(Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicle Act, 1988, to set aside or modify the order of the Learned Tribunal in M.C.O.P.No.435 of 2008 dated 11.03.2010, on the file of the Motor Accidents Claims Tribunal, I Additional District Court, Tirunelveli, and allow the appeal with costs and thus render justice.)
1. The fourth respondent in M.C.O.P.No.435 of 2008, on the file of the Motor Accident Claims Tribunal, I Additional District Court, Tirunelveli, has filed the present Civil Miscellaneous Appeal, challenging the award dated 11.03.2010 passed in M.C.O.P. No.435 of 2008.
2. Facts of the case:
2.1.The case of the claimants is that, on 15.11.2007 at about 2.30 p.m., the deceased, Arunachalam, was riding his bicycle on Trivandrum Road at Vannarpettai, on the eastern side of the Chellapandian Statue, opposite Achees Hotel, and was proceeding from east to west on the left side of the road. At that time, the tractor with trailer bearing Registration No.TN-72-P-4780, insured with the appellant-Insurance Company, was driven by its driver in a rash and negligent manner and dashed against the deceased. In the impact, the front wheel of the tractor ran over the deceased, resulting in fatal injuries. The deceased succumbed to the injuries. In connection with the accident, an FIR was registered in Crime No.1481 of 2007 by the jurisdictional police. The legal representatives of the deceased thereafter filed M.C.O.P.No.435 of 2008, claiming compensation of Rs.15,00,000/-.
2.2.The appellant-Insurance Company contested the claim. The principal contention of the appellant was that the driver of the insured vehicle was not possessing a valid and effective driving licence to drive the tractor-trailer combination. According to the appellant, the driver possessed only a Light Motor Vehicle licence, whereas the tractor together with the trailer weighed more than 7,500 kilograms and, therefore, a licence authorising the driver to drive the relevant class of vehicle was required. Hence, according to the appellant, there was a fundamental breach of the policy conditions and the Insurance Company is entitled to be exonerated.
2.3.Before the Tribunal, the claimants were examined PW-1 and PW-2 and were marked Ex.P-1 to Ex.P-6. On the side of the respondents, Exs.R-1 to R-8 were marked and RW-1 to RW-4 were examined.
3. Findings of the Tribunal:
3.1.The learned Tribunal, after considering the oral and documentary evidence, fixed the liability upon the fourth respondent/appellant-Insurance Company and Respondents 1 to 3 and directed them to pay the compensation jointly pay a sum of Rs.5,64,000/- under the following heads:
| Sl.No. | Heads | Amount in Rs. |
| 1 | Loss of Income | 5,04,000/- |
| 2 | Mental Stress | 20,000/- |
| 3 | Consortium | 20,000/- |
| 4 | Loss of Love and affection | 15,000/- |
| 5 | Funeral Expenses | 5,000/- |
| Total | 5,64,000/- | |
4. Submissions of the learned counsel appearing for the appellant:
4.1.The learned counsel appearing for the appellant-Insurance Company would submit that the tractor was insured with the third respondent-insurance company, whereas the trailer was insured with the appellant-insurance company. The driver of the tractor possessed only an LMV licence. The combined weight of the tractor and trailer was stated to be more than 7,500 kilograms. Therefore, according to the learned counsel, the driver was not authorised to drive the tractor-trailer combination and there was a breach of the policy conditions. The learned counsel would further submit that the Tribunal ought to have ordered pay and recovery.
4.2.The learned counsel would also contend that the Tribunal adopted an erroneous multiplier of 18, though the deceased was aged about 70 years. According to the settled principles laid down by the Hon'ble Supreme Court in Sarla Verma v. Delhi Transport Corporation and subsequently affirmed and explained in National Insurance Company Ltd. v. Pranay Sethi, the appropriate multiplier for a person aged between 66 and 70 years would be 5. Therefore, the multiplier adopted by the Tribunal requires interference.
5. Submissions of the learned counsel appearing for the respondent:
5.1.Per contra, the learned counsel appearing for the claimants would submit that there was no requirement for the driver to possess a heavy motor vehicle licence for driving the Tractor fitted with the trailer in the circumstances of the present case. The Tribunal has correctly appreciated the evidence and fixed the liability upon the insurers. As regards the multiplier, the learned counsel would submit that, even if a lesser multiplier is adopted, the Tribunal had not awarded any amount towards future prospects and, therefore, the overall compensation does not warrant reduction.
6. This Court has considered the rival submissions and perused the materials available on record.
7. The following questions arise for consideration:
(i) Whether the driver possessing an LMV licence was duly authorised to drive the tractor with trailer involved in the accident?
(ii) Whether there was a breach of the policy conditions so as to exonerate the appellant-Insurance Company or, alternatively, warrant an order of pay and recovery?
(iii) Whether the multiplier of 18 adopted by the Tribunal is legally sustainable and, if not, whether the compensation requires reduction?
8. Discussion and findings:
8.1.It is an admitted fact that the vehicle involved in the accident is a tractor attached with a trailer. The tractor was insured with the third respondent- Insurance Company, whereas the trailer was insured with the appellant-Insurance Company. Since the accident occurred on 15.11.2007, the legal position prevailing on the date of the accident has to be considered. Section 2(14) of the Motor Vehicles Act, 1988 defines “goods carriage”, Section 2(44) defines “tractor” and Section 2(46) defines “trailer”. The statutory definitions are therefore relevant for determining the nature and classification of the vehicle involved in the accident.
8.2.The Hon'ble Supreme Court, in the case of National Insurance Co. Ltd. v. V. Chinnamma, reported in (2004) 8 SCC 697, while considering a tractor fitted with a trailer, explained that a tractor by itself is not a goods carriage and that a tractor fitted with a trailer may or may not answer the definition of “goods carriage”, depending upon the manner in which the vehicle is constructed, adapted and used.
8.3.Therefore, the mere fact that a trailer was attached to the tractor cannot, by itself, conclusively establish that the driver was required to possess a heavy motor vehicle licence. The nature of the vehicle, its registered classification, the permissible gross vehicle weight and the terms of the policy have to be examined.
8.4.In the present case, the appellant-Insurance Company has specifically pleaded that the tractor and trailer together weighed more than 7,500 kilograms and that the driver possessed only an LMV licence. However, the mere assertion of the Insurance Company is not sufficient. The burden lies upon the insurer to establish the alleged breach of the policy condition by acceptable evidence.
8.5.On a careful consideration of the evidence of RW-1 to RW-4 and the documents marked as Exs.R-1 to R-8, this Court finds that the appellant has not satisfactorily established that the driver was disqualified from driving the particular tractor fitted with a trailer under the licence possessed by him. The appellant has also not established, by cogent evidence, that the alleged classification of the vehicle necessarily required a heavy motor vehicle licence in the facts of the present case.
8.6.It is equally relevant that the Tribunal, after appreciating the evidence, has rejected the contention of the Insurance Company and fixed the liability upon the insurers. The said finding cannot be interfered with merely on the basis of an assertion regarding the weight of the vehicle, in the absence of satisfactory proof regarding the registered classification and the precise licensing requirement applicable to the vehicle.
8.7.Therefore, this Court finds no sufficient ground to exonerate the appellant-Insurance Company from its liability. The contention regarding breach of policy conditions is accordingly rejected.
9. Discussion on quantum:
9.1.The next issue relates to the multiplier adopted by the Tribunal. The Tribunal has adopted a multiplier of 18. The said multiplier is clearly inconsistent with the principles laid down by the Hon'ble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation and the subsequent decision in the case of National Insurance Company Ltd. v. Pranay Sethi. The appropriate multiplier has to be determined with reference to the age of the deceased.
9.2.If the deceased was aged about 70 years, the multiplier applicable under the settled principles would necessarily be substantially lower than 18. Therefore, the Tribunal committed an error in adopting the multiplier of 18.
9.3.However, the question that remains is whether the correction of the multiplier would necessarily result in reduction of the overall compensation. The compensation has to be assessed as a whole, taking into consideration all the permissible heads. It is also relevant that the Tribunal has not granted any amount towards future prospects.
9.4.Therefore, the compensation cannot be mechanically reduced merely by substituting a lesser multiplier without examining the overall computation under all the heads. The benefit, if any, arising from correction of the multiplier has to be considered along with the amounts legitimately payable under the other heads.
9.5.In the facts and circumstances of the present case, this Court finds that, even after applying the appropriate multiplier, the total compensation to be awarded would not come down, particularly when the Tribunal has not granted any amount towards future prospects and the other conventional heads have also to be taken into consideration.
9.6.Consequently, though the multiplier of 18 adopted by the Tribunal is not legally correct, this Court finds that the overall compensation awarded does not call for reduction in the peculiar facts of the case.
10. Result:
10.1.In the result, the Civil Miscellaneous Appeal is dismissed. The award dated 11.03.2010 passed in M.C.O.P.No.435 of 2008 on the file of the Motor Accidents Claims Tribunal, I Additional District Court, Tirunelveli, is confirmed.
10.2.The appellant-Insurance Company and Respondents 2 to 4 jointly, is directed to deposit the entire award amount, together with accrued interest and costs, if not already deposited, within a period of six weeks from the date of receipt of a copy of this judgment.
10.3.On such deposit, the legal representatives of the deceased are permitted to withdraw the amount as apportioned by the Tribunal, together with accrued interest and costs, in accordance with law. There shall be no order as to costs. Consequently, connected Miscellaneous Petitions is closed.