IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 07.11.2008 CORAM: THE HONOURABLE MR.JUSTICE S.PALANIVELU C.M.A. No.10 of 2002 and Cross Objection No.47 of 2008 S.Murthy ... Appellant/first respondent/first respondent in Cross Objection 47/08 – Vs - 1. Rajaram 2. Saraswathi 3. Suba Nandhini (Minor) 4. Manikandan (Minor) rep by their father and next friend natural Guardinan Rajaram ... Respondents/Petitioners/Cross Objectors in Cross Objection 47/08 5. United India Insurance Co. Ltd., Mayiladuthurai, Nagai Distirct. ... 5th Respondent/2nd respondent 2nd respondent in Cross Objection 47/08 Prayer: Appeal filed under Section 173 of the Motor Vehicles Act 1988, against the award dated 20.06.2001 passed in M.A.C.T.O.P.No.383 of 1995 on the file of the Motor Accidents Claims Tribunal, Chidambaram. For Appellant : Mr.R.Subramanian For R1 to R4 : Mrs.Mythili Srinivas For R5 : Mr.K.S.Narasimhan * * * * * https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T This Civil Miscellaneous Appeal is filed challenging the judgment dated 20.06.2001, passed in M.A.C.T.O.P.No.383 of 1995 on the file of the Motor Accidents Claims Tribunal, Chidambaram. 2. The allegations found in the claim petition are as follows:- On 26.10.1994 at about 4.40 p.m. while Padmasangari was coming from college in her by-cycle, near Kaliakudi Hotel on the left side of the road, a tractor bearing registration No.TN 51 Y 1950 was driven in a rash and negligent manner by its driver, dashed against her, who fell down and the trailer annexed to the tractor bearing registration No.TNM 5082 ran over her head. Hence, she died in the spot. She was earning Rs.40/- per day by job typing besides her school study. A compensation of Rs.1,00,000/- is claimed. The Tribunal has awarded Rs.1,00,000/- as compensation, as claimed by the claimants. Aggrieved over the award, the first respondent, the owner of the vehicle has filed the present appeal. 3. In the counter filed by the first respondent/owner of the vehicle, it is stated as follows:- The accident took place only due to the negligence on the part of the deceased. The driver of the tractor was driving slowly and carefully along Pattamangalam street. The street was over crowded and no vehicle could go fastly. Without observing traffic rules, the deceased Padmasangari dashed against the tractor. The amount claimed by the petitioner is very high and excessive. No income was derived by the deceased. The tractor was insured with the second respondent/Insurance Company. The driver Arumugam is having valid licence. The second respondent only has to pay the compensation. So, the petition has to be dismissed. 4. In the counter filed by the second respondent/Insurance Company, it is stated thus:- The allegation that the driver of the tractor drove it rashly and the age of the deceased was 18 years studying https://hcservices.ecourts.gov.in/hcservices/ +2 in Government Girls Higher Secondary School, Pattamangalam, Mayiladurai are denied. It is also denied that the deceased was earning Rs.30 or 40 per day. The age, studies, self employment, income and earning capacity of the deceased are not admitted. The tractor and trailer were not covered by Insurance. The driver of the vehicle does not possess valid driving licence to drove such class of vehicle on the date of accident. The accident took place due to the carelessness and negligence of the deceased. The School children used to come out of the school in a careless manner in the evening hours. In that situation, Padmasangari came in her by-cycle in a careless manner without observing traffic rules and hit on the tractor, which was coming from the opposite direction. Hence, she contributed to the accident. So, this respondent is not liable to pay the compensation. The amount claimed is excessive and exaggerated. Hence, the petition has to be dismissed. 5. In the additional counter filed by the second respondent, it is stated as follows:- “The driver of the vehicle possessed a licence only to drive light motor vehicles and no endorsement was made or secured to drive the tractor towed with trailer and or for public service vehicles.” 5(1). The respondents/claimants have filed cross objections praying the court to award at additional compensation of Rs.1,50,000/-, totally Rs.2,50,000/-. 6. There is no much dispute before this Court with regard to the anchoring of responsibility upon the driver of the vehicle. The Insurance Company very much assails the contentions of the appellant, who is the owner of the vehicle by stating that the driver Arumugam did not possess valid licence at the time of accident, specifically stating that he was not having licence to drive tractor with trailer at the time of accident and hence the Insurance Company could not be mulcted with any responsibility. It is no doubt true that the tractor has been insured with the 5th respondent/Insurance Company, but it is denied that the trailer was not covered by Insurance. https://hcservices.ecourts.gov.in/hcservices/ 7. The learned counsel for the appellant would contend that even if a driver is possessing a valid licence to drive a motor vehicle, it can be presumed that he is not at all disqualified from driving any other category of vehicle. In support of this contention, he placed reliance upon the decision of the Hon'ble Supreme Court reported in 2001 (6) Supreme 171 (Nagashetty v. United India Insurance Co. Ltd., & Others), in which, their Lordships have held as follows:- “10. ... Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make that tractor of motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid driving licence to drive a tractor or a motor vehicle he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words a person having a valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle.” 8. It is his further contention that even if the trailer was not insured, if it is found that the tractor portion hit the insured, thereby a death was caused by run over of trailer, it is to be held that the Insurance Company, which insured the tractor is responsible to pay the compensation. For this proposition, he has cited a decision of this Court reported in 2001 (3) MCJ 496 (K.M.Manoharan (deceased) and others v. Kandasamy and others), wherein it has been stated as follows:- “In this case, when the tractor-trailer was used in combination and when under the definition section of the Act, both the tractor and the trailer are motor vehicles, the inescapable conclusion that can be drawn is that the accident had happened because of https://hcservices.ecourts.gov.in/hcservices/ the use of both the vehicles, the tractor and the trailer used in combination. If the tractor alone had been used, the accident would not have happened. But if the trailer had been dissociated from the tractor, the trailer would not have run over the deceased as the trailer would not have jerked over the body of the deceased since the trailer would have been motionless. Therefore, since the accident occurred because of the rash and negligent driving of the tractor-trailer, the owner of the tractor and the owner of the trailer are jointly and severally liable to pay the compensation and the insurers of both the vehicles are also liable to indemnify the claim made against them.” 9. As far as the facts dealt with in the above said cases are concerned, both the tractor and trailer were insured and the owner of both the vehicles were also different. In such circumstances, this Court has observed that the owners of the vehicles as well as the Insurance Company are liable to pay compensation and responsibility of each is joint and several. But in the case on hand, admittedly the trailer was not insured. It transpires that the trailer also belongs to the appellant. Hence, whatever may be the role attributed to the driver in driving the tractor, the consequent happening by means of the trailer would stare at the appellant. 10. Conversely, Mr.K.S.Narasimhan, the learned counsel for the fifth respondent/Insurance Company would draw attention of this Court to a subsequent decision of the Hon'ble Apex Court reported in 2006 ACJ 1336 (National Insurance Co. Ltd v. Kusum Rai and others), wherein it has been held that if the driver does not possess valid licence to drive a commercial vehicle, it is violation of the policy conditions and however, the Insurance Company may recover the amount paid, from the owner by initiating proceedings before the executing court. The Hon'ble Supreme Court is of the opinion that the appellant/Insurance Company was not liable to pay the claimed amount, as the driver was not https://hcservices.ecourts.gov.in/hcservices/ possessing a valid licence and the High Court was error in holding otherwise. Adverting to the circumstances in this proceedings, there is nothing to show that the driver was possessing a valid licence to drive tractor. 11. While the case was pending before the Motor Accident Claims Tribunal, the learned counsel for the claimant by means of a notice required this appellant to furnish Insurance Policy, Registration Certificate, Permit for tractor and trailer and driving licence of the driver. The notice has been marked as Ex.R3. Ex.R2 is the 'C' form, in which, it is stated as “driving licence not valid-not authorised to drive the vehicle. 12. Before the Tribunal, the driving licence was not produced. R.W.1 is the Manager of the Insurance Company, who says that the 'C' form was filled up by one Kalyanaraman and he is in Kumbakonam. The vehicle owner is bound to verify the driving licence possessed by his driver and he has also to ascertain whether he has obtained any authority or necessary endorsement on the driving licence to drive particular category of vehicle. In the additional counter filed by the Insurance company, it is stated that the driver is having licence only to drive light motor vehicles and there was no endorsement authorising him to drive tractor or trailer. 