*THE HON’BLE SRI JUSTICE NOUSHAD ALI + M.A. C.M.A. No.41 of 2007 And Cross Objections (SR) No.9498 of 2007 % 20-08-2010 M.A. C.M.A. No.41 of 2007 # The New India Assurance Co. Ltd., rep. by its Divisional manager, Kakinada. …Appellant. Vs. $ Nunna Veera Venkata Satyanarayan @ Sathibabu and two others ...Respondents. and Cross Objections (SR) No.9498 of 2007 Between : Nunna Veera Venkata Satyanarayan @ Sathibabu .. Cross Objector And M/s. New India Insurance Co. Ltd., rep. by its Divisional manager, Kakinada & 2 Others .. Respondents <GIST >HEAD NOTE: !Counsel for the Appellant in appeal and Respondent in Cross-Objections : Sri Kota Subba Rao ^Counsel for the Respondent in Appeal and Cross-Objector in Cross-Objections : Sri N.Siva Reddy CASES REFERRED: ? (1) 1999 (6) ALT 745 (2) 2004 (5) ALT 398 (3) 1997 ACJ 512 (4) 2001 (4) ALT 554 (5) 2003 (6) ALT 300 (6) 2008 (2) ALD 273 (7) 2006 ACJ 1217 (8) 1994 (1) GLR 269 THE HON’BLE SRI JUSTICE NOUSHAD ALI M.A. C.M.A. No.41 of 2007 And Cross Objections (SR) No.9498 of 2007 Date : 20-08-2010 M.A. C.M.A. No.41 of 2007 Between : The New India Assurance Co. Ltd., rep. by its Divisional manager, Kakinada. .. Appellant and Nunna Veera Venkata Satyanarayan @ Sathibabu and two others .. Respondents And Cross Objections (SR) No.9498 of 2007 Between : Nunna Veera Venkata Satyanarayan @ Sathibabu .. Cross Objector And M/s. New India Insurance Co. Ltd., rep. by its Divisional manager, Kakinada & 2 Others .. Respondents THE HON’BLE SRI JUSTICE NOUSHAD ALI M.A. C.M.A. No.41 of 2007 And Cross Objections (SR) No.9498 of 2007 COMMON JUDGMENT: The M.A. C.M.A. and the Cross-Objections are directed against the Award in M.V.O.P.No.634 of 2003, dated 01-09-2006 on the file of the Motor Accidents Claims Tribunal-cum-IV Additional District Court, East Godavari, Kakinada, whereunder the Tribunal awarded a compensation of Rs.4,59,435/- in favour of the first respondent herein (claimant) and fastened liability on the Insurance Company jointly and severally along with respondents No.2 (driver of tractor) and 3 (owner of tractor) herein. While M.A. C.M.A. has been filed by the Insurance Company (for short, “Insurer”) seeking to absolve from the liability, the claimant has filed cross- objections seeking enhancement of compensation. Brief Facts : This is a case of injuries. On 09-12-2002, the claimant, a coolie along with his fellow coolies viz., Ponna Pydiraju, Bathula Rambabu and Mangaraju, loaded the trailer bearing registration No.AP 5Y 1996 with paddy bags. The said trailer, drawn by tractor bearing registration No.ATP 2581, was proceeding for unloading at Sitaramachandra Rice Mill. The claimant along with other coolies sat in the trailer on the load of paddy bags. While the tractor along with trailer was proceeding towards Z.Medapadu bridge, due to the rash and negligent driving of the tractor by its driver (second respondent herein), the tractor over turned and the claimant fell under the wheel of the tractor and sustained grievous injuries. The claimant, therefore, filed the O.P. seeking compensation of Rs.5,00,000/-. The second and third respondents herein (driver and owner of the vehicle respectively) remained ex parte. The Insurer, therefore, contested the matter and opposed the claim on the ground that the tractor was not registered in the name of respondent No.3 and since it was not insured, no liability could be fastened to it. It however admitted that the trailer was insured. Based on the pleadings, the Tribunal formulated issues; whether the accident occurred due to the rash and negligent driving of the offending tractor-trailer; and whether the claimant was entitled for compensation, if so, to what amount and from which respondent. The claimant examined himself as P.W.1 and Dr.B.Pardhasaradhi was examined as P.W.2 on his behalf. Ex.A1 (attested copy of the F.I.R.), Ex.A2 (O.P.Chit), Ex.A3 (bunch of medical bills), Ex.A4 (medical prescriptions), Ex.A5 (Charge Sheet), Ex.A6 (wound certificate) and Ex.A7 (scanning report) were marked on behalf of the claimant. The Administrative Officer, working in the Office of the appellant-Insurer, Kakinada, was examined as R.W.1. Ex.B1 (copy of the Insurance Policy), was marked on behalf of the appellant-Insurer. Considering the evidence on record, the Tribunal held that the accident occurred due to the rash and negligence of respondent No.2 herein. It was also held that the Insurer did not establish that the alleged Guthula Peda Venkata Ramana (not a party to the O.P.) was the owner of the tractor. Considering the nature of injuries, the Tribunal granted compensation