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2014 DIGILAW 149 (CHH)

Krishna Devi Bhupendra v. Birbal Yadav

2014-04-02

PRITINKER DIWAKER

body2014
JUDGMENT : PRITINKER DIWAKER, J. 1. As both these appeals arise out of the same award dated 12.10.2007 passed by the Second Additional Motor Accidents Claims Tribunal (FTC), Korba (hereinafter referred to as 'the Tribunal') in Claim Case No. 55 of 2007, they are being disposed of by this common order. Brief facts of the case are that on 19.6.2006 when Laxmi Prasad Bhupendra was riding his motor cycle, he was dashed by tractor-trolley bearing registration Nos. CG 12-F 0522 and CG 12-F 0523 respectively, which at the relevant time was being driven by the non-applicant No. 1, Birbal Yadav, owned by the non-applicant No. 2, Ramkunwar, and duly insured with non-applicant No. 3, United India Insurance Co. Ltd. As a result thereof, Laxmi Prasad sustained grievous injuries and was immediately shifted to hospital, however, on 25.6.2006 he succumbed to his injuries while undergoing treatment in Apollo Hospital, Bilaspur. 2. A claim case bearing No. 55 of 2007 was filed by the claimants, who are widow and children of the deceased, five in number, before the Tribunal for compensation of Rs. 1,20,00,000/-, inter alia, pleading that at the relevant time, the deceased was working as SRS/JCM operator in Bharat Aluminum Company Limited, was aged about 43 years, drawing monthly salary of Rs. 36,724/-, he died in the accident caused due to rash and negligent driving of the vehicle in question and, therefore, they are entitled for compensation as claimed from the non-applicants. 3. The insurance company contested the case on the ground that though driver of the vehicle, i.e., tractor was having licence to drive LMV (non-transport) but the moment the tractor is attached with a trolley, it becomes a transport vehicle and, therefore, on account of there being breach of policy conditions, the insurance company cannot be held liable to pay compensation to the claimants. This ground was taken by the insurance company as according to it, at the time of accident bricks were being transported by trolley attached with the tractor in question whereas the same was insured for agricultural purposes. 4. However, the learned Tribunal on appreciation of the evidence on record by the impugned award granted a total compensation of Rs. This ground was taken by the insurance company as according to it, at the time of accident bricks were being transported by trolley attached with the tractor in question whereas the same was insured for agricultural purposes. 4. However, the learned Tribunal on appreciation of the evidence on record by the impugned award granted a total compensation of Rs. 15,32,000/- in favour of the claimants with interest at the rate of 9 per cent per annum from the date of claim petition till realization, fastening the liability, jointly and severally, upon the insurance company along with driver and owner of the vehicle in question on the ground that there was no breach of policy conditions as the vehicle in question was being used for agricultural purposes and its driver was having a valid and effective licence to drive the same. 5. It is this award which has been challenged by the claimants in M.A. (C) No. 1429 of 2007 seeking enhancement of compensation whereas the insurance company by filing M.A. (C) No. 53 of 2008 has challenged the same on the point of liability. M.A. (C) No. 53 of 2008: 6. Contention of learned counsel for the insurance company is that the tractor was registered for agricultural purposes and the moment trolley is attached with the tractor, it becomes a transport vehicle whereas the driver was having licence to drive LMV (non-transport). Further, on the date of accident, the vehicle in question was being used for commercial purposes and, therefore, there being violation of policy conditions the insurance company cannot be saddled with the liability of satisfying the claim. 7. Replying to this argument, it has been contended on behalf of the claimants that undisputedly driver of the vehicle was having a valid licence to drive LMV and tractor falls in the category of LMV. He submits that the suggestion given by the insurance company to the witnesses that in the vehicle in question bricks were being transported on the date of accident was categorically denied by the witnesses and the evidence reflects that the vehicle in question was being used for agricultural purposes. He further submits that mere non-endorsement in the licence of the driver to drive transport vehicle will not adversely affect the case of the claimants, especially when the driver was authorised to drive tractor. 8. He further submits that mere non-endorsement in the licence of the driver to drive transport vehicle will not adversely affect the case of the claimants, especially when the driver was authorised to drive tractor. 