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Judgment
Ram Mohan Reddy, J.—With the consent of learned counsel for the parties, the appeal and cross objections are finally heard and disposed of by this order.
The insurer of the trailer bearing certificate of registration No. KA-12 A-5784 aggrieved by the judgment and award dated 05.11.2012 in MVC No. 4837/10 before the 20th Addl. Judge & 18th ACMM, MACT, Bangalore, (for short ''MACT''), insofar as the finding attributing negligence to the trailer and fastening liability on it to pay the compensation, has preferred the appeal.
Cross objections are filed by the claimants-parents of the deceased child, aged 8, calling in question the very same judgment and award for higher compensation.
In the accident, that occurred on 21.05.2010 at about 10.45 a.m., on 5th main road, Chowdappa Layout, within the jurisdiction of Byatarayanapura police station, Bangalore, involving the tractor bearing registration certificate No. KA-01 TC-363, attached with a trailer bearing registration certificate No. KA-02 A-5784, a pedestrian by name Kousal Kumar @ Kesalkumar, aged 8, when knocked down by the motor vehicle, succumbed to the grievous injuries. Cross objectors filed a petition invoking Section 166 of Motor Vehicles Act, 1988 for compensation, registered as MVC No. 4837/2010 before the MACT. M/s. Bajaj Alliance General Insurance Co., Ltd., the insurer of the tractor and M/s. Oriental Insurance Co., Ltd., the insurer of the trailer as also the owners of the tractor and trailer arraigned as respondents in the petition when served with notices, the two insurance companies resisted the claim petition by filing separate written statements, whereunder, the insurer of the tractor advanced a plea that the accident occurred solely due to the negligence on the part of the deceased since the driver of the tractor was carefully driving the same, while the insurer of the trailer advanced a plea that the driver of the tractor did not possess a valid and effective driving licence as on the date of the accident; that the policy of insurance for the trailer indemnified third party claims when put to use for agricultural or forestry purposes and not for hire or reward and since, the trailer cannot move on its own without being propelled by an engine, the trailer did not cause the accident.
In the premise of pleadings of parties, MACT framed four issues, from out of which, issue No. 1 related to proof of parenting of the deceased, while the 2nd related to the allegation of negligence on the driver of the tractor and trailer, and the 3rd over the quantum of compensation and from whom to be paid.
MACT, recorded the oral testimony of the 1st claimant, the father of the deceased as PW-1 and marked documents as Exs. P1 to P9, while for the Insurance companies, the insurer of the tractor examined an officer by name Smt. S. Prathibha as RW-1, and another witness by name M. Ramesh, ARTO as RW-2, while, the insurer of the trailer, examined its officer as RW-3. Respondents got marked documents Exs. R1 to R5.
MACT, having regard to the material on record and on appreciation of the evidence both oral and documentary, record findings in the ''affirmative'' on issue Nos. 1 and 2 and ''partly affirmative'' on issue No. 3. In other words, held that the claimants were the parents of the deceased; attributed rash and negligent driving on the driver of the tractor but fastened the liability to pay the compensation on the insurer of the trailer, since the deceased was knocked down by the trailer and observing that the driver of the tractor held a valid driving licence on the date of the accident and determined compensation of Rs. 1,80,000/-, for death of the minor, with interest at 6% p.a. from the date of petition till the date of payment with a further direction, apportioning the compensation equally between the parents by the judgment and award impugned.
Learned counsel for the appellant-insurer of the trailer submits that although there is no dispute over the policy of insurance issued to the owner of the trailer, indemnifying him against any claims of third parties, nevertheless, since the trailer was attached to the tractor, the propelling force, and the driver of the tractor found negligent in driving the tractor latched with the trailer, together constitutes a motor vehicle, the cause for the accident, merely because the trailer portion of the motor vehicle knocked down the deceased, does not mean that the cause of the accident was the trailer, hence the finding is an absurdity. The driver of the tractor, the propelling force, by reason of moving the trailer in the reverse gear of the tractor, was negligent in causing the accident, there was no justification for the MACT to fasten liability on the insurer of the trailer alone.
Learned counsel for the insurer of the tractor, submits that there being no dispute over the policy of insurance issued to the owner of the tractor, nevertheless the MACT was fully justified in fastening the liability on the insurer of the trailer, since the trailer had come in contact with the deceased.
Learned counsel for cross-objectors points to the decision of the Apex Court in Civil Appeal No. 7137/2013 arising out of SLP (C) No. 21139/2011 dated 26.08.2013 in the case of Kishan Gopal & another Vs. Lala & Others to submit that in the facts of that case, the Apex Court having regard to the age of the deceased who was 10 years and supported the family in agricultural activities, reckoned Rs. 30,000/- as the annual loss of income, applied multiplier 15 and added Rs. 50,000/- towards conventional heads to award Rs. 5 lakhs with interest at 9% p.a. and in the instant case too, since the deceased was aged 8 and a student, the compensation be enhanced to Rs. 6 lakhs instead of Rs. 1,80,000/- awarded by the MACT with interest at 6% p.a.
