l^ .<< ^- HIGH COURT OF CHHATTtSGARH AT BILASPUR Division Bench Coram: Hon'ble Shri Jagdish Bhalte, Ag.C.J. and Hon'ble Shri Dilip Raosaheb Deshmukh, J. Miscellaneous Appeal (C.) No.85 of 2007 Royal Sundaram Alliance Jnsurance Company Limited versus Jhool Bai and others and Miscellaneous Appeal (C.l No.14 of 200*7 Jhool Bai and ottiers versus Shiv Kumar and others ORDER FOR CONStDERATION .S^Des « ^Raos^' HOWBLETHEACTINGGHIEIFJUSTICE: Sd/- Ag. Chief Justice i^: ?, Z^ -08-20D7 Postfor -08-2007 JUDGE -08-2007 T HIGH COURT OF CHHATTIS©ARHAT BILASPUR DwisiorLBench Coram: Hon'ble Shri Jagdish Bhalla, Ag.CJ. and Hon'bte Shri Dilip Raosaheb Deshmulth, J. Miscetlaneous Appeal (C.l No.85 of 2007 ADDellant NANo.3 Resoondents Claimants Y versus 1. 2. 3. Royal Sundaram Altiance InsuranGe Company Limited, New Bus Stand, Pandri, Raipur (C.G.) Jhool Bai, W/o Late Dhan Sai, faQod about 45 years, Ramavtar Sahu, S/o Late Dhansai, ^ed about 28 years, Rajkumar Sahu, S/o Late Dhansai, Aged afaovt 26 yesffs, All R/o Village Torwa, P.S. T©rwa, Tahsil & Distt. BJIaspur (C.G.) Shiv Kumar, S/o ChiRaiya Bajara, aged about 21 yeare, R/o Oomuhani Dheka, P.S. Torwa, Tahsil & Distt. Bilaspur (C.G.) (Drivert Smt. Khorbahrin Chanctrakar, W/o Shti Rajkumar Chandrakar, aged about 37 years, R/o Village Kuwa, P.8. Pipariya, Tahsif & Distt. Kawardha (C.G.) fOwnert Memorandum of Aopeal under Section 173 ofthe MotorVehicles 1.1988 Miscellaneous Appeal (C.l No.14 of 2007 ADpellants CIaimants 1. 2. 3. Jhool Bai, Wd/o Late Dhansar Sahu, ^ed about 45 years, Ramavter Sahu, a@ed 28 years, S/o tate Dhan Sai Sahu, Rajkumar Sahu, aged 26 years, S/o late Dhan Sai Sahu, All residents of 'Torwa, P.S. Tora^, Tahsil and District Bilaspur (C.G.) versus ~r Respondente 1. Shiv Kumar, S/o Chtra^i Banjare, aged about 21 years, resident of Domul^mi Dhetei,P.S. Torwa, Tahsil and District Raipur (C.G.) 2. Smt. Khorbaharin Chandrakar, aged about 37 years, Ragkumar Chandrakar, resident of village Kuwa, P.S. Pipariya, Tahsil and District Kawardha (C.G.) 3. Royal Sunderara AIliance Insurance Company LimMed, resident of near U.T.I. Bank. New Bus Stend Pandari, Raipur, District Raipur (C.G.) Miscellaneous Aopeal u/s 173 of theMotor Vehiclra Act 1988 Present : Shri Sachin Singh Rajput, coynsel for ttie appelterrt in MA.(C.)No.85/2007 and for respondent No.3 Jn M.A.(C.)No.14/2007. Shri Prafull Bharat, counsel for resporKtent No.5 in MA.(C.)No.85/2007. Shri Gautam Khetrapal, coynsel forth®appeltants in MA.(C.)No.14/2007. None appears for other responderrts. ORDER. (Passed on ^ August, 2007) The fQltowing order of ttie Court was fxasaed by Dilip Raosaheb Deshmukh, J.: Being aggrieved by the award datwl 09-11-2006 pai^^i by the IXth Additional Motor Accklents Ciaiins Tribunal (F.T.C.), BUaspur (hereinafter referred to as 'the MACT') in Claim Case No.§/^)06 granting compensation of Rs.9,31,196/- for ttre deatti of EMiansat, a Gateman in the Ratlways due to vehicular accident wtii a fractortraiter, the insurer has filed Miscellaneous Appeal (C.) No.85/2007 and the claimants have filed ^lisceJlaneous Appeal (C.) No.1^2007. whjch are being disposed of bythis common order. 2. During the course ef argumente, the folkswing fecte were not disputed by learned counsel for ttie appettants and ttre owner in both the appeals: ,K (A) That Dhansai was working as a Gateman in ttie Soufh Eastem Railway at Bilaspur. (B) That tractor and trailer No.CG 07 D 4349 and 4350 (hereinafter referred to as the fractor trailer') were owned by respondent No.5, Srafc Khorbaharin (hereinafter referredl to as 'tiie owner') insui'ed by the appeHant (hereinafter referred to as 1:he insurer') on the date osf accident, i.e., 31-12-20(^> for agricultural and forestry purposes and drivon by respondent No.4, Shw Kumar (hereinafter referred to as 'the driver'). (C) That Dhansai died an accidentsal death on 31- 12-2005 while he was riding a cycle due to collision with the above mentiwied tractor trailer (D) That the driver possessed a valtd drtving licence on the date of accident for drMng (ight motor vehicles. (E) That the accident had occurred Rear Murrabhatta, Hemunagar Crossing on raahi road ofTorwa, Bilaspur. (F) , That at the time of accident, the traiter was loaded with bricks. (G) That\the appellanVdaimarrt Jhool Bai is the widow and Ramavtar and F^jkymar are the sons ofthe deceased Dhansai. IF~ (H) That right to cont^t the claim on