*HON'BLE SRI JUSTICE G. BHAVANI PRASAD +CIVIL MISCELLANEOUS APPEAL Nos.787 and 3116 of 2003 % 09/02/2011 C.M.A. No.787 of 2003: # Asari Pothalingam and others ..... APPELLANTS Vs. $ Lambadi Mamji and another .....RESPONDENTS ! COUNSEL FOR THE APPELLANTS: Sri P. Radhive Reddy ^ COUNSEL FOR 1ST RESPONDENT: -- ^ COUNSEL FOR 2ND RESPONDENT: Smt. M. Seetha Devi C.M.A. No.3116 of 2003: # United India Insurance Co. Ltd., Nizamabad ..... APPELLANT Vs. $ Asari Pothalingam and others .....RESPONDENTS ! COUNSEL FOR THE APPELLANT: Smt. M. Seetha Devi ^ COUNSEL FOR 1 TO 3 RESPONDENTS: Sri P. Radhive Reddy ^ COUNSEL FOR 4TH RESPONDENT: -- < Gist : Ø Head Note: ? CITATIONS: 1. AIR 1988 AP 99 2. 1990 ACJ 54 3. 2001 ACJ 1441 4. (2005) 7 Supreme Court Cases 364 5. 2001 (4) ALT 554 6. 1999 (6) ALT 745 7. 2003 (6) ALT 300 8. 2004 (4) ALD 732 9. 2008 (2) ALD 273 (DB) 10.2009 ACJ 1298 COMMON JUDGMENT: The award in O.P. No.669 of 1998 on the file of the Motor Accidents Claims Tribunal-cum-Additional District Judge, Nizamabad, dated 30-08-2001 is the subject of both the appeals, C.M.A. No.3116 of 2003 being at the instance of the insurer, while C.M.A. No.787 of 2003 is at the instance of the claimants. A. Rajeshwar, a labourer, claimed to be earning Rs.3,000/- per month at the age of 19 years is the son of claimants 1 and 2 and the brother of claimant No.3. The claimants claimed to be dependents on Rajeshwar said to be contributing his earnings to them and Rajeshwar was travelling in the trolley attached to tractor No.AP 25D 4775 on 04-06-1998. Near Nadpally village, the tractor was driven in high speed rashly and negligently at about 11 P.M. and on the tractor and trolley turning turtle, Rajeshwar fell under the trolley and died on the spot with injuries. Hence, the claim for a compensation of Rs.3,00,000/- from the owner and the insurer of the tractor. The owner of the tractor-trailer remained ex parte, while the insurer claimed that none of the allegations of the claimants are admitted, which they have to strictly prove. The claim was contested as excessive and was requested to be dismissed. The Tribunal framed issues about the responsibility for the accident and the quantum of compensation to which the claimants are entitled. During the enquiry, P.Ws.1 and 2 and R.W.1 were examined and Exs.A.1 to A.3 and B.1 were marked. The Tribunal rendered the impugned award accepting the evidence of P.W.2, the eye witness, corroborated by Ex.A.1 first information report and Ex.A.3 inquest panchanama to conclude that the accident occurred due to the rash and negligent driving of the tractor and trailer. The Tribunal took the age of the mother at 45 years as seen from Ex.A.3 inquest panchanama as the basis for adopting a multiplier of 10.45 as per Bhagawandas v. Md. Arif[1]. The Tribunal took the income of the deceased as Rs.1,800/- per month, deducted one-third out of the same and taking the balance as loss of contribution, assessed the loss of dependency at Rs.1,44,000/-. It also granted Rs.6,000/- towards funeral expenses and Rs.10,000/- towards mental shock and agony and on the total compensation of Rs.1,60,000/-, the Tribunal awarded interest at 12 per cent per annum and proportionate costs. The Tribunal noted that R.W.1 deposed about only the tractor and not the trailer being the subject of insurance under Ex.B.1 policy covering the seating capacity of only the driver. Relying on Sajid Mian v. Ganga and others[2], wherein holding that the trolley only can move with the help of the tractor and the tractor was insured, the Rajasthan High Court held the insurance company to be liable though the trolley was not separately insured, the Tribunal held the insurer to be liable to compensate. C.M.A. No.3116 of 2003 by the insurer is on the ground of there being no separate insurance coverage for the trailer or any damage caused to third party by the trailer. The decisions reported in 2001 ACJ 1706, 2001 ACJ 2131 and 1987 ACJ 411 (SC) run counter to the decisions relied on by the Tribunal. Interest at 12 per cent per annum instead of 9 per cent per annum is excessive and the compensation awarded also is exorbitant. Hence, the insurer desired the award to be reversed. The claimants challenged the award in C.M.A. No.787 of 2003 contending that the appropriate multiplier is 15 and the appellants spent Rs.15,000/- towards funeral expenses and transport. They also were not granted any compensation for loss of love and affection, which should be quantified at Rs.50,000/-. The