8. As regards M.A. (C) No. 53 of 2008, rule 2 (b) of the Central Motor Vehicles Rules, 1989 defines agricultural tractor, which reads as under: "2 (b) 'agricultural tractor' means any mechanically propelled four-wheel vehicle designed to work with suitable implements for various field operations and/or trailers to transport agricultural materials. Agricultural tractor is a non-transport vehicle;" 9. The above definition makes it clear that under no circumstances, the tractor attached with the trolley can be termed as transport vehicle. 10. In the case of Nagashetty Vs. United India Insurance Co. Ltd. and Others, (2001) 8 SCC 56 , the Apex Court in para 10 has laid down as under: "(10) We are unable to accept the submissions of Mr. S.C. Sharda. It is an admitted fact that the driver had a valid and effective licence to drive a tractor. Undoubtedly under section 10 a licence is granted to drive specific categories of motor vehicles. 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 the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd result. 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. 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." 11. The Division Bench of this court in the matter of Royal Sundaram Alliance Insurance Company Ltd. Vs. Jhool Bai and Others, (2009) ACJ 758, placing reliance upon the principles of law laid down in the aforementioned decision of the Supreme Court has held that since the driver of the tractor had a valid and effective driving licence to drive the tractor, he would not become disabled to drive it merely because a trailer was attached to the tractor. This apart, if the weight of the vehicle is taken into consideration, then also it can be ascertained that driver was having a valid and effective licence to drive the vehicle in question, i.e., tractor-trolley. So far as breach of policy conditions due to use of vehicle for commercial purposes is concerned, the burden of proving the said breach was on the insurance company. However, from perusal of the evidence on record, it is evident that the insurance company has failed to discharge its burden. In view of the above, the finding of the Tribunal fastening liability upon the insurance company is well founded and is hereby affirmed. Appeal [M.A. (C) No. 53 of 2008] preferred by the insurance company is liable to be, and is, accordingly, dismissed. 12. So far as appeal [M.A. (C) No. 1429 of 2007] preferred by the claimants for enhancement is concerned, the Tribunal after assessing monthly income of the deceased as Rs. 13,563/- has granted compensation of Rs. 15,32,000/- in favour of the claimants. Assessment of income of the deceased as Rs. 13,563/- by the Tribunal appears to be justified because in the salary slip for April 2006, amount of LTC, leave encashment was also added and the Tribunal has rightly deducted this amount. However, the Tribunal has committed an illegality in not awarding any amount for promotional prospects. Assessment of income of the deceased as Rs. 13,563/- by the Tribunal appears to be justified because in the salary slip for April 2006, amount of LTC, leave encashment was also added and the Tribunal has rightly deducted this amount. However, the Tribunal has committed an illegality in not awarding any amount for promotional prospects. Thus considering age of the deceased and keeping in view the principles of law laid down in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , there should be an addition of 30 per cent of the actual salary, i.e., Rs. 13,563/-, which comes to Rs. 4,068/- to the actual salary for future promotional prospects of the deceased. After making such addition, the monthly income of the deceased would be Rs. 17,631/-. Considering the number of dependants, i.e., 5, 1/4th (Rs. 4,407/-) is to be deducted from the monthly income of the deceased for his personal and living expenses and having deducted thus the monthly loss of dependency comes to Rs. 13,224/-, i.e., Rs. 1,58,688/- p.a. As the deceased was 43 years of age, therefore in view of law laid down in Sarla Verma (supra), multiplier of 14 will be applicable in the present case. After applying this multiplier, the total loss of dependency would come to Rs. 22,21,632/-, which is rounded off to Rs. 22,21,000/-. 13. As regards the amount awarded towards conventional heads, in the facts and circumstances of the case, the same appears to be on the lower side and is, therefore, enhanced to Rs. 50,000/- in lump sum. 14. On the basis of aforesaid discussion, appellants-claimants are held entitled for a total compensation of Rs. 22,71,000/- and since the Tribunal has already awarded Rs. 15,32,000/-, after deducting the same the appellants are entitled for enhancement of Rs. 7,39,000/-. This additional amount of compensation shall carry interest at the rate of 6 per cent per annum from the date of filing of claim petition till realization. In the result, the appeal M.A. (C) No. 53 of 2008 preferred by the insurance company is dismissed whereas the appeal M.A. (C) No. 1429 of 2007 preferred by the claimants is allowed with modification in the impugned award to the aforesaid extent.