aRy otfier grounds that were available to the owner ssvi the driver of the vehicle v^s granted by the MACT to the appellant/insurer vide order dated 03-08-2006. (1) That no evidence was led by the owner and ttie driver of the tractor trailer before the MACT. lc. 3. In their application under Section 166 of the Motw Vehtetes Act, 1988 (hereinafter referred to as 'ttie Act'), tlro appellante/clahiiants had pleaded that death of Dhansai was as a result of rash and negfigent driving of the tractor fraiter by the driver. Dhansai was eaming gross salary of Rs.10,417/- per month and also owned Sacres ofagNcultuFErf land having annuat agricultural income ef Rs.1 Lakh. The appellants/claimante claimed compensatton of Rs.28,00,048/-. 4. The owner and the drivar of the tractor traiter filecl a |oint written statement and specifically pleaded ttiat on the date of accident the tractor was carrying bricks in the trailer for being taken to the site of the under construction pump-house ofthe son-in-taw ofttie owner and ateo for purposes of consfruction of drains in ttie agricultural field. On way, a leakage occurred in the diesel pump and, therefore, the driver v^is taking the tractor trailer to a workshop situated ert Link Road, Bitaspur for getting the pressure pump repaired. The fractor trailer was driven at a slow speed and the deceased stumbled on the trailer after ttie tractor had overteken him and died due to his own negligence. Sitwe ttie tractor trailer was i^sured. the liability to pay compensation was solely on the appellant/insurer. 5. The appellantfinsurer in its written stateraent ctented ttie pleadings in elaim petition in toto and pleaded that ttie deeeased Dhansai was responsible for the accident. Besides, the traetor traiter was not being used for purposes of agriculture, whfch was a breach of the policy conditions, Itierefore, the insurance <»mpanywas not liabte to pay any compensation. It was also pleaded that the driver of the tractor trailer did not posse^ a valid drh^r^ Ucence at the time of accident. On these premises, tt prayed that it was not liable to j^ any compensation. 6. The MACT recopded a ftnding that the accidental death of Dhansai was attributable to Ihe negligence of the driver d! the tractor trailer, who possessed a valid licence to drive the fractor w^iich falls in the category of light motor vehicfes. It further held ttiat the insurance company had failed to prove that the tractor tralter was being uswt in contravention of the policy conditions or for a purpose different than for which it was insur^l. The MACT assessed the toss of dependency on the basis of a salary certificate showing grass saiary of Dhansai at Rs.10,417/-. After deducting 1/3rd towards the personal expenses of the cleceased, taking the age of ttie deceased at 50 yeare and applyir^ a multiplier of 11, 'rt awarded compensatton of Rs.9,31,196/- to the appellante/claimants. 7. Shri Sachin Singh Rajput, learned c<%in®elappearing on behatf of the appellant/insurer made a three-fold sybmission. Firstly, he contended tiiat the^tractor fraiter being used for carrylng brfcks at the time of accident was a transport vehicle and, therefore, under S^Aton 10(2) of the Act, it was necessary for the driver to possess a licence showing entitlement to drive a transport vehicle. It was ne)d contended that the owner and the driver of Itie tractor Irailer had not lal any evidence to show that at the time of accident, the tractor tratter w®s being used for agricultural purposes. Placing reliance on Natwar Parikh & Co. Ltd. vs. Stsite ofKamatalw amf offiers, 2006 AGJ 1, ft was contended thatthe Apex Court had held that ttie tractortraiter fetls under the definition of goods carriage under Section 2(14) of the Aet and consequentiy falls under the defimtion ©ftransport vehfcte under Section 2(47) of the Act. Reliance was also plaeed on a decision rendered by the Apex Court in Hattonal ffistfrance Co. i.td. vs. Kusum Rai and others, 2006 ACJ 1336 while TOntending h the alternative that since the driver did not possess a '^lid driving licence, the appellant/jnsurer may be given the right to recover comj^nsation deposited by it from the owner of the vehicle. Placing reliance on a dedsion rendered by the Apex Court m Asha ansf offiers vs. Unite<f fndia Insurance Co. Ltd. and anofffer, 2004 ACJ 448, it wss contended that compensation awarded by the MACT is very much