of Rs.4,59,435/- and made the Insurer jointly and severally liable along with respondents 2 and 3. Aggrieved by the said Award to the extent the order attached liability, the Insurer has filed the appeal. Not satisfied with the quantum of compensation, the claimant has filed the cross-objections for the balance amount of Rs.40,565/-. Heard the learned counsel for both the parties. M.A. C.M.A. No.41 of 2007 : Challenge to the award by the Insurer is on two grounds. Firstly, it is contended that in order to fasten liability on the Insurer, insurance of trailer alone is not sufficient, but both tractor and trailer should be insured. Secondly, the owner of the tractor was a necessary party and since he was not impleaded, the appellant-Insurer cannot be held vicariously liable. The learned counsel placed reliance on the decisions of this Court in Oriental Insurance Co. Ltd., Karimnagar v. Janarasupally Kotiratnamma and others[1]; Oriental Insurance Co., Ltd., Hindupur v. Laxmanna (died) per L.Rs. and another[2] and also relied on a decision of the High Court of Karnataka reported in Oriental Insurance Co. Ltd. v. N.Chandrashekara and Others[3]. A reference was also made to a judgment of this Court in New India Assurance Co. Ltd., Karimnagar v. Mamidi Mallamma and others[4]. The learned counsel for the claimant would submit that since the trailer was admittedly insured, there is no requirement under law that both the vehicles should be insured. He would further contend that as the claim was made against the owner of the trailer, the appellant-Insurer cannot deny its liability. The undisputed facts are that at the time of accident, the claimant was traveling in the trailer bearing registration No.AP 5Y 1996 and the said trailer was covered by Ex.B.1-insurance policy insured with the Insurer. The third respondent is the registered owner of the trailer. Indisputably, the accident occurred due to the rash and negligence on the part of the respondent No.2 who was the driver of the tractor. In order to appreciate the contention whether the Insurer is also liable notwithstanding that the tractor was not insured, it is necessary to examine the relevant provisions. Under Section 2(28) of the Motor Vehicles Act, 1988, “motor vehicle” or “vehicle” means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle or a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty-five cubic centimetres. Therefore, as per the said provision, a trailer is a “motor vehicle” or a “vehicle”. Trailer is separately defined in clause (46) as any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle. Similarly, under clause (44) “tractor” means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller. As per the said definitions, although a trailer is not a mechanically propelled vehicle and cannot move on its own but to be drawn by another motor vehicle, it is still a vehicle for the purpose of the Act by virtue of the inclusive definition in clause (28). As per Section 61 of the Act, the provisions of Chapter-IV (registration of motor vehicles) shall apply to the registration of trailers as they apply to the registration of any other motor vehicle. The registration mark assigned to a trailer shall be displayed in such manner on the side of the drawing vehicle as may be prescribed by the Central Government. No person shall drive a motor vehicle to which a trailer is or trailers are attached unless the registration mark of the motor vehicle so driven is displayed on the trailer or on the last trailer in the train in the manner prescribed by the Central Government. As per Section 39, no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit a vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with Chapter-IV and the vehicle carries a registration mark displayed in the prescribed manner. The proviso to Section 39 exempts a motor vehicle in possession of a dealer subject to such conditions, as may be prescribed by the Central Government. Hence, as per Section 61 read with Section 39, it is mandatory to register every vehicle. Trailer is no exception to the said requirement. Under Rule 47 of the Central Motor Vehicles Rules, 1989, an application for registration of a motor vehicle shall be made in Form 20 to the registering authority within a period of seven days from the date of taking delivery of such vehicle and it should be accompanied by sale certificate in Form 21; valid insurance certificate; copy of the proceedings of the State Transport Authority or Transport Commissioner or such other prescribed authorities for the purpose of approval of the design