Facts not being in dispute, the act of negligence on the part of the driver of the tractor when established and not challenged by the insurer of the tractor, there can be no more doubt that the tractor propelled the trailer attached to it and in the process of moving the trailer in the reverse direction knocked down the boy aged 8, who succumbed to grievous injuries. Without the propelling force of the tractor, the trailer could not have moved in the reverse direction when latched to the tractor, and having done so, the cause of action for the accident and the death of the young boy cannot but be attributed to the negligence on the part of the driver of the tractor. Merely because the tractor and the trailer are insured by two separate insurance companies, by no stretch of imagination or by logic, can be said that the insurer of the trailer alone is to be fastened with the liability to pay the entire compensation.
The trailer having been used with the aid of propelling force i.e., the tractor when attached to it, in the circumstances, it is needless to state that both the insurance companies of the tractor and trailer are equally liable. More appropriately, since there is no material to establish that the insurer of the trailer imposed any condition in the policy of insurance that it would not be liable to pay compensation or indemnify the owner of the trailer against third party claims in the event the trailer is attached to a propelling force, the cause of the accident. In the absence of such a condition, it is reasonable to infer that the insurance company extended its indemnity to the owner of the trailer as against any third party claims for compensation for death or injury. In the aforesaid light, it is further needless to state that the insurance companies of the tractor and trailer together are equally liable to pay the compensation.
The three Judge bench of the Apex Court in Reshma Kumari and Others Vs. Madan Mohan and Another, , observed thus:-
"If the multiplier as indicated in Column (4) of the Table read with para 42 of the Report in Sarla Verma is followed, the wide variations in the selection of multiplier in the claims of compensation in fatal accident cases can be avoided. A standard method for selection of multiplier is surely better than a criss-cross of varying methods. It is high time that we move to a standard method of selection of multiplier, income for future prospects and deduction for personal and living expenses. The courts in some of the overseas jurisdictions have made this advance. It is for these reasons, we think we must approve the Table in Sarla Verma for the selection of multiplier in claim applications made under Section 166 in the cases of death. We do accordingly. If for the selection of multiplier, Column (4) of the table in Sarla Verma is followed, there is no likelihood of the claimants who have chosen to apply under Section 166 being awarded lesser amount on proof of negligence on the part of the driver of the motor vehicle than those who prefer to apply under Section 163-A . As regards the cases where the age of the victim happens to be up to 15 years, we are of the considered opinion that in such cases irrespective of Section 163-A or Section 166 under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma should be followed. This is to ensure that claimants in such cases are not awarded lesser amount when the application is made under Section 166 of the 1988 Act. In all other cases of death where the application has been made under Section 166 , the multiplier as indicated in Column (4) of the table in Sarla Verma 17 should be followed".
The Apex Court''s observation that in case, where the age of the victims happens to be up to 15 years, irrespective of Section 163-A or Section 166 under which, claim for compensation is made, multiplier of 15 and the assessment as indicated in Schedule-II, subject to the corrections, will required to be followed.
In Kishan Gopal''s case referred to supra, the Apex Court noticed on facts that the deceased was 10 years of age and supported the family in agricultural operations and reckoning Rs. 30,000/- p.a. as contribution of the deceased child, and applied multiplier 15, although in Lata Wadhwa and Others Vs. State of Bihar and Others, , the Apex Court reckoned the notional income of Rs. 12,000/- p.a; having regard to the legal principles laid down in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , added Rs. 50,000/- under the conventional heads; in the light of the decision in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, and having regard to the fact that insurance company was contesting the claim from the year 1992 up to 2013 applied the principles laid down in Municipal Corporation of Delhi, Delhi Vs. Association of Victims of Uphaar Tragedy and Others, , to award interest at 9% p.a.
In the instant case, as noticed supra, the deceased aged 8, was knocked down due to the negligence of the driver of the tractor and trailer and put an end to a support to his parents-claimants/cross objectors. Following the observations in Kishan Lal''s case (supra), it is needless to state that reckoning Rs. 30,000/- as notional income of the deceased and applying multiplier 15, as held in Reshma Kumari''s case, the compensation towards ''loss of dependency'' is Rs. 4,50,000/- to which, is added Rs. 50,000/- under conventional heads, totaling to Rs. 5,00,000/-, which in the circumstances is just compensation. The accident occurred in the year 2010, therefore the rate of interest at 6% p.a. awarded by the MACT does not call for interference.
In the result, appeal filed by the insurer of the trailer is allowed in part, fastening 50% liability and the balance 50% on the insurer of the tractor, while cross objections are allowed in part entitling them to Rs. 5 lakhs with interest at 6% p.a. as compensation and the judgment and award is modified in the aforesaid terms and in all other respects, remains unaltered. The amount in deposit is directed to be transmitted to the MACT forthwith.