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Judgment
K. Govindarajulu
In regard to accident dated 20.12.1998, two claim applications are filed. One by the injured Rangappa, other by the legal representatives of Manjappa. Both the cases are decided by the impugned order. The insurance Company has preferred appeals in MFA.Nos.2099/2008 and 2190/2008 The Insurance Company has contended that it is not liable to pay compensation so it has challenged the award whereas, the claimants seek enhancement of compensation. So, heard all the cases at a stretch.
The case of the claimants is Rangappa, the injured and Manjappa, the deceased were moving in a trailer attached to a tractor bearing registration No. CTS 9438-9439 along with Umesh and Govindappa. Then the driver of the tractor has driven the tractor rashly and negligently, caused the accident and Manjappa succumbed to the injuries. Rangappa received injuries in the accident. So, the claimants seek for compensation. The owner of the Insurance Company has filed objections, admits that he is the owner of the tractor trailer, contend that the driver had a valid Driving licence (in para 3 of the objections) and further contend that the liability if any is upon the Insurance Company to pay the compensation, as on the said date, the vehicle was insured with respondent, no.3.
The Tribunal has accepted the case of the claimants and awarded the compensation.
The learned Advocate Shri A.K. Bhat for the Insurance Company submits it is the case of the claimants that they went to pluck the arecanut. Arecanuts were being plucked as usual on contract basis in this process of regular contract, the deceased and the claimant Rangappa were moving in the trailer along with three persons. So it do not fall within the ambit of during the course of employment. The vehicle being not used for the work of the owner of the tractor vehicle being used to carry the arecanut of a person who has taken the contract of harvesting the crop, travel by the deceased and the claimants fall as passengers for hire or reward and not coolies or employees of the owner. The learned Advocate invites the attention of the Court to the evidence of Rangappa, so he contends that the case would not tall within the category of owner of the goods travelling along with goods, which is covered u/s 147 of the Motor Vehicles Act so seeks for exonerating the Company. Secondly, contend that the driver having failed to produce the valid driving licence, the vehicle being used for transportation of goods, the driver should have had a valid driving licence to drive the transport vehicle. He places reliance on the ruling of this Court reported in National Insurance Co. Ltd. Vs. Kusum Rai and Others, wherein this Court was considering the requirements of a valid commercial driving licence.
The learned Advocate for the claimants on the other hand supports the finding, contend agricultural operation or use of the vehicle, includes any connected activity which is part and parcel of the carrying out of the agricultural operation so this strict interpretation of contract to pluck arecanut cannot be segregated. So pray for rejecting the contention urged by the learned Advocate Shri A.K. Bhat. Also submits that the compensation awarded is also on a lower side.
The accident is admitted, actionable negligence is not disputed. The liability of the Insurance Company is disputed on the ground that as on the said date of the accident, the position of the injured and the deceased is not that of a person employed to do the agricultural activity but the person employed by contractor to pluck and carry away arecanut. The use of the tractor trailer is considered by this Court in Smt. Bhimavva and Others Vs. Shankar @ Adya and Others reported in ILK 2004 KAR 3562. The Division Bench of this Court has summarised the case and have laid down, the ratio while holding that the tractor is a goods carriage vehicle. The ratio reads as follows:
Firstly, a tractor is a motor vehicle as defined in Section 2(18). Secondly, tractor is a motor vehicle which itself is not constructed to carry any load, but is meant to use for the purpose of propulsion of a trailer. Thirdly, the trailer is defined as a vehicle other than a side car drawn or intended to be drawn by a motor vehicle. There can be no doubt that a trailer is constructed for the purpose of carriage of the goods and when it is puller by a tractor, both together constitute a transport vehicle i.e., a goods vehicle. Tractor-trailer squarely falls within the definition of the words "goods vehicle".
