.'/ c.F> ^Oivision Bencl MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VBHICLB ACT, 1988 IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL fCI NO./4'2^/2009 (D.B.l^. . . APPELLANT 8te^&A1 /fcLAIMANTS D^IVER Anup Kumar Agrawal s/o Ramgopal /Agrawal, aged about 41 years, R/o Khokhali, Police Station 85 Tahsil- Bhatapara,, District Raipur (Chhattisgarh). VERSUS Smt. Geeta Bai wd/o Mohan Lal J Dhruv, aged about 33 years, ^ Kailash s/o Mohan Lal Dhruv, aged ^ about 17 years. ^ Kamlesh s/o Mohan Lal Dhruv, aged about 15 years. ,4.c, Ku. Lata D/o Mohan Lal Dhruv, aged ^ about 13 years, Respondent no. 2 to 4 are minor through natural guardian Smt. G^eta Bai w/o Mohal Lal Dhruv< All R/o village Khokhali, Police Station Bhatapara Gramin, District Raipur (Chhattisgarh). ^ Ramesh Yadu s/o Lalram Yadu, aged about 25 years, R/o Jaraud, Police Station 85 Tahsil- Bhatapara, District Raipur (Chhattisgarh). 6. The Oriental Insurance Company -^ Limited, through Branch Manager, Branch Office - Kachahari Chowk, Madina Building, Raipur, District Raipur (Chhattisgarh). CLAIM IN APPEAL VALUED AT RS. 8,07,500/- HIGH COURT OF CHHATTISGARH. BILA8PUR DB: APPBLLANT: RB8PONDBNTS: HON*BLB I. M. QUDDU8I & HON*BLE G. MINHAJUDDIN, JJ M.A(C| No. 942/2009 Aiiup Kuanar Agrawal Vs. Snit, Geeta Bai & others MISC. APPEAL UWDBR 8BC"FION 173 OF THB MOTOR VBHICLES ACT. 198S Appearance: Mr. Amrito Das, counsel Ibr ttie appeUant, Mr, A,P, Sharaia^ counsel for tiie respoiidents 1 to 4. Mr, Raabir Singh Marhas, counsel for respondent no,6 Per I.M. QUDDUSI. J, ORAL ORDBR (27.09.2011) 1. This appeal has been filed by fhe owner agamst the impiigned award dated 31.03,2009 passed by the AddL Motor Accident Claiais Tribunal, Bhatapara, Distt,Raipur (C.G) in Claim Case No.29/2007/2008 fastemng UabiMly to pay compensatfon upon hini. 2< Cross obiections have been filed bv the clafcmants for enhaaceiiient of the award aad also by flie iasuraace coinpany challengmg the quantum to be on higher side, 3. The Insuraace Coinpaay was given penaission uiidter ^ctibn 170 ofthe Motor Vehicles Act 4. Brief facts of the case are that fhe claimaats beiag legal representatives/dependents of the deceased Mohaalal Dhruv have filed claiia petltion u/s 166 and 140 of tihie Motor Vehicles Act, 1988 for the award of a total coxiipensation of Rs.21,30,000/- on various heads aUeging fhat on 14.10.2007, respondent no.5 while driviag the offendiag Tractor Trolley ^^^%^^\ bearing Regn.No. C.G.04-DA/2907 & 2908 in a rash and negUgent niaaner dashed the bicycle of the deceased, as a result ofwhich he sustaiaed grievous injuries aiid died, At fhe time of accident fhe deceased was aged about 35 years; he was working as Hamali m Vandana Food Products and was earamg Rs.250/- per day and Rs.7500/- per month. Learaed Clafcms Tribunal held fhat the oflfendiag Tractor Trolley was iavolved ia the accident, ia which, deceased Mohaalal Dhniv died; ftiere was no negHgence on fhe part of the deceased; non-appUcacits 2 & 3 conimiitted breach, fhereforey the Insiirance Conipaay was not responsible to pay conipensation aad fhe claiaiants are entifled to receive a total compensation of Rs.8,07,500/- wifh iaterest @ 6% per aanum froin Uie appeUaat aad respondent no.5. 6< We have heard learaed counsel for fhe ^rties aad have also gone fhrough fhe records of fhe Tnbunal, 8. Leamied Clamis Tribunal has given its fiiading to fhe effeet tiiat the laden we^ht offtie Tractor and Trolley was 7770 Kgs wfaich was inore thaii 7500 Kgs, fherefoi^, it became a comiaercial transport vehicle and as fhere was no penmt for plyixig fhe Tractor for traasport purpose, fhere was breach of conditioiis of the msuraace poUcy. Further the Tractor was loaded wifh wooden logs and fberefore it was not ia use for agricultural purpose, Clause (b) & (c) ofRule 2 ofthe Central Motor Vehicles Rules, 1989 contaias fhe definition of "agriciiltural tractoi^ aad "agricultural trailei^ which are relevaat here aad quoted below: 2(b) "agricultiiral tractor?> mieans any inechaniically propeUed 4 wheel vehicle designed to work wifh suitable implements for vadous field operations aiid/or tarcdlers to traasport agriciiltural inaterials, Agricultural tractor is a non-traasport vehicle; n' ,^y^^^^^^ .^' .^/^i^ ^ (>VBI) ^,^-:.