an effective driving licence and wherefore Claims Tribunal has rightly absolved the insurance company of its liability and no ground is made out for production of the additional document, namely, the licence in this appeal. 7. Having regard to the contention urged, the points that arise for determination in this appeal are: (1) Whether the appellants are entitled to enhancement of compensation and, if so, what is the just and reasonable compensation to which they are entitled? (2) Whether the appellant should be permitted to produce additional document, namely, driving licence of the driver of the tractor-trailer? (3) Whether the finding of the Tribunal that the insurance company is not liable to pay compensation is justified or calls for interference in this appeal? (4) What order? and we answer above points for determination as follows: (1) Claimants are entitled to enhancement of compensation to Rs.13,16,480 as against Rs.8,70.368 awarded by the Tribunal. (2) The application for production of additional document is allowed. (3) In view of our finding on points 1 and 2, the finding of the Tribunal that the respondent No. 2 insurance company, is not liable to pay compensation, is liable to be set aside and the matter is required to be remitted to the Tribunal for consideration of the only question as to whether the driver of the tractor was holding a valid driving licence as on the date of accident as to make the insurance company liable to pay the compensation awarded? (4) As per the final order for the following reasons: Point No. 1: 8. The claimants are the wife and children of Rajendra Huddar who was working as a teacher in an aided High School. He was aged 50 years at the time of the accident. The Tribunal has taken the income of the deceased on the basis of the salary certificate, Exh. P8, which shows that he was drawing salary of Rs.9,686 and has deducted 1/3rd towards living and personal expenses and adopted multiplier of 11. In view of the judgment of the Supreme Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, AIR 2009 SC 3104 , referred to above, it is clear that having regard to the age of the deceased as 50 years, the appropriate multiplier would be 13 and not 11 and, therefore, multiplier would be 13 as against 11 taken by the Tribunal. So far as the multiplicand is concerned, the Tribunal has taken the income as shown in Exh. P8. However, in view of the principles laid down in Sarla Verma's case (supra), the Tribunal ought to have added 30 per cent of the income towards future increment and prospects of promotion and having regard to the fact that the deceased was aged 50 years at the time of the accident, 30 per cent of the income has to be added and deducting 1/3rd towards personal and living expenses and adopting the multiplier of 13, the compensation towards loss of dependency would come to Rs.12,96,480. The compensation awarded towards transportation of dead body at Rs.3.000 is on the lower side and the same is enhanced to Rs.5,000. Compensation awarded by the Tribunal under the heads loss of consortium and loss of love and affection and prospects, is justified and the just and reasonable compensation to which claimants would be entitled would come to Rs.13,16,480 as against Rs.8,70,368 with interest at 6 per cent per annum from the date of filing of the petition till realization. The amount ordered to be deposited shall stand modified in view of enhancement made by this court. Accordingly, we answer point No. 1 Point Nos. The amount ordered to be deposited shall stand modified in view of enhancement made by this court. Accordingly, we answer point No. 1 Point Nos. 2 and 3: It is clear from the judgment and award passed by the Claims Tribunal that the Tribunal has absolved the liability of the insurance company on the ground that second trailer was not insured as on the date of accident though tractor was insured as on the date of the accident (3.4.2004) as per Exh. R1 and that the driver of the tractor did not possess an effective driving licence and there is breach of conditions of the policy. The evidence of PW 1 and contents of the insurance policy, Exh. R1, show that the policy covered tractor and the tractor was insured as on the date of accident as per Exh. R1. 9. It is well settled that it is the tractor which can be driven by the driver and the trailer by itself is not a vehicle unless it is attached to the tractor and the averments made in the petition, it has to be held that the accident occurred due to rash and negligent driving of the tractor by its driver and when the tractor is insured as on the date of the accident, it is not open to the insurance company to contend that the second trailer was not insured as in this case, the claimants cannot be termed as third parties, as the deceased was riding his motor cycle and the accident occurred due to rash and negligent driving by the driver of the tractor which was admittedly insured as on the date of the accident and wherefore the finding of the Tribunal that since the trailer was not insured, liability of the insurance company cannot be imposed, is perverse and arbitrary and is liable to be set aside. However, so far as the fact that driver was not holding an effective licence is concerned, the appellants have produced additional document, which shows that as on the date of the accident, driver of the tractor was holding licence and the said document is material to decide the liability of the insurance company. However, so far as the fact that driver was not holding an effective licence is concerned, the appellants have produced additional document, which shows that as on the date of the accident, driver of the tractor was holding licence and the said document is material to decide the liability of the insurance company. As it is well settled that if the driver of the tractor did not hold a valid and effective driving licence as on the date of the accident, insurance company would be absolved of its liability and in view of the averment made in the application, we hold that the additional document is material for determining the liability of the insurance company, we hold that the application is entitled to be allowed and the said application Misc. Cvl. 101679 of 2011 for production of additional document is allowed. However, since the said document was not available before the Tribunal while giving the finding regarding driver of tractor possessed valid driving licence as on the date of the accident and the said document has to be marked and the insurance company, respondent No. 2, has to be given an opportunity to challenge the validity of the said document in the cross-examination while leading additional evidence. We feel it appropriate that the matter should be remitted to the Tribunal only for the purpose of consideration as to whether the driver of the tractor was holding an effective and valid driving licence as on the date of the accident and to proceed thereafter to give a finding about the liability of the insurance company. It is made clear that it is unnecessary for the Tribunal to consider other question except the question as to whether the driver was holding valid and effective driving licence on the date of the accident which would decide the liability of the insurance company. Accordingly, we answer the points for determination and pass the following order: The appeal is allowed in part. It is held that the appellants are entitled to enhancement of compensation of Rs.13,16,048 as against Rs.8,70,368 awarded by the Tribunal with 6 per cent interest from the date of petition to the date of payment. Accordingly, we answer the points for determination and pass the following order: The appeal is allowed in part. It is held that the appellants are entitled to enhancement of compensation of Rs.13,16,048 as against Rs.8,70,368 awarded by the Tribunal with 6 per cent interest from the date of petition to the date of payment. Apportionment made by the Tribunal is affirmed and the order shall stand modified in accordance with the enhancement made in this appeal and the finding of the Tribunal holding that the insurance company is not liable to pay compensation and dismissing the petition against the insurance company is set aside and the matter is remitted to the Tribunal only to find out as to whether the driver of the tractor was holding a valid and effective driving licence as on the date of the accident (3.4.2004) and depending on the said finding, fix the liability of the insurance company. 10. Accordingly, the appeal is disposed of.