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2013 DIGILAW 120 (PNJ)

Ghansham v. Oriental Insurance Company Ltd.

2013-02-05

K.KANNAN

body2013
JUDGMENT Mr. K. Kannan, J. (Oral) - The appeal is at the instance of the owner of a tractor bearing registration No.HR-36-G-9210 which has been made liable for the consequences of an accident that caused the death of a boy aged 16 years, who was said to be travelling in yet another tractor bearing registration No.HR-36-V-2973. On account of a collision between two tractors, the boy was said to have fallen from the tractor and suffered fatal injuries. 2. On a claim for compensation, the Tribunal found the appellant-insured liable for the accident finding that his driver was guilty of rash and negligent driving. The insurance company had been exonerated on the ground that the driver had only licence to drive the motorcycle, car and jeep and did not have a licence to drive a tractor. The Court assessed a compensation of Rs.4,60,000/- taking the income to be Rs.3,000/- per month, making a deduction of 1/3rd and adopting a multiplier of 18. It also added Rs.15,000/- towards medical treatment and Rs.13,000/- towards miscellaneous expenses. 3. As regards the liability, I would find that the Tribunal was in error in exonerating the insurance company on a finding of alleged violation of terms of policy. The nature of licence that could be granted is set out in the Central Motor Vehicle Rules under Rule 4 read with Form VI. The Central Motor Vehicle Rules set out the categories of vehicles for which the licences could be issued. The form merely prescribes a transport vehicle as a distinct class and the two-wheelers, Light Motor Vehicles as another class. The tractor itself is not in one of the categories mentioned either under Rule 4 or in Form VI. A tractor is a Light Motor Vehicle as defined in Section 2(44) of the MV Act. A car or a jeep is also a Light Motor Vehicle. If the driver, therefore, had a licence to drive a Light Motor Vehicle such as a car or a jeep, the said licence ought to be taken as sufficient for a tractor as well. There had been no breach of terms of policy and the exoneration of liability afforded to the insurer was clearly wrong. 4. If the driver, therefore, had a licence to drive a Light Motor Vehicle such as a car or a jeep, the said licence ought to be taken as sufficient for a tractor as well. There had been no breach of terms of policy and the exoneration of liability afforded to the insurer was clearly wrong. 4. The learned counsel appearing on behalf of the insurance company argues that the appellant himself has bargained only for a right of recovery for the claimant against the insurer with a later right of recovery against the appellant and he had not pleaded for a full right of indemnity. I cannot take this as an argument that should obtain my concurrence since a legal liability of what the law fastened, cannot be said to be forsaken by the appellant by the only fact that he was pleading that the claimants should have had the first right of recovery against the insurer. I hold that if the appellant’s driver was negligent, he was entitled to a full right of indemnity from his insurer for a claim arising out of the accident. 5. The liability of the insurer invariably arises on a liability which is principally cast on the tort feasor or on the owner. The question of quantum of compensation would, therefore, require to be seen as properly assessed or not. The Court has observed that it was applying a formula as given by the Supreme Court in Sarla Verma v. Delhi Transport Corporation [2009(3) Law Herald (SC) 2107 : 2010(1) Law Herald (Acc.) (SC) 65] : (2009)6 SCC 121 and has assessed a compensation taking the income at Rs.3,000/- per month, providing for a 1/3rd deduction and applying a multiplier of 18. The said decision allows for 50% deduction for a claim by the parents and it could not have 1/3rd deduction. If 1/3rd deduction was possible under Schedule II for a person whose income was less than Rs.40,000/- then, even the multiplier to be adopted, must conform to what was set out in Schedule II. The said decision allows for 50% deduction for a claim by the parents and it could not have 1/3rd deduction. If 1/3rd deduction was possible under Schedule II for a person whose income was less than Rs.40,000/- then, even the multiplier to be adopted, must conform to what was set out in Schedule II. In either event, the compensation assessed does not fall within the ambit of law, I will take Schedule II formula as more beneficial to the claimants and will take Rs.3,000/- as an income per month and determine the yearly contribution towards the family at Rs.24,000/- and adopt a multiplier of 16 which is suitable to the age of a person, who was less than 18 years of age. The total loss of dependency would be taken as Rs.3,84,000/-. I will make an additional amount of Rs.9,500/- towards the conventional heads of claim and Rs.15,000/- for medical expenses already incurred. The total amount of compensation would be Rs.4,08,500/-. There is a marginal difference in the amount as already awarded by the Tribunal. The liability stands modified and the quantum of compensation also stands modified to the above extent. 6. The appeal is allowed with a right of enforcement available to the claimants against the insurer.