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2019 DIGILAW 1340 (KAR)

Tippanna v. Bandappa

2019-06-19

B.M.SHYAM PRASAD

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JUDGMENT : B.M. Shyam Prasad, J. This appeal and cross-objection are filed calling in question the judgment and award dated 28.07.2012 in MVC.No.2/2011 on the file of Fast Track-I and MACT-II Yadgiri (for short 'Tribunal'). The appeal is filed by the Insurer of the Tractor and Trailer bearing Reg.No.KA- 33-T-6061 T-6062 (for short 'the Tractor - Trailer). The cross-objection is filed by the father of the deceased seeking enhancement in the compensation. The Tribunal has awarded a total sum of Rs.4,52,000/- along with interest at the rate of 6% p.a. from the date of filing of claim petition till its realization. 2. The learned counsel for the Insurance Company submits that on 05.04.2010 the deceased - Nagappa was on the engine of the Tractor and therefore, the Insurance Company will not be liable. Further, the Insurance Company would also not be liable because the Tractor and Trailer was being used in breach of the policy condition. The Insurance Company has issued the policy for the Tractor and Trailer covering the risk that would be arise from the use for agricultural purpose. But, the Tractor and Trailer was used for commercial purpose for transporting the sand. 3. The learned counsel for the Insurance Company submitted that the undisputed facts are that the Tractor and Trailer was stuck in the riverbed. The driver requested the deceased to stand on the engine of the Tractor hoping that his weight would helpful him in taking out the Tractor and Trailer from the river bed sand. When the driver of the Tractor and Trailer revved the engine to get it out of the riverbed, the deceased fell down from the engine and the Tractor and Trailer ran over the deceased. The deceased was admitted in the Government Hospital for treatment and he died about 2 and half months after the date of the accident. The jurisdictional police registered FIR on the basis of the deceased's statement as per Ex.P.2. The deceased categorically stated before the police that he was standing on the engine of the Tractor on the instruction of the driver. 4. The learned counsel relied upon the decision of the Hon'ble Supreme Court in the case of Oriental Insurance Company Limited /vs/ Premalata Shukla and others, (2007) 13 SCC 476 : (2009) 1 SCC (Cri) 204 and the decision of this Court in MFA.No.779/2009 (MV) to contend that the Claimant cannot dispute Ex.P.2. 4. The learned counsel relied upon the decision of the Hon'ble Supreme Court in the case of Oriental Insurance Company Limited /vs/ Premalata Shukla and others, (2007) 13 SCC 476 : (2009) 1 SCC (Cri) 204 and the decision of this Court in MFA.No.779/2009 (MV) to contend that the Claimant cannot dispute Ex.P.2. Once a document is relied upon, the claimant cannot take selective advantage of such document relying upon a part thereof and deny other part which could be inconvenient to his case. It is settled law that only one person is permitted on the Tractor and that person is the driver. If any other person is carried on the Tractor and there is a liability, the Insurance Company is not liable. 5. The learned counsel for the Insurance Company also argued that it is indisputable from the facts and circumstances of the case that the Tractor and Trailer was being used contrary to the purpose for which it was registered and insured. The Tractor - Trailer was being used for commercial purpose in violation of the terms of the policy issued to cover the risk arising from the use of the offending vehicle for agricultural purposes. Therefore, the Insurance Company could not have been held liable. Despite specific defense in these regards by the Insurance Company, the Tribunal has not considered the same. 6. The learned counsel for the claimant, who is the cross-objector, refuted the first submission as regards the deceased being on the engine of the Tractor. The learned counsel submitted that the claimant was not only relying upon the FIR, but was also relying upon the statement of the claimant himself before the police that he was present at the time of accident and he was a witness to the accident. Further, the other police records also establish that the deceased was not on the engine of the Tractor as contended by the Insurance Company. The claimant has been steadfast even in his evidence. The proposition laid down by the Hon'ble Supreme Court and this Court in the two decisions relied upon by the Insurance Company would not be apply to the facts and circumstances of the case. 7. The claimant has been steadfast even in his evidence. The proposition laid down by the Hon'ble Supreme Court and this Court in the two decisions relied upon by the Insurance Company would not be apply to the facts and circumstances of the case. 7. Further, the learned counsel for the claimant/cross-objector argued for enhancement in the compensation contending that the Tribunal has taken the income of the deceased at Rs.4,000/- per month without addition towards future prospectus though the claimant was entitled for addition towards the future prospectus and the notional income being taken at the rate of Rs.5,500/- per month. 8. Perused the records including the evidence of PW.1, the exhibits and the Tribunal's judgment. The jurisdictional police have recorded the claimant's statement immediately after the accident as per Ex.P.5. In this statement, the claimant has categorically stated that his son was in front of the Tractor. The claimant, who is examined as PW1, has also stated in his chief examination in certain terms that he was a witness to the accident and his son was standing in front of the Tractor which had got stuck in the riverbed. The driver of the Tractor tried to rev the engine of the Tractor in his effort to extricate the Tractor - Trailer from the riverbed and in this process the Tractor and Trailer ran over the deceased. The claimant has been cross-examined on behalf of the Insurance Company. But nothing is elicited in the cross-examination to disbelieve his testimony that he was a witness to the accident or his son was standing in front of the Tractor. Thus, the claimant's version that his son was in front of the Tractor and was run over is consistent. 