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Judgment
B. Chandra Kumar, J.—Since MACMA No. 2022 of 2006 and Cross Objections (SR) No. 46163 of 2006 arise out of the award dated 28.01.2006 passed in OP No. 723 of 2002 by the Motor Accidents Claims Tribunal-cum-District Judge, Kadapa, they are being disposed of by this common judgment.
MACMA No. 2022 of 2006 is filed by the National Insurance Company Limited against the impugned award and Cross Objections (SR) No. 46163 of 2006 is filed by the claimant seeking enhancement of compensation.
The parties hereinafter will be referred to as they are arrayed before the Tribunal for the sake of convenience.
The brief facts of the case are as follows. That on 30.11.2001 at about 6.00 PM the claimant and three others boarded an auto at Navatha Lodge in Pulivendula and were proceeding to Velpula. The claimant was sitting on iron bar facing inside the auto. When the said auto reached stone polishing machine the offending tractor and trailer bearing Nos. AP-21D-5850 and 5851 being driven by its driver in a rash and negligent manner at high speed came and hit the auto. As a result of which the claimant sustained fracture to his head, right shoulder, right forearm and right humerus. He was shifted to MS Ramaiah Medical Hospital, Bangalore, where he underwent treatment for 45 days as inpatient. The further case of the claimant is that he became permanently disabled and he is unable to walk and talk as previously and he is not in a position to move in the society. The further case of the claimant is that he was aged about 35 years, cultivating Ac. 5-00 of land and earning Rs. 1,20,000/- per annum by raising groundnut and sunflower crops.
The first respondent-owner of the vehicle remained ex parte. The second respondent-Insurance Company contested the matter on various grounds. The Insurance Company has taken a stand that the driver of the auto was negligent and in fact the accident occurred due to negligence of the auto driver and it is not due to the negligence of the driver of the tractor. It is also the case of the Insurance Company that the claimant ought to have made the owner and Insurance Company of the Auto as parties to the petition. The other averments of the claimant have been denied.
The Tribunal framed the following issues.
Whether the petitioner received injuries in a motor vehicle accident on 30.11.2001 due to rash or negligent driving of R1''s tractor and trailer bearing No. AP-21D-5850 and 5851 by its driver?
Whether the petitioner is entitled for compensation and if so, to what amount and from whom?
To what relief?
On behalf of the claimant, the claimant himself was examined as PW. 1 and PWs. 2 to 4 were also examined and Exs. A1 to A9 and Exs. X1 and X2 were marked. On behalf of the respondents RW. 1 was examined but no documents were marked on their behalf.
On the issue of negligence the Tribunal came to the conclusion that the accident occurred due to negligence of the driver of the tractor and trailer. On the quantum of compensation, the Tribunal came to the conclusion that the claimant is entitled to total compensation of Rs. 4,87,000/-. As far as liability is concerned the Tribunal came to the conclusion that though the driver of the tractor was not holding driving licence to drive the transport vehicle since the tractor was not transporting any goods at the time of accident and since there was no load in the trailer it cannot be said that the Insurance Company is absolved from its responsibility indemnifying the liability of the owner of the vehicle. Thus, the Tribunal held that the Insurance Company is liable to indemnify the owner of the vehicle. The said award is under challenge.
The main contention of the learned counsel for the Insurance Company is that the amount awarded is excessive. It is submitted that the Tribunal awarded Rs. 1,00,000/- for three fractures, Rs. 50,000/- towards loss of pleasure, Rs. 1,00,000/- towards disability and Rs. 75,000/- towards loss of income and the Tribunal failed to follow the well settled principles in awarding compensation in case of injuries. His next submission is that since the driver was having driving license to drive light motor vehicle and since the tractor and trailer cannot be treated as light motor vehicle the finding of the Tribunal is incorrect.
As seen from the order of the Tribunal, the Tribunal has relied on the judgment of this Court reported in Dobella Laxmi Narayana Vs. S. Ravi Kumar and Another, and also on the judgment in case between The New India Assurance Co. Ltd. Vs. Subbu and Others, , and came to the conclusion that the tractor is to be treated as a light motor vehicle. The Tribunal has also relied on a judgment reported in Ashok Gangadhar Maratha Vs. Oriental Insurance Co. Ltd., . In that case, the Apex Court considered the case where the vehicle was not carrying any goods at the time of accident.
The learned counsel for the Insurance Company has relied on judgment of Punjab and Haryana High Court in case between Smt. Ganesh and Others Vs. Bajaj Allianz General Insurance Company Ltd. and Others, , in support of his contention that tractor is not included under Light Motor Vehicle (LMV) or Heavy Transport Vehicle (HTV), it is separately defined under Section 2(44) of the Motor Vehicles Act, 1988. So, license has to be obtained to drive that kind of vehicle.
Sub-Sections 44, 46, 47, 48 and 49 of Section 2 of the Act are as follows:
2(44) "tractor" means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller;
2(46) "trailer" means any vehicle, other than a semi-trailer and a sidecar, drawn or intended to be drawn by a motor vehicle;
2(47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;
2(48) "unladen weight" means the weight of a vehicle or trailer including all equipment ordinarily used with the vehicle or trailer when working, but excluding the weight of a driver or attendant; and where alternative parts or bodies are used the unladen weight of the vehicle means the weight of the vehicle with the heaviest such alternative part or body;
2(49) "weight" means the total weight transmitted for the time being by the wheels of a vehicle to the surface on which the vehicle rests.