The policy issued is admitted. A sum of Rs.935/- is collected as premium(Rs.560/- towards Od Premium of tractor trailer. Rs.120/ for the Tp tractor. Rs.30/- for the Tp trailer, Rs.15/- for the driver, Rs.75/- for TPPD. Rs 90/- for six coolies) so coolies are covered by the, cover note issued by the Insurance Company. The aspect of coolies, whether coolies could be employed on contract by the owner of the tractor alone is not substantiated by the learned Advocate for the Insurance Company. This Court in National Insurance Company Limited Vs. Alipeer and Another, considering the similar subject of interpretation of a insurance policy has held as follows:
In the rural life style of India, with very poor inadequate transport infrastructure, the agriculturists often jointly engage a goods vehicle for transportation of their agricultural produce.
The tractor/trailer is covered with six coolies, so the Court is of the considered opinion the contract between the owner of the vehicle with the contractor who wants to pluck the arecanut cannot be segregated, as the claimants are third party as u/s 147(1)(b)(i) the Company has to cover the owner of the goods and also the authorised representative of the goods. The material averments in the complaint is to the effect that the arecanut that was plucked was loaded into the trailer and along with the loaded arecanut, these people were travelling. So, the vehicle is used to carry agricultural produce as a goods vehicle. The vehicle is insured for carrying the coolies. There being also the goods of the owner of the vehicle, the Court rejects the submission of the learned Advocate for the Insurance Company that as on the said hour of the accident, the injured/deceased were the employees of the contractor and not the owner of the tractor trailer. Such a restricted interpretation is not required when a ease of third party is considered by this Court, as it is a social welfare legislation intending to protect the third party interests.
The next contention urged by the learned Advocate for the Insurance Company is on the subject of having a valid driving licence. No issue is framed on the subject. The Insurance Company in the objections has called upon the claimant to produce driving licence and even a notice is issued for production of the driving licence. The settled principle of law even in a summary proceeding is that the other man should know what is required to be proved by him. There being no issue on the said subject of driver holding a valid driving licence as on that day, there being a pleading by the owner of the tractor that the driver had a valid driving licence, the learned Advocate for the Insurance Company ought to have taken out witness summons to the owner of the vehicle for production of the driving licence relied by the owner of the tractor. Having not done so, the submission that the driver should have a transport vehicle licence urged is rejected.
in regard to the quantum of compensation urged by the learned Advocate for the claimants in MFA.NO.9268/2008(MVC.No.75/1999), the accident is of the year 1999. The income of the deceased is calculated @ Rs.3000/- per month which is @ Rs.100/-per day, whereas, the income of the injured is considered as Rs.75/- per day. So on a comparison of the figures that is found in regard to the Joss of earnings, a sum of Rs.5000/- claimed by the claimants is on a higher side and assessment of the income at Rs.3000/- per month do not require interference. 1/3 is deducted towards personal expenses. The multiplier 13 being applied, the age of the first claimant being 42 years, the first claimant being the wife, the multiplier to be applied ought to have been 14 so the claimant is entitled for a further sum of Rs.36,000/- under this head. Rs 1800/- awarded under the head attendant charges, Rs.5416/- awarded under the head medical expenses. Rs.45000/- under the conventional heads is not disturbed. Accordingly, the claimants in MFA.NO.9268/2008(MVC.No.75/1999) are entitled for an additional compensation of Rs.36,000/- with interest @ 6% per annum from the date of application till deposit and the same is awarded.
In regard to the claimant in MFA. No. 9269/2008 (MVC. No. 109/1999) is concerned he has sustained the following injuries:
Fracture of Distal third of left radius.
Fracture distal third of left ulna.
Posterior dislocation of left elbow.
Pelvic fracture with urethral injury.
The accident is of the year 1998 and a sum of Rs. 1,26,300/- is awarded. The same do not call for interference at the hands of this Court.
In the result, MFA. No. 9268/2008 is allowed in pan. MFA. Nos. 9269/2008, 2099/2008 and 2100/2008 are dismissed. The amount in deposit be transferred to the Tribunal for payment.