on the higher side as it ought to have assessed loss of depemteney on the basis of the net salary, which the deceased was being paid in c^h every month. It was also contended that the multiplier 1 1 applied by the MACT was not correct since the record clearly showed that the deceased was about 58 years of age for which multiplier 8 should hawe been applied. Besides, the admission of the daifnant/appellsmt Jh©ol Bai that her eldest daughter was aged 36 years on Ihe date of accident would clearly go to show that the deceased was aged not less than 58 years at the time of accident. ~r ^ "\.':- 8. Shri Prafull Bharat, tearned coun^et appearing on behalf of the owner placed reliance on a decision rendered by a Division Bench of the High Court of Madhya Pradesh in Narendra Siagh and another vs. Govind and anoffier, 2006 ACJ 2W6 in support of his contention that transportation of bricks to the agricultural field for the purpose of construction of a pump-house or drains was rightly constmed as use of the tractor trailer for agricuttural purpose at the time of accictent and, therefore, the appellant/insurer could not escape tiability fer payment of compensation. It was further contended ttiat the tractor being a llght motor vehicte under the Act, the mere fact tiiat a traiter was attached woutd not convert it into a transport vehicle. Reliance was pt^ed on Nagashetty vs. United India fnsurance Co. Ltd., 2001 (II) MPWN 104 (Supreme Court) wherein it was held Uiat merety berai^ea traiter was attached to the tractor, the driver, who possessed a valid drivmg licence to drive light motor vehides, could not become disabled to drive such vehicle. 9. Shri Gautam Khefrapat, learned counsel appearing on behalf of the appellants/ctaimants contended that since tfie MACT has taken ttie age of the deceased at50 to 55 years.it ought to have applted the multiplier of 13 as per the Second Schedule of fie /tet and, therefore, the compensation awarded by the MACT requires to be suitably enhanced. 10. Having heard the rival contenttons, we have perused the record. 11. We shatl fiFS{t take-up the issue of quantum. The MACT has teken the gross monthly income of ttie deceased Dhan^rt for -V consideration of loss of dependency, which, tn our opinton, is not the correct approach. In Asha and others vs. United India InstiFsawe Co. Ltd. and ai»offier(supra),it was held by the Apex C©urtas under: "8. ............... The daimants are entifled to be compensated for the toss suffered by them. The loss suffered by them is the amount which they would have been receiving at the time when the deceased was alive. There can be no doubt that the dependants would only be recewing the net amount tess 1/3rd for his personal ©xpenses. The High Court was therefore right 'in so holding." 12. In this case, the salary certificate of the deceased Dhansai, Ex.P-6 cteariy shows that he was drawing a net cash salary of Rs.7,604/- every month. Placing reliance on Asfta and othws vs. United Indla Insurance Co. Ltd. and another (supra), we, take monthly income ofthe deceased for the purpose of a^essment of loss of dependency at Rs.7,600/- and deduct a sum of Rs.2,500/- towards personal expenses of the deceased, i.e., 1/3rd. Yearly loss of dependency comes to Rs.5,100/- x 12 s Rs.61.200/-. The MACT has taken the age of the deceased as between the age grovp of50 to ^ @n the date of accident and applied the multiplier of 11. Howev^r, the post mortem report of the deceased, Ex.P-3, the inquest, Ex.P-2 and the F.I.R., Ex.P-1 show the age of the deceased Oiansai at 58 years on the date of accident. The MACT Ihus erped in determining the age (rf the deceased at 50 years and apptying multiplter of 11. We take the age of the decea^ed on the date of accident at 58 years and appty tie multiplier 8 as mentioned in the Second Schedute and assess toss of dependency at Rs.4,89,600/-, i.e., Rs.61,200/- multipKed by 8. TolMs, kv.. 9 we add a sum of Rs.2,000/- towards funeral expenses, Rs.5,0€K)/- towards loss of consortium, Rs.2,500/- towards loss of estate and Rs.2,500/- each to the claimants No.2 and 3 for ITOS of taw®and affection and award compensation as under: (1) Loss of Dependency (2) Funeral Expenses (3) Loss of Consortium (4) Loss of Estate (5) Loss of Love and Affection Total ss- 4,89,600=00 5,000a00 2,500*00 5,000a00 5.04.100=00 In this manner, just and reasonabte compensation payabte for the death of Dhansai is determined at Rs.5,04,1€K)/-. 