in the case of a trailer or a semi trailer; original sale certificate in Form 21 in the case of ex-army vehicles; proof of address; temporary registration, if any; road-worthiness certificate in Form 22 from the manufacturers, Form 22-A from the body builder; customs clearance certificate in case of imported vehicles; appropriate fee; proof of citizenship; and proof of legal presence in India in addition to proof of residence in case of foreigners. The said rule, therefore, postulates that for registration of a trailer, it should have been insured and in addition to the same, proceedings relating to the purpose of approval of the design in the case of a trailer or a semi trailer should also be produced. As per rule 48, certificate of registration would be issued in Form 23 or 23-A, as the case may be. Form 23 contains additional entries in relation to the trailers. On an examination of the aforesaid provisions, it must be held that a trailer even though drawn by a motor vehicle, it by itself is a motor vehicle and it is required to be registered separately notwithstanding registration of tractor. As noted above, the learned counsel for the Insurer, placing reliance on the judgments cited, would seek to contend that both the vehicles i.e. tractor and trailer should be insured in order to fasten liability notwithstanding the insurance of the trailer. Janarasupally Kotiratnamma and others (1 supra) was a case wherein the tractor alone was insured but not the trailer. The deceased was traveling in the trailer at the time of accident. It was held that if both the tractor and trailer are insured, the Insurer would be liable to indemnify the owner against the claims arising out of the use of tractor and trailer. Laxmanna (died) per L.Rs. and another (2 supra) was a case in which the claimant therein was traveling in the trailer and the trailer was not insured. After examining the definitions of the motor vehicle, tractor and trailer it was held that a trailer is a motor vehicle for all practical purposes and hence the trailer is also required to be insured separately regardless of the fact that it is attached to a tractor. In Mamidi Mallamma and others (4 supra) the claimant was traveling in the trailer which was insured as also the tractor. It was held that the trailer is a motor vehicle as per the provisions of Section 2 (28) of the Act and held that the Insurer is also jointly liable along with the owner of the trailer and the driver of the tractor. In yet another case in Gunti Devaiah v. Vaka Peddi Reddy[5], wherein the claimants travelled in the trailer, it was held that even though Section 2(28) embraces trailer within the definition of ‘motor vehicle’ or ‘vehicle’, but further distinction has to be drawn between the vehicle and motor vehicle and that distinction has to be carved out on the basis of the specific definition given to the word trailer. Therefore, while all the motor vehicles fall within the definition of motor vehicles, but all the vehicles are not motor vehicles. It was therefore, held that insurance of trailer is not a mandatory requirement under the provisions of 146 of the Act and if the prime mover/motor vehicle/tractor is insured and the negligence of the driver of the said motor vehicle is established, compensation is payable by the owner of the tractor and Insurer irrespective of the fact whether the victim suffers injury with the tractor or the trailer. The aforesaid judgments were rendered by the learned single judges. In a later case in United India Insurance Company Limited v. Koduru Bhagyamma and Others[6] when a contention was raised that as the trailer in which the deceased was traveling was not insured, although it was attached to the tractor which was insured, no liability could be fastened upon the Insurer, the matter was referred to a Division Bench for a decision whether the Insurer can be fastened with the liability of a person while traveling in a trailer (not insured) attached to the tractor (insured). After considering all the judgments referred to above and the judgment of the Karnataka High Court in N.Chandrashekara and Others (3 supra), the judgment of the Division Bench of Madhya Pradesh High Court in Jitendra and Others v. Bhai Ram and Others[7], and the judgment of the Division Bench of Gujarat High Court in United India Insurance Company Limited v. Manjula Ben Purshotham Das and Others[8], the Division Bench held that a trailer is not a motor vehicle but becomes part of a motor vehicle when it is drawn by a motor vehicle because sub-Section 28 to Section 2 makes a special reference