Noor Baig vs Syed Anwer and Others

K.L. Manjunath, J.—This appeal is by the insured-cum-owner of the tractor bearing No. KA 14-M 1579/1552. R-1 and R-2 are the legal heirs of one K. Hanief who died in a road traffic accident on 19.10.1996 at about 8.30 p.m. near Seegebagi Cross, Bhadravathi. On account of death of K. Hanief, R-1 and R-2 presented the claim petition claiming compensation from the appellant and R-3 and R-4 in this appeal. According to the claimants, deceased was proceeding on his Luna bearing No. KA 14-E 1763 from Bhadravathi to Seegebagi. He was proceeding by observing traffic rules keeping his vehicle on the left side of the road. When he reached Janatha Rice Mill and Halappa Saw Mill, a tractor bearing No. KA 14-M 1579 and trailer bearing No. KA 14-M 1552 was also proceeding in the same direction behind Luna, due to rash and negligent driving of the driver of the tractor and trailer, tractor dashed against Luna which was proceeding in its front and Hanief died on the spot.

According to claimants, deceased was running a garage and was earning a sum of Rs. 3,000/- per month. Appellant as well as the Insurance Company contended that the accident was not caused due to rash and negligent driving of the driver of the tractor. In addition to the above defence, Insurance Company also contended that the owner of the tractor has committed breach of the terms of the policy. According to the Insurance Company, appellant herein had permitted his driver to drive the tractor attaching trailer and that the trailer was not insured. Therefore, liability was denied by the Insurance Company.

Before the Tribunal two witnesses were examined on behalf of the claimants and on behalf of the respondents three witnesses were examined. Tribunal, after appreciating the evidence adduced by the claimants, held that the claimants are entitled for compensation of Rs. 1,41,000/- with interest. However, liability has been fixed on the appellant herein, thereby exonerating the Insurance Company on the ground that the trailer attached to the tractor was not insured. Therefore, present appeal is filed challenging the findings of the Tribunal in fixing the liability on the appellant and exonerating the Insurance Company from making payment.

Though the matter is listed for admission, by consent of parties/appeal is heard on merits.

Learned Counsel for the appellant contends that Tribunal has committed an error in fixing the liability on the owner. According to him, accident occurred due to the tractor hitting Luna which was proceeding in front of the tractor. He further contends that even though the trailer was attached to the tractor, accident never occurred due to the use of the trailer. Therefore, he contends that since the accident had occurred between the tractor and Luna as the tractor in question was insured with R-4 Insurance Company, liability has to be fixed on the Insurance Company. He further contends that the Tribunal without application of mind, has fixed the liability on the owner.

Learned Counsel for the claimants, supporting the arguments of the learned Counsel for the appellant, requests this Court to allow the appeal. Per contra, the learned Counsel for the Insurance Company contends that since the trailer was not insured, as the accident occurred due to the use of both the vehicles, Insurance Company has been rightly exonerated from its liability by the Tribunal. According to him, appellant has committed breach of terms of the policy issued and requests this Court to confirm the judgment and award of the Tribunal.

Having heard the learned Counsel for the parties, what is required to be considered by this Court in this appeal is that even though the accident has been caused by the tractor which has been insured with R-4, whether R-4 can be exonerated from its liability on the ground that the trailer was not insured.

The facts of this case are not in dispute. It is an admitted fact that appellant''s tractor was insured with R-4 on the date of accident. Policy is also admitted by R-4. It is also an admitted fact that the trailer attached to the tractor was not insured. It is also an admitted fact that the tractor was proceeding behind Luna and that the tractor has hit Luna which was proceeding in its front. From this it is clear that the accident has occurred due to the use of the tractor and not due to the use of the trailer. In the circumstances, this Court has to consider whether the Insurance Company can be exonerated on the ground that the trailer was also attached to the tractor which had no policy.

As rightly pointed by the learned Counsel for the appellant, no part of the trailer has hit either Luna of the deceased or the deceased himself. Deceased died on account of the accident caused by the tractor and not by the use of the trailer. No doubt, trailer was attached to the tractor, if any portion of the trailer had touched Luna or the deceased and due to such impact if the deceased had died, then this Court could have confirmed the finding of learned Tribunal in exonerating the Insurance Company. When no part of the trailer has dashed against Luna or the deceased, question of exonerating the liability of the Insurance Company will not arise at all, since the accident has occurred in using the tractor and not due to the use of the trailer. Therefore, in the circumstances this Court has to hold that the Tribunal has committed an error in exonerating the liability of the Insurance Company.

In the result, appeal is allowed. Compensation awarded by the Claims Tribunal is modified by holding that compensation awarded by the Tribunal has to be satisfied by R-4 Insurance Company. Amount in deposit shall be refunded to the appellant.