entire compensation as claimed, therefore, should have been awarded. Sri Ch. Srinivas, learned counsel representing Smt. M. Seetha Devi, learned counsel for the insurer and Sri Kuldeep Jadhav, learned counsel representing Sri P. Radhive Reddy, learned counsel for the claimants are heard. The finding of the Tribunal that the accident occurred due to the rash and negligent driving by the driver of the tractor and trailer is not challenged by any party and the ownership of the vehicle with the 1st respondent and the insurance of the tractor with the 2nd respondent to the claim are not in dispute. The absence of any separate insurance for the trailer is also not in dispute. The relationship of the claimants with the deceased is not questioned. The conclusions of the Tribunal about the deceased being aged about 19 years and being a labourer by avocation are also not in issue. The points that remain, therefore, for consideration are about any liability of the insurer even in the absence of any insurance for the trailer under which the deceased fell and died and the quantum of just and adequate compensation. Sri Ch. Srinivas, learned counsel for the insurer firstly referred to Nagashetty v. United India Insurance Co. Ltd. and others[3], in which the question was whether a person having a valid driving licence to drive a tractor, can validly drive a tractor with attached trolley. About construing the vehicle to have become goods or transport vehicle on the attachment of a trailer, the Apex Court compared the situation to a roof carrier being attached to a car and opined that mere attachment of a trailer will not make the tractor a transport vehicle. The Apex Court referred to the insurance policy in that case, which was issued for the tractor while collecting an additional premium for the trailer also. As a tractor cannot by itself carry goods, which have to be placed on a trailer attached to it, the licence was considered to not disqualify the driver even after the attachment of a trailer. The question involved, therefore, is of no direct application and even while referring to the additional premium collected for a trailer, the same was only for the purpose of construing an effective driving licence to be present for both the tractor and trailer. The learned counsel also referred to Natwar Parikh & Co. Ltd. V. State of Karnataka and others[4], rendered in connection with taxation of motor vehicles, wherein the Apex Court considered both a tractor and a trailer to be liable to be registered separately and to be taxed separately. The consideration as to whether a tractor and trailer fall under goods carriage or not is with reference to the provisions of the Taxation Statute vis-à-vis the provisions of the Motor Vehicles Act, 1988 and the conclusion that both the tractor and trailer are liable to be separately registered and taxed, is of no help for considering the liability of the insurer in case of a policy covering the tractor and not specifically the trailer. In New India Assurance Co. Ltd., Karimnagar v. Mamidi Mallamma and others[5] again relied on by Sri Srinivas, a learned Judge was considering a case of a trailer being insured but not the tractor and the injured sustained injuries by falling under the trailer. The learned Judge with reference to Oriental Insurance Co. Ltd. V. J. Kotiratnamma[6] differed with the view that unless both the tractor and trailer are insured, the claimants are not entitled to any compensation, distinguishing the same on facts. As the trailer was insured also in that case, which is also a motor vehicle, the learned Judge made the insurer liable to pay the compensation. This decision about the distinct existence of the tractor and trailer for purposes of being insured, laid down the principle that a person falling under the trailer, which was insured, is entitled to be compensated by the insurer irrespective of absence of the insurance for the tractor. A situation similar on all fours with the present case was under consideration in Gunti Devaiah and others v. Vaka Peddi Reddy and others[7], wherein again the decision in Oriental Insurance Co. Ltd. v. J. Kotiratnamma (6 supra) was considered and the learned Judge with reference to the case law on the subject held that insurance of the trailer is not a mandatory requirement under Section 146 of the Motor Vehicles Act and if the prime mover/motor vehicle/tractor is insured and the negligence of the driver of the said motor vehicle is established, the