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2016 DIGILAW 221 (UTT)

Oriental Insurance Company Limited v. Phoolmala

2016-05-16

SERVESH KUMAR GUPTA

body2016
JUDGMENT : Servesh Kumar Gupta, J. 1. Both above-titled appeals have arisen out of the same accident, hence are being taken up together for adjudication, nonetheless, separate judgments were rendered by learned Tribunal on 06.09.2010 because deceased were the two young men from two different families. 2. In brief, the facts are that on 21.06.2008, at around 7:30 P.M., Mr. Babu Malik, along with his companion Mr. Mihir Haldhar and one other, were on his motorcycle and they stopped on the public way leading to Nanakmatta to ease themselves, meanwhile a tractor (bearing no.UP-04-B-5954), having trailer attached along with, came in front and dashed the youth. Such tractor was being driven rashly and negligently and as result thereof, Mr. Babu Malik and Mr. Mihir Haldhar (both young men of the age of 22 years) lost their life. Report was lodged on the next day, i.e. 22.06.2008 which ultimately resulted into submission of charge-sheet against Mr. Daljeet Singh, the driver of tractor, for the offences punishable under Sections 279, 337, 338, 304-A, and 427 of IPC. 3. In A.O. No.443 of 2010, Mr. S.K. Mandal, Advocate is present on behalf of owner and driver of the tractor, while none turned up on behalf of respondent no.1/claimant Smt. Phoolmala. 4. In A.O. No.442 of 2010, Mr. S.K. Mandal, Advocate is present for the respondent nos.1 and 2/claimants, namely, Mr. Narad Haldhar and Smt. Laxmi Haldhar (parents of deceased Mr. Mihir Haldhar), while none turned up on behalf of owner and driver of the tractor. Otherwise also, the interest of owner and driver is akin for protection as existing in AO No.443 of 2010, therefore, the Court proceeds and decides both these appeals on merits. 5. The accident as well as losing of life of both the youth has not been disputed, but learned counsel of the insurance company has argued that the tractor was attached with the trailer and being driven on the public road, wherefor driver did not have an appropriate license and that apart, trailer was required to be registered separately and it was not registered in the Transport Department of the Government, much less, no insurance was got done by its owner for using the trailer attached with the tractor on the road. So in that way, entire liability cannot be fastened upon the insurance company. 6. I have gone through the driving license of Mr. So in that way, entire liability cannot be fastened upon the insurance company. 6. I have gone through the driving license of Mr. Daljeet Singh, who possessed the same to drive the light motor vehicles and tractor is also covered under such category, but if it is attached with the trailer, then it does not remain in the same category. 7. The Constitutional Bench of the Hon’ble Apex Court in the case of “Natwar Parikh & Co. Ltd. Vs. State of Karnataka and others, 2006, ACJ, 1” has held that even though, a trailer is drawn by motor vehicle, it by itself being a motor vehicle, the tractor-trailer would constitute a ‘goods carriage’ under Section 2(14) and, consequently, a ‘transport vehicle’ under Section 2(47). The test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods, it can be stated that it is adapted for the carriage of goods. Applying the above test, we are of the view that the tractor-trailer in the present case falls under Section 2(14) as a ‘goods carriage’ and consequently, it falls under the definition of ‘transport vehicle’ under Section 2(47) of the Motor Vehicles Act, 1988. 8. If it was used on the public road like a goods carriage or transport vehicle, then it comes out from the category of light motor vehicles, wherefor Mr. Daljeet Singh had the license to drive. 9. Besides, nothing has been shown to this Court as the tractor’s owner got this trailer insured for being plied on the road but even though, the Court does not want to fasten the whole liability upon the owner and driver exonerating the liability of insurance company. 10. In the given set of facts, I divide the liability of payment of compensation. Fifty per cent of total awarded amount shall be liable to be paid by the Insurance Company; thirty five per cent thereof shall be paid by owner of the tractor and the rest fifteen per cent shall be paid by the driver of the tractor. 11. In the given set of facts, I divide the liability of payment of compensation. Fifty per cent of total awarded amount shall be liable to be paid by the Insurance Company; thirty five per cent thereof shall be paid by owner of the tractor and the rest fifteen per cent shall be paid by the driver of the tractor. 11. So far as the quantum of compensation is concerned, I do agree on the point of multiplier because the same should have been applied on the average age of parents of the deceased because the deceased were unmarried youths of 22 years of age. The age of Smt. Phoolmata (mother of deceased Mr. Babu Malik) is 50 years, so, in this way, applying the precedent laid down in Sarla Verma Case, the multiplier of “13” should have been applied. This way, the amount of compensation comes to Rs.18,000 x 13 = Rs.2,34,000/- and rest of the amount of Rs.2,000/- and Rs.1,000/-, which have been awarded on different scores, are left intact by this Court. So, the amount of compensation comes to Rs.2,36,000/-. 12. In the peculiar facts and circumstances of the case, it would be quite appropriate to grant rupees one lakh to old age mother towards love and affection. So, the total amount of compensation comes to Rs.3,36,000/-. The interest, as has been awarded by learned Trial Judge, shall remain as it is. 13. In the case of death of Mr. Mihir Haldhar, the average age of parent comes to 47 years. Therefore, as per Sarla Verma Case, the multiplier of “13” is applied. So, this way, the amount of compensation comes to Rs.3,36,000/-. The interest awarded by the Trial Judge shall remain the same. Same calculation has also been used in this matter, as indicated above. So, the total amount of compensation shall be liable to be paid by the insurance company, owner and the driver of the tractor, in the ratio as have been stated by the Court hereinabove. 14. The compulsory statutory amount shall be remitted back to the Tribunal concerned for disbursement along with the amount of compensation. 15. With the above modifications, both these appeals are disposed of. Let the LCR be returned back.