^ '1"--£^ ^ ^^ 2(cl "agricultural trailer^ meaas a trafler generally left uncovered wifh smgle/double axle eonstruction which is coupled to aa Agriciiltiiral Tractor by ineaas of two hooks aad predoiniaairtfy used for traasporting agricultural xaaterials; A bare readiag of fhe above provisions would show fhat, if the Tractor was beiag used for fhe purpose of ofher fhaii agriculture^ it cannot be teraied as ^agriciiltural tractor' or 'agricultural trailer" aad fherefore in fhat situatioii, fhe Tractor along-wifh fhe Trailer would have been treated as a transpart veliicle, However, fhis contention depends upon fhe next contention fhat whefher fhe Tractor was bemg used for non~ agricultiiral purposes. We have perused fhe LCR aad found that no suggestion has been given to aayof fhe witaesses fhat fhe woodeii logs loaded on fhe Trolley was for coinniercial use or fhe Trailer was beiiig used on hire. Therefore, fhere is no proofcoiitrary to the plea taken by fhe owner which has come in evidence that fhe wooden logs were loaded for usiag fhem as poles for fencmg purpose of fhe agricultural field. On record, the copy of the Khasra is also avaUable which shows fhat wife ofowiier of fhe Tractor was ia possessiou of more fhaa 1.710 hectares land and therefore ia absence of any evidence, it caniiotbe ruled out that loadiag of wooden logs on fhe troUey was for fhe agricultural purposes fhat is for protectmg fhe field by fencmg the borders. In view of the above discussion, we are of the opiaion that merely loadiag of wooden logs ia the traUer would not amount to draw aa mference fhat fhe Tractor was beiag iised for non-agricultural piirposes as the wooden loigs could be used as poles for fenciag purpose to protect fhe agricultural fieM. Unless fhe question would have been put ia fhe CIDS® examination of the witnesses rcgardiag the use of ftie Tractor- Trailer for non-agricultural purpose, the adverse iaference caiuiot be drawn, In absence of aay proof ou the side of fhe iiisuraiice coinpany it cannot be said fhat fhe Tractor-Traiter i ^^% l ^y/ >1i-.-s^" was not beiag used for agricultural purposes aad tliex^fore, fhe driver of tiie Tractor was haviag valid aiid effective driviag Ucnece which was for non-transport purpose , Therefore^ fhe findiag given by ftie Tribunal ia respect of Issue No,5 camiot be atlowed to sustaia aad tiie same is set aside. ^N^ 9. With respect to quaatiun part, fhe iacoine of fhe deceased has been assessed as Rs.7500/- on the basis of daily incoxiiie tliat is Rs.250/- per day as he was workirig as Hcwicrifbut while assessing flie iiicoine, hoUdays have not been deducted ana fhe iacome fi^om agnculture has also not been iiicluded whereas, m fsicty the agricultural field has not ^pue out aoywhere on death of fhe deceated aad thercft>re, Rs,250/- per day is to be counted for 25 days ia a calendar inonfh, which conies to Rs.6250/- per inonfh. Thus the aanual incoxne coxnes to Rs.75000/- (Rs.6250 x 12). After deductmg l/3rd towards personal expenses, the annual loss of dependency conies to Rs.SO,000/~. The deceased was aged about 35 years and therefore niultiplier of 16 would be appUcable in view of fhe decision of the Suprenie Coiirt ia Scirla Verma (SmfcJ -iys- DelM Tran^wrt C®»p®rution and another reported in (2009) 6SCC 121. Upon applying multipUer 16, the total loss ofdependencycomestoRs. 8 lakhs (50000 x 16). Besides this, fhe widow is entitied to get Rs.5000/- for loss of consortiuin, Rs.5000/- for loss of estate and Rs.5000/- for funeral expenses, which m all comes to Rs,15,000/- over fhe other heads and after adding Rs.15000/- to the total loss of dependency, fhe total amount of coinpexisation comes to Rs.8,15,000/-. This award shall also cany simple iaterest @ 6% per aanum from fhe date of filing of fhe claim petition till the payment is made, Therefore, the amount awaided by fhe Tribunal ie. Rs.8,07,500/- is Uable to be aad is hereby enlianced to Rs.8,15,000/-. 10. In fhe result, the appeal filed by flie owner is atlowed. The impugned award dated 31,03.2009 is mcdi&ed in tlie ab<we terais, The cross objection of the claiinaats is allowed aa< ^ ^*' f '•'•^m ^ ,'••' / Rao cross objection of fhe lusurance Conipaiiy is rejected, The appeUaiit/owner is exonerated from his liability to pay coinpensation, However, it wUl be open for fhe clamiaats to recover amount of coinpensation froin fhe Insuraace Coiapany. At fhis stage, learaed coxinsel for the appeUant subinits fhat Rs,l lakh deposited by hica be attowed ta be wifhdrawn. The said ainount is pennitted to be wifhdrawn by fhe appellaiit, if tlie saaie is not akeady disbursed to fhe clamiaat. No order as to cost. Sd/- I.M-Quddusi Judge Sd/- G. Minhajuddin Judge