13. The learned counsel for the fifth respondent/Insurance Company also garner support from the decision of this Court reported in 2007 (2) TN MAC 216 (Oriental Insurance Co. Ltd., rep. by its Branch Manager & another v. Sivammal and others), in which, a learned single Judge of this court after referring various decisions of the Hon'ble Supreme Court and other High Courts has concluded as follows:- “38. On a careful analysis of the judgements cited by the learned counsel appearing for the parties and the materials on record, I am of the considered opinion that if a person is already in possession of a driving licence authorising him to drive a vehicle other than a transport vehicle, he cannot be https://hcservices.ecourts.gov.in/hcservices/ permitted to drive a transport vehicle, unless as per Form 6 and in terms of Rule 16 of 1989 (Central) Rules, the driving licence additionally authorises and entitles him to drive a transport vehicle, in addition to any other type of vehicle for which the driver might have already been licence/authorised to drive. A person having Light Motor Vehicle is not authorised to drive a commercial vehicle without due endorsement made by the competent authorities. The driving licence to drive light motor vehicle is not appropriate to drive an autorickshaw which is a transport vehicle. ...” 14. In the absence of the production of proper licence before the Court as per the learned counsel for the fifth respondent, it must be presumed that the driver was not possessing valid licence to drive tractor with trailer at the time of accident. 15. But, in view of the dictum laid down in the Nagashetty's case (cited supra) by the Supreme Court, if a person is having valid driving licence to drive tractor, it must be presumed that he continues to have a valid licence to drive the tractor, even if a trailer is attached to it. Following the said principles in this proceedings, it has to be held that the appellant / insured could not have been stated to have violated the policy conditions. Hence, in the considered opinion of this Court, the driver is presumed to have possessed valid licence to drive the tractor along with the trailer. Hence, the insurance company has to be held responsible to compensate the claimants. 16. The claimants have filed a cross objection for awarding enhanced compensation to the tune of Rs.2,50,000/-. It is their contention that besides her education, the deceased was doing job typing work and was earning about Rs.30 or 40 per day. The oral evidence of her father is also as such. Conversely, the mother of the deceased deposed that the deceased was earning a sum of Rs.50/- per day by sewing. After referring to the above said different version, the https://hcservices.ecourts.gov.in/hcservices/ learned trial Judge has found that the deceased was not earning anything. 17. In this context, the guidelines set out by the Hon'ble Supreme Court in a decision reported in 2005 ACJ 99 = IV 2005 ACJ 15 (SC) (Manju Devei and another v.Musafir Paswan and another), it is held that in case of death of a boy aged 13 years in a road accident on 02.07.1998, notional income for a non earning person was fixed at Rs.15,000/- per annum. The multiplier 15 was adopted and a sum of Rs.2,25,000/- was awarded to the claimants parents against the award of Rs.90,000/- by the Tribunal. 18. In the case on hand, the deceased was aged about 18 years and it is more appropriate to fix her notional income at Rs.15,000/- per annum and adopting the multiplier of 15, a sum of Rs.2,25,000/- has to be arrived. It is the enhanced compensation to be awarded to the claimants. 19. In fine, the Civil Miscellaneous Appeal is allowed. No cost. The cross objection filed by the claimants is allowed to the extent of Rs.2,25,000/- payable by the fifth respondent/Insurance Company along with interest at the rate of 7.5%, for the enhanced compensation to be deposited within eight weeks from the date of receipt of a copy of this order. In the enhanced compensation, both the first and the second claimants, viz., the parents of the deceased are entitled to Rs.1,00,000/- and Rs.1,25,000/- respectively. Since the third and the fourth claimants are sister and brother of the deceased, who could not be treated to be dependants on the deceased, are not entitled for any compensation. The award of the Tribunal is modified as indicated above. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Motor Accidents Claims Tribunal, Chidambaram. 2. The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr. R. Srinivas, Advocate, SR No.62677 + 1 cc to Mr. K. S. Narasimhan, Advocate, SR No.62213 Judgement in C.M.A. No.10 of 2002 and Cross Objection No.47 of 2008 KA(CO) SR/8.12.2008 https://hcservices.ecourts.gov.in/hcservices/