Sub-Sections 14, 15, 16 and 17 of Section 2 of the Act are as follows:
2(14) "goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods;
2(15) "gross vehicle weight" means in respect of any vehicle the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle;
2(16) "heavy goods vehicle" means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms;
2(17) "heavy passenger motor vehicle" means any public service vehicle or private service vehicle or educational institution bus or omnibus, the gross vehicle weight of any of which, or a motor car, the unladen weight of which, exceeds 12,000 kilograms;
The above definitions make it clear that it is the weight of the vehicle which determines the issue. Therefore, wherein a case the weight or gross vehicle weight, or either of which motor car or tractor or road roller, the laden weight does not exceed 7,500 kg, it has to be treated as light motor vehicle. In view of the same, I am of the view that the decision of the Punjab and Haryana High Court does not apply to the facts of the present case.
We are not concerned with the issue whether the vehicle is tractor trailer or transport vehicle etc. Since, light motor vehicle has been specifically defined under Section 2(21) of the Act, the said definition would alone apply to the facts of the present case.
Light motor vehicle has been defined under Section 2(21) of the M.V. Act which is as follows.
"light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms"
The evidence of RW. 1 shows that the driving license issued to the driver of the tractor reveals that he got license to drive light motor vehicle/non-transport only.
In the light of the above judgments, it appears that unless it is shown that the gross weight of the vehicle whether it is transport vehicle, omnibus motor car or tractor exceeds 7500 KGs, it has to be treated as light motor vehicle. As far as weight of the tractor is concerned it appears that no evidence has been adduced by the Insurance Company. Therefore, the finding of the Tribunal cannot be interfered with.
Sri Nisaruddin Ahmed Jeddy, learned counsel for the Insurance Company, submits that the auto was overloaded since the claimant himself contended that he along with three others boarded the auto. It is also his submission that the claimant was sitting on the iron bar of the auto facing inside the auto and this shows that the auto driver was negligent and there is contributory negligence on the part of the auto driver.
In a case where the Insurance Company takes a plea that there is contributory negligence, the Insurance Company ought to have examined the driver of the Tractor. Mere taking a plea in the counter that auto driver is also negligent is not sufficient. Even if it is said that the claimant along with three others were proceeding in the auto that itself cannot be a circumstance to say that the auto driver was negligent in driving the auto. Of course the claimant was sitting on iron bar, but since the tractor being a bigger vehicle the driver of the Tractor ought to have been careful in driving the same. Even if the above circumstances are taken into consideration, by that itself, it cannot be definitely held that there is any contributory negligence on the part of the driver of the auto.
As far as quantum of compensation is concerned, the claimant has categorically deposed that he is unable to walk and concentrate on work and he is suffering with constant head ache. PW. 4 has categorically deposed that the claimant sustained fracture of right shaft humerus and movements of right shoulder and elbow are restricted. According to PW. 4, the disability is 35%. PW. 4 deposed that the claimant sustained moderate speech disability in the form of dysorthria. According to PW. 3, the claimant has shortening of left lower limb with gait disturbance due to the neurological deficits and according to him, the claimant sustained 50% disability. The claimant has taken treatment for more than 40 days as inpatient. According to him, he is still taking treatment. The Courts have to consider the nature of injury, period of treatment, disability sustained by the claimant. For the purpose of determining future of loss of earnings, the functional disability has to be determined. Functional disability depends on the nature of injury. According to the claimant, he is an agriculturist and earning Rs. 1,20,000/- per annum. As far as agriculturist is concerned, he can cultivate the lands by engaging labourers. Of course, the injured may not be in a position to supervise the work as previously. In such circumstances, the loss of earnings have to be estimated basing on the notional value of supervisory charges. So, in the circumstances, I consider it just and reasonable to take the notional value of supervisory charges at Rs. 4,000/- per month and if loss of earnings are estimated at 40%, then the net loss of earnings would come to Rs. 1,600/- per month and annual loss of earnings would come to Rs. 19,200/-. If the same is multiplied with ''16'', the total loss of earnings would come to Rs. 3,07,200/-. The claimant has filed medical bills to the tune of Rs. 1,41,425/-. In the circumstances, I consider it just and reasonable to award the same towards medical expenses. I also consider it just and reasonable to award an amount of Rs. 13,575/- towards transportation charges, Rs. 5,000/- towards attendant charges, Rs. 5,000/- towards extra nourishment, Rs. 10,000/- towards loss of amenities of life, Rs. 5,000/- towards loss of expectation of life and Rs. 20,000/- towards continuing disability, inconvenience and discomfort. Thus, the total compensation amount would come to Rs. 5,07,200/- Accordingly, the appeal filed by the Insurance Company is dismissed and the Cross Objections filed by the claimant is allowed in part granting compensation of Rs. 5,07,200/-. The enhanced amount shall carry interest at 9% p.a., from the date of petition till realization. However, in the circumstances, no costs.
As a sequel, the miscellaneous petitions pending, if any, in this appeal shall stand closed.