compensation is payable by the owner of the tractor and the insurer irrespective of the fact whether the victim suffers injury with the tractor or with the trailer. The learned Judge reasoned that but for the negligent driving of the prime mover or the tractor, the accident could not have occurred and thus, the principle laid down in Oriental Insurance Co. Ltd. v. J. Kotiratnamma (6 supra) was not adhered to by the learned Judge. I n Oriental Insurance Co. Ltd. v. Laxmanna[8] also, Oriental Insurance Co. Ltd. v. J. Kotiratnamma (6 supra) was followed and Gunti Devaiah and others v. Vaka Peddi Reddy and others (7 supra) was dissented from opining that Gunti Devaiah and others v. Vaka Peddi Reddy and others (7 supra) was rendered without noticing the relevant provisions of the Motor Vehicles Act, 1988. Subsequently, the issue was the subject of consideration before a Division Bench in United India Insurance Co. Ltd., Kadapa District v. Koduru Bhagyamma and others[9], wherein Oriental Insurance Co. Ltd. v. J. Kotiratnamma (6 supra), Gunti Devaiah and others v. Vaka Peddi Reddy and others (7 supra), New India Assurance Co. Ltd., Karimnagar v. Mamidi Mallamma and others (5 supra) and Oriental Insurance Co. Ltd. v. Laxmanna (8 supra) were considered. The Division Bench opined a trailer attached to a motor vehicle to be a part of the motor vehicle itself and referring to the decisions of other High Courts also on this aspect, the Division Bench agreed with Gunti Devaiah and others v. Vaka Peddi Reddy and others (7 supra) holding that no separate insurance is contemplated for a trailer and when the trailer is attached to the tractor, which is insured, it becomes a part of the tractor. In view of the binding decision of the Division Bench, which still holds the field, the contentions of the appellant insurer about the non-liability for compensation due to the absence of any coverage of insurance for the trailer cannot be sustained. C.M.A. No.3116 of 2003 has to, therefore, fail. Coming to C.M.A. No.787 of 2003, in so far as the age of the mother accepted with reference to Ex.A.1, the occupation of the deceased as a labourer and the entitlement of the parents and minor sister to be compensated are concerned, there is no serious dispute and the assessment of the probable income of the deceased as a labourer is not shown to be in any way significantly deviant from the statutory minimum wages payable to an unskilled labourer at about that time. Deduction of one-third towards personal expenses and calculating the loss of dependency on the balance was not deviant from the norms adopted at that time. However, according to Sarala Verma v. Delhi Transport Corporation[10], the deduction should be 50% towards living expenses in such event of death of bachelor with dependent parents and siblings and the appropriate multiplier for a person of the age of 45 years will be 14. If so, the loss of dependency of the parents and minor sister comes to Rs.1,51,200/- and not Rs.1,44,000/-. The Tribunal awarded adequate sums towards funeral expenses and mental shock and agony and the loss of a son can never be adequately measured in monetary terms. Rounding off the enhancement to which the claimants are entitled under all heads of pecuniary and non-pecuniary damages to Rs.10,000/- granting interest on the same at 6 per cent per annum in view of the length of time for which such interest has to be paid while also awarding proportionate costs on the same, will be supplying the deficiency in the just and adequate compensation to which the claimants are entitled. Therefore, C.M.A. No.3116 of 2003 is dismissed without costs. The award in O.P. No.669 of 1998 on the file of the Motor Accidents Claims Tribunal-cum-Additional District Judge, Nizamabad, dated 30-08-2001 is modified by granting a further compensation of Rs.10,000/- (Rupees ten thousand only) with interest thereon at 6 per cent per annum from the date of the petition till the date of realization and proportionate costs, which shall be shared in the same proportion between the claimants as the compensation originally awarded by the Tribunal and C.M.A. No.787 of 2003 is allowed accordingly in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 09-02-2011 Note: L.R. copies to be marked (Bo) Svv [1] AIR 1988 AP 99 [2] 1990 ACJ 54 [3] 2001 ACJ 1441 [4] (2005) 7 Supreme Court Cases 364 [5] 2001 (4) ALT 554 [6] 1999 (6) ALT 745 [7] 2003 (6) ALT 300 [8] 2004 (4) ALD 732 [9] 2008 (2) ALD 273 (DB) [10] 2009 ACJ 1298