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Judgment
Ram Mohan Reddy, J.—I.A. No. 1/2013 is filed to condone the delay of 294 days in preferring this appeal. Respondents though served the first respondent is absent and un-represented while the second respondent - Insurance Company is represented by learned counsel. Although the explanation offered is far from satisfactory, nevertheless to meet the ends of justice, the delay of 294 days in filing the appeal is condoned. I.A. No. 1/2013 is allowed. Though this appeal is listed for hearing on I.A. No. 1/2013, nevertheless with the consent of the learned counsel for the parties, is finally heard and disposed of by this order.
Appellants are widow and a minor child of the deceased Bapugouda Shirshyad who is said to have succumbed to grievous injuries in an accident that occurred on 26.01.2011 at about 1.30 p.m., involving a tractor and trailer unit bearing certificate of registration No. KA-28/T-7866-7867, near Devalar Bridge on Hadaginal to Devalar road. Deceased is said to be aged 35 years on the date of accident and death.
On the aforesaid assertions, appellants instituted a petition u/s 166 of the Motor Vehicles Act, 1988 (for short the ''Act'') registered as MVC No. 737/2011 on the file of the Motor Accident Claims Tribunal No. IV, Bijapur (for short the ''MACT'') claiming compensation of Rs. 30,50,000/- due to the death of Bapugouda Shirshyad. Appellants alleged that on 26.01.2011 the deceased alighted from the tractor trailer at about 1.30 P.M. to attend natures call and while trying to board the tractor, the driver suddenly drove the tractor in a rash and negligent manner, as a result of which the deceased fell and was caught under the wheels and succumbed to grievous injuries. It was asserted that the deceased was an agriculturist, and owned 3 acres 29 guntas of land. Respondents when arraigned as party respondents in the claim petition, on being served with notice, entered appearance and filed written statement. The first respondent - owner denied the accident as having occurred due to the rash and negligent driving of the driver and asserted that if at all the claimants are entitled to compensation, may be recovered from the second respondent - Insurance Company, since the tractor trailer unit was insured by the second respondent and was in force on the date and time of accident.
Second respondent - Insurance Company filed its written statement contending that the claim was false, frivolous and not maintainable, while admitting that the tractor trail unit belonged to the first respondent, insured under Rural Insurance Miscellaneous Farmers Package Policy, wherein the risk was covered in respect of the driver of the tractor alone and did not collect any additional premiums from the owner to cover the risk of other persons.
In the premise of pleadings of parties, the MACT framed the following three issues:
Whether the petitioner proves that, on 26.1.2011 at about, 1.30 p.m., near Davalar Bridge, on Hadaginal to Davalar Road, the driver of Tractor and Trailer bearing its Reg. No. KA-28/T-7866-7867 while Babugouda S/o Bhimappa Shirashad was about to board the tractor the driver of the drove the same suddenly with high speed in rash and negligent manner and was caught in between two wheels and succumbed to the injuries sustained in the accident?
Whether petitioner is entitled for compensation? If so, what is the quantum of the compensation?
What order?
The widow and the brother of the deceased were examined as PW-1 and PW-2 respectively and introduced in evidence documents marked as Exs. P1 to P12 while for the second respondent � Insurance Company one officer was examined as RW-1 and two documents marked as Exs. R1 and R2, being the copy of the vehicle, policy and copy of the RC book of the vehicle respectively.
The MACT having regard to the material on record and the evidence, both oral and documentary, returned findings in the affirmative over issue No. 1; partly in the affirmative on issue No. 2 and accordingly determined compensation of Rs. 5,49,000/- with interest at 6% per annum, fastening the liability on the first respondent - owner to pay the compensation and dismissed the claim petition as against respondent No. 2 - Insurance Company, by judgment and award dated 07.06.2012. Hence, this appeal by the claimants calling in question the adequacy of the compensation as well as the dismissal of the claim petition against the insurer.
Sri Babu H. Metagudda, learned counsel for the appellants submits that due to the rash and negligent driving of the tractor, the deceased while boarding the tractor fell down was caught under the wheels and succumbed to the grievous injuries, hence, ought to be treated as a third party and liability fastened on the insurer. In addition learned counsel submits that reckoning Rs. 3,000/- per month as the income of the deceased, by the MACT, to determine compensation under the head of loss of dependency is not justified.
Sri Shivanand Patil, learned counsel for respondent No. 2 - insurer points to Section 118 of the Motor Vehicles Act, 1988 whereunder the Central Government in exercise of powers vested therein made regulations for driving of motor vehicles known as Rules of the Road Regulations, 1989 (for short the Regulations) and in particular to Regulation 28 of the Rules dealing with driving of tractors and goods vehicles, to submit that the driver of the tractor trailer when not required to carry or allow any person to be carried on the tractor, the MACT was fully justified in fastening the liability on the owner of the tractor, while discharging the insurer of the liability to pay the compensation. According to the learned counsel, in the facts and circumstances of the case, the MACT was fully justified in dismissing the petition against the insurer. Learned counsel places reliance upon a decision of a coordinate division bench of this Court in Oriental Insurance Company Limited Vs. Shoba and others ILR 2011 KAR 4619 and submits that the MACT followed the very same decision to conclude that in the facts and circumstances of the case no liability can be fastened on the insurer.
Having heard the learned counsel for the parties, the following two points arise for consideration:
Whether in the facts and circumstances of the case:-
(i) the MACT was justified in dismissing the claim petition against the second respondent - insurer?
(ii) the MACT was justified in reckoning Rs. 3,000/- as the monthly income of the deceased to award compensation under the head of loss of dependency?
Re. Point No. (i):
The answer to the first point need not detain the Court for long. There being no dispute that the tractor trailer had one seat for the driver as set out in the RC Book Ex. R2 coupled with the fact that Regulation 28 of the "Regulations" requires the driver of a tractor not to carry or allow any person to be carried on the tractor, the claim of the legal representatives of the deceased that the deceased was trying to board the tractor trailer at which point of time fell down and was run over by the tractor trailer and succumbed to grievous injury, is a clear pointer to the fact that the driver of the tractor trailer ought not to have allowed the deceased to board the tractor trailer. In our opinion the MACT was fully justified in dismissing the claim petition against the Insurance Company which had insured the tractor trailer. The first point is answered accordingly.
Re. Point No. (ii):
There is force in the submission of the learned counsel for the appellants that an able bodied man aged 35 years as on 26.01.2011 who owned 3 acres 29 guntas of agricultural land must have earned in the least Rs. 200/- per day. Reckoning the monthly income of the deceased at Rs. 6,000/- in place of Rs. 3,000/- reckoned by the MACT and deducting 1/3rd towards personal expenses of the deceased, the annual loss of dependency is Rs. 48,000/- and applying multiplier ''16'', the total loss of dependency is Rs. 7,68,000/- as against Rs. 3,84,000/- awarded by the MACT. Thus the claimants are entitled to enhanced compensation of Rs. 3,84,000/- with interest at 6% per annum from the date of petition till realization. The second point is answered accordingly. In the result, this appeal is allowed in part. The judgment and award of the MACT is modified entitling the appellants to enhanced compensation of Rs. 3,84,000/- with interest at 6% per annum from the date of petition till the date of realization and in all other respects remains unaltered.