to a trailer and trailer cannot be moved on roads except by a propulsion transported thereto by a motor vehicle and therefore, a trailer attached to a motor vehicle is a part of the motor vehicle itself. It was held that no separate insurance is contemplated for a trailer and when the trailer is attached to the tractor, which is insured, it becomes the part of the tractor. In the light of the view expressed by the Division Bench in Koduru Bhagyamma and Others (6 supra), the judgments cited by the learned counsel for the Insurance Company are of no avail to the Insurance Company. On the other hand, if the reasoning in the said judgment of the Division Bench which is to the effect that a trailer attached to a motor vehicle is a part of the motor vehicle and that no separate insurance is required for a trailer is accepted, it equally applies to a converse case where a trailer alone is insured. Even otherwise, since I have taken the view that the trailer by itself is a motor vehicle and in the instant case, as the trailer was insured, the Insurer is obligated to discharge the liability arising out of the policy, notwithstanding that the tractor was not insured. The learned counsel however would contend that liability should not be fastened to the appellant since the owner of the tractor was not impleaded. The said contention cannot be accepted for the simple reason that the Insurer cannot avoid its obligation as an “insurer” of the “trailer”. The Insurer is bound to discharge the liability arising out of a valid insurance policy notwithstanding that he may be entitled to avoid or cancel the policy as if he were the judgment debtor. Sub-Section (1) of Section 149 of the Act is clear on this aspect. The only defences available to the Insurer are those enumerated in Sub-Section (2) thereof. It is not the case of the appellant that any such enumerated conditions, including the driving licence of the driver of the tractor who was impleaded as respondent in the O.P. are existed to avoid the liability on the said objection. By insuring only the trailer the Insurer has consciously entered into contract with the insured and undertaken the obligation to discharge the liability arising out of such contract and indemnify the insured. Avoiding such obligation is not just and proper. In the analysis above, it must be held that the appellant-Insurer is also jointly and severally liable. Cross-Objections : The claimant sought for a compensation of a sum of Rs.5,00,000/-. P.W.2, an Assistant Professor of Orthopedic working in the Government General Hospital, Kakinada in his evidence stated that the claimant was admitted in the hospital on 09-12-2002. He found fracture D.12 vertebra swelling and tenderness over the right lower rib and clinically fractured 6th, 7th, 8th, 9th and 10th ribs on right side. He certified that two injuries are grave in nature and after treatment the claimant was discharged on 28-01-2003. He was again re-admitted on 14- 03-2006 and discharged on the same day. He further deposed that the spinal card was completely damaged and he was not able to walk or even to attend to nature calls. The claimant requires medication and an attendant for his day-to-day life. P.W.2 was not cross-examined by the Insurer. However, P.W.2 did not indicate percentage of disability in the absence of which it is not possible to assess the loss of earning capacity. But, having regard to the nature of the injuries, the Tribunal awarded Rs.30,000/-. Based on the evidence of P.W.2 regarding disability and the income of the claimant per day at Rs.100/- as cooly, awarded Rs.50,000/- towards loss of earning. Rs.5,000/- was awarded towards transport. Based on Exs.A3 and A4 documents, awarded Rs.9,435/- towards medical expenses. Since the petitioner was hospitalized, a sum of Rs.15,000/- was awarded towards attendant charges. Rs.1,00,000/- was awarded towards mental agony and continuing pain and suffering and Rs.2,50,000/- towards permanent disability. In all, Rs.4,59,435/- was awarded with interest at 6% per annum. In my considered view the said compensation is just and reasonable in the circumstances of the case. I, therefore, hold that the claimant is not entitled for enhancement in this appeal. In the result, M.A. C.M.A. No.41 of 2007 and Cross-Objections are dismissed. There shall be no order as to costs. ______________ NOUSHAD ALI, J. Date : 20-08-2010. Note : L.R. copy to be marked. B/O tsr/skmr [1] 1999 (6) ALT 745 [2] 2004 (5) ALT 398 [3] 1997 ACJ 512 [4] 2001 (4) ALT 554 [5] 2003 (6) ALT 300 [6] 2008(2)ALD 273 [7] 2006 ACJ 1217 [8] 1994(1) GLR 269