9. The Claimant, as part of the police record, has also produced EX. P 2, the statement of the deceased. As per this statement, the deceased was on the engine of the Tractor on the instructions of the driver. There is a dichotomy between the version as per EX. P 2 and the claimant's version. The authenticity of the contents of Ex. P2 is not established in the manner known to law, and the Insurance Company has not even examined the police official who recorded the statement of the deceased, the least that should have been done in the light of the claimant's version with the police. Therefore, the statement as per Ex. The authenticity of the contents of Ex. P2 is not established in the manner known to law, and the Insurance Company has not even examined the police official who recorded the statement of the deceased, the least that should have been done in the light of the claimant's version with the police. Therefore, the statement as per Ex. P 2 cannot be read in precedence over the claimant's evidence. 10. The Hon'ble Supreme Court in the case of Premlata Shukla has laid down that the proposition that the factum of an accident could also be proved from the first information report. Once a part of the contents of first information report is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Especially, when both the parties have relied thereupon and marked as an exhibit. But, in the present case the Claimant is not exclusively relying upon the FIR, and in fact the Claimant is relying upon his own statement before the Police and the account of the accident as an eye-witness. Therefore, the facts of this case are different, and the Insurance Company cannot place reliance upon the decision of the Hon'ble Supreme Court. 11. The deceased was working as coolie and aged about 19 years as on the date of accident. The Tribunal has taken the notional income of the deceased at Rs.4,000/- per month because there is no evidence about the actual income of the deceased. However, in cases where the actual income is not established, unless there is exceptional circumstances, the schedule evolved for settlement in the Lok Adalath is adopted. According to this Schedule in the cases arising out of accident in the year 2010, the notional income is taken at Rs.5,500/- per month. The learned counsel for the Insurance Company has not pointed out any circumstance that would justify denying the benefit of notional income at Rs.5,500/- per month. 12. There cannot be any dispute after the decision of the Hon'ble Supreme Court in the case of Premlata Shukla, that the claimant would be entitled for future prospects. The claimant would be entitled for accretion towards future prospects at the rate of 40% as he was aged below 40 years and not in permanent employment. 12. There cannot be any dispute after the decision of the Hon'ble Supreme Court in the case of Premlata Shukla, that the claimant would be entitled for future prospects. The claimant would be entitled for accretion towards future prospects at the rate of 40% as he was aged below 40 years and not in permanent employment. If the loss of dependency to the claimant is recomputed with the income of the deceased at Rs.5,500/- per month and addition of 40% towards future prospects, and retaining the other parameters applied by the by Tribunal as regards deduction towards personal expenses and multiplier, the claimant would be entitled for loss of dependency and compensation computed as follows: Compensation awarded under the heads By MACT By this court Loss of dependency 8,10,000 11,81,340 Loss of love and affection 25,000 25,000 Loss of estate 25,000 70,000 Loss of consortium 60,000 Transportation of dead body 25,000 Filial Consortium 1,20,000 Total 9,45,000 13,96,340 13. There is no dispute that the offending vehicle was being used contrary to the terms of the policy. It was being used for commercial purpose transferring the sand, when it was insured for agricultural purpose. The claimant has himself stated in his evidence that the Tractor - Trailer was being used for shifting sand. In fact, he has stated that Tractor - Trailer was used for 4- 5 trips in a day. In the light of this clear evidence the Insurance Company would not be liable. However, in view of the decision of National Insurance Co. Ltd., vs Swaran Singh and others, (2004) 3 SCC 297 , Insurance Company will have to pay the compensation to the claimant and recover from the owner of the Tractor - Trailer under the Pay and Recovery policy. As such, the following; ORDER A. The cross-objection filed by the claimant is allowed in part modifying the impugned judgment and award in MVC.No.2/2011 dated 28.07.2012 on the file of Fast Track-I and MACT-II Yadgiri awarding to the claimant a total sum of Rs.8,66,600/-, including the enhancement of Rs.4,14,600/-. As such, the following; ORDER A. The cross-objection filed by the claimant is allowed in part modifying the impugned judgment and award in MVC.No.2/2011 dated 28.07.2012 on the file of Fast Track-I and MACT-II Yadgiri awarding to the claimant a total sum of Rs.8,66,600/-, including the enhancement of Rs.4,14,600/-. B. The appeal filed by the Insurance Company is allowed in part modifying the impugned judgment and award in MVC.No.2/2011 dated 28.07.2012 on the file of Fast Track-I and MACT-II Yadgiri holding that the Insurance Company shall pay the sum of Rs.8,66,600/- to the claimant with interest at the rate of 6% per annum and recover all the amounts paid to the claimant from the owner of the Tractor - Trailer in terms of this judgment. C. The amount in deposited in this appeal by the Insurance Company shall be transmitted to the Tribunal for disbursement in terms of the Tribunal's judgment and award.