(Prayer: This MFA is filed u/s 173(1) of MV Act against the Judgment and Award dated:2.2.2012 passed in MVC No.1002/2010 on the file of the Presiding Officer, Fast Track Court-II, MACT, Tumkur, awarding a compensation of Rs.4,79,000/- with interest @ 6% p.a.)
1. The appellant is the insurer and is before this Court being aggrieved by the judgment and award dated 2.2.2012 passed in MVC No.1002/2010.
2. The parties to the appeal are referred to by their nomenclature before the Tribunal.
3. The claimants are the husband and the minor children of the deceased, one Narasamma. It is the case of the claimants that on 4.7.2010 at about 9.30 PM the deceased was sitting in front of her house after finishing dinner and that the residence is abutting the National High way running through Bellavi Town. It is stated that the motor cycle was being driven slowly on the left side of the road and suddenly the offending vehicle, being a tractor trailer bearing registration Nos. KA 06 T 6426 and KA 06 T 6427 respectively, came at a high speed and dashed against the motor cycle; that the offending vehicle was being driven in a rash and negligent manner and only on account of the rash and negligent driving of the offending vehicle, it collided with the motor cycle and on account of the collision, the motor cycle came and hit the deceased and the claimant Nos.1 and 3, who were sitting in front of their house, resulting in the accident but the accident squandered the life of the deceased.
4. It is submitted that the deceased suffered grievous injuries to the head, chest and limbs and all over the body and she was immediately moved to the nearby hospital, but she breathed her last while being shifted to the hospital and that the deceased was aged 25 years and was hale and healthy. It was contended that the deceased was carrying on the business of vending vegetables, was earning Rs.6,000/-p.m. and was contributing the entire income for the well being and welfare of the family, more particularly for the up-keep and growth of claimants 2 and 3 who are minor children; that on account of her death, claimants 2 and 3 have lost the love and affection of a mother and that the first claimant has lost his life partner and apart from the emotional support, they have also lost the services of the deceased who was a devoted lady of the house and that the claimants had spent about Rs.50,000/- for performing the funeral rites, obsequies ceremony and that the jurisdictional police have also registered a criminal case as against the driver of the offending vehicle.
5.The first claimant got himself examined as PW1 and also got examined PW2-Asst.R.T.O. Tumkur in support of his case. That apart he also placed on record and got marked exhibits P1 to P11.
6. The insurer got marked Ex.R1 which is the copy of the policy. The Tribunal after detailed analysis of the material on record and the testimonies of both the parties, was pleased to partly allow the claim petition and awarded a sum of Rs.4,79,000/- as compensation along with interest at the rate 6% p.a. from the date of petition till the date of deposit. Further, the insurer was directed to satisfy the claim. Aggrieved by the same, the insurer is before this Court.
7. It is vehemently contended by the appellant s counsel that the impugned judgment and award is unsustainable. He would submit that the Tribunal erred in awarding compensation in respect of the trailer which is not covered under the policy of insurance and hence there is no liability upon the appellant to indemnify the owner-insured.
8. Learned counsel for respondent No.4-owner of the tractor would vehemently oppose the same. He would draw the attention of this Court to Ex.R1 which is the policy placed on record by respondent No.4 himself. He would draw the attention of this Court to the column schedule of premium wherein the head Basic TP cover-Trailer attached, LL to paid driver, conductor, cleaner, employee is mentioned. Thus he would submit that the contention of the appellant that the attached trailer is not covered under the policy of insurance is baseless and hence he would pray that the appeal be rejected.
9. Heard the learned counsel for the appellant and the respondents.
10. The only point that arises for consideration is, whether the appellant is liable to satisfy the award against the insured/owner?
11. It is the contention of the learned counsel for the appellant that the appellant is entitled to avoid the liability on account of the fact that the trailer which has been attached to the tractor at the time of accident is not covered under the policy of insurance. It is seen that the deceased was hit by a motor cycle and the admitted fact is that the motor cycle was hit by a tractor. It cannot be disputed that the tractor draws the trailer. Now the question is whether the motor cycle was hit by the tractor or the trailer?
12. It is the contention on behalf of the respondents that the motor cycle, in fact, was hit by the tractor only. That being so, it cannot be disputed that the tractor which is covered under the policy of insurance and that the owner and driver of the tractor being covered under the policy of insurance are primarily liable to satisfy the award. The appellant being the insurer is liable to indemnify the owner-insured. That apart the policy note carries an endorsement to the effect Basic TP coverage-Trailer attached, .. . From the above it can be safely inferred that the coverage is extended to the Trailer also. Though it is contended that a separate insurance policy must be availed, the learned counsel is unable to explain the above endorsement.
13. The issue whether the trailer is insured or not may not be of prominence in the present facts and circumstances as there is no material on record to demonstrate that the accident was caused by the trailer. Even otherwise endorsement in the policy clearly indicates the trailer attached and hence the appellant cannot avoid the liability of satisfying the claim which arose on account of the accident caused by the tractor when attached to the trailer and hence the contention of the appellant that there is no liability to satisfy the claimants deserves to be rejected and is accordingly rejected.
14. Learned counsel for the appellant would submit that though the policy details as trailer attached , no separate premium has been collected as against the trailer as the registration number of the trailer is not detailed in the policy. Be that as it may, in the circumstances the undisputed fact as stated supra is that the motor cycle was hit by the tractor and hence the tractor being insured by the appellant, the appellant is bound in law to indemnify the insured/owner of the tractor.
15. In support of his contention the appellant s counsel relies on the ruling of the Division Bench of this Court in the case of The Oriental Insurance Co.Ltd vs Laxman and Others reported in ILR 2006 KAR 4355 and the ruling of the Apex Court in Oriental Insurance Co. Ltd vs Brij Mohan and Ors. reported in AIR 2007 Supreme Court 1971(1).
16. A perusal of the first judgment relied on, would disclose that the Court has dealt with a case where the facts reveal that the trailer was not insured and hence the Court was of the opinion that the appellant is entitled to avoid liability to satisfy the claim whereas in the latter judgment i.e. the ruling rendered by the Apex Court, it was the case of a worker of a brick-kiln who was sitting on the trolley attached to the tractor.
17. From a perusal of the ruling by the Division Bench of this Court it is seen that it was a claim by the legal representatives of the coolies who were traveling in the trailer but the facts on hand are totally different. In the present case on hand, the deceased was a by-stander and her death occurred on account of the negligent driving of the driver of the tractor resulting in colliding the motor cycle and in turn the motor cycle hitting the innocent by-stander who succumbed to the injuries sustained in the accident. Hence the rulings in the said case are inapplicable to the facts of the case on hand.
18. Accordingly, the appeal is rejected.
The amount in deposit may be transmitted to the jurisdictional Tribunal along with lower court records.