Basavarajappa vs Budeppa

Anand Byrareddy, J.—Heard the learned counsel for the appellant and the learned counsel for respondents. The cross objectors are the claimants, seeking enhancement of compensation.

The facts leading to this appeal are as under:

It is alleged that on 09.04.2004 one Hanumesh, the son of cross objectors, was travelling in a tractor bearing No. KA-36/T-6931 and trailer bearing No. KA-36/T-7590. The contention which is asserted by the appellants that since a buffalo came across the road the driver that is respondent No. 3 (as arrayed before the Tribunal) is said to have applied brakes, as a result of which Hanumesh had fallen off the vehicle and was run over by the tractor and trailer No. KA-36/T-7590 belonging to respondent No. 2 (the appellant herein) which was closely following the other tractor belonging to respondent No. 5 (as arrayed before the Tribunal) and was unable to avoid running over the deceased Hanumesh who has succumbed to the injuries. However, incidentally there was a complaint lodged before the jurisdictional police by the brother of the deceased to the effect that the deceased was travelling in a tractor bearing No. KA-36/T-6931 belonging to respondent No. 5 (as arrayed before the Tribunal). But he was travelling in a trailer belonging to respondent No. 2 (as arrayed before the Tribunal) and therefore he was thrown off the trailer belonging to respondent No. 5. This was a discrepancy which was not corrected. The said complainant was not an eyewitness, nor was travelling in the tractor, but had mentioned the tractor-trailer numbers as well as the sequences of events on the basis of information received.

Oil the basis of these circumstances, the claim petition was filed. The tractor belonging to respondent No. 2 was alone insured and not the trailer. Accordingly, in the course of the proceedings since the Insurance Company had negated its liability on the ground that according to the complaint, the deceased was travelling in the trailer belonging to respondent No. 2 and the deceased was thrown off the trailer and he was run over by the tractor belonging to respondent No. 5, the question of liability of the Insurance Company would not arise and the trailer belonging to respondent No. 2 was not insured and that only the tractor was insured. In this circumstance, though the tribunal had thought it fit to award the compensation to the claimants it had fastened the liability on respondent No. 2 and respondent No. 5. The tribunal has come to the conclusion that there was contributory negligence on the part of the tractor and trailer belonging to respondent Nos. 2 and 5 and has apportioned the liability at 50% each. In this background, the appeal and cross objection are filed. The appeal is filed by respondent No. 2 who seeks to draw attention to the evidence of PW. 2, who has categorically stated that she was travelling along with the deceased in the tractor-trailer belonging to respondent No. 5. The deceased was thrown off the trailer and was run over by the tractor of respondent No. 2. Whereas the tribunal has accepted the contention of the Insurance Company that the deceased was travelling in the trailer belonging to respondent No. 2, as a passenger and was thrown out of the said trailer and was run over by the tractor belonging to respondent No. 5, which was not insured. Accordingly, the tribunal has disposed of the claim petition awarding compensation of Rs. 1,77,000. The claimants are before this Court seeking enhancement of compensation, in the cross objections.

After having heard the learned counsel for the parties and having perused the records. It is seen that the Tribunal has overlooked the evidence of PW. 2 and has accepted the sequence of events as stated in the complaint and as sought to be urged by the Insurance Company. Whereas any eyewitness account which would be the most acceptable form of evidence, has been ignored. In her statement, the witness has categorically stated that she was travelling along with the deceased and that the deceased was thrown out of the trailer belonging to respondent No. 5 and was run over by the tractor belonging to respondent No. 2, which was closely following the tractor-trailer in which she was travelling. Therefore, the Tribunal was in error in appreciating the evidence and the sequence of events. Insofar as the claim for enhancement is concerned, the claimants are the father and mother of the deceased. During the pendency of this appeal, the father of the deceased had died and the claim for enhancement would have to be addressed with due regard to the life expectancy of the claimants. Consequently, the mother of the deceased was said to be aged about 50 years at the time of the accident. Since she has received the compensation that was awarded both in respect of herself and her husband And since her husband is no more, she would have the benefit of the award entirely and hence the question of enhancement would not arise.

Consequently, the appeal is allowed and the liability of the Insurance Company which the Tribunal has held was absolved is set aside and the Insurance Company is held liable to pay of the compensation amount that was awarded to the cross objectors. In the light of the above, the appellant is entitled to withdraw the amount deposited during the pendency of this appeal.

The insurer is granted four weeks time, to deposit the amount, from the date of receipt of a copy of this judgment.