13. The contentious issue raised by teamed eounsel for the insurance company that Uie driver of the tractor trailer dBd not pwsess a valid driving licence for driving a tractor at the fime of accident is liable to rejection. It is not in dispute that the driver of the tractor possessed a valid driving licence on the date of aacident for driving tigl'rt motor vehicles. The main issue in the case of NatovarPariith &Co. L(rf. vs. State of Kamataka and others (supra) was whettier the taxation authority was justified in taxing the tractor trailer as a sej^irate and distinct vehicle, different from a tractor and denying exemplSon sought by the appeltant under Section 16 of the Karnateka Motor Vehictes Taxation Act, 1957. In this manner, the case taw cfted is distinguishable sih6e the question involved therein was alt^ether in a different context. ^•—•:'~.—— 10 \^ 14. A "light motor vehide" is defined under Section 2(21) of the Act asunder: "Sec.2(21):"iight motor vehlcte" means a transport vehicte or omnibus the gross vehicte weight of either of which or a motor car or tractor (emphasis supDlied -bv y^ or road-Fdller the unladen weight of any of vrtiich, does not exceed 7,500 kilograms;" 15. A "tractor" is defined under Section 2(44) of the Act as under: "Sec. 2(44): "tractor" means a motsor vehide which is not itseff constructed to carry any tc^ri (other than equipment used for the puipese of proputeion); but excludes a road-rolter;" 16. A "trailer" is defined under SeGtton 2(46) of the Act as under: "Sec. 2(46): "trailer" means any vehicle, ottier than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehk^e;" 17. Thus the definition of "light motor vehicle" includ^ a "fransport vehicle". A "tractor" is also included in the definltion of "Nght motor vehicle". 18. In Nagashetty vs. Unfted India Inswance €o.Ltd. (si^H-a), in a similar siluation, the Apex Court has held as under: \ . 'We are unable to accept the submissions of Mr. S.C.Sharda. tt is an admitted fact that the driver 11 had a vatid and effective licence to drive a tractor. Undoubtedly under section 10a licence is granted to drive specific categories @f motor vehicles. The question is whether tnerely because a frailer was attacheet to the tractor and the traclor was used for carrying goods, the licence to drive a tractor becomes ineffecth/e. If the argument of Mr. S.C.Sharda is to be accepted then every time an owner of a private car, who has a licence to drive a light motor vehicte, attaches a roof Garrier to Ns car @r a trailer to his car and carries goods thereon, the light motor vehicte would become a transpCTl vehicle and the owner would tee cteemed to have no licence to drive that vehicle. It would tead to absurd results. Merely because a traNer is added either to a tractor or to a motor veWde by iteelf does not make that traetor or motor vehiete a transport vehlcle. The tractor or motor vehtele remains a tractor or motor vehicte. ff a person has a valid driving licence to drive a trsKrtor or a motor vehicle he continues to have a vaWd licence to drive that fractor or motor vehiele even if a trailer is attached to it and some goods ape carri^l in it. In other words a person having a valid driving licence to drivea partiicular category of vehicte does not become ctisabled to drive ttet vehicle merely because a traiter is added to ttiat vehicle." 19. Placing reliance on ttie judgment of ttie Apex Court in Nagashetty vs.Unlted India fnsurance Co. Ltel. (^ipra), we hold that since the driver of the fractor had a valkl and effective drMng Itoence to drh/e the fractor, h^e would not become disabled to drive it merely because a trailer was attached to the tractor. 12 20. We shall now take-up the contentious issue relatjng to breaeh of policy by the owner. In the facts and circun^tences of tiis case, this issue is squarely between the owner and the insurer. The owner had filed written statemerft and in paragraph 3 ttiereof had stated as tBTcter:- "3. .................. ^^rar yd'11 f^ff^ ^t ^4^ ^^RT? ^' ult 'TW ti'ffNld t 31*11^4*1 W. 2 ^ "^W^ ^ ^t^ W^ ^ p|*|Iu|jic^<i ipq ?T^?T ?TSTT ^T ^ ^F^ ^ ^icft'yT ^ fsr*rfxlr ^f cpr^ m^ ^er cTK ^^ ^ ^TT ^T 8ff 1 ^^S? ^ fe5Rf w "^f ^^"t^ f^^r i^ uR^ ^ ^^K ^N ^t ^R^ ^ f^? ^? ^fW ^S T^dl«^ I^FcT ctt^^SIM t^€^ ^Tclt '?rf^T <M*il^t{* ^. 1 w %r arr ............;• 21. In the facts and circumstances of ttiis case, the burden of proving the above pleadings vreis on the owner. A y»rusa( of the pleadings of the owner quoted above sftowre ttiat at the time of the accident, the tractor was heading towards a work-shop in Link Road, Bilaspur for repairs. By no streteh of imagjnatton this could be construed as use of the tractor trailer for agricuiture purpose. Atthoygh it was pleaded that the tractor trailer was carryir^ bricks for b@ing carried to the agricultural farm of the son-in-law of the owner for behig used in an under-construction pump-house and alsofer consfructien <rf drains in the agricultural field, no evidence was led t©prove the sakl fact. The son-in-law of the owner did not enter the wttiiess box. No ;\ .. documentary evidence was adduced to show that the son-in-law of the owner owns an agricultural farm-house or that the owner has 13 '^.-' 1./ agricuttural fields where constructlon of drains was to be under tatcen. The owner also did not enter the witness-box. In this manner, the best evidence, which was availabte to the owner, was wtthhetd. In the absence of such material evidenee, the adnmtted faet that the tractor was heading towards Damghat with a briGk-toad jn the trailer and w^ involved in an accident in an urban area of Bilaspur, etearly leads to an irresistible inference that the tractor was being used for a purposeother than agricultural purpose. No evidence has been ted by the owner to prove that due to a teakage occumng in the diesel pump, tto doverwas bringing the tractor frailer to Link Road, Bitaspar. In ttie peculiar facts and circumstances of the case and the pjeadings of the owner, an inference can safely be drawn that at the time of the accident, the tractor trailer was in an urban area of Bilaspur, i.e., Link Road, Bilaspur and was being used for a purpose other than agriculture. i.e., for transporting a load of bricks to an yrban area. Thus, it is established that there has been a breach &f a specified condi^on ofttie policy, i.e., use only for agricultural purpose. The ca^ of HarenfSra Singh and another vs. Govind and another (supra) cited by leamed counsel for the owner is clearly distinguishabte and does.not help the ownertin any manner. In that case, the owner had entered the witnes^-box and his vereion was equally supported by the driver of the tractw traiter that the land was taken on crop-sharing by the owner and no evidence to ttie contrary was adduced by the insurer. tn the peculiar facts and circumstances of this case, it was for the ©vwerto esteblish that the tractor trailer was being used for carrying bricks to the agrieultural farm- house of the son-ln-law of the owner for an under-conshruction farm- house and also for ^onstruction of dralns. Neither the owner nor frie driver entered the witness-box and not even an iote of evidence w©s 14 \^' adduced by them. Due to withholding of material available evidence, the plea of the owner, if taken on its face value, clearly goes to show that at the time of accident the tractor traiter carryir^ brick-load was heading towards a work-shop jn Bilaspur for repairs and not for agricultural purpose. We accordingly hold that due to a lundamental breach of the policy condition relating to the use of the tractor onfy for agncultural purposes, liability for paymerrt of compensation can not be fastened on the insurance company and rests ^>lely on the owner of the tractor trailer. 22. In the result, Miscellaneous Appeal (C.) No.85 of 2007 filed by the insurance company is allowed. Compensation awarded by tiie MACT is modified and instead compensation ®fRs.5,04,100/- is awarded against the owner of the vehicie, i.e., Smt. Khorbahafin Chandrakar. The appellant/insurer is exonerated from the liability to pay compensatton- The appellant/insurer may recover the amount of compensation already deposited by the insurance company with the MACT from the owner by initiating separate execution proceedings. Miscelianeous Appeal (C.) No.14 of 2007 fried by the claimants for enhancement of compensation is dismissed. The owner Smt. Khorbaharin Chandrakar shall deposit the remaining compensatton in the MACT within a period of three months from today, failing which, she would also be liable to pay interest at the rate of 9% per annum from the date of application t'rtl realisation. Sd/- Ag. Chief Justice Sd/- Dilip Raosaheb Deshmukh Judge 